Lawsuit Filed Against "facebook"

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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CONNECTU, INC., Plaintiff,

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v.

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FACEBOOK, INC., MARK ZUCKERBERG, EDUARDO SAVERIN, DUSTIN MOSKOVITZ, ANDREW MCCOLLUM, CHRISTOPHER HUGHES, and THEFACEBOOK, LLC,

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Defendants

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) ) ) ) ) ) ) ) )

Civil Action No.: 1:07-CV-10593-DPW Related Action No. 1:04-CV-11923-DPW

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BEFORE:

THE HONORABLE DOUGLAS P. WOODLOCK

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MOTION HEARING

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John Joseph Moakley United States Courthouse Courtroom No. 1 One Courthouse Way Boston, MA 02210 Friday, November 30, 2007 12:35 p.m.

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Brenda K. Hancock, RMR, CRR Official Court Reporter John Joseph Moakley United States Courthouse One Courthouse Way Boston, MA 02210 (617)439-3214 Mechanical Steno - Transcript by Computer

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1 APPEARANCES: 2 3 4

Plaintiff ConnectU, Inc. Represented by:

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Daniel P. Tighe, Esq. GRIESINGER, TIGHE & MAFFEI, LLP 176 Federal Street Boston, MA 02110

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John F. Hornick, Esq. (Appearance via telephone) Margaret A. Esquenet, Esq. (Appearance via telephone) Meredith H. Schoenfeld, Esq (Appearance via telephone) FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 901 New York Avenue N. W. Washington, DC 20001

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Peter E. Calamari, Esq. (Appearance via telephone) Adam Wolfson, Esq. (Appearance via telephone) Renee Bea, Esq. (Appearance via telephone) QUINN EMANUEL URQUHART OLIVER & HEDGES LLP 51 Madison Avenue 22nd Floor New York, NY 10010

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Defendants Facebook, Inc. Thefacebook Mark Zuckerberg Andrew McCollum Christopher Hughes

21 Represented by: 22 23 24 25

I. Neel Chatterjee, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 (Appearances Continued next page)

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Steven M. Bauer, Esq. Mark Batten, Esq. (Appearance via telephone after recess) PROSKAUER ROSE LLP One International Place 22nd Floor Boston, MA 02110

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Defendant Eduardo Saverin Represented by: Nathan E Shafroth, Esq. (Appearance via telephone) HELLER EHRMAN LLP 333 Bush Street San Francisco, CA 94104

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Robert B. Hawk, Esq. (Appearance via telephone) HELLER EHRMAN LLP 275 Middlefield Road Menlo Park, CA 94025

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Daniel K. Hampton, Esq. HOLLAND & KNIGHT LLP 10 St. James Avenue Boston, MA 02116 I. Neel Chatterjee, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025

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Steven M. Bauer PROSKAUER ROSE LLP One International Place 22nd Floor Boston, MA 02110

22 23 (Appearances continued next page) 24 25

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02138 Represented by: Elizabeth Ritvo, Esq. BROWN RUDNICK One Financial Center Boston, MA 02111

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Robert P. Balin, Esq. (Appearance via telephone) Laura Handman, Esq. Amber Husbands, Esq. DAVIS, WRIGHT & TREMAINE 1633 Broadway New York, NY 10019-6708

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P

R

O

CLERK LOVETT:

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E

E

D

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N

G

S:

The Honorable Court is now in session.

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You may be seated.

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

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THE COURT:

Calling the case of Civil Action 07-10593

Well, this is Judge Woodlock.

I have a

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roll call that's been provided here, and in the course of the

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

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appearing by phone that they should identify themselves each

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time they speak so that the court reporter will be able to get

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the names properly.

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from you first on the question of what I guess I'd have to call

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

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views are with respect to that at the outset.

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I guess, Mr. Chatterjee, I'd like to hear

MR. CHATTERJEE:

I'm happy to do so, your Honor, and

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

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

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specific documents that have been posted online that are

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subject to the Court's protective order.

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to restrain the commentary and the articles that have been

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written about them.

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

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confidential information that has gotten out.

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

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

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Amendment protection between what is commentary and what are

This is not a request

In a perfect world, we want to try and

In our view, the

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things like this that are documents and our property.

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

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just submitted to you by the magazine, actually talks about

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that very distinction.

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THE COURT:

The

I'll have to say that I have not seen the

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

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attention.

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MR. CHATTERJEE:

Okay, your Honor, I'm happy to

provide you with the citations.

I'd like to start with one key

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

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excerpt from their submission that I think their argument

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pretty much hangs on, and it's the following statement on page

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4 of their brief.

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All of the --

THE COURT:

Just a moment.

I'm glad to listen to a

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

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there a copy of the document here?

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MR. CHATTERJEE:

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MS. RITVO:

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Is

Yes, your Honor, I believe.

Excuse me.

This was hand-delivered to the

Court on behalf of the magazine.

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THE COURT:

Okay.

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MR. CHATTERJEE:

Go ahead.

I now have it.

Your Honor, if you look at page 4,

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

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

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

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office of the United States Court of Appeals for the First

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Circuit." Your Honor, this is one of approximately 11 exhibits

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that were submitted to the First Circuit Court of Appeals,

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three of which are under seal.

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THE COURT:

Each one --

Let me just pause for a moment.

Are all

6

of the documents that are the subject of internet posting from

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the Court of Appeals appeal?

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MR. CHATTERJEE:

No, your Honor, and that was exactly

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

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at the very bottom pursuant to the First Circuit Rules.

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

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number on it.

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posted online, the online diary of Mark Zuckerberg and the cash

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

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

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going through this to confirm it, because we only received

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notice of this position recently, is not in the appellate

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record at all.

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what they have said they would submit in a declaration under

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oath from Mr. O'Brien, it's false.

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additional evidence to support that.

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Not a

In addition, two of the documents which are

So, that premise that their argument hangs on,

Your Honor, we have

The Harvard application for Mark Zuckerberg that is in

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the appellate record, as well as is attached to various court

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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

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handwritten notes were on the online posting that came up.

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THE COURT:

Do you know what iteration of that

document does have handwritten notes on it?

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MR. CHATTERJEE:

We had searched our production, your

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Honor, and we can't find it.

A new version of that document

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was posted on the 02138 website with those handwritten notes

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removed.

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produced with handwriting on them.

We have looked through other documents that have been We found some editorial

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changes to Dyvia Narendra's deposition.

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deposition, as you know, your Honor, you can always make

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certain changes if you have problems with them.

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THE COURT:

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MR. CHATTERJEE:

At the end of the

Right. We have submitted that handwriting,

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as well as the handwriting on the side of the notes to the

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Harvard application, to a handwriting expert, and, obviously,

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we did not have a whole lot of time for this and the sample

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size is relatively small, but under the accepted standards for

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handwriting analysis, between a ranking of 1 being a definite

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match and 9 being no match, the expert is telling us it's

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roughly a 3, which is a probable match.

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THE COURT:

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MR. CHATTERJEE:

24 25

Who is the expert? The expert's name is Bob Culman (ph),

Robert Culman, and he's a well-recognized expert. THE COURT:

Is he someone on the West Coast?

I'm not

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1

familiar with him.

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MR. CHATTERJEE:

He's in the Midwest, your Honor, and

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he's someone that our firm has worked with in the past.

In

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addition, the online diary that has been posted for Mark

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Zuckerberg, the document that's posted is in a file format

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called a pdf file.

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up certain information that isn't disclosed on the page called

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metadata.

The metadata is historical information about that

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document.

What that document reveals, the metadata document,

When you download a pdf file, you can pull

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is it reveals that someone named Lindsey B, we believe that's

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an employee of 02138, received the document, received a dot doc

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file, which is a Microsoft Word file format.

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significance, because if they got it from a court file, it

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wouldn't be in an electronic format, it would be in a hard copy

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format.

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that is available online, and then posted.

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electronic data came from somewhere, and it didn't come from

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the Court record.

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Now, that's

It was then converted to pdf, which is the file format

THE COURT:

Now, that

Do we know that for sure?

Frequently,

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materials that are submitted to the Court, even under seal, are

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put in the pdf format at some point.

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MR. CHATTERJEE:

Yes, your Honor, that is true,

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however, these documents from the online journal are -- the

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only place we could find in the court record where they were

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submitted was with respect to the first amended complaint, and

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we made a specific request to your Honor, which is currently

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under advisement, to keep that document under seal.

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yet been put online and is not currently publicly available.

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One other important fact about that particular document, the

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dot doc metadata indicates that the file was created on the

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first -- no, I'm sorry, on the 10th of January, 2006.

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produced the document on the 7th of January, 2006, three days

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earlier.

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they've said in these papers, at least, is not an accurate

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It has not

We

All of this information suggests to us that what

statement, and the information came from someplace else.

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THE COURT:

Well, let me see if I can break that down

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a bit.

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focus on the potential sources as more fully developed by your

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commentary.

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Let me put to one side the submission made by 02138 and

Are you suggesting that it comes from ConnectU?

MR. CHATTERJEE:

Your Honor, from what we've learned

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in the past 24 hours through this analysis, it certainly seems

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like at least some of it did.

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THE COURT:

All right.

Now, let me deal with that

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aspect of it, just for a moment.

Is not the way to deal with

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that to pursue a question of contempt against a party with a

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view toward developing a schedule to pursue it?

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one side the remedy, for a moment, because if it comes from

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them, irrespective of whether they pass it on to someone who

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disseminates it, they are directly within the scope of the

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Court's power to exercise control and sanction, if there's a

I'll put to

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violation of the Court's Orders.

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MR. CHATTERJEE:

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THE COURT:

Yes, your Honor, that is true.

All right.

Because there are two aspects

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of this that I'm interested in that are pressed, well, not

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altogether pressed by it, but that are part of this.

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aspect of it is who did it, and the second part is whether or

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not there is any remedy for it.

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part of it, it seems to me that further factual development has

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to be undertaken.

The first

Now, turning to the who did it

I recognize that you brought it along or

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wanted to bring it along as promptly as possible, nevertheless,

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I'm confronted with somewhat conflicting factual recitations, I

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suppose.

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try to get this right, and because it's a very serious

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matter --

I have a particular interest in making sure that I

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MR. CHATTERJEE:

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THE COURT:

It is, your Honor.

-- if one of the parties in this case has

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violated the protective order.

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that of the materials that have been submitted to me in

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connection with the motion, pending motion to dismiss and the

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motion for summary judgment, are included in the universe of

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materials that are posted on the web.

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MR. CHATTERJEE:

I also want to understand what

Any?

Yes, your Honor, and I don't remember

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the exact exhibit numbers, but the online diary of Mark

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Zuckerberg is one of the attachments.

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THE COURT:

If I could interrupt, that's one in which

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the parties continue to believe or at least have submitted to

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me that that should remain under seal.

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MR. CHATTERJEE:

Yes, your Honor.

I don't remember

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which of the other documents that are up on the web are

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attached to the first amended complaint.

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other ones are, but I can't say for certain.

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THE COURT:

Okay.

I don't believe the

Now, are all of the -- you said

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there were two documents, two or three documents that aren't in

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the appellate record; is that right?

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MR. CHATTERJEE:

Yes, your Honor.

This was the first

11

time we heard about it, about an hour and a half ago, but from

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our review and our recollection, Thefacebook cash flow

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statement and the online diary were not part of the appellate

14

record.

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MR. HORNICK:

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THE COURT:

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MR. HORNICK:

Your Honor, this is John Hornick.

Yes. I'm not sure that that's accurate.

I

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don't know the answer for sure, but I do know that, and we only

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saw this brief from 02138 about an hour ago ourselves, and

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we're not aware that the document had come from the First

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Circuit, but since that time, we've considered this issue that

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Neel is raising now about where -- whether all of these

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documents were in the appellate record, and Thefacebook had a

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motion pending in the First Circuit to dismiss the appeal as

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moot, and that motion involved the first amended complaint, and

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we do not know at the moment whether the first amended

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complaint was an exhibit or whether the exhibits to it were

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exhibits to that motion, but it's entirely possible that the

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First Circuit may have looked at the first amended complaint in

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the record.

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THE COURT:

So, is the suggestion, Mr. Hornick, that

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they have been somehow incorporated by reference in the First

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Circuit --

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MR. HORNICK:

Well, possibly, your Honor.

All I'm

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saying is that it's not clear that those documents were not in

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any way part of the appellate record or in the appellate

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court's records.

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THE COURT:

All right.

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MR. CHATTERJEE:

And, your Honor, just to speak to

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that, Mr. Hornick is correct, we did file a motion to dismiss

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the appeal as moot.

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the first amended complaint; rather, we referred to it in a

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request for judicial notice, but I just, I can't remember for

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certain.

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THE COURT:

My recollection is that we did not attach

There is one other dimension I just want

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to throw out now.

Mr. Lovett, my courtroom deputy, in paging

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through quickly, noticed that for at least one of the documents

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there's a docket stamp, which indicates that at some point that

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document was in the file in this court, the copy is something

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that comes out of the court itself.

Now, it could have gone to

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the First Circuit, it could have come, frankly, from the

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clerk's office here, since we're now taking names rather than

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making a determination of who did it.

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MR. CHATTERJEE:

Your Honor, it is true that we have

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been able to identify documents.

These documents have been

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submitted to a court or were sought to be submitted through an

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evidentiary hearing where it was put on an exhibit list and not

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actually entered at various points in time.

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the Court, we actually asked, we asked whether the information

Before we came to

10

that we had correlated remained under seal today and was not

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publicly accessible, and we received confirmation that, in

12

fact, it was still confidential.

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THE COURT:

Well, the submission that you've just

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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.

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MR. BALIN:

Your Honor, this is Robert Balin, from

Davis Wright Tremaine, the attorney for 01238.

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THE COURT:

Right.

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MR. BALIN:

And I don't want to interrupt, but I think

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there may be, at least possibly, a misunderstanding, at least,

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when we've come in, we came in last night about 6:00 when our

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predecessor counsel realized he had a conflict.

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THE COURT:

All right.

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MR. BALIN:

We have tried to ascertain the facts as

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best as counsel can, and our understanding is that the reporter

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here, an issue went to the District Court, there were documents

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missing from the file there, he was sent down the hallway to

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the First Circuit Clerk's Office.

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request card to ask for the documents and the clerk brought

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him, she wheeled out, I think he said it was three boxes or

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thereabouts, many, many documents.

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appendix.

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the records from the District Courts themselves, that somehow

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He filled out a form, a

This was not an appeal

It appears that he got the District Court documents,

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.

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appendix and the record itself, and the practice has been, in

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the First Circuit, at least, in certain cases, to require the

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replication of documents in the files of the District Court for

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submission to the First Circuit.

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First Circuit would have copies of originals in the -- from the

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District Court that would be outside of the record appendix

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itself.

22

perhaps, provides some greater degree of nuance to the

23

discussion.

There is a difference between a record

So, it's possible that the

That's not inconsistent with what you're saying, but,

24

MR. BALIN:

Sure, and, your Honor, I don't want to

25

interrupt counsel's argument.

I will --

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THE COURT:

But the short of it is, Mr. O'Brien -- is

it Mr. O'Brien?

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 8 9 10 11

MR. BALIN:

Correct, that is the recollection he has

communicated. THE COURT:

And is that the universe of the documents

that are up on the web now? MR. BALIN:

I believe so.

There are, I believe, eight

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:

19

When you say it was posted by Mr.

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.

25

documents became public.

One is the investigation about how these That's an issue that we would like

17

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 9

MR. CHATTERJEE:

Yes, your Honor.

The specific

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:

13

MR. CHATTERJEE:

14

I have it. Exhibit 6 -- I'm sorry -- Exhibit 5

through 8.

15

THE COURT:

5, 6, 7 and 8.

16

MR. CHATTERJEE:

17

THE COURT:

Correct.

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

18

1

course we will.

2

Security number.

3

redacted that as well.

4

They also indicated that there was a Social As soon as we heard that, of course, we

We do believe that we do have a Constitutional right

5

to publish the information that's in our possession.

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.

9 10

THE COURT:

Again, I

There is a --

Well, I'm going to try to inform myself

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 14

areas of actual dispute. 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.

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:

Are there particular sections

Yes, I'm happy to do so, your

19

1

Honor --

2

THE COURT:

3

MR. CHATTERJEE:

4

Okay. -- just so we're clear.

So, exhibits

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.

8

more complicated --

9

THE COURT:

Exhibit 6 is a

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:

17

MR. CHATTERJEE:

18

THE COURT:

19 20 21 22 23

Well, try not to -Thank you.

-- because I'm going to resist the

temptation until I'm forced to, but who is Mr. Walsh? MR. CHATTERJEE: who Mr. Walsh is.

Your Honor, I've been trying to learn

I have not yet.

THE COURT:

He's not someone who is, himself,

affiliated with the Administrative Board at Harvard?

24

MR. CHATTERJEE:

25

MR. HORNICK:

I am not sure, as I stand here today.

Your Honor, this is John Hornick.

I can

20

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.

10

MR. HORNICK:

11

THE COURT:

12 13 14

So, is Mr. Walsh a member --

He's the house tutor, your Honor.

Okay, all right.

So, this would have been

in the Harvard Administrative Board file of some sort. MR. CHATTERJEE:

Yes, your Honor.

I believe there's a

stamp on it that says that.

15

THE COURT:

Right.

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.

19

document that's a private concern, and it's something that he's

20

entitled to protection on.

21 22 23 24 25

THE COURT:

We believe that that's a

Well, let me go through all of these so

we've got an understanding. MR. CHATTERJEE:

I'm going to skip over Exhibit 6 for

the moment, because it's a fairly voluminous document. THE COURT:

All right.

21

1

MR. CHATTERJEE:

Exhibit 7 is a document that is

2

Facebook's statement of cash flows.

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:

9

that is 2005, two years old.

This is among the most

Right, but we're dealing with one here

10

MR. CHATTERJEE:

11

THE COURT:

12

MR. CHATTERJEE:

Yes, your Honor.

Okay. 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.

16

THE COURT:

All right.

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 22

THE COURT:

Let me understand what the distribution,

if any, of this has been, this Exhibit 8.

23

MR. CHATTERJEE:

24

THE COURT:

25

The distribution by whom?

By Mr. Zuckerberg or anyone else.

Was it

submitted in connection with the Harvard Administrative Board

22

1

proceedings?

2

MR. CHATTERJEE:

3

THE COURT:

4 5

No.

So, this is a document that was taken off

of Mr. Zuckerberg's computers in some way? MR. CHATTERJEE:

This was a document that we took off

6

of Mr. Zuckerberg's computers; it's actually an excerpt of a

7

larger document.

8

THE COURT:

9

MR. CHATTERJEE:

10

THE COURT:

And this was produced during discovery? It was produced during discovery.

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.

23

1

THE COURT:

Okay, that's the one.

2

MR. CHATTERJEE:

All right.

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?

8

recollections, but I just want to get an idea.

9

MR. HORNICK:

Nobody's being held to these

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 14

THE COURT:

Right.

Okay.

Then, turning, now, to the

Exhibit 6, which is an excerpt of a deposition.

15

MR. CHATTERJEE:

16

THE COURT:

That's correct, your Honor.

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.

23 24 25

Is that where this is -- is that the document?

MR. CHATTERJEE:

That's our primary objection to this,

your Honor, yes. THE COURT:

This particular document?

24

1

MR. CHATTERJEE:

2

THE COURT:

3

up been notified about this?

4

Yes, this particular document.

Has the person whose name has been brought

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.

12

as a prudential one --

The question for me is, and I put it

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.

21

THE COURT:

22

MS.RITVA:

Right. 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:

6

THE COURT:

Yes. -- 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.

14

two people's names?

15

THE COURT:

Well, I'm not sure whose names I'm

16

concerned about.

17

look at the first page of the --

18

Are you concerned about

What I know, you know, for instance, I'll

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.

21

Chatterjee?

22 23 24 25

MR. CHATTERJEE:

Your Honor, if I could have a moment

to just confirm that? THE COURT:

Is that right, Mr.

Yes. (Pause)

26

1 2

MR. CHATTERJEE:

Your Honor, I would want to check the

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.

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?

24

understand what the balancing issue I should have in mind is

25

for this.

I've done a quick read of this.

It seems

I'm not sure I am, but at least I want to

27

1

MR. CHATTERJEE:

2

THE COURT:

3

MR. CHATTERJEE:

Your Honor, if I could just confer?

Sure. Mr. Zuckerberg also has his

4

individual counsel here today.

5

I could just confer with him for just a moment?

6

THE COURT:

9 10

If

Okay.

7 8

I'm representing everybody.

(Pause) MR. CHATTERJEE:

Your Honor, I'm sorry about the

delay; I just wanted to talk to Mr. Zuckerberg's private counsel as well.

11

THE COURT:

Right.

12

MR. CHATTERJEE:

Our feeling about this is that is a

13

private dialogue between Mr. Zuckerberg and others.

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.

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.

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 25

THE COURT:

All right.

I

The

At the end of the

Now, let me, then, skip over

the financial document, Exhibit 7, and go to the online diary,

28

1

Exhibit 8.

2

been reading, of the submission from 02138 suggests that this

3

document is already on the web.

4

Scribd -- it's footnote number 1, but jumping over to page 4,

5

S-c-r-i-b-d dot com.

6

My quick reading, as you've been consulting, I've

MR. CHATTERJEE:

There is a citation to a cite

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 --

21

THE COURT:

Right.

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.

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 10

THE COURT:

All right.

I understand,

Do you have any knowledge

about that?

11

MR. CHATTERJEE:

Your Honor, we've been trying to

12

investigate that, and we cannot say for certain.

13

make one observation related to the --

14

THE COURT:

I do want to

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 25

MR. HORNICK:

Your Honor, this is John Hornick.

It's

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.

8

diary like this, and your assumption is incorrect, assuming all

9

of that, that your assumption is incorrect, that it was at some

Mr. Balin, if this is the first disclosure of a private

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 15 16

MR. BALIN:

I think on this, your Honor, our legal

conclusion would be the same, that -THE COURT:

Well, I'm not so much concerned about the

17

legal conclusion.

18

differential to editorial decisions.

19 20 21

The first order of business is to be

MR. BALIN:

Right.

As the other suggestions, your

Honor, is made, of course I will -THE COURT:

Well, let me just take a look, let me

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.

8

I'm concerned about in this.

9

portion of the deposition transcript.

10 11

MR. BALIN:

That's the kind of thing that It's somewhat similar to that

Your Honor, I hear you, and I hear you

talking to the editorial discretion as opposed to --

12

THE COURT:

Right.

14

MR. BALIN:

Yes, and I surely, of course, will raise

15

your concern with my client.

16

THE COURT:

13

At this stage, that's what I'm

doing.

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.

21

go back to Exhibit 7, the cash flow issue.

22

growth of Facebook here has really made this more or less an

23

old thing, isn't it?

24 25

The extraordinary

It's not the new, new thing.

MR. CHATTERJEE: old thing per se.

Now, let's

Your Honor, I don't think this is an

This document has considerably more detail

32

1

than what you might read in the newspapers.

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:

7

MR. CHATTERJEE:

8 9

It talks about

Well, but, you know -This is not publicly available

information. THE COURT:

I understand it's not publicly available

10

now, or I guess it's not publicly available now.

11

hand, this is the kind of thing that a public company would

12

have to make available.

13

made available to potential investors, although I suspect it

14

would be updated substantially.

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:

On the other

It's the kind of thing that would be

I guess I want to understand

Your Honor, part of what happens with

19

public companies is evaluation of their growth and valuation of

20

the company.

21

and when you're seeking funding.

22 23

It's a very private thing when you're a start-up

THE COURT:

Now, this information --

Well, but, let's just talk practically

about that --

24

MR. CHATTERJEE:

25

THE COURT:

Sure.

-- 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 5 6

MR. CHATTERJEE:

They would get it pursuant to a

nondisclosure agreement, your Honor. 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.

13

THE COURT:

There are companies --

I'm pressing you, because I'll concede the

14

generality, but that begins the analysis.

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:

There isn't, you

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.

20

THE COURT:

Right.

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:

10

THE COURT:

11

MR. HORNICK:

12

Your Honor, this is John Hornick --

Just a moment, Mr. Hornick. I just found this document in the

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.

16

docket number, your Honor.

17

THE COURT:

18

MR. HORNICK:

19

THE COURT:

We're looking for the

Right. We're not sure yet.

Let me step back from this.

20

from the '04 case, all of these documents?

21

think they came from?

22

MR. CHATTERJEE:

23

MR. HORNICK:

Are all these

Is that where you

Your Honor --

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:

3

MR. HORNICK:

4

THE COURT:

5

MR. HORNICK:

6

THE COURT:

7

And the docket number is 177.

177? Yes, in the old case, 177.

All right.

What was its relevance, if you

can recall in that case, because I sure can't in that case?

8 9

Okay.

MR. HORNICK:

Well, the motion for contempt dealt

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.

15

exhibit, but this exhibit relates to the valuation of Facebook

16

in 2005.

So, I can't tell you exactly why this was an

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.

22

substantially curtailed what could be publicly viewed and what

23

could not.

24 25

THE COURT:

Judge Collings very

Right, and when was he acting on this?

What was the time period for it?

36

1 2

MR. HORNICK: Honor.

3 4

It was in the spring of 2006, your

THE COURT:

Okay.

Shortly after the end date for this

statement?

5

MR. HORNICK:

6

THE COURT:

Yes.

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.

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.

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.

22

Balin?

I've focused particularly on the

I would ask you to think about

Is that enough time for you to consult, Mr.

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.

4

MR. BALIN:

But I will, of course, consult with them,

5

Well, I'm not --

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.

25

party or a person subject to a protective order has violated

A different issue for remedial purposes is raised if a

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.

13

MR. CHATTERJEE:

What would you propose?

Your Honor, I think that there are

14

two things that we need to start with.

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:

I think the first thing

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.

25

that there were more documents that may have been marked

My reading of the article suggests to me

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?

6

is, without binding you, but just to understand what the

7

potential problem --

8 9 10 11

MR. BALIN:

Do you know what this

I would have to talk to my client about

that, your Honor, to find out if there are additional documents as well. THE COURT:

Right.

I mean, the practice of posting

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.

19

put that, add that to your agenda.

20 21

MR. BALIN:

So, Mr. Balin, if you could

I have a number of questions on my list,

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.

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

There is, you know, Mr. Balin used one of

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.

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.

19

surprised that the editor's blog gave helpful assistance to its

20

readers about how they, too, can maintain access to materials.

21

So, all of us,

But, I understand the point.

MR. CHATTERJEE:

I'm not

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.

25

that aren't in the papers, but we can talk about that in a

I'd like to give you a couple of case citations

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.

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 think the first thing we need to do

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.

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.

22

how successful you're going to be with discovery inquiry as to

23

the courts themselves.

24

I won't --

25

There is a

I don't know exactly

You suffer from some disabilities that

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:

12

THE COURT:

13

MR. CHATTERJEE:

We'd appreciate that, your Honor.

All right. 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.

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.

21

deal with this issue, I haven't given it complete thought as to

22

how to do that.

23

e-mail records and understand what communications they've had

24

with the press.

25

year, they organized a press conference after --

I think the second

Given that we've kind of rushed into court to

I do think we need to be able to check the

You'll remember, your Honor, in July of this

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:

8

THE COURT:

9

Yes, I understand.

-- apart from the continuation of

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:

13

THE COURT:

14

MR. CALAMARI:

15

Your Honor?

Yes. This is Peter Calamari from Emanuel,

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:

21

THE COURT:

Is this better, your Honor?

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.

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

So, what I

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.

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 we

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 8 9 10

MR. CHATTERJEE:

file, because that was not in the court file, your Honor. THE COURT:

Well, couldn't someone put it on, I mean,

to throw you off the scent?

11

MR. CHATTERJEE:

12

THE COURT:

13

Not if it originated from a court

I'm sorry, your Honor?

To throw you off the scent as to source,

it's disinformation.

14

MR. CHATTERJEE:

15

THE COURT:

Potentially.

Is the printout of it the same lineage as

16

the one that's in the Court file?

17

MR. CHATTERJEE:

18

THE COURT:

19 20

Yes, your Honor.

So, the only difference, really, is it

says "Confidential" on it? MR. CHATTERJEE:

There are several differences, going

21

back to the point I made.

22

this sticker that appears to be on it.

23

metadata information, the fact that it was a dot doc file.

24

THE COURT:

25

MR. CHATTERJEE:

The first one that I mentioned is

I see.

The second is this

I guess I understand that.

There are lots of indications that

46

1 2 3 4

that document didn't originate from a court file. THE COURT:

Okay.

I guess what I really want to go to

is, so what do you want to do? MR. CHATTERJEE:

So, what I would like to do, your

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.

8

by understanding what has or has not been given by ConnectU to

9

the media, and we need discovery on that.

Step two is I think we need to investigate it

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 14 15

THE COURT:

Shouldn't be because of the protective

order or shouldn't be just as a matter of good housekeeping? MR. CHATTERJEE:

I would say both, your Honor, that

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.

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.

24

because I understand this is a serious issue.

25

THE COURT:

I think

I don't want to do that easily,

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.

9

came from somewhere.

10

It's dated three days after we produced it.

It

I want to know -- I want to see if anyone

at ConnectU was the point of origination for that.

11

THE COURT:

All right.

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.

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.

I also think that we

Mr. Hornick or Mr. Calamari,

20

do you have views?

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

Let me just explain.

MR. CHATTERJEE:

I do have a general

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 9 10

THE COURT:

What does that mean, that you want

letters that they've written or that sort of thing? MR. CHATTERJEE:

Something like that, your Honor,

11

because we know that the handwriting is on Dyvia Narendra's

12

deposition corrections.

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:

16

MR. CHATTERJEE:

17

THE COURT:

18 19 20

It's fair to assume that it may be

You mean, on the deposition correction? Yes, your Honor.

That's a quick question to him, did he

sign it or not. MR. CHATTERJEE:

Well, he might have signed it, but he

might not have actually filled it out.

21

THE COURT:

The annotations, but you can ask him that.

22

MR. CHATTERJEE:

23

THE COURT:

Right.

So, you're looking for pre-existing

24

handwriting exemplars --

25

MR. CHATTERJEE:

Yes, your Honor.

49

1

THE COURT:

-- of the relevant people here.

2

MR. CHATTERJEE:

3

THE COURT:

4

MR. CHATTERJEE:

Yes, your Honor.

All right. On some of the handwriting we have,

5

for example, it's not quite a large-enough sample to make a

6

comparison.

7

get more, because we do think that might --

8 9 10

We have a pretty good one now, but we'd like to

THE COURT:

Do any of these people actually use

handwriting anymore? MR. CHATTERJEE:

Well, your Honor, someone did on the

11

Harvard application.

12

that form, did it in correcting the deposition.

13

some handwritten notes where names of people and things like

14

that are identified that have been produced in this case.

15

Mr. Narendra, or whoever filled out that

MR. HORNICK:

Excuse me.

We do have

This is John Hornick.

Neel,

16

could you explain the handwriting thing again?

17

catch it at the beginning, because you were a little garbled.

18 19 20 21 22

MR. CHATTERJEE:

I didn't really

Yes, I'm happy to, your Honor.

May I

explain it to Mr. Hornick? THE COURT:

Yes, go ahead, because I need to hear

things three or four times before I absorb them. MR. CHATTERJEE:

There is a document from Harvard that

23

is Mark Zuckerberg's college application.

That document was

24

produced by Harvard in this case.

25

online originally had handwritten notes on it saying a number

The document that was posted

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.

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

We submitted those annotations that were on 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 18

MR. CHATTERJEE:

versions of the Harvard application.

19

THE COURT:

20

MR. CHATTERJEE:

21

THE COURT:

22

MR. CHATTERJEE:

23 24 25

No, your Honor, so, there are three

Right. I can give you a copy.

Just tell me about them, first. The first one had no notes in the

margin area. THE COURT: Harvard as discovery?

Is that the one that was submitted by

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.

5

MR. CHATTERJEE:

Number two.

Number two, we have not found this in

6

the Court record, is one that has handwritten notes in the

7

margins in commentary.

8

version that was posted by 02138 on their website.

9

three has certain personally identifying information from Mr.

Number three is the -- and that was the Version

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.

22

THE COURT:

23

MR. CHATTERJEE:

24

issues, your Honor.

25

THE COURT:

Right.

Yes.

So I think I framed the discovery

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.

9

the article, they never sat for an interview, and they never

Certainly, they didn't participate in the writing of

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.

23

your clients or, at least, the Winklevoss clients.

24 25

I understand that that's your representation regarding

MR. TIGHE:

Thank you, your Honor, and it is my

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.

10

Mr. O'Brien gives us the answer in his papers,

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:

4 5

This is Calamari again.

can hear me a little better this time. THE COURT:

It's important that I hear you and, even

6

more important, that the court reporter does.

7

speak up a little bit.

8

MR. CALAMARI:

9 10 11 12 13

Hopefully, you

I'm trying.

If you could

I'm speaking as loudly as

possible, and my mouth is almost on top of the microphone. THE COURT:

Okay.

I recognize the dangers of telling

a lawyer to shout. MR. CALAMARI:

I understand that your Honor is

disposed towards having some discovery here.

14

THE COURT:

Right.

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.

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

The issue for me is to try to set a reasonable

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.

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

It may be a result of the

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.

25

think during the break that we're going to take so that Mr.

So, I

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.

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

I have every expectation that a question

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.

14

we'll look forward to at least preliminary discussion when we

15

return here at, I'll say, 3:30.

16

MR. HORNICK:

17

So, as to that issue,

Your Honor, this is John Hornick.

May I

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.

23

document was produced to ConnectU by Facebook on, I think, Mr.

24

Chatterjee said January 7th.

25

84, in php format.

With respect to the date of January 10th, that

It was produced on a CD ROM, pfd

57

1

THE COURT:

I'm sorry, the acronym again?

2

MR. HORNICK:

3

THE COURT:

4

MR. HORNICK:

php, dot php.

Okay. 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.

12

time we wanted to make a copy of it, we made a copy of that php

13

document, and -- I'm sorry -- pdf.

14

a pdf on January 10, we kept it in that format from that time

15

on.

16

10th.

17

Any time we wanted to look at it, any

After we converted it into

So, that explains how that document was created on January It was a conversion of the document from php into pdf. 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.

21

THE COURT:

Right.

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.

9

is January 10th.

Was the time the same?

That is, the date

Was the time 9:33?

10

MR. HORNICK:

11

THE COURT:

Yes.

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:

15

THE COURT:

That's right.

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.

6

pdf format, it creates a much larger file size than what's

7

converted from a dot doc file.

8

than what would happen with scanning.

9

THE COURT:

When you scan a document into a

This is a smaller file size pdf

I look forward to learning a great deal

10

about computer forensics in all of this, but now your turn, Mr.

11

Balin.

12

the submission of a declaration by Mr. O'Brien?

I take it that the offer still stands with respect to

13 14

MR. BALIN:

I certainly will talk to my client, your

THE COURT:

Well, is your client likely to think now

Honor.

15 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.

25

guess the short of it is, my first view is that, if Mr. O'Brien

So, I

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.

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.

22

talk about before we break?

23 24 25

I have a series of questions broadly

MR. HORNICK:

Is there anything else that we should

Judge, this is John Hornick.

second point from before. THE COURT:

Yes, go ahead.

I have a

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.

7

some investigations.

Your Honor has said that he wanted to make

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.

25

O'Brien's declaration as well before moving forward, but I'd

My guess is that the parties will want to see Mr.

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.

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:

I've heard

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 20

MR. BALIN:

Let's be clear.

application that appears on the site?

21

THE COURT:

Right.

22

MR. BALIN:

Okay.

23

MR. CHATTERJEE:

24

THE COURT:

25

You're talking about the

As it originally did.

As it originally appeared on the site.

As

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.

4

here at 3:30.

5

All right?

MR. CHATTERJEE:

Okay.

So, we'll try to be back

Your Honor, just two very quick

6

things.

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

For the 3:30 call, Mr. Bauer has informed me we can

THE COURT:

10

Yes, that would be helpful.

MR. CHATTERJEE:

One of the cases is -- actually, I'll

11

provide you with three cases.

12

Control Association.

13

THE COURT:

14

MR. CHATTERJEE:

15

One is called DVD Copyright

B as in Boy? DVD, and I will give you a copy of

them.

16

THE COURT:

Just so that Mr. Balin and Mr. Hornick and

17

Mr. Calamari have the cites.

18

MR. CHATTERJEE:

19

THE COURT:

20

MR. CHATTERJEE:

I'll give the citations.

Go ahead. 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.

24

decides to issue a restraining order related to internet

25

activity, a case that's dealt with a very similar issue, the

The third one goes to, if your Honor

65

1

DVD Copyright Control Associations it's the same plaintiff, and

2

that citation is 2000 West Law 48512.

3

opinion from the San Jose Superior Court in Santa Clara.

4

provide your Honor with copies of those three opinions, if I

5

may approach.

6

THE COURT:

7

California cases.

8

analysis?

9

Yes.

It's a Superior Court I'll

I just noted that these are

I assume that they deal with First Amendment

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 --

13

THE COURT:

Right.

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.

18

THE COURT:

Right.

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 25

THE COURT:

Okay.

Well, you'll pass up those cases,

it will save me some copy time, and I'll see you at 3:30.

66

1

MR. CHATTERJEE:

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:

6

Thank you very much, your Honor.

This Honorable Court is back in session.

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:

You've given me a laundry list, your

10

Mr. Balin, what do you have to

report?

11 12

Honor, and I think the first matter I wanted to report is

13

mystery solved, I believe.

14

that Mr. Chatterjee --

15

THE COURT:

We have gone over the two documents

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.

22

handwritten notations on it --

One was the application that had

23

THE COURT:

Right.

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.

7

to quickly go through the two documents we've learned from our

8

clients.

9 10 11 12

If I could ask, with your permission, to just allow her

THE COURT:

If she could spell her name, too, so that

the court reporter could get that down. MS. HUSBANDS:

Yes.

It's Amber, A-M-B-E-R,

H-U-S-B-A-N-D-S, also with Davis Wright Termaine.

13

THE COURT:

All right.

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.

18

provided to the magazine had his handwritten notes on it, Mr.

19

O'Brien's handwritten notes.

20

the document on the website, it meant to remove all of the

21

handwritten notes to clean up the document.

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.

The document that Mr. O'Brien

When the magazine first posted

It apparently did

68

1

THE COURT:

2

MS. HUSBANDS:

3 4 5

All right.

the handwritten notes were Mr. O'Brien's. THE COURT:

In that connection, Ms. Husbands, the

Court that you're speaking of is the --

6

MS. HUSBANDS:

7

THE COURT:

8

MS. HUSBANDS:

9

THE COURT:

10

The document came from the court, and

The First Circuit.

The First Circuit Clerk's Office. Yes.

Okay.

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.

14

magazine, when they scanned that, it was illegible, you

15

couldn't read it, they couldn't put it online.

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.

When he copied it again and sent it to the

20

THE COURT:

21

MS. HUSBANDS:

They had a

All right. 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?

7

referring to Mr. O'Brien making copies.

8

scanning equipment?

9 10 11 12 13

MS. HUSBANDS:

You are

Did he take his own

No, he made copies on the Court's copy

machine; you have to pay for it at the court. THE COURT:

Right.

So, he made those copies, then

scanned them and sent them over to -MS. HUSBANDS:

No, he made paper copies, and he, at

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:

18

MS. HUSBANDS:

19

THE COURT:

20

MS. HUSBANDS:

21 22

I see. They scanned them in.

And they, in turn, scanned them in? The magazine scanned the paper copies

that the reporter sent to the magazine. 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.

12

THE COURT:

All right.

13

MR. BALIN:

You also asked, your Honor, about

14

considering --

15

THE COURT:

Can I just stop you for a moment, Mr.

17

MR. Balin:

Sure, your Honor.

18

THE COURT:

With respect to that, when might we expect

16

Balin?

19

a declaration from the reporter and whoever at the magazine was

20

involved in the copying and of the online diary?

21 22 23

MR. BALIN:

Your Honor, Monday or Tuesday.

What is

your preference? 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 4

MR. BALIN:

And I understand that, your Honor, and

that will give us the time to carefully go over things.

5

THE COURT:

Okay.

7

MR. BALIN:

Okay.

8

THE COURT:

Now, I interrupted you.

6

9

So, that's Tuesday, I think, the

4th.

Go on.

I think

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.

17

THE COURT:

Right.

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 22 23

THE COURT:

Hold on just a second.

You're turning

MR. BALIN:

I'm sorry, your Honor.

The person is a

away.

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.

3

THE COURT:

All right.

4

MR. BALIN:

There was, however, someone on the next

5

page, and I'll identify it, it's page 219.

6

a woman that was accompanying him.

It was, apparently,

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,

14

THE COURT:

Right.

15

MR. BALIN:

In their editorial judgment, they're happy

13

16

line 9.

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.

24

this part of the history of the reporting.

25

story, so that's where the magazine ended up with that.

They consider

It is part of the

73

1

THE COURT:

All right.

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.

13 14

It is an article about Mr. Zuckerberg.

THE COURT:

Well, unfortunately, the individual's name

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.

4

she is a student or was a student at that time is a subscriber

5

of 02138.

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

Whether or not

I simply can't understand what the reason for the

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.

17

exactly what you say, your Honor.

18

THE COURT:

I hear

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.

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

So, I think there

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.

5

simply encourage you to talk to them again.

6

it that you're going on to mute on your telephone.

7

MR. BALIN:

All right?

So I I take

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.

14

and I cannot make a representation about whether or not the

15

client would or would not post any additional documents.

16 17 18

I am told that we do, we do have some documents,

THE COURT:

Let me put the question differently.

Is

there a present intention to do so? MR. BALIN:

I guess the best way to answer it, Judge,

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.

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

I have not heard, but I can't, I do not want to

76

1

can't represent whether they would or would not post any more.

2 3

THE COURT:

All right.

I think I understand your

MR. BALIN:

Thank you, your Honor.

position.

4

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 --

10

THE COURT:

Right.

11

MR. BALIN:

-- the prior restraint motion.

12

that time, I'm happy to talk.

13

happy to do what lawyers have a hard time doing, but I'll shut

14

up for a second.

15

THE COURT:

If it's

If you want me to wait, I'm

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.

21

your Honor.

I'm prepared to discuss them at your discretion,

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 13 14 15 16 17

MR. BALIN: understand.

I'm sorry, Judge; I didn't quite

I apologize.

THE COURT:

The question is whether or not these

declarations will fully -MR. BALIN:

Yes.

We -- I think we intend to, having

heard the Court's questions this morning --

18

THE COURT:

Right.

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 2

think that may clear it up rather quickly. 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.

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.

21

you want to speak to the motion here?

All right.

22

MR. CHATTERJEE:

23

discuss the discovery issue first?

24 25

THE COURT:

No.

So, that generalized

So, Mr. Chatterjee, do

Yes, your Honor.

Do you want me to

I want to deal, first, with the

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 9 10

MR. CHATTERJEE:

Okay.

Thank you, your Honor.

So,

just so we're framing issues correctly, given the progress that we made this morning --

11

THE COURT:

Right.

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.

17

THE COURT:

18

MR. CHATTERJEE:

19

Right. Your Honor, before the break, I gave

you a case, DVD Copy Control Association v. Bunner.

20

THE COURT:

Right.

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.

24

is personal property, it's not something that they're

25

commenting about, it is a diary that they've made available on

Now, an online diary is something that

80

1 2

the website. 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.

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

There is something

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.

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.

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

Now, that's not to say that the judge or magazine

MR. CHATTERJEE:

To go back to the kind of stylized,

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.

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:

General speaking, discovery

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.

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

That all having been said, if under at

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.

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.

25

THE COURT:

I understand your Honor's point on that.

Right.

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.'"

5

anything that is written by the magazine.

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

These documents, again, they are not These are documents

Now, your Honor did raise a point about does a First

11

Amendment inquiry attach and how does it attach.

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:

I read

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.

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 11

Now, obviously, that has to be

that's a reasonable label up on the internet. MR. CHATTERJEE:

Your Honor, I guess I don't draw that

12

distinction.

13

these cases that draw the distinction.

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

That is the type of issue that's addressed by

THE COURT:

Someone's talking about

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.

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:

That's why I focused on

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.

9

with respect to 216 through 220 merely getting rid of the name

10

at this point is enough.

11

around that that also need to be redacted.

12

I don't think

I think that there's a lot of facts

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.

15

understanding how that invokes a public interest.

16

exactly the type of exception that Bartnicki said was not

17

within the scope of a prior restraint document.

18

THE COURT:

I just, I have a very hard time That is

Well, but we refer to someone who is

19

merely in college, but that's the whole point about this

20

underlying litigation.

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

Yes, they were, and that's the

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.

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.

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 19 20 21 22

There is one other point that's, I think, important

THE COURT:

It's

Well, but that the parties wanted to keep

it protected is clear. MR. CHATTERJEE:

But they had notice of the protective

order at that point. THE COURT:

Just a moment, just a moment.

The

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?

4

under these circumstances.

5

I have some considerable difficulty thinking I could

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?

8

answer's pretty clear, I do, but that jurisdiction is not

9

flowing from the protective order, it flows from the All Writs

I think the

10

Act, 28 U.S.C. § 1651, to ensure that all of my orders are

11

properly read, but that just begins the discussion.

12

were aware, we will say they were aware.

Yes, they

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.

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:

22 23

If they were subject of the protective order,

It may or may not, and there's no way

for us to know at this point, your Honor. THE COURT:

Right.

Well, this point is when I'm

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.

4

understand your point, your Honor.

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.

11

to arrange to provide those.

12

THE COURT:

13

MR. CHATTERJEE:

I

I do think that this

If that will have an impact, your Honor, we're happy

Right. 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.

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?

22

my initial thoughts are otherwise?

23 24 25

You

Mr. Balin, do you want to persuade me that

MR. BALIN:

No, I don't, your Honor; it's late in the

THE COURT:

All right.

day. So, let me rule on this

89

1

orally, in an effort to resolve this promptly.

2

guided by the Providence Journal litigation in the First

3

Circuit, which is the leading case law within this circuit

4

itself.

5

also by the procedural demands.

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

I'm, of course,

I'm guided not merely by the substantive result but They are such as to promptly,

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.

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."

Whenever I'm confronted with a case such as

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.

5

the direct, ultimate confrontation is rare and when it does

6

occur, limited and manageable.

7

judgments that we do not know how to make."

8 9

Hence

We thus contrive to avoid most

Now, we are here presented with what I think is the obligation to provide a tolerable accommodation of

10

incommensurables.

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

On the one side is First Amendment demands.

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.

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

One is a

10

their diary their secret thoughts without having to worry that

11

someone is going to have a key to the diary.

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

So, I don't, for

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.

4

broad overview of what the dispute is about.

5

So, that's the

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.

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,

First, the likelihood of

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.

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.

15

undertook was, it seems to me, core First Amendment activity,

16

to comment upon matters of public interest.

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.

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 25

The reason is that the

Moreover, what 02138

Moreover, the

My own view, as

I have to consider, of course, the question of the 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.

3

do not mean in any way to diminish the force of what has been

4

argued here.

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.

With respect to the moving party, I

We have commercial proprietary information, which

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."

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.

Those are not inconsequential matters, but

95

1

I have focused, as best I can, on the most salient of

2

the interests.

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

As a consequence, I have not viewed Exhibit 5,

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.

20

defamation applies under these circumstances without privilege,

21

that person may have some claim over against 02138.

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.

To the degree, for example, that the law of

What Mr.

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.

5

in this fast-moving area, antiquated, ancient.

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

It is.

It is also,

So much has

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.

16

to me information that suggests that this was posted by Mr.

17

Zuckerberg before 02138 got its hands on it.

18

MR. HORNICK:

There hasn't been presented

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 25

MR. HORNICK:

Your Honor, if you're interested, I can

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 9

Turning now, more specifically, to the matter that I 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.

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

This seems to

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.

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

The short of it is that I do believe

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.

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.

25

all of those activities, luck, sneakiness, in the service of

That, of course, is very untidy, that is,

The exercise of journalism frequently involves

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.

11

appropriate, then the Court should take whatever action it can

12

to deal with that.

13

resignation but, rather, on the principled analysis of what the

14

First Amendment means in this context for this case.

15

If a prior restraint were

My decision is not based on practicality or

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.

23

the parties would have me make?

24 25

Are there any further findings or conclusions that

MR. BALIN:

Your Honor, this is Robert Balin.

Thank

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.

15

issue of unsealing the submissions, I'll simply look to the

16

parties to respond relatively promptly to that.

17

response by, say, next Friday, will be sufficient with respect

18

to particulars.

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.

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.

With respect to the

I think that a

My own view, very quickly, is that a good deal

I don't mean to pretermit that full

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.

6 7

MS. RITVO:

Ms. Ritvo.

Your Honor, as to the declaration of Mr.

O'Brien, need that be filed under seal?

8

THE COURT:

9

MS.RITVA:

10

THE COURT:

I don't think so -Okay. -- unless he makes reference to the

11

substance of a confidential document or a matter that is under

12

seal.

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

To the degree that he simply says, I made a copy of the

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.

19

THE COURT:

20

MR. CHATTERJEE:

21

All right.

mind is the 02183 magazine has identified that they do --

22

THE COURT:

23

MR. CHATTERJEE:

24

THE COURT:

25

I guess the one remaining issue in my

02183 or 38? 38, I'm sorry.

I've worked so hard at trying to get it

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.

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

I submit, your Honor,

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.

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

I, at the risk of sounding like the person that

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.

6

know is what documents do they have, so if we want to seek

7

protection, we can get that vetted now.

8 9

THE COURT:

What I just want to

Well, I guess I'm not going to do

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.

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:

18 19

I will say this, that, to the

I appreciate that, your Honor.

I was

actually collapsing the two issues, and I apologize for that. THE COURT:

All right.

So, now let's move on to the

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:

3

THE COURT:

It could very well, your Honor.

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.

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.

I don't know what form, if

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.

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.

20

administrative matter in this setting, although, obviously, a

21

matter of some real and justifiable concern by the parties.

22

MR. CHATTERJEE:

That, in fact, is, you know,

I view it as an

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.

21

THE COURT:

Right.

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.

15

parties here?

Now, is there anything else from the other

16

MR. BALIN:

No, your Honor.

17

THE COURT:

Okay.

18 19 20 21 22 23 24 25

recess.

All right.

Then, we'll stand in

Thank you. (Hearing concluded at 5:10 p.m.)

108

1

C E R T I F I C A T E

2 3 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 23 24 25

1

$

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A ability [2] - 98:18, 108:7 able [6] - 5:9, 14:5, 23:9, 42:22, 58:17, 66:17 absolutely [1] - 26:6 Absolutely [3] - 63:15, 72:12, 105:5 absorb [1] - 49:21 accept [2] - 83:22, 84:9 accepted [1] - 8:18 access [3] - 40:20, 80:14, 81:25 accessible [1] - 14:11 accommodation [1] 90:9 accommodations [1] - 89:24 accomodation [1] 91:3 accompanied [1] 90:21 accompany [1] - 74:8 accompanying [1] 72:6 accurate [3] - 10:9,

12:17, 108:7 accurately [1] - 75:4 accusation [2] 43:15, 55:9 accusations [3] 43:22, 43:23, 55:19 accused [1] - 55:6 acknowledge [1] 95:11 acquisition [1] - 77:10 acronym [1] - 57:1 act [2] - 93:6, 97:15 Act [2] - 87:10, 92:9 acting [3] - 35:24, 52:21, 100:23 Action [4] - 1:5, 1:6, 5:3, 5:4 action [2] - 98:19, 99:11 activities [11] - 26:10, 32:2, 36:16, 52:18, 75:2, 93:13, 94:11, 95:7, 98:25, 104:14 activity [6] - 64:25, 85:24, 93:15, 93:23, 94:7, 106:13 actual [5] - 18:13, 53:17, 65:15, 88:15, 88:18 Ad [1] - 20:7 Adam [1] - 2:13 add [5] - 15:13, 35:18, 39:19, 59:4, 63:16 addition [5] - 7:13, 9:4, 45:5, 50:4, 105:24 additional [9] - 7:22, 38:18, 39:5, 39:9, 39:17, 62:13, 67:24, 75:15, 78:8 additions [1] - 64:3 address [8] - 17:23, 30:3, 46:22, 50:2, 65:20, 76:5, 76:6, 77:19 addressed [2] - 76:25, 84:12 addressee [1] - 98:6 adds [1] - 55:3 adequate [1] - 104:13 adjudication [1] 41:16 adjudicatory [1] 41:15 adjunct [1] - 80:11 adjusting [1] - 34:3 Administrative [6] 19:11, 19:23, 20:12, 21:25, 48:5 administrative [3] -

105:20, 106:19, 107:5 admittedly [1] - 40:22 adopt [1] - 65:22 advance [2] - 55:3, 103:1 advanced [1] - 97:16 advantage [1] - 36:18 adversary [1] - 92:25 adverse [1] - 90:4 advise [1] - 74:18 advisement [2] - 10:2, 22:25 advisor [2] - 20:4, 26:17 affects [1] - 34:5 affidavit [4] - 61:18, 101:3, 103:23, 104:6 affidavits [1] - 103:22 affiliated [1] - 19:23 affiliates [1] - 61:6 afternoon [1] - 52:1 afterwards [1] - 81:22 agenda [1] - 39:19 ago [7] - 7:16, 12:11, 12:19, 16:20, 29:20, 32:17, 44:23 agree [6] - 18:14, 61:9, 73:15, 85:5, 85:8, 107:7 agreement [2] - 33:5, 56:20 ahead [6] - 6:20, 16:21, 34:13, 49:20, 61:25, 64:19 ahold [1] - 82:3 al [1] - 5:4 Alexander [1] - 89:14 allege [1] - 83:7 allow [1] - 67:6 allowed [2] - 35:9, 47:17 alluded [1] - 87:7 almost [1] - 54:9 altogether [3] - 11:5, 89:11, 95:4 AMBER [1] - 67:11 Amber [3] - 4:6, 67:3, 67:11 ameliorated [1] 24:16 amended [11] - 9:25, 12:5, 12:25, 13:1, 13:4, 13:17, 22:24, 23:5, 34:25, 44:15, 58:4 Amendment [18] 5:25, 65:7, 83:11, 83:15, 83:18, 88:16, 89:8, 89:19, 89:22,

2

90:4, 90:10, 90:23, 93:15, 94:25, 97:16, 98:9, 99:14, 106:11 amount [2] - 56:11, 79:21 analysis [6] - 8:19, 10:16, 33:14, 65:8, 80:21, 99:13 ancient [1] - 96:5 ANDREW [1] - 1:7 Andrew [1] - 2:20 Anglo [1] - 91:14 annotation [1] - 51:17 annotations [6] - 48:5, 48:21, 50:5, 50:7, 50:10 answer [13] - 12:18, 20:1, 25:10, 28:16, 53:9, 58:17, 58:19, 75:18, 86:24, 89:25, 102:11, 106:5, 106:9 answer's [1] - 87:8 ante [2] - 37:19, 81:17 anticipated [1] 104:22 antiquated [1] - 96:5 anyway [1] - 95:13 apart [3] - 43:6, 43:8, 104:1 Apart [1] - 26:8 apologize [6] - 29:3, 66:18, 66:19, 75:8, 77:13, 103:18 appeal [5] - 7:7, 12:24, 13:16, 15:7, 78:13 appealability [1] 79:6 appealable [1] - 79:7 appeals [2] - 14:16, 15:10 Appeals [11] - 6:25, 7:3, 7:7, 7:10, 16:6, 41:20, 53:6, 78:6, 78:10, 78:19, 88:2 appear [2] - 26:20, 60:12 Appearance [10] - 2:8, 2:9, 2:9, 2:13, 2:13, 2:14, 3:2, 3:8, 3:10, 4:5 appearance [1] - 25:4 Appearances [2] 2:25, 3:23 APPEARANCES [1] 2:1 appeared [1] - 63:24 appearing [1] - 5:8 appellate [9] - 7:18, 7:24, 12:9, 12:13, 12:23, 13:11, 23:5,

42:15 appending [1] - 93:17 appendix [6] - 7:10, 15:8, 15:15, 15:20, 41:8, 78:12 application [12] 7:23, 8:16, 49:11, 49:23, 50:6, 50:10, 50:16, 50:18, 63:11, 63:20, 66:21, 67:15 applies [2] - 83:9, 95:20 appreciate [8] - 42:11, 46:7, 50:14, 50:15, 58:7, 101:18, 103:17, 105:1 appreciation [1] 74:25 approach [3] - 44:3, 65:5, 65:23 approaches [1] 18:24 appropriate [7] 53:18, 53:20, 73:24, 77:25, 99:11, 99:18, 105:24 appropriately [1] 56:9 appropriating [2] 80:6, 80:7 apropos [1] - 100:1 architected [1] - 44:3 area [6] - 18:10, 42:5, 47:22, 50:23, 96:5, 98:15 areas [3] - 15:12, 18:13, 42:9 argued [4] - 28:25, 89:13, 89:15, 94:4 arguing [2] - 80:3, 94:1 argument [7] - 6:11, 7:19, 15:25, 18:6, 84:19, 89:10, 100:4 arguments [1] - 99:21 arise [1] - 24:15 arises [1] - 60:14 arose [1] - 20:5 arrange [1] - 88:11 article [17] - 6:24, 30:2, 30:3, 38:23, 38:24, 39:13, 52:9, 61:3, 65:15, 73:12, 75:21, 80:20, 85:24, 86:4, 90:21, 90:25, 106:24 articles [3] - 5:19, 83:17, 88:19 articulate [2] - 18:21, 18:22

artificial [1] - 80:22 ascertain [1] - 14:25 aspect [4] - 10:19, 11:6, 36:8, 103:14 aspects [4] - 11:3, 60:1, 85:2, 94:18 aspiration [1] - 94:25 assert [1] - 98:1 assess [1] - 90:14 assessment [1] 41:10 assistance [1] - 40:19 associated [7] - 32:4, 38:24, 40:1, 46:23, 54:16, 90:15, 95:12 Association [4] 64:12, 79:19, 83:14, 86:8 Associations [1] 65:1 assume [9] - 28:17, 30:25, 37:12, 39:14, 48:12, 48:13, 53:8, 65:7, 76:6 assuming [1] - 30:8 assumption [7] - 30:8, 30:9, 46:10, 58:6, 58:16, 62:21, 77:8 attach [3] - 13:16, 83:11 attached [6] - 7:24, 12:5, 17:10, 22:24, 23:4, 57:6 attachments [1] 11:24 attempt [1] - 55:23 attention [6] - 6:7, 14:14, 56:12, 61:17, 64:1, 105:18 attorney [1] - 14:18 aura [1] - 92:15 austere [1] - 105:7 author [1] - 6:24 authorized [1] - 48:14 available [16] - 9:16, 10:3, 17:25, 32:7, 32:9, 32:10, 32:12, 32:13, 39:1, 57:18, 57:24, 79:25, 81:18, 100:12, 104:17, 106:23 avatar [1] - 31:1 Avenue [3] - 2:11, 2:15, 3:14 avoid [2] - 40:24, 90:6 avoiding [1] - 106:12 aware [5] - 12:20, 55:24, 87:12, 102:16 awfully [1] - 23:12

B baby's [1] - 96:7 back-and-forth [1] 55:9 bad [1] - 74:15 bag [3] - 28:19, 40:8, 99:8 bags [1] - 24:4 balance [1] - 93:25 balancing [2] - 26:23, 26:24 Balin [43] - 4:5, 14:17, 15:11, 17:17, 24:8, 24:19, 24:23, 25:2, 26:4, 28:12, 30:7, 36:9, 36:22, 38:21, 39:18, 40:5, 40:6, 53:19, 53:22, 56:1, 59:11, 63:10, 63:12, 64:16, 66:7, 66:9, 66:15, 67:3, 69:25, 70:6, 70:16, 70:17, 76:17, 77:7, 77:22, 87:6, 88:21, 97:9, 99:24, 102:14, 102:22, 106:4 BALIN [81] - 14:17, 14:20, 14:25, 15:24, 16:3, 16:7, 16:11, 16:20, 17:20, 18:11, 18:14, 24:13, 25:9, 25:18, 26:6, 28:16, 28:22, 29:2, 30:14, 30:19, 30:24, 31:10, 31:14, 36:23, 36:25, 37:4, 39:3, 39:8, 39:20, 53:19, 54:1, 58:19, 59:2, 59:13, 59:18, 59:24, 60:7, 60:10, 61:7, 63:15, 63:19, 63:22, 66:8, 66:11, 66:18, 66:24, 70:7, 70:9, 70:13, 70:21, 71:3, 71:7, 71:10, 71:18, 71:23, 72:4, 72:8, 72:10, 72:12, 72:15, 72:18, 73:2, 73:6, 73:9, 73:15, 73:21, 74:10, 75:7, 75:11, 75:18, 76:4, 76:9, 76:11, 77:12, 77:16, 77:19, 88:23, 99:24, 106:7, 106:16, 107:16 Balin's [3] - 58:16, 103:21, 103:22 banana [1] - 102:21 Bar [1] - 24:23 Bartnicki [6] - 5:23,

82:23, 83:2, 83:12, 85:16, 88:17 based [1] - 99:12 basic [1] - 101:1 basis [3] - 5:15, 81:15, 92:23 Batten [1] - 3:2 Bauer [3] - 3:1, 3:19, 64:6 Bea [1] - 2:14 became [1] - 16:25 become [1] - 39:12 becomes [2] - 99:18, 103:12 becoming [1] - 27:18 BEFORE [1] - 1:11 beginning [3] - 15:12, 44:4, 49:17 begins [2] - 33:14, 87:11 behalf [4] - 6:19, 76:17, 89:15, 102:15 behavior [1] - 34:4 bell [1] - 40:8 belong [1] - 83:8 beneficial [1] - 93:18 benefit [2] - 78:3, 83:24 benefits [1] - 80:13 best [8] - 15:1, 60:22, 70:24, 75:18, 95:1, 107:9, 107:11, 108:7 bet [1] - 104:18 better [5] - 36:14, 43:20, 54:4, 61:8, 98:23 between [18] - 5:25, 8:19, 15:14, 19:12, 27:13, 33:24, 53:23, 55:21, 58:4, 61:13, 65:14, 79:4, 79:22, 83:13, 90:4, 93:25, 95:3, 98:17 beyond [2] - 31:6, 41:8 Bickel [2] - 89:14, 89:20 Bickel's [1] - 89:17 big [1] - 23:12 binding [1] - 39:6 bit [9] - 10:12, 15:14, 23:17, 30:7, 43:3, 54:7, 56:2, 66:20, 80:2 blog [1] - 40:19 blogs [1] - 39:25 blood [1] - 31:18 Board [6] - 19:11, 19:23, 20:8, 20:12, 21:25, 48:6

3

Bob [1] - 8:23 book [1] - 89:17 Boston [7] - 1:17, 1:23, 2:7, 3:4, 3:15, 3:21, 4:4 bottom [6] - 7:11, 22:18, 45:2, 104:19, 104:25, 105:15 bound [1] - 86:24 boxes [1] - 15:6 Boy [1] - 64:13 break [6] - 10:11, 37:9, 55:25, 61:22, 79:15, 79:18 breast [1] - 91:19 breath [1] - 52:14 Brenda [4] - 1:21, 108:4, 108:15, 108:16 brief [3] - 6:13, 12:19, 28:13 briefing [1] - 99:21 briefs [1] - 80:17 bring [3] - 11:10, 61:17, 105:18 broad [2] - 92:4, 92:21 broadly [1] - 61:14 Broadway [1] - 4:7 bronze [1] - 96:7 brothers [1] - 46:17 brought [7] - 6:6, 11:9, 14:14, 15:5, 24:2, 56:12, 64:1 BROWN [1] - 4:3 Bunner [1] - 79:19 burdening [1] - 60:12 Bush [1] - 3:9 business [4] - 30:17, 34:3, 56:12, 71:25 button [1] - 75:7

C CA [4] - 2:24, 3:9, 3:12, 3:17 Cal.4th [1] - 64:20 CALAMARI [8] 43:12, 43:14, 43:20, 54:3, 54:8, 54:12, 54:15, 55:5 Calamari [8] - 2:13, 43:14, 43:16, 43:17, 47:19, 54:3, 55:7, 64:17 calendar [1] - 104:11 California [2] - 64:20, 65:7 call-in [1] - 64:7 candor [1] - 26:13 cannot [4] - 29:12,

37:18, 58:19, 75:14 capable [1] - 84:25 capital [1] - 72:23 capitalists [1] - 33:2 card [1] - 15:5 care [1] - 70:4 careful [1] - 40:16 carefully [5] - 52:15, 52:20, 60:20, 60:23, 71:4 case [60] - 5:3, 5:23, 6:2, 11:16, 18:8, 18:10, 18:15, 22:21, 23:21, 25:4, 27:14, 34:15, 34:20, 35:1, 35:5, 35:7, 40:14, 40:24, 42:14, 42:15, 44:9, 44:10, 47:1, 48:3, 49:14, 49:24, 50:11, 50:16, 62:23, 64:21, 64:23, 64:25, 65:17, 65:21, 74:13, 74:15, 78:12, 79:19, 79:21, 80:4, 82:9, 82:23, 82:24, 83:12, 83:14, 87:20, 88:17, 89:3, 89:14, 89:16, 90:15, 91:3, 95:16, 96:21, 99:14, 107:3 cases [14] - 15:16, 64:8, 64:10, 64:11, 65:7, 65:10, 65:19, 65:20, 65:24, 80:17, 84:13, 88:13, 98:15, 99:9 cash [13] - 7:14, 12:12, 21:2, 23:3, 23:10, 31:21, 32:17, 37:1, 46:18, 72:19, 79:16, 88:6, 96:3 cat [3] - 28:19, 40:8, 99:8 catch [2] - 49:17, 66:19 categorical [2] 18:24, 29:16 cauldron [1] - 94:19 causing [1] - 33:21 CD [6] - 22:14, 22:15, 45:3, 56:24, 57:7 Center [1] - 4:4 century [1] - 89:14 certain [19] - 7:25, 8:12, 9:7, 12:6, 13:19, 15:16, 29:12, 29:14, 47:7, 51:9, 55:3, 62:22, 84:3, 84:6, 89:25, 94:7, 94:18, 96:15, 105:14 Certainly [1] - 52:8

certainly [6] - 10:16, 46:16, 55:11, 59:13, 85:5, 96:8 certify [1] - 108:5 challenges [1] - 29:19 Change [1] - 82:7 change [2] - 34:4, 97:6 changes [5] - 8:10, 8:12, 34:8, 58:3, 61:16 chapter [1] - 89:18 characterization [1] 95:18 characterizations [1] 94:11 characterize [1] 99:16 chastised [1] - 92:1 chat [1] - 72:1 Chatterjee [20] - 2:22, 3:16, 5:10, 16:21, 18:18, 25:21, 26:8, 37:12, 39:18, 43:24, 56:24, 62:4, 66:14, 66:20, 66:25, 71:13, 76:24, 78:20, 90:18, 92:7 CHATTERJEE [153] 5:14, 6:8, 6:17, 6:21, 7:8, 8:5, 8:14, 8:23, 9:2, 9:22, 10:15, 11:2, 11:15, 11:22, 12:3, 12:10, 13:14, 14:4, 16:22, 17:8, 17:13, 17:16, 18:25, 19:3, 19:6, 19:12, 19:17, 19:20, 19:24, 20:13, 20:16, 20:23, 21:1, 21:10, 21:12, 21:17, 21:23, 22:2, 22:5, 22:9, 22:13, 22:23, 23:2, 23:15, 23:23, 24:1, 24:4, 25:22, 26:1, 26:12, 27:1, 27:3, 27:8, 27:12, 28:6, 29:11, 29:18, 31:24, 32:7, 32:18, 32:24, 33:4, 33:9, 33:17, 33:21, 34:2, 34:22, 35:18, 38:13, 39:23, 40:21, 41:3, 41:25, 42:11, 42:13, 43:7, 44:2, 44:16, 44:21, 44:25, 45:7, 45:11, 45:14, 45:17, 45:20, 45:25, 46:4, 46:15, 47:2, 47:6, 47:12, 47:25, 48:10, 48:16, 48:19,

48:22, 48:25, 49:2, 49:4, 49:10, 49:18, 49:22, 50:17, 50:20, 50:22, 51:1, 51:5, 51:18, 51:23, 59:4, 63:16, 63:23, 64:5, 64:10, 64:14, 64:18, 64:20, 65:9, 65:14, 65:19, 66:1, 76:18, 78:22, 79:8, 79:12, 79:18, 79:21, 80:23, 81:4, 81:23, 82:20, 83:1, 84:11, 85:5, 85:25, 86:6, 86:20, 87:21, 88:3, 88:13, 101:16, 101:20, 101:23, 102:2, 103:4, 103:17, 104:2, 104:15, 105:1, 105:22, 106:18, 106:22, 107:7 Chatterjee's [1] 75:12 check [6] - 26:1, 42:22, 44:4, 59:20, 62:5, 106:19 checking [1] - 106:20 chime [1] - 53:21 choice [3] - 86:5, 86:7, 94:9 choose [2] - 94:8, 102:5 chosen [1] - 102:23 CHRISTOPHER [1] 1:7 Christopher [1] - 2:20 Circuit [27] - 7:1, 7:3, 7:10, 7:11, 12:21, 12:24, 13:4, 13:8, 14:1, 15:4, 15:16, 15:18, 15:19, 41:8, 44:8, 53:5, 67:16, 68:6, 68:7, 68:12, 78:13, 81:2, 83:25, 89:3, 91:23, 91:24, 104:16 circuit [1] - 89:3 circumstance [1] 83:23 circumstances [8] 24:11, 26:20, 81:19, 84:8, 87:4, 91:16, 95:20, 98:7 citation [3] - 28:3, 64:22, 65:2 citations [3] - 6:9, 40:24, 64:18 cite [2] - 28:3, 28:15 cited [2] - 6:2, 64:22

cites [1] - 64:17 citing [1] - 65:10 Civil [3] - 1:5, 5:3, 5:4 civil [1] - 89:20 claim [2] - 95:21, 96:22 claiming [1] - 47:17 Clara [1] - 65:3 Classics [2] - 97:18, 97:19 Clean [1] - 107:12 clean [1] - 67:21 clear [14] - 5:23, 13:10, 19:3, 29:3, 29:21, 44:2, 55:13, 63:19, 70:23, 78:1, 86:19, 87:8, 95:4, 96:20 clerical [1] - 44:7 CLERK [2] - 5:2, 66:5 clerk [2] - 15:5, 15:10 clerk's [5] - 6:24, 14:2, 55:15, 78:19, 107:4 Clerk's [11] - 15:4, 16:6, 68:7, 78:4, 78:5, 78:6, 78:10, 82:17, 104:19, 107:2 clerks [2] - 40:15, 104:24 client [21] - 18:16, 25:10, 26:5, 30:10, 30:13, 31:15, 31:19, 39:8, 56:1, 59:13, 59:15, 59:19, 60:20, 63:10, 75:9, 75:15, 97:10, 102:22, 102:25, 105:5, 105:6 client's [2] - 24:9, 107:8 clients [11] - 36:9, 36:19, 52:5, 52:23, 53:11, 67:8, 74:23, 83:7, 102:15, 105:2 closed [1] - 100:10 closest [1] - 91:19 Club [1] - 107:12 Coast [1] - 8:25 code [3] - 83:19, 84:14, 84:15 coherent [3] - 37:20, 89:11, 89:22 collapsing [1] 103:18 colleague [1] - 67:3 collection [1] - 96:7 college [4] - 49:23, 85:13, 85:19, 94:17 collide [1] - 105:13 Collings [2] - 35:9, 35:21

4

com [1] - 28:5 comfortable [1] - 56:5 comment [1] - 93:16 commentary [11] 5:19, 5:21, 5:25, 10:14, 39:25, 51:7, 65:15, 83:17, 84:15, 88:15, 88:19 commenting [1] 79:25 comments [4] - 51:11, 80:24, 86:13, 100:2 commercial [7] 84:25, 91:7, 92:22, 94:4, 94:7, 96:4, 96:9 commercially [1] 91:8 committing [1] - 60:24 common [1] - 39:12 communicate [1] 105:7 communicated [1] 16:8 communication [2] 60:4, 95:3 communications [3] 42:23, 75:23, 79:13 companies [4] - 21:3, 21:4, 32:19, 33:12 company [6] - 21:7, 21:14, 32:11, 32:17, 32:20, 72:20 compare [2] - 44:17, 48:4 comparison [1] - 49:6 compelling [4] 81:15, 84:23, 91:16, 94:24 competent [1] - 38:7 competing [4] - 33:10, 81:24, 82:21, 91:6 competition [1] 33:11 competitive [4] 32:15, 32:16, 33:8, 36:18 competitively [1] 34:3 competitor [1] - 34:8 competitors [1] - 33:9 competitors's [1] 92:22 complaining [1] 16:13 complaint [11] - 9:25, 12:5, 12:25, 13:2, 13:4, 13:17, 22:24, 23:5, 34:25, 44:15, 58:5

complete [4] - 6:22, 23:18, 42:21, 77:4 completely [1] - 85:8 complicated [1] - 19:8 composed [1] - 98:11 comprehensive [1] 61:1 compromises [1] 89:23 Computer [1] - 1:24 computer [4] - 58:13, 59:10, 67:5, 67:23 computers [2] - 22:4, 22:6 concede [1] - 33:13 concept [1] - 55:2 concern [21] - 18:20, 18:22, 20:17, 20:19, 21:19, 25:19, 27:16, 31:15, 33:22, 36:13, 39:24, 41:14, 44:5, 65:11, 74:11, 83:4, 85:7, 95:14, 105:21, 107:3, 107:4 concerned [14] 25:13, 25:16, 30:16, 31:8, 31:16, 42:7, 43:22, 60:11, 66:25, 71:14, 74:2, 82:8, 106:2, 106:10 concerns [3] - 76:24, 88:9, 91:6 concluded [1] 107:19 conclusion [3] 30:15, 30:17, 90:2 conclusions [2] 74:12, 99:22 conduct [1] - 46:11 confer [3] - 27:1, 27:5, 35:11 conference [1] - 42:25 confidence [1] - 105:3 Confidential [2] 22:15, 45:19 confidential [22] 5:22, 14:12, 21:3, 21:6, 21:13, 22:18, 26:20, 26:21, 38:17, 39:1, 45:2, 45:3, 45:6, 52:10, 68:21, 94:14, 94:16, 95:6, 101:11, 103:16, 104:17, 106:2 confidentiality [4] 35:20, 44:11, 45:5, 88:8 confines [1] - 31:6 confirm [4] - 7:17, 25:23, 46:5, 70:10

confirmation [1] 14:11 confirming [1] - 23:3 conflict [1] - 14:23 conflicting [1] - 11:11 confrontation [1] 90:5 confronted [2] 11:11, 89:16 confronting [1] 89:24 confusing [1] - 103:5 conjoined [1] - 84:7 connection [14] 11:19, 21:25, 22:21, 43:18, 44:14, 68:4, 69:22, 75:19, 77:7, 78:2, 82:10, 86:4, 94:15, 100:4 CONNECTU [1] - 1:4 ConnectU [17] - 2:3, 5:4, 10:14, 35:9, 35:12, 42:19, 43:10, 46:8, 47:4, 47:10, 48:3, 52:2, 54:16, 56:13, 56:23, 62:15, 108:9 ConnectU's [2] 34:14, 57:5 Consent [1] - 89:18 consequence [1] 95:2 consequently [1] 73:23 consider [15] - 25:12, 31:20, 43:5, 55:13, 72:23, 84:19, 91:20, 92:10, 93:19, 93:24, 97:24, 98:10, 103:14, 106:5, 106:10 considerable [2] 87:3, 90:13 considerably [1] 31:25 consideration [6] 55:11, 81:22, 81:24, 82:21, 95:8, 100:23 considered [5] 12:21, 34:3, 52:20, 59:5, 99:6 considering [4] - 64:7, 70:14, 71:16, 100:20 consistency [1] 74:23 consistent [1] - 78:8 constitutes [1] - 108:6 Constitutional [3] 18:4, 81:24, 82:18 constraint [2] - 37:15

constraints [1] - 37:18 constrict [1] - 95:11 construed [1] - 89:9 consult [10] - 26:4, 29:16, 30:12, 31:19, 36:9, 36:19, 36:21, 37:4, 56:1, 74:22 consulted [1] - 78:4 consulting [1] - 28:1 consume [1] - 107:13 contemporaneously [1] - 82:13 Contempt [1] - 34:15 contempt [5] - 10:20, 35:8, 35:12, 35:13, 98:21 content [3] - 44:17, 65:11, 83:16 context [5] - 36:16, 82:12, 86:11, 92:15, 99:14 continuation [1] 43:8 continue [5] - 12:1, 25:7, 37:16, 78:16, 102:23 Continued [1] - 2:25 continued [1] - 3:23 contrive [1] - 90:6 Control [5] - 64:12, 65:1, 79:19, 83:14, 86:8 control [5] - 10:25, 31:7, 40:10, 40:18, 90:16 convene [2] - 89:6, 92:2 convenience [1] 57:7 conventional [2] 90:21, 92:14 conversations [1] 27:18 conversion [1] - 57:16 converted [4] - 9:15, 57:13, 59:7, 69:1 converting [1] - 57:7 convincing [1] - 92:20 copied [3] - 68:12, 68:13, 69:4 copies [9] - 15:19, 65:4, 69:7, 69:9, 69:11, 69:13, 69:14, 69:20, 78:10 copy [16] - 6:16, 9:14, 13:24, 50:20, 51:21, 57:12, 57:25, 58:23, 64:14, 65:25, 68:13, 68:24, 69:9, 69:24, 101:12

Copy [1] - 79:19 copying [1] - 70:20 Copyright [4] - 64:11, 65:1, 83:14, 86:8 core [6] - 21:5, 80:4, 80:14, 81:10, 81:11, 93:15 corner [1] - 57:20 correct [8] - 13:15, 16:16, 23:15, 26:2, 29:18, 60:7, 60:18, 72:12 Correct [5] - 16:7, 17:16, 29:18, 51:18, 73:6 corrected [1] - 16:14 correcting [1] - 49:12 correction [1] - 48:15 corrections [3] 48:12, 50:7, 50:12 correctly [1] - 79:9 correlated [1] - 14:10 counsel [12] - 5:7, 14:23, 15:1, 17:22, 24:20, 27:4, 27:10, 46:23, 47:23, 62:16, 89:12 counsel's [2] - 15:25, 18:6 couple [4] - 21:12, 40:24, 41:5, 52:4 course [27] - 5:6, 18:1, 18:2, 21:4, 25:10, 30:20, 31:14, 37:4, 53:24, 61:10, 63:13, 66:19, 67:1, 75:9, 77:23, 89:1, 89:10, 90:19, 92:7, 92:25, 93:19, 93:24, 94:13, 96:21, 98:21, 100:7, 100:20 COURT [295] - 1:1, 5:5, 6:5, 6:14, 6:20, 7:5, 8:3, 8:13, 8:22, 8:25, 9:19, 10:11, 10:18, 11:3, 11:16, 11:25, 12:7, 12:16, 13:6, 13:13, 13:20, 14:13, 14:19, 14:24, 15:11, 16:1, 16:4, 16:9, 16:18, 16:21, 17:5, 17:12, 17:15, 17:17, 18:9, 18:12, 18:18, 19:2, 19:5, 19:9, 19:16, 19:18, 19:22, 20:2, 20:9, 20:11, 20:15, 20:21, 20:25, 21:8, 21:11, 21:16, 21:21, 21:24, 22:3, 22:8, 22:10,

5

22:19, 23:1, 23:6, 23:13, 23:16, 23:25, 24:2, 24:7, 24:14, 24:18, 24:21, 24:25, 25:2, 25:6, 25:15, 25:24, 26:3, 26:7, 26:15, 27:2, 27:6, 27:11, 27:24, 28:12, 28:21, 28:25, 29:9, 29:14, 30:5, 30:16, 30:21, 30:25, 31:12, 31:16, 32:6, 32:9, 32:22, 32:25, 33:6, 33:13, 33:20, 33:24, 34:10, 34:13, 34:17, 34:19, 35:2, 35:4, 35:6, 35:17, 35:24, 36:3, 36:6, 36:24, 37:3, 37:6, 38:21, 39:4, 39:11, 39:22, 40:5, 41:2, 41:14, 42:3, 42:12, 43:1, 43:8, 43:13, 43:16, 43:21, 44:13, 44:20, 44:24, 45:4, 45:9, 45:12, 45:15, 45:18, 45:24, 46:2, 46:13, 46:25, 47:5, 47:11, 47:19, 48:8, 48:15, 48:17, 48:21, 48:23, 49:1, 49:3, 49:8, 49:20, 50:13, 50:19, 50:21, 50:24, 51:4, 51:12, 51:22, 51:25, 52:12, 53:2, 53:11, 53:15, 53:22, 54:5, 54:10, 54:14, 54:25, 55:7, 56:18, 57:1, 57:3, 57:21, 58:6, 58:11, 58:15, 58:20, 59:3, 59:9, 59:15, 59:21, 59:25, 60:8, 60:11, 60:19, 61:12, 61:25, 62:8, 62:17, 63:12, 63:21, 63:24, 64:9, 64:13, 64:16, 64:19, 65:6, 65:13, 65:18, 65:24, 66:3, 66:7, 66:9, 66:15, 66:23, 67:2, 67:9, 67:13, 68:1, 68:4, 68:7, 68:9, 68:20, 68:25, 69:6, 69:11, 69:17, 69:19, 69:22, 70:4, 70:8, 70:12, 70:15, 70:18, 70:23, 71:5, 71:8, 71:17, 71:21, 72:3, 72:7, 72:9, 72:11, 72:14, 72:17, 73:1, 73:5, 73:8, 73:13, 73:20,

73:22, 74:18, 75:10, 75:16, 76:2, 76:8, 76:10, 76:15, 76:22, 77:7, 77:14, 77:18, 77:21, 78:2, 78:24, 79:11, 79:17, 79:20, 80:2, 81:3, 81:9, 82:4, 82:25, 83:21, 84:17, 85:18, 86:3, 86:18, 86:22, 87:23, 88:12, 88:20, 88:25, 92:13, 96:20, 97:1, 100:9, 101:8, 101:10, 101:19, 101:22, 101:24, 102:11, 103:8, 103:19, 104:3, 104:18, 105:5, 106:4, 106:8, 106:17, 106:21, 107:2, 107:10, 107:17 court [42] - 5:9, 7:24, 9:13, 9:24, 13:24, 13:25, 14:6, 14:16, 36:7, 38:6, 40:1, 41:18, 42:14, 42:15, 42:20, 43:4, 44:12, 45:7, 45:8, 46:1, 46:5, 54:6, 54:20, 55:14, 57:24, 57:25, 59:17, 62:4, 62:5, 62:22, 66:16, 67:10, 68:2, 68:19, 69:10, 70:11, 77:25, 81:15, 91:19, 98:20, 98:23, 102:9 Court [61] - 1:22, 5:2, 5:16, 6:19, 6:25, 7:3, 7:7, 7:10, 9:18, 9:20, 14:9, 15:2, 15:8, 15:17, 15:20, 16:6, 19:14, 31:7, 41:20, 44:4, 45:1, 45:16, 51:2, 51:6, 53:5, 57:18, 58:23, 62:11, 64:21, 65:2, 65:3, 65:22, 66:5, 67:16, 68:5, 68:11, 68:23, 77:24, 78:5, 78:6, 78:10, 78:19, 78:20, 83:2, 87:14, 87:15, 87:17, 88:2, 89:13, 92:1, 92:9, 98:19, 99:11, 105:3, 105:8, 105:14, 106:3, 108:5, 108:17 court's [3] - 13:12, 44:6, 55:15 Court's [8] - 5:18, 10:25, 11:1, 66:25,

69:9, 77:17, 82:22, 100:2 courthouse [1] 78:18 Courthouse [4] - 1:16, 1:17, 1:22, 1:23 courtroom [1] - 13:21 Courtroom [1] - 1:16 courts [2] - 41:23, 98:18 Courts [1] - 15:9 cover [1] - 77:10 covered [1] - 55:16 create [1] - 39:17 created [4] - 10:5, 57:9, 57:15, 83:6 creates [2] - 59:6, 84:3 creation [1] - 94:5 Crimson [4] - 30:2, 96:25, 97:1 CRR [3] - 1:21, 108:4, 108:16 crude [1] - 97:10 crunch [1] - 60:21 Culman [2] - 8:23, 8:24 culture [1] - 71:25 current [3] - 33:1, 38:23, 42:15 curtailed [1] - 35:22 cyberspace [1] - 75:4

D D-Day [1] - 104:9 damage [1] - 81:20 dangerous [1] - 52:18 dangers [2] - 54:10, 80:14 Daniel [3] - 2:5, 3:13, 52:1 data [1] - 9:17 database [1] - 22:17 date [9] - 36:3, 56:21, 56:22, 57:8, 57:20, 58:8, 58:11, 104:23 dated [1] - 47:8 daunting [1] - 40:7 DAVIS [1] - 4:7 Davis [2] - 14:18, 67:12 days [3] - 10:7, 47:8, 52:4 DC [1] - 2:11 deal [20] - 10:18, 10:19, 33:3, 38:20, 42:21, 44:9, 59:9, 65:7, 78:24, 82:9, 82:13, 89:7, 99:12, 100:18, 103:9,

103:10, 106:8, 106:14, 107:4, 107:11 dealing [8] - 21:8, 24:6, 74:21, 84:21, 92:23, 93:3, 98:3, 98:15 dealt [2] - 35:8, 64:25 December [3] - 33:25, 104:8, 104:9 decided [1] - 105:18 decides [1] - 64:24 decision [3] - 86:7, 99:12, 100:6 decisions [2] - 30:18, 89:23 declaration [21] 7:20, 14:16, 17:10, 53:4, 53:10, 59:12, 60:15, 61:1, 61:11, 61:18, 62:25, 70:9, 70:19, 76:25, 77:3, 77:9, 101:6, 104:22, 106:6 declarations [10] 52:4, 52:6, 52:21, 53:16, 69:25, 70:3, 77:15, 88:8, 104:6, 105:25 decline [2] - 18:17, 72:2 declined [1] - 83:2 Dedalus [1] - 85:22 deems [1] - 77:24 deep [1] - 52:14 deeper [1] - 55:20 defamation [2] 74:19, 95:20 Defendant [1] - 3:6 defendants [1] - 54:21 Defendants [2] - 1:9, 2:18 defending [1] - 94:1 defense [2] - 40:14, 87:13 defensive [1] - 90:3 define [1] - 90:20 defined [1] - 61:15 defining [1] - 78:11 definite [1] - 8:19 definition [1] - 80:5 degrades [1] - 51:21 degree [9] - 15:22, 26:22, 80:20, 85:6, 95:19, 98:11, 101:12, 102:12, 103:12 delay [1] - 27:9 delivered [1] - 6:18 delves [1] - 62:15

demands [2] - 89:5, 90:10 demeaning [2] - 31:2, 97:10 democratic [2] 90:24, 93:23 deny [1] - 102:13 denying [1] - 99:15 deposition [21] - 8:10, 8:11, 23:14, 25:20, 31:9, 48:12, 48:15, 49:12, 50:8, 50:12, 51:16, 71:12, 74:9, 74:24, 79:15, 86:11, 86:12, 88:5, 94:13, 95:9, 95:25 depositions [3] - 47:1, 47:14, 60:13 deputy [1] - 13:21 derogation [1] - 99:3 designating [1] 86:13 desire [2] - 84:1, 90:11 despite [1] - 94:17 detail [2] - 31:25, 79:22 determination [2] 14:3, 75:19 determinative [1] 97:13 determine [1] - 44:7 develop [2] - 55:22, 55:23 developed [5] - 10:13, 42:9, 103:20, 103:21, 105:13 developing [1] - 10:21 development [4] 11:8, 85:23, 93:21, 96:8 dialogue [2] - 27:13, 84:16 diary [23] - 7:14, 9:4, 11:23, 12:13, 16:14, 21:18, 27:25, 29:5, 30:8, 44:22, 66:24, 68:11, 69:24, 70:20, 79:16, 79:23, 79:25, 85:14, 91:10, 91:11, 94:10, 96:11 diary's [1] - 29:1 difference [5] - 15:14, 45:18, 65:14, 79:4, 79:22 differences [2] 45:20, 58:4 different [11] - 29:2, 37:24, 43:3, 44:16, 44:19, 65:22, 74:11,

6

74:12, 83:18, 84:7, 102:25 differential [1] - 30:18 differently [1] - 75:16 difficult [3] - 42:3, 82:18, 91:20 difficulty [1] - 87:3 digest [1] - 107:13 dimension [3] - 13:20, 85:21, 105:11 dimensions [1] - 30:6 diminish [2] - 94:3, 96:22 direct [2] - 90:5, 99:3 directly [5] - 10:24, 26:10, 31:6, 43:18, 93:14 disabilities [1] - 41:23 disadvantage [1] 36:18 disc [1] - 57:4 disciplinary [2] 94:16, 95:5 disclose [1] - 37:16 disclosed [9] - 9:7, 31:5, 52:10, 87:14, 87:15, 95:11, 100:19, 101:2, 101:3 disclosing [2] - 72:21, 105:3 disclosure [19] 22:12, 30:7, 32:16, 35:20, 40:13, 55:16, 63:3, 81:13, 81:21, 91:18, 98:13, 99:5, 100:2, 100:21, 103:15, 103:24, 104:1, 105:19 discount [1] - 91:12 discovery [47] - 22:8, 22:9, 35:10, 35:12, 38:8, 38:10, 41:22, 46:9, 47:2, 47:13, 47:14, 47:15, 47:22, 47:24, 50:25, 51:2, 51:23, 54:13, 54:17, 55:2, 55:12, 55:23, 56:2, 56:9, 56:20, 59:22, 61:6, 61:9, 61:19, 62:2, 62:13, 62:15, 62:23, 63:2, 77:1, 77:5, 78:23, 82:1, 83:20, 102:18, 103:13, 103:14, 103:20, 104:4, 104:8, 105:25 discretion [4] - 25:11, 31:11, 36:11, 76:20 discuss [4] - 61:14, 62:2, 76:20, 78:23

discussed [1] - 42:9 discusses [1] - 79:21 discussion [13] 15:23, 55:4, 56:14, 80:9, 87:11, 89:19, 90:12, 90:19, 92:7, 98:12, 100:20, 100:23, 105:24 discussions [1] 52:16 disinformation [1] 45:13 dismiss [5] - 11:19, 12:24, 13:15, 82:10, 82:14 disobedience [1] 89:20 dispose [1] - 87:6 disposed [1] - 54:13 disposition [2] 47:21, 79:6 dispute [2] - 18:13, 92:4 disrepute [6] - 23:22, 31:3, 36:17, 73:24, 94:12, 95:19 dissatisfied [1] - 88:1 disseminates [1] 10:24 dissemination [1] 17:3 distinction [5] - 5:24, 6:4, 83:13, 84:12, 84:13 distinctions [1] 98:17 distinguish [2] 65:21, 83:22 distract [1] - 56:10 distracted [1] - 74:1 distractions [1] - 42:5 distribution [3] - 17:4, 21:21, 21:23 DISTRICT [2] - 1:1, 1:1 District [9] - 15:2, 15:8, 15:9, 15:17, 15:20, 41:20, 78:5, 78:20, 108:5 doc [7] - 9:11, 10:5, 22:16, 45:23, 47:4, 59:7, 69:3 docket [3] - 13:23, 34:16, 35:3 document [92] - 6:16, 7:25, 8:1, 8:4, 8:6, 9:5, 9:9, 9:11, 10:2, 10:4, 10:7, 12:20, 13:24, 19:10, 20:7, 20:19, 20:24, 21:1, 21:6, 21:13, 21:17,

22:3, 22:5, 22:7, 22:12, 22:14, 22:23, 23:22, 23:25, 24:1, 27:16, 27:23, 27:25, 28:3, 31:25, 34:11, 44:16, 44:21, 46:1, 47:2, 47:13, 47:14, 48:7, 49:22, 49:23, 49:24, 50:11, 56:5, 56:8, 56:23, 57:6, 57:10, 57:11, 57:13, 57:15, 57:16, 57:17, 57:18, 57:19, 57:24, 58:1, 58:23, 59:5, 59:17, 63:5, 63:25, 67:14, 67:17, 67:20, 67:21, 68:2, 68:10, 68:12, 68:16, 68:17, 68:18, 68:19, 68:23, 68:24, 69:3, 71:1, 73:4, 80:16, 81:1, 81:8, 83:20, 85:17, 85:25, 101:11, 101:13 documents [100] 5:17, 6:1, 6:22, 7:6, 7:9, 7:12, 7:13, 8:8, 9:23, 12:4, 12:8, 12:23, 13:10, 13:22, 14:5, 15:2, 15:5, 15:7, 15:8, 15:17, 16:5, 16:9, 16:12, 16:17, 16:25, 17:4, 17:6, 17:9, 17:10, 17:24, 18:19, 18:20, 19:4, 19:7, 22:20, 27:20, 28:18, 31:4, 34:20, 38:16, 38:17, 38:19, 38:25, 39:9, 39:13, 40:12, 40:15, 44:5, 44:18, 44:19, 46:12, 48:6, 54:16, 54:18, 54:19, 54:23, 56:4, 56:8, 58:18, 58:24, 60:3, 62:23, 63:3, 66:13, 66:21, 67:7, 67:17, 70:10, 75:12, 75:13, 75:15, 75:20, 77:10, 78:11, 80:11, 80:12, 80:20, 82:2, 83:4, 83:5, 85:2, 86:3, 87:16, 88:15, 93:12, 93:17, 99:5, 102:4, 102:7, 103:6, 103:15, 104:17, 106:1, 106:2, 106:25, 107:3 dog [1] - 53:9 domain [4] - 40:10, 40:17, 60:6, 60:9 domestic [1] - 83:3

done [5] - 26:17, 38:11, 46:21, 78:8, 98:19 dot [9] - 9:11, 10:5, 22:16, 28:5, 45:23, 47:4, 57:2, 59:7, 69:3 DOUGLAS [1] - 1:11 down [9] - 10:11, 15:3, 17:7, 17:9, 17:19, 27:22, 37:2, 67:10, 77:5 download [2] - 9:6, 40:2 downloaded [1] - 28:8 dragged [1] - 75:3 dramatic [1] - 6:15 draw [2] - 84:11, 84:13 drawing [2] - 5:24, 80:10 drawn [4] - 23:21, 26:9, 26:22, 36:15 drove [1] - 17:2 drum [1] - 93:3 drums [1] - 63:6 due [1] - 55:5 Dunn [1] - 40:11 DUNNER [1] - 2:10 during [5] - 22:8, 22:9, 55:25, 89:10, 100:20 DUSTIN [1] - 1:7 duties [1] - 94:8 DVD [8] - 64:11, 64:14, 65:1, 79:19, 82:24, 83:13, 86:8, 99:9 Dyvia [4] - 8:10, 48:11, 50:7, 50:12

E e-mail [4] - 19:12, 40:10, 42:23, 57:6 e-mailed [4] - 47:4, 47:5, 47:6, 57:9 easily [2] - 46:23, 58:3 editing [1] - 82:19 editor [1] - 70:2 editor's [2] - 39:25, 40:19 editorial [20] - 8:9, 25:11, 30:18, 31:11, 36:11, 39:14, 61:15, 65:15, 71:9, 72:15, 73:16, 73:24, 74:24, 80:10, 85:4, 86:5, 86:7, 95:10, 97:12, 97:25 editors [1] - 86:2 EDUARDO [1] - 1:6

Eduardo [1] - 3:6 educational [1] 20:18 effect [1] - 70:3 effective [1] - 40:18 effort [2] - 89:1, 102:12 efforts [2] - 42:4, 92:16 EHRMAN [2] - 3:8, 3:11 eight [1] - 16:11 either [1] - 45:5 either/or [1] - 83:21 electronic [4] - 9:14, 9:17, 47:7, 58:3 element [1] - 37:21 eliciting [1] - 84:25 eliminate [1] - 77:1 eliminating [1] - 77:4 Elizabeth [1] - 4:3 Elliot [1] - 19:13 EMANUEL [1] - 2:14 Emanuel [1] - 43:14 embarrassment [1] 95:22 emerged [1] - 40:17 emergence [1] - 40:8 emphasize [3] - 70:25, 84:18, 91:13 employee [1] - 9:11 enable [1] - 34:7 encourage [2] - 75:5, 97:9 encouraging [1] 40:3 end [6] - 8:10, 27:18, 33:7, 36:3, 47:23, 78:18 ended [2] - 54:17, 72:25 enforce [3] - 86:25, 105:9, 105:10 enforced [1] - 95:24 enforcing [1] - 98:18 engaged [5] - 46:11, 58:18, 80:6, 80:9, 85:23 engineering [1] 84:14 enjoined [1] - 40:3 ensure [2] - 52:19, 87:10 ensuring [1] - 41:17 entered [1] - 14:8 entire [1] - 68:16 entirely [2] - 13:3, 77:10 entirety [2] - 19:7,

7

38:16 entities [1] - 94:9 entitled [5] - 20:20, 56:6, 83:18, 99:21, 102:8 entity [2] - 84:8, 94:5 entrenchments [1] 90:3 entries [1] - 94:10 entry [1] - 21:18 equilibrium [1] - 56:11 equipment [1] - 69:8 error [1] - 44:7 Esq [18] - 2:5, 2:8, 2:9, 2:9, 2:13, 2:13, 2:14, 2:22, 3:1, 3:2, 3:8, 3:10, 3:13, 3:16, 4:3, 4:5, 4:6, 4:6 Esquenet [1] - 2:9 essentially [3] - 26:18, 30:22, 95:5 et [1] - 5:4 evade [2] - 98:23, 105:14 evaluation [2] - 32:19, 37:17 event [6] - 43:1, 55:17, 63:6, 80:22, 95:25, 97:5 events [1] - 80:9 evidence [2] - 7:22, 93:1 evidentiary [4] - 14:7, 88:7, 93:1, 105:17 ex [4] - 37:19, 42:8, 81:17 exact [2] - 11:23, 65:21 exactly [10] - 7:8, 18:7, 29:21, 35:14, 41:21, 65:10, 68:18, 74:17, 85:16, 96:19 examination [1] 53:17 examiner [2] - 56:4, 56:6 example [8] - 41:18, 44:11, 46:18, 47:4, 49:5, 95:19, 106:24 Except [1] - 34:23 except [4] - 39:16, 44:17, 91:16, 104:21 exception [1] - 85:16 exceptions [1] - 86:9 excerpt [3] - 6:11, 22:6, 23:14 excerpts [1] - 79:14 excised [1] - 95:13 exculpatory [3] 26:18, 26:19, 95:6

Excuse [2] - 6:18, 49:15 exemplar [1] - 51:13 exemplars [1] - 48:24 exercise [11] - 10:25, 36:10, 69:24, 71:9, 85:3, 92:20, 96:1, 97:12, 97:25, 98:24, 107:6 exhausted [1] - 29:15 exhibit [6] - 11:23, 13:2, 14:7, 34:24, 35:15 Exhibit [22] - 17:13, 19:7, 19:12, 20:23, 21:1, 21:17, 21:22, 23:3, 23:14, 27:25, 28:1, 31:20, 31:21, 34:14, 58:4, 72:10, 73:5, 95:2, 96:10, 100:8, 101:13 exhibits [4] - 7:2, 13:2, 13:3, 19:3 existed [3] - 28:10, 38:4, 83:6 existing [1] - 48:23 expand [1] - 102:12 expect [2] - 61:18, 70:18 expectation [1] - 56:3 expected [1] - 103:1 expedited [1] - 5:15 experience [2] 20:18, 52:16 expert [8] - 8:16, 8:20, 8:22, 8:24, 50:8, 51:14, 57:5 expert's [1] - 8:23 explain [4] - 47:20, 49:16, 49:19, 56:21 explains [1] - 57:15 explanation [2] 103:23, 103:25 explore [3] - 46:20, 53:23, 79:14 exploring [1] - 56:7 express [1] - 74:11 expressed [6] - 43:2, 86:13, 90:11, 90:19, 93:21, 96:11 expression [8] 79:22, 80:19, 86:1, 90:24, 92:21, 93:18, 94:25 expressive [2] - 93:13, 93:23 expressly [1] - 83:2 extend [1] - 83:2 extraordinary [1] 31:21

eye [1] - 24:5 eyes [1] - 24:4

F Facebook [15] - 2:18, 5:4, 7:15, 31:22, 33:12, 33:21, 34:6, 35:11, 35:14, 35:15, 56:23, 67:24, 72:23, 79:16, 108:9 FACEBOOK [1] - 1:6 Facebook's [3] 17:22, 21:2, 35:10 faced [1] - 97:24 facemash [2] - 20:5, 56:21 fact [16] - 6:10, 10:4, 14:12, 38:9, 40:10, 44:7, 45:23, 47:3, 81:21, 90:23, 92:1, 94:17, 95:24, 96:13, 105:10, 106:22 facts [5] - 14:25, 20:6, 85:10, 87:14, 87:15 factual [2] - 11:8, 11:11 failure [1] - 92:2 fair [3] - 48:12, 48:13, 79:21 fairly [5] - 5:23, 19:4, 20:24, 39:12, 80:8 falling [1] - 86:14 falls [1] - 86:7 false [1] - 7:21 familiar [2] - 9:1, 32:25 far [6] - 7:16, 21:14, 23:9, 27:21, 68:10, 88:8 FARABOW [1] - 2:10 fashion [8] - 63:7, 74:22, 91:24, 95:4, 96:13, 98:4, 99:4, 106:11 fast [1] - 96:5 fast-moving [1] - 96:5 favor [1] - 98:13 feared [1] - 102:20 Federal [1] - 2:6 feelings [2] - 43:22, 55:19 fellow's [1] - 39:2 felt [1] - 82:11 few [3] - 7:15, 26:12, 70:6 figure [14] - 30:5, 44:8, 71:20, 71:24, 72:1, 73:17, 73:18, 73:22, 73:23, 74:9, 74:16,

83:6, 95:13 file [34] - 9:5, 9:6, 9:12, 9:13, 9:15, 10:5, 13:15, 13:24, 15:3, 20:12, 45:8, 45:16, 45:23, 46:1, 46:6, 47:4, 47:7, 54:21, 54:24, 57:9, 58:12, 59:6, 59:7, 67:1, 67:15, 68:18, 68:19, 69:2, 69:24, 70:11 filed [10] - 34:15, 35:12, 41:19, 57:17, 58:24, 59:17, 100:4, 100:6, 100:7, 101:7 files [5] - 7:25, 15:17, 42:14, 42:15, 68:11 filing [1] - 37:8 filings [1] - 22:21 filled [3] - 15:4, 48:20, 49:11 final [6] - 60:22, 61:5, 87:25, 106:19 finally [2] - 96:10, 98:10 financial [5] - 21:5, 27:25, 34:2, 34:5 Financial [1] - 4:4 financing [2] - 32:2, 35:21 findings [1] - 99:22 fine [1] - 53:16 finger [1] - 107:5 finger-pointing [1] 107:5 FINNEGAN [1] - 2:10 firm [3] - 9:3, 37:21, 57:11 first [50] - 5:11, 6:22, 9:25, 10:6, 11:5, 12:5, 12:10, 12:25, 13:1, 13:4, 13:17, 17:21, 22:24, 23:4, 25:17, 30:7, 30:17, 30:23, 33:18, 34:24, 34:25, 38:14, 41:6, 41:7, 42:13, 42:16, 44:4, 45:21, 50:6, 50:21, 50:22, 53:24, 56:12, 58:4, 60:15, 60:25, 62:2, 64:2, 66:12, 67:14, 67:19, 70:5, 73:7, 75:20, 78:23, 78:24, 80:25, 93:3, 97:2, 97:11 First [45] - 5:24, 6:25, 7:3, 7:10, 7:11, 12:20, 12:24, 13:4, 13:7, 14:1, 15:4,

15:16, 15:18, 15:19, 41:7, 44:8, 53:5, 65:7, 67:16, 68:6, 68:7, 68:11, 78:13, 81:2, 83:10, 83:15, 83:18, 83:25, 88:16, 89:2, 89:8, 89:19, 89:21, 90:4, 90:10, 90:23, 91:23, 92:16, 93:15, 94:25, 97:16, 98:8, 99:14, 104:16, 106:11 floated [1] - 75:4 Floor [3] - 2:16, 3:3, 3:20 floor [1] - 78:18 flotsam [1] - 99:7 flow [10] - 7:15, 12:12, 23:4, 23:10, 31:21, 37:1, 46:18, 72:19, 79:16, 88:6 flowing [1] - 87:9 flows [4] - 21:2, 32:17, 87:9, 96:3 focus [9] - 10:13, 18:12, 23:16, 26:3, 26:14, 37:8, 84:20, 84:22 focused [5] - 36:12, 37:9, 79:13, 85:1, 95:1 follow [3] - 6:15, 44:3, 79:12 following [1] - 6:12 foolish [3] - 94:21, 94:22, 97:24 footer [1] - 68:23 footnote [2] - 28:4, 59:17 footsteps [1] - 53:7 force [1] - 94:3 forced [1] - 19:19 foreclose [1] - 42:4 foregoing [1] - 108:6 forensic [1] - 58:13 forensics [1] - 59:10 forgetting [1] - 39:1 form [18] - 15:4, 32:15, 37:19, 37:23, 49:12, 56:10, 58:3, 58:24, 62:23, 63:2, 86:1, 90:20, 90:24, 93:23, 94:16, 99:5, 104:20 formal [1] - 25:3 formalized [1] - 81:20 format [10] - 9:5, 9:12, 9:14, 9:15, 9:21, 22:16, 56:25, 57:14, 59:6 forms [1] - 91:15

8

formulate [3] - 62:3, 62:14, 62:19 formulation [1] 55:12 forth [1] - 55:9 forthcoming [1] 102:15 fortify [1] - 87:20 forum [1] - 27:15 forward [5] - 41:4, 56:14, 57:10, 59:9, 62:25 foundation [1] - 56:5 founded [1] - 71:24 four [6] - 16:12, 16:16, 18:19, 18:20, 22:19, 49:21 frame [1] - 56:3 framed [1] - 51:23 framing [1] - 79:9 Francisco [1] - 3:9 frankly [2] - 14:1, 73:10 freedom [1] - 79:22 freelance [1] - 6:23 Frequently [1] - 9:19 frequently [3] - 80:16, 83:25, 98:24 Freund [1] - 102:20 Friday [3] - 1:18, 100:17, 104:8 front [1] - 68:17 full [6] - 30:11, 60:15, 90:12, 93:1, 100:22, 100:23 fully [12] - 10:13, 15:13, 42:10, 50:14, 50:15, 70:25, 77:15, 78:17, 82:12, 98:11, 105:13 fundamental [3] 27:16, 87:5, 91:8 fundamentally [2] 16:23, 93:18 funding [1] - 32:21 funds [1] - 33:11 future [1] - 62:11

G Gamble [4] - 65:17, 65:21, 83:12, 91:25 gander [1] - 55:2 garbled [1] - 49:17 GARRETT [1] - 2:10 gatherum [1] - 98:16 general [3] - 18:22, 47:20, 96:11 General [1] - 82:1 generality [2] - 33:14,

94:23 generalized [1] 78:13 generally [4] - 36:13, 93:22, 98:13, 99:1 generated [1] - 22:11 Gibson [1] - 40:11 given [7] - 25:19, 28:18, 42:21, 46:8, 66:11, 79:9, 87:18 Given [1] - 42:20 glad [1] - 6:14 go-round [1] - 67:25 gossip [1] - 83:3 governs [1] - 46:16 great [2] - 33:3, 59:9 greater [3] - 15:22, 27:21, 84:1 greatest [1] - 44:5 greatly [1] - 46:6 GRIESINGER [1] - 2:6 gross [1] - 91:5 grounds [2] - 98:1, 104:13 groups [1] - 80:5 growth [2] - 31:22, 32:19 guess [28] - 5:10, 5:11, 23:16, 26:3, 30:5, 32:10, 32:14, 33:25, 36:6, 38:23, 45:24, 46:2, 55:21, 58:6, 58:15, 60:25, 62:24, 69:25, 75:18, 78:14, 80:3, 80:24, 84:11, 100:5, 101:16, 101:20, 103:8, 106:4 guidance [1] - 17:1 guided [2] - 89:2, 89:4

H half [3] - 12:11, 62:20, 78:4 hallway [1] - 15:3 Hampton [1] - 3:13 Hancock [4] - 1:21, 108:4, 108:15, 108:16 hand [4] - 6:18, 32:11, 57:20, 87:13 hand-delivered [1] 6:18 Handman [2] - 4:6, 24:22 hands [3] - 46:12, 81:12, 96:17 handwriting [19] - 8:9, 8:14, 8:15, 8:16,

8:19, 44:20, 48:1, 48:4, 48:11, 48:24, 49:4, 49:9, 49:16, 50:3, 50:8, 51:14, 51:15, 51:16 handwriting's [1] 44:21 handwritings [1] 50:10 handwritten [17] - 8:1, 8:2, 8:4, 8:7, 42:17, 49:13, 49:25, 51:6, 51:11, 63:10, 66:22, 67:18, 67:19, 67:21, 67:25, 68:3, 69:15 hangs [2] - 6:12, 7:19 happily [1] - 90:2 happy [9] - 5:14, 6:8, 18:25, 49:18, 72:15, 76:5, 76:12, 76:13, 88:10 Harbor [1] - 104:10 hard [6] - 9:14, 40:10, 76:13, 85:14, 89:24, 101:24 hardly [1] - 87:18 hardships [1] - 93:25 harm [1] - 98:8 harmful [1] - 93:19 harms [3] - 24:15, 98:3, 98:5 Harvard [28] - 7:23, 8:16, 19:10, 19:23, 20:4, 20:5, 20:7, 20:12, 21:25, 26:16, 30:2, 48:4, 48:5, 49:11, 49:22, 49:24, 50:6, 50:10, 50:15, 50:18, 50:25, 51:2, 63:11, 67:14, 96:25, 97:1, 97:22 hastily [1] - 40:23 Hawk [1] - 3:10 header [1] - 68:23 hear [18] - 5:10, 5:12, 24:25, 25:7, 31:10, 43:24, 43:25, 49:20, 53:25, 54:4, 54:5, 70:7, 74:16, 76:15, 76:16, 77:3 heard [10] - 12:11, 18:2, 61:21, 63:3, 71:14, 75:22, 77:17, 88:21, 100:13, 106:4 Hearing [1] - 107:19 HEARING [1] - 1:13 hearing [7] - 5:15, 14:7, 41:7, 48:2, 89:6, 92:25, 100:10 hearings [1] - 89:7

hearsay [1] - 97:3 heart [1] - 89:8 HEDGES [1] - 2:15 heightened [1] - 107:3 held [7] - 23:7, 23:19, 31:3, 36:17, 73:23, 94:12, 95:18 HELLER [2] - 3:8, 3:11 help [2] - 46:6, 56:19 helpful [5] - 40:19, 51:19, 55:1, 61:5, 64:9 Hence [1] - 90:4 HENDERSON [1] 2:10 hereby [1] - 108:5 HERRINGTON [2] 2:23, 3:16 high [1] - 85:6 highly [2] - 96:12, 97:20 himself [1] - 19:22 historical [2] - 9:8, 33:16 history [2] - 72:20, 72:24 hold [1] - 106:1 Hold [1] - 71:21 HOLLAND [1] - 3:14 holographic [1] - 64:2 Honor [203] - 5:14, 6:8, 6:17, 6:21, 7:2, 7:8, 7:21, 8:6, 8:11, 9:2, 9:22, 10:1, 10:15, 11:2, 11:15, 11:22, 12:3, 12:10, 12:15, 13:9, 13:14, 14:4, 14:17, 15:24, 16:22, 17:1, 17:8, 17:21, 18:7, 18:15, 19:1, 19:13, 19:20, 19:25, 20:10, 20:13, 21:10, 22:13, 22:23, 23:2, 23:9, 23:15, 23:24, 24:13, 24:17, 25:9, 25:18, 25:22, 26:1, 26:6, 26:12, 27:1, 27:8, 27:19, 28:6, 28:16, 28:24, 29:3, 29:11, 29:18, 29:24, 30:14, 30:20, 31:10, 31:24, 32:18, 33:5, 33:17, 34:9, 34:16, 34:22, 35:18, 36:2, 36:23, 37:5, 38:13, 39:9, 39:21, 39:23, 40:21, 42:11, 42:24, 43:12, 43:20, 44:2, 44:17, 45:8, 45:11, 45:17, 46:5,

46:6, 46:15, 47:3, 47:25, 48:10, 48:16, 48:25, 49:2, 49:10, 49:18, 50:17, 51:18, 51:24, 52:1, 52:2, 52:3, 52:11, 52:24, 53:3, 53:6, 53:12, 53:19, 54:1, 54:2, 54:12, 55:5, 56:16, 58:19, 58:21, 59:4, 59:14, 59:18, 60:7, 60:18, 61:7, 62:6, 63:9, 63:15, 63:16, 64:5, 64:7, 64:23, 65:4, 65:9, 66:1, 66:2, 66:8, 66:12, 70:13, 70:17, 70:21, 71:3, 71:10, 71:23, 72:10, 72:12, 72:19, 73:3, 73:4, 73:6, 73:15, 73:19, 74:10, 74:17, 75:8, 76:4, 76:18, 76:21, 76:23, 77:6, 77:23, 78:22, 79:8, 79:14, 79:18, 80:23, 81:23, 81:25, 82:20, 82:24, 83:10, 84:11, 85:5, 85:8, 86:1, 86:6, 87:22, 88:3, 88:4, 88:10, 88:23, 96:18, 96:24, 99:24, 100:7, 101:6, 101:16, 102:3, 102:5, 103:4, 103:17, 104:2, 104:15, 104:16, 105:1, 105:22, 106:7, 106:16, 106:18, 107:1, 107:7, 107:16 Honor's [2] - 82:22, 106:20 Honorable [2] - 5:2, 66:5 HONORABLE [1] 1:11 hoped [1] - 101:25 Hopefully [1] - 54:3 HORNICK [33] - 12:15, 12:17, 13:9, 19:25, 20:3, 20:10, 23:9, 29:24, 34:9, 34:11, 34:14, 34:18, 34:23, 35:3, 35:5, 35:8, 36:1, 36:5, 49:15, 56:16, 56:19, 57:2, 57:4, 57:22, 58:10, 58:14, 58:21, 61:23, 62:1, 62:9, 63:9, 96:18, 96:24

9

Hornick [19] - 2:8, 12:15, 13:6, 13:15, 19:25, 23:6, 29:24, 34:9, 34:10, 47:19, 49:15, 49:19, 56:16, 58:7, 58:22, 61:23, 62:18, 63:9, 64:16 Hornick's [1] - 35:19 horse [1] - 53:9 hour [4] - 12:11, 12:19, 62:20, 78:3 hours [2] - 10:16, 36:21 house [1] - 20:10 housekeeping [4] 24:23, 46:14, 46:19, 101:17 HUGHES [1] - 1:7 Hughes [1] - 2:20 human [1] - 31:1 hunt [2] - 54:21, 54:22 hurt [2] - 43:22, 55:18 Husbands [3] - 4:6, 67:4, 68:4 HUSBANDS [14] 67:11, 67:12, 67:14, 68:2, 68:6, 68:8, 68:10, 68:21, 69:1, 69:9, 69:13, 69:18, 69:20, 70:1

I idea [1] - 23:8 identification [1] 74:6 identified [11] - 18:19, 31:17, 47:16, 49:14, 54:20, 81:25, 95:12, 96:4, 101:13, 101:21, 102:4 identifiers [1] - 67:23 identify [5] - 5:8, 14:5, 42:9, 71:13, 72:5 identifying [4] - 38:11, 50:4, 51:9, 101:13 illegally [1] - 81:12 illegible [1] - 68:14 imagaine [1] - 46:17 immediate [4] - 81:21, 84:20, 96:8, 103:9 immediately [2] 28:7, 79:7 impact [1] - 88:10 implicated [1] - 83:15 importance [2] 27:21, 91:12 important [13] - 6:10, 10:4, 54:5, 54:6, 73:10, 85:21, 86:10,

89:13, 91:8, 100:4, 100:5, 105:2 impose [1] - 98:9 impossible [1] - 86:15 improper [3] - 81:13, 86:17, 98:20 improperly [2] - 55:16, 60:8 inadvertently [1] 86:16 Inc [4] - 2:3, 2:18, 5:4 INC [2] - 1:4, 1:6 incidental [1] - 92:10 inclined [2] - 38:2, 38:3 include [6] - 45:5, 92:22, 97:14, 102:24, 106:5 included [1] - 11:20 including [1] - 106:24 incoherent [1] - 37:21 Income [1] - 33:18 incommensurables [2] - 90:10, 91:4 inconsequential [1] 94:22 inconsistent [6] 15:21, 78:15, 103:24, 103:25, 104:22, 105:16 incorporated [1] 13:7 incorrect [2] - 30:8, 30:9 increased [1] - 84:3 indeed [3] - 59:19, 61:9, 72:22 independent [3] 104:13, 105:9, 105:15 indicate [2] - 44:19, 60:2 indicated [4] - 5:7, 18:1, 77:23, 92:24 indicates [4] - 10:5, 13:23, 28:9, 69:3 indication [2] - 54:15, 75:25 indications [1] - 45:25 indirectly [1] - 102:13 individual [9] - 27:4, 31:3, 73:7, 74:1, 74:6, 74:7, 74:19, 77:9, 95:17 individual's [4] 71:16, 73:11, 73:13, 74:3 individuals [3] 31:16, 46:20, 84:4 inextricably [1] -

93:12 inferences [1] - 53:14 inflict [1] - 98:5 inflicting [1] - 98:8 inform [1] - 18:9 information [34] 5:22, 9:7, 9:8, 10:8, 10:10, 14:9, 18:5, 21:3, 32:8, 32:21, 33:3, 34:4, 35:20, 35:21, 42:20, 45:23, 46:17, 50:2, 50:5, 51:9, 52:10, 53:5, 58:7, 71:15, 78:14, 81:5, 83:3, 84:1, 86:14, 86:16, 91:8, 94:4, 94:6, 96:16 informations [1] 107:1 informed [7] - 15:13, 16:14, 17:21, 17:22, 24:8, 64:6 infusion [1] - 72:23 initial [1] - 88:22 injunction [14] 37:23, 38:5, 38:6, 79:1, 79:5, 87:24, 92:6, 92:14, 93:5, 93:6, 94:2, 98:5, 99:16 injunctions [1] - 38:4 injunctive [3] - 61:20, 84:23, 93:3 innocent [4] - 23:20, 36:14, 74:25, 75:1 inquiries [1] - 42:6 inquiry [5] - 41:20, 41:22, 42:8, 78:17, 83:11 insight [1] - 89:12 insignificant [1] 52:17 instance [2] - 25:16, 30:22 instances [1] - 65:21 institutional [1] 41:17 instrumentally [1] 62:19 integrity [3] - 41:17, 55:14, 82:1 intellectual [1] - 90:16 intend [2] - 77:16, 102:7 intent [1] - 87:19 intention [4] - 75:17, 82:13, 103:2, 104:18 inter [1] - 63:2 interest [15] - 11:12, 33:16, 39:15, 39:17,

84:25, 85:15, 88:14, 90:13, 91:5, 93:16, 96:1, 98:10, 98:13, 99:2, 99:3 interested [6] - 11:4, 55:8, 92:3, 96:24, 97:4, 104:24 interesting [1] - 55:10 interests [5] - 90:4, 93:20, 94:24, 95:2, 107:8 interlocutory [3] 84:23, 92:23, 93:8 International [2] - 3:3, 3:20 internet [7] - 7:6, 28:18, 58:5, 58:25, 64:24, 84:10, 96:14 interrupt [5] - 11:25, 14:20, 15:25, 18:6, 96:18 interrupted [1] - 71:8 intersection [1] 31:18 intertwined [1] - 93:12 interview [1] - 52:9 investigate [6] - 17:1, 29:12, 29:22, 41:10, 42:19, 46:7 investigating [3] 62:3, 62:6, 77:25 investigation [2] 16:24, 41:6 investigations [3] 52:17, 62:7, 91:21 investing [2] - 32:2, 33:2 investor [1] - 35:20 investor-related [1] 35:20 investors [1] - 32:13 invitation [1] - 72:2 invited [1] - 43:5 invoke [1] - 88:14 invokes [2] - 85:6, 85:15 involved [8] - 12:25, 42:8, 43:10, 46:11, 48:3, 70:20, 74:20, 95:4 involves [3] - 21:4, 67:5, 98:24 irreparable [1] - 84:20 irrespective [4] 10:23, 38:2, 38:5, 60:13 issuance [3] - 32:3, 32:5, 94:2 issue [40] - 12:21, 15:2, 16:17, 16:25,

17:2, 22:25, 25:10, 26:24, 27:17, 31:21, 37:24, 38:20, 38:23, 39:4, 41:16, 42:3, 42:21, 46:22, 46:24, 47:16, 55:1, 56:13, 59:5, 64:24, 64:25, 65:11, 65:20, 75:11, 78:23, 82:8, 83:6, 84:12, 87:5, 87:24, 92:2, 99:4, 100:5, 100:15, 101:20, 102:6 issued [1] - 35:9 issues [19] - 16:24, 18:24, 27:14, 32:4, 41:4, 46:22, 51:24, 70:6, 76:19, 79:3, 79:9, 82:22, 83:15, 91:12, 98:16, 102:16, 102:17, 102:19, 103:18 iteration [2] - 8:3, 64:2 iterations [1] - 63:25 itself [19] - 13:25, 15:15, 15:21, 61:3, 76:9, 77:24, 80:21, 85:24, 85:25, 86:5, 86:7, 87:1, 87:15, 89:4, 90:15, 90:16, 100:14, 105:9, 105:10

J James [1] - 3:14 January [14] - 10:6, 10:7, 22:10, 22:14, 22:16, 33:25, 56:22, 56:24, 57:5, 57:14, 57:15, 57:20, 58:9, 68:22 jetsam [1] - 99:7 John [13] - 1:16, 1:22, 2:8, 12:15, 19:13, 19:25, 29:24, 34:9, 49:15, 56:16, 58:22, 61:23, 63:9 Jose [1] - 65:3 Joseph [2] - 1:16, 1:22 journal [8] - 9:23, 29:25, 34:23, 44:10, 44:14, 56:22, 85:12, 88:5 Journal [4] - 89:2, 91:17, 105:11, 106:23 journalism [8] - 80:4, 80:7, 81:11, 84:4,

10

90:20, 93:22, 98:24 journalist [2] - 6:23, 78:9 journalistic [1] - 82:19 journalists [2] - 60:12, 61:9 judge [2] - 80:17, 81:16 Judge [10] - 5:5, 35:9, 35:21, 61:23, 67:4, 70:7, 75:18, 75:23, 77:12, 98:16 judges [3] - 18:14, 83:25, 102:20 judgment [18] - 11:20, 25:11, 39:14, 71:9, 72:15, 73:16, 73:25, 74:13, 74:14, 74:24, 80:10, 82:11, 82:14, 85:4, 91:1, 95:10, 97:12, 97:25 judgmental [1] - 37:7 judgments [3] - 26:23, 84:5, 90:7 judicial [2] - 13:18, 82:1 July [1] - 42:24 jumping [1] - 28:4 jurisdiction [4] - 38:7, 87:7, 87:8, 92:8 jurisprudence [1] 91:14 justice [1] - 81:25 justifiable [1] - 105:21 justification [1] - 98:8 justify [2] - 84:24, 96:1

K keep [5] - 10:2, 39:1, 86:18, 94:14, 102:2 kept [4] - 21:18, 41:19, 57:14, 91:19 key [2] - 6:9, 91:11 kind [15] - 21:5, 23:21, 30:4, 31:7, 32:11, 32:12, 42:20, 73:17, 79:12, 80:4, 81:19, 96:1, 98:16, 99:8, 105:19 kinds [1] - 94:7 KNIGHT [1] - 3:14 knowledge [3] 28:22, 29:9, 52:7 known [4] - 51:14, 51:16, 71:19, 71:24 knows [1] - 63:17

L label [4] - 53:11, 68:22, 84:10, 84:24 laboring [1] - 77:8 language [1] - 67:5 large [1] - 49:5 large-enough [1] 49:5 larger [4] - 22:7, 59:6, 90:16, 90:22 last [8] - 14:22, 52:3, 54:2, 60:22, 61:10, 73:2, 75:11, 89:14 late [1] - 88:23 launch [1] - 54:21 laundry [1] - 66:11 Laura [2] - 4:6, 24:22 law [11] - 5:23, 18:8, 18:10, 37:20, 38:4, 74:19, 81:20, 88:17, 89:3, 89:11, 95:19 Law [1] - 65:2 lawfully [1] - 6:23 lawyer [4] - 46:10, 54:11, 102:20, 102:21 lawyers [2] - 40:15, 76:13 layer [1] - 88:16 lead [1] - 82:18 leading [1] - 89:3 leak [1] - 52:17 learn [1] - 19:20 learned [3] - 10:15, 67:7, 104:23 learning [1] - 59:9 least [38] - 10:9, 10:17, 12:1, 13:22, 14:14, 14:21, 15:16, 16:14, 18:15, 23:20, 25:18, 26:23, 29:4, 36:7, 42:6, 50:9, 52:23, 56:14, 60:1, 62:22, 63:4, 64:1, 72:22, 73:16, 74:12, 74:13, 82:16, 85:4, 87:15, 89:8, 91:1, 94:16, 95:15, 97:18, 99:9, 100:11, 105:12 leave [2] - 55:22, 106:13 leaving [1] - 47:23 led [1] - 29:4 left [1] - 53:1 legal [6] - 30:14, 30:17, 37:7, 37:21, 74:14, 86:25 legally [1] - 81:12 lend [1] - 80:21

less [3] - 31:22, 37:6, 43:21 letters [1] - 48:9 level [2] - 87:19, 94:23 lie [1] - 90:3 life [1] - 94:18 light [4] - 27:15, 42:17, 52:16, 104:5 likelihood [3] - 92:16, 93:10, 94:20 likely [3] - 59:15, 95:10, 103:23 limited [1] - 90:6 Lindsey [1] - 9:10 line [6] - 30:23, 33:18, 72:13, 73:7, 97:11, 100:8 Line [2] - 72:9, 72:11 lineage [1] - 45:15 Lippman [1] - 97:19 list [4] - 14:7, 39:20, 66:11, 103:10 listen [1] - 6:14 litigation [15] - 22:17, 26:10, 31:5, 36:15, 39:16, 75:1, 85:20, 87:2, 89:2, 89:16, 92:12, 94:14, 98:14, 100:3, 106:13 litodes [1] - 78:15 live [1] - 53:17 LLC [1] - 1:8 LLP [10] - 2:6, 2:10, 2:15, 2:23, 3:2, 3:8, 3:11, 3:14, 3:16, 3:19 loaded [1] - 22:17 local [1] - 24:19 located [2] - 42:18, 78:20 Loeb [2] - 97:18, 97:19 look [12] - 6:21, 25:17, 30:21, 30:22, 33:17, 39:13, 40:5, 56:14, 57:11, 59:9, 97:2, 100:15 looked [6] - 8:8, 13:4, 28:6, 42:16, 42:17, 57:23 looking [3] - 34:15, 42:14, 48:23 loudly [1] - 54:8 LOVETT [1] - 5:2 Lovett [2] - 5:7, 13:21 luck [1] - 98:25 lucky [1] - 98:22 Luke [1] - 6:23

M MA [7] - 1:17, 1:23, 2:7, 3:4, 3:15, 3:21, 4:4 machine [1] - 69:10 Madison [1] - 2:15 MAFFEI [1] - 2:6 magazine [28] - 6:3, 6:6, 6:19, 61:11, 67:18, 67:19, 68:14, 69:14, 69:15, 69:20, 69:21, 70:2, 70:19, 71:11, 71:18, 72:25, 74:13, 77:10, 80:9, 81:16, 83:5, 83:24, 86:2, 90:11, 91:2, 97:22, 101:21, 102:3 magazine's [1] - 73:9 magazines [1] - 80:15 mail [4] - 19:12, 40:10, 42:23, 57:6 mailed [4] - 47:4, 47:5, 47:6, 57:9 maintain [1] - 40:20 maintained [1] - 57:10 major [1] - 27:23 manageable [1] - 90:6 manner [4] - 29:7, 74:10, 75:23, 93:2 Margaret [1] - 2:9 margin [2] - 50:23, 51:11 margins [1] - 51:7 MARK [1] - 1:6 Mark [10] - 2:19, 3:2, 7:14, 7:23, 9:4, 11:23, 19:13, 21:18, 44:22, 49:23 marked [3] - 22:15, 38:17, 38:25 marketplace [3] 33:11, 33:22, 34:7 marking [1] - 22:18 markings [1] - 44:18 Marsh [2] - 2:23, 3:17 Mass [1] - 24:23 MASSACHUSETTS [1] - 1:1 match [4] - 8:20, 8:21, 50:12 material [7] - 52:8, 80:6, 84:2, 90:22, 92:22, 102:10, 104:14 materials [24] - 9:20, 11:18, 11:21, 22:11, 24:10, 36:11, 37:17, 40:20, 41:9, 41:18, 52:14, 61:2, 61:4,

80:7, 80:15, 81:1, 86:5, 90:25, 91:18, 91:19, 91:20, 95:11, 106:23 matter [26] - 11:14, 17:18, 20:16, 21:19, 38:1, 41:15, 41:17, 43:3, 46:14, 46:19, 55:23, 66:12, 86:25, 91:25, 94:6, 96:12, 97:6, 97:8, 101:11, 105:17, 105:20, 105:21, 106:19, 107:5, 108:8 matters [9] - 25:8, 37:13, 61:16, 93:16, 94:22, 97:2, 98:14, 99:1, 100:22 mature [1] - 94:18 MCCOLLUM [1] - 1:7 McCollum [1] - 2:20 mean [22] - 16:19, 32:4, 37:18, 39:11, 42:4, 43:1, 45:9, 48:8, 48:15, 51:19, 74:10, 76:18, 81:17, 92:21, 93:2, 94:3, 97:25, 99:18, 100:19, 100:22, 103:5, 104:9 mean-spirited [1] 97:25 meaning [4] - 40:9, 41:19, 78:5, 78:18 meaningful [1] - 55:12 means [4] - 86:17, 92:18, 96:14, 99:14 meant [4] - 26:18, 26:20, 67:20, 94:15 measured [1] - 84:6 Mechanical [1] - 1:24 mechanism [2] 24:14, 87:1 media [2] - 46:9, 82:3 meet [1] - 35:11 member [5] - 20:9, 24:22, 24:24, 68:16, 107:12 memorandum [1] 101:2 Men [1] - 97:20 Menlo [3] - 2:24, 3:12, 3:17 mentioned [2] - 45:21, 60:16 mere [1] - 84:24 Meredith [1] - 2:9 merely [5] - 78:12, 83:19, 85:9, 85:19, 89:4

11

merits [5] - 76:6, 92:17, 92:18, 93:10 metadata [7] - 9:8, 9:9, 10:5, 28:9, 42:18, 45:23 metaphors [1] - 40:7 microphone [1] - 54:9 Microsoft [1] - 9:12 Middlefield [1] - 3:11 Midwest [1] - 9:2 might [17] - 32:1, 36:16, 42:5, 48:19, 48:20, 49:7, 61:18, 70:18, 76:25, 77:3, 82:7, 87:20, 95:9, 95:18, 96:18, 97:13, 97:22 Miller [1] - 39:2 million [1] - 72:23 mind [8] - 26:24, 75:3, 85:23, 92:6, 92:13, 92:15, 93:18, 101:21 minimize [1] - 74:11 minimum [1] - 94:12 mirror [1] - 98:4 mirror-like [1] - 98:4 misrepresentation [1] - 75:24 missed [1] - 76:4 missing [1] - 15:3 mistakes [1] - 94:20 misunderstanding [1] - 14:21 mitigated [1] - 24:16 Moakley [2] - 1:16, 1:22 models [1] - 34:3 modifications [1] 57:23 modified [2] - 38:7, 57:19 modify [2] - 38:3 moment [21] - 6:14, 7:5, 10:19, 10:22, 13:1, 15:11, 20:24, 25:22, 27:5, 34:10, 37:12, 41:1, 43:16, 44:23, 53:22, 66:15, 70:15, 81:1, 86:22, 91:12 Monday [1] - 70:21 money [5] - 32:3, 33:23, 33:24 months [1] - 7:15 moot [2] - 12:25, 13:16 Morality [1] - 89:18 Moreover [2] - 93:14, 93:16 morning [3] - 77:17,

79:10, 106:24 MOSKOVITZ [1] - 1:7 most [10] - 21:2, 39:15, 75:21, 89:13, 90:6, 91:16, 95:1, 97:20, 98:15, 102:20 motion [23] - 11:19, 11:20, 12:24, 12:25, 13:3, 13:15, 35:8, 35:12, 35:13, 35:19, 76:9, 76:11, 77:11, 78:21, 82:10, 82:11, 91:13, 98:6, 100:1, 100:6, 100:24, 102:12 Motion [1] - 34:14 MOTION [1] - 1:13 motions [1] - 82:14 mouth [1] - 54:9 move [2] - 15:12, 103:19 moving [7] - 62:25, 92:19, 93:11, 93:25, 94:2, 96:5, 98:3 MR [285] - 5:14, 6:8, 6:17, 6:21, 7:8, 8:5, 8:14, 8:23, 9:2, 9:22, 10:15, 11:2, 11:15, 11:22, 12:3, 12:10, 12:15, 12:17, 13:9, 13:14, 14:4, 14:17, 14:20, 14:25, 15:24, 16:3, 16:7, 16:11, 16:20, 16:22, 17:8, 17:13, 17:16, 17:20, 18:11, 18:14, 18:25, 19:3, 19:6, 19:12, 19:17, 19:20, 19:24, 19:25, 20:3, 20:10, 20:13, 20:16, 20:23, 21:1, 21:10, 21:12, 21:17, 21:23, 22:2, 22:5, 22:9, 22:13, 22:23, 23:2, 23:9, 23:15, 23:23, 24:1, 24:4, 24:13, 25:9, 25:18, 25:22, 26:1, 26:6, 26:12, 27:1, 27:3, 27:8, 27:12, 28:6, 28:16, 28:22, 29:2, 29:11, 29:18, 29:24, 30:14, 30:19, 30:24, 31:10, 31:14, 31:24, 32:7, 32:18, 32:24, 33:4, 33:9, 33:17, 33:21, 34:2, 34:9, 34:11, 34:14, 34:18, 34:22, 34:23, 35:3, 35:5, 35:8, 35:18, 36:1, 36:5,

36:23, 36:25, 37:4, 38:13, 39:3, 39:8, 39:20, 39:23, 40:21, 41:3, 41:25, 42:11, 42:13, 43:7, 43:12, 43:14, 43:20, 44:2, 44:16, 44:21, 44:25, 45:7, 45:11, 45:14, 45:17, 45:20, 45:25, 46:4, 46:15, 47:2, 47:6, 47:12, 47:25, 48:10, 48:16, 48:19, 48:22, 48:25, 49:2, 49:4, 49:10, 49:15, 49:18, 49:22, 50:17, 50:20, 50:22, 51:1, 51:5, 51:18, 51:23, 52:1, 52:24, 53:3, 53:12, 53:19, 54:1, 54:2, 54:3, 54:8, 54:12, 54:15, 55:5, 56:16, 56:19, 57:2, 57:4, 57:22, 58:10, 58:14, 58:19, 58:21, 59:2, 59:4, 59:13, 59:18, 59:24, 60:7, 60:10, 60:18, 61:7, 61:23, 62:1, 62:9, 63:9, 63:15, 63:16, 63:19, 63:22, 63:23, 64:5, 64:10, 64:14, 64:18, 64:20, 65:9, 65:14, 65:19, 66:1, 66:8, 66:11, 66:18, 66:24, 67:3, 70:7, 70:9, 70:13, 70:17, 70:21, 71:3, 71:7, 71:10, 71:18, 71:23, 72:4, 72:8, 72:10, 72:12, 72:15, 72:18, 73:2, 73:6, 73:9, 73:15, 73:21, 74:10, 75:7, 75:11, 75:18, 76:4, 76:9, 76:11, 76:18, 76:23, 77:12, 77:16, 77:19, 77:22, 78:22, 79:8, 79:12, 79:18, 79:21, 80:23, 81:4, 81:23, 82:20, 83:1, 84:11, 85:5, 85:25, 86:6, 86:20, 87:21, 88:3, 88:13, 88:23, 96:18, 96:24, 99:24, 101:16, 101:20, 101:23, 102:2, 103:4, 103:17, 104:2, 104:15, 105:1, 105:22, 106:7, 106:16, 106:18, 106:22, 107:7,

107:16 MS [19] - 6:18, 24:17, 24:19, 25:1, 66:2, 67:11, 67:14, 68:2, 68:6, 68:8, 68:10, 68:21, 69:1, 69:9, 69:13, 69:18, 69:20, 70:1, 101:6 MS.RITVA [3] - 24:22, 25:5, 101:9 multitude [1] - 40:7 must [2] - 84:22, 93:19 mute [1] - 75:6 mystery [1] - 66:13

N name [21] - 8:23, 24:2, 25:12, 25:13, 26:9, 39:2, 67:9, 72:16, 73:6, 73:11, 73:13, 74:3, 75:3, 85:9, 95:13, 95:14, 97:14, 97:23, 100:8, 102:3, 102:23 named [1] - 9:10 names [8] - 5:10, 14:2, 25:14, 25:15, 36:15, 49:13, 71:16, 85:6 Napster [1] - 71:24 Narendra [3] - 49:11, 50:12, 52:25 Narendra's [3] - 8:10, 48:11, 50:8 Nathan [1] - 3:8 nature [2] - 28:18, 88:7 necessarily [1] - 98:4 necessary [5] - 41:12, 99:18, 102:9, 103:12, 104:7 necessity [1] - 56:7 need [20] - 38:14, 38:15, 40:2, 40:4, 41:5, 41:6, 42:9, 42:19, 42:22, 46:7, 46:9, 49:20, 62:12, 62:13, 77:1, 85:11, 97:16, 100:2, 101:7, 103:9 needed [1] - 34:8 needs [7] - 42:1, 42:16, 42:17, 78:8, 101:14, 105:7, 105:19 Neel [4] - 2:22, 3:16, 12:22, 49:15 negligence [4] 55:15, 81:12, 82:16,

82:17 Net [1] - 33:18 never [6] - 5:23, 44:12, 52:7, 52:9 Nevertheless [2] 37:18, 100:25 nevertheless [1] 11:10 New [4] - 2:11, 2:16, 4:8, 89:15 new [6] - 8:6, 31:23, 50:2, 50:3, 68:19 news [1] - 71:25 newsman's [1] - 60:4 newspapers [1] - 32:1 next [8] - 2:25, 3:23, 21:17, 33:19, 62:20, 72:4, 100:17, 104:8 night [1] - 14:22 Nobody's [1] - 23:7 non [2] - 92:8, 93:25 non-moving [1] 93:25 non-party [1] - 92:8 nondisclosure [3] 33:5, 33:6, 52:18 nonpublic [2] - 73:22, 73:23 notations [2] - 66:22, 67:25 note [1] - 99:25 noted [1] - 65:6 notes [18] - 8:1, 8:2, 8:4, 8:7, 8:15, 42:18, 49:13, 49:25, 50:22, 51:6, 63:10, 67:18, 67:19, 67:21, 68:3, 69:15, 100:11, 108:8 nothing [2] - 100:13, 104:22 notice [4] - 7:18, 13:18, 86:20, 86:24 noticed [2] - 13:22, 67:25 notified [1] - 24:3 November [1] - 1:18 nuance [1] - 15:22 number [16] - 7:10, 7:13, 17:23, 18:2, 28:4, 33:19, 33:21, 34:16, 35:3, 39:20, 43:19, 49:25, 50:1, 51:13, 64:7, 102:4 Number [4] - 43:21, 51:4, 51:5, 51:7 numbers [2] - 11:23, 21:5 NY [2] - 2:16, 4:8

12

O O'Brien [26] - 6:23, 7:21, 16:1, 16:2, 39:3, 39:4, 53:4, 53:9, 57:25, 58:18, 59:12, 60:16, 60:25, 61:18, 63:11, 67:15, 67:17, 68:12, 69:7, 69:23, 70:10, 76:25, 77:3, 101:7, 104:14, 105:17 O'Brien's [7] - 60:3, 62:25, 67:19, 68:3, 77:8, 78:16, 104:22 oath [2] - 7:21, 60:24 obey [1] - 38:6 object [1] - 37:13 objection [3] - 23:23, 27:23, 30:10 obligated [1] - 98:10 obligation [6] - 18:16, 60:12, 90:9, 95:24, 105:9, 105:10 observation [4] 29:13, 58:8, 58:15, 89:21 observations [2] 90:18, 99:17 obtain [3] - 52:4, 60:15, 93:8 obtained [5] - 6:23, 53:5, 60:5, 81:2, 81:5 obviously [11] - 8:16, 26:19, 38:1, 51:20, 66:16, 74:3, 75:19, 84:5, 99:17, 103:20, 105:20 Obviously [1] - 106:22 occasion [5] - 89:17, 99:20, 104:10 occur [2] - 90:6, 106:12 OF [1] - 1:1 offer [5] - 14:15, 44:1, 59:11, 60:22, 95:23 offered [2] - 37:17, 95:22 offers [4] - 53:4, 53:10, 83:24, 89:21 office [5] - 6:25, 14:2, 53:1, 55:15, 78:19 Office [10] - 15:4, 16:6, 68:7, 78:4, 78:5, 78:6, 78:10, 82:17, 104:19, 107:2 Offices [1] - 82:17 offices [2] - 40:15, 107:4

Official [3] - 1:22, 108:4, 108:17 old [7] - 21:9, 21:12, 31:23, 31:25, 34:15, 35:1, 35:5 OLIVER [1] - 2:14 omnium [1] - 98:16 omnium-gatherum [1] - 98:16 once [5] - 40:9, 46:20, 87:18, 97:20, 105:8 one [81] - 6:9, 7:2, 7:4, 7:9, 7:12, 10:12, 10:22, 11:16, 11:24, 11:25, 13:20, 13:22, 16:13, 17:24, 18:15, 21:8, 22:19, 23:1, 24:12, 25:13, 26:4, 29:5, 29:6, 29:13, 29:19, 31:2, 37:20, 39:25, 40:6, 42:1, 43:6, 43:15, 43:19, 44:11, 44:21, 44:22, 44:25, 45:16, 45:21, 46:6, 47:25, 49:6, 50:13, 50:15, 50:22, 50:24, 51:1, 51:6, 52:12, 53:16, 56:21, 58:7, 58:8, 59:25, 63:5, 64:2, 64:23, 66:24, 69:6, 71:11, 77:23, 80:15, 82:16, 83:25, 84:2, 84:18, 85:4, 85:21, 86:10, 87:18, 88:18, 89:12, 90:10, 90:14, 93:22, 95:23, 96:6, 99:9, 101:16, 101:20 One [15] - 1:17, 1:23, 3:3, 3:20, 4:4, 10:4, 16:24, 56:19, 64:10, 64:11, 66:16, 66:21, 80:13, 91:6, 100:10 ones [2] - 12:6, 39:15 online [39] - 5:17, 7:12, 7:14, 8:2, 9:4, 9:16, 9:23, 10:3, 11:23, 12:13, 16:13, 16:16, 16:19, 17:25, 21:18, 27:25, 29:1, 29:21, 34:23, 38:19, 44:10, 44:13, 44:22, 49:25, 56:21, 57:19, 66:24, 67:17, 68:11, 68:15, 69:24, 70:20, 79:16, 79:23, 85:12, 88:5, 96:10 open [3] - 18:21, 54:17, 100:10 open-ended [1] -

54:17 opened [1] - 68:17 opinion [2] - 64:21, 65:3 opinions [2] - 65:4, 80:15 opportunities [1] 90:21 opportunity [8] - 37:8, 79:2, 79:3, 84:4, 91:7, 92:25, 93:7, 104:12 oppose [1] - 67:1 opposed [1] - 31:11 oral [1] - 46:25 orally [2] - 89:1, 100:5 order [37] - 5:18, 11:17, 17:18, 30:17, 35:9, 37:25, 38:1, 38:3, 43:4, 43:6, 43:9, 46:14, 46:16, 55:17, 56:12, 64:24, 79:5, 82:7, 82:9, 82:15, 86:14, 86:21, 86:24, 87:1, 87:3, 87:9, 87:16, 93:4, 93:14, 98:2, 98:19, 98:20, 98:23, 100:21, 103:11, 105:8 ordering [2] - 106:15 Orders [1] - 11:1 orders [6] - 41:18, 82:2, 87:10, 92:11, 98:18, 101:3 organization [1] - 84:8 organized [1] - 42:25 original [1] - 52:19 originally [5] - 28:24, 49:25, 53:8, 63:23, 63:24 originals [2] - 15:19, 51:20 originate [1] - 46:1 originated [2] - 45:7, 47:3 origination [1] - 47:10 ORRICK [2] - 2:23, 3:16 otherwise [1] - 88:22 ought [5] - 31:3, 54:17, 54:22, 56:1, 101:2 ourselves [1] - 12:19 outlined [1] - 61:12 outset [1] - 5:13 outside [2] - 15:20, 98:19 overcome [1] - 94:24 overheard [1] - 91:22

overhearings [1] 91:23 overview [1] - 92:4 own [14] - 21:19, 25:11, 43:2, 53:4, 53:15, 53:16, 55:15, 69:7, 84:5, 89:12, 91:1, 93:20, 98:18, 100:18

P p.m [5] - 1:18, 30:25, 66:4, 107:19 Page [3] - 72:10, 108:6 page [13] - 2:25, 3:23, 6:12, 6:21, 9:7, 25:17, 28:4, 71:14, 72:5, 72:7, 74:9, 100:8 pages [4] - 25:19, 26:2, 45:1, 79:15 Pages [1] - 17:25 paging [1] - 13:21 pains [1] - 71:1 paper [9] - 57:24, 58:1, 58:23, 58:24, 69:4, 69:13, 69:14, 69:20, 73:4 Papers [1] - 89:16 papers [9] - 6:2, 10:9, 23:17, 40:23, 40:25, 53:9, 64:22, 100:3, 100:6 paragraph [1] - 6:22 parallel [2] - 41:14, 63:7 parents' [1] - 17:23 Park [3] - 2:24, 3:12, 3:17 Parmet [1] - 57:5 part [24] - 11:5, 11:6, 11:8, 12:13, 13:11, 23:5, 26:19, 32:18, 35:19, 41:5, 50:13, 50:15, 51:2, 54:22, 72:20, 72:24, 73:17, 74:15, 82:16, 84:19, 104:18, 104:20, 105:11 parte [1] - 42:8 participate [1] - 52:8 particular [12] - 10:4, 11:12, 18:19, 18:20, 23:25, 24:1, 61:17, 75:3, 82:8, 85:2, 88:6, 95:14 particularly [8] 24:15, 36:12, 36:16,

56:4, 74:6, 85:7, 89:19, 104:24 particulars [1] 100:18 parties [51] - 11:16, 12:1, 18:23, 24:16, 36:13, 38:9, 38:11, 42:7, 43:5, 43:25, 46:12, 47:1, 52:13, 52:19, 53:24, 54:18, 55:21, 55:22, 55:24, 56:1, 56:20, 62:2, 62:14, 62:19, 62:24, 63:1, 63:3, 76:15, 78:3, 79:2, 85:7, 86:18, 88:1, 88:20, 92:3, 92:24, 94:11, 94:13, 99:19, 99:23, 100:7, 100:16, 101:4, 104:1, 104:4, 104:6, 104:12, 105:14, 105:21, 107:11, 107:15 parties' [1] - 37:7 parts [1] - 50:14 party [17] - 10:20, 23:19, 23:20, 26:8, 26:9, 37:25, 63:5, 92:8, 92:19, 93:7, 93:11, 93:13, 93:25, 94:2, 98:4 pass [3] - 10:23, 52:10, 65:24 passing [1] - 85:22 past [6] - 9:3, 10:16, 21:14, 29:6, 94:19 Patrick [1] - 19:13 Pause [2] - 25:25, 27:7 pause [2] - 7:5, 15:11 pay [2] - 32:3, 69:10 pdf [16] - 9:6, 9:15, 9:21, 22:12, 56:8, 57:4, 57:8, 57:9, 57:13, 57:14, 57:16, 58:12, 59:6, 59:7, 69:1 Pearl [1] - 104:10 penalties [1] - 71:2 pending [2] - 11:19, 12:24 Pentagon [1] - 89:15 people [14] - 32:3, 33:10, 38:6, 39:12, 39:25, 40:2, 48:2, 49:1, 49:8, 49:13, 74:11, 88:9, 94:8, 94:17 people's [1] - 25:14 per [1] - 31:25

13

percipient [1] - 69:24 percussion [1] - 93:3 perfect [1] - 5:20 performance [1] 34:2 performing [1] - 21:14 perhaps [14] - 15:22, 36:14, 37:13, 37:23, 41:7, 43:2, 47:22, 53:15, 61:5, 89:13, 90:23, 97:13, 98:15 Perhaps [1] - 73:25 period [1] - 35:25 perjury [1] - 71:2 permission [2] 24:24, 67:6 permit [2] - 24:15, 47:21 permits [2] - 90:24, 92:9 permitting [1] 105:13 person [10] - 24:2, 30:25, 37:25, 58:13, 71:19, 71:23, 85:13, 95:11, 95:21, 102:19 person's [2] - 25:13, 91:1 personal [6] - 67:23, 79:24, 91:9, 94:9, 94:10, 96:12 personally [1] - 51:9 personnel [2] - 77:25, 78:7 perspective [2] 27:19, 90:12 persuade [1] - 88:21 persuasive [1] - 97:14 Peter [2] - 2:13, 43:14 pfd [1] - 56:24 ph [1] - 8:23 phase [1] - 52:18 phone [6] - 5:8, 17:23, 24:6, 43:19, 66:7, 67:4 php [7] - 56:25, 57:2, 57:9, 57:11, 57:12, 57:16 pick [2] - 66:17, 104:9 picked [1] - 91:24 Place [2] - 3:3, 3:20 place [4] - 9:24, 53:16, 82:2, 97:2 placed [1] - 41:13 placing [1] - 5:16 Plaintiff [2] - 1:4, 2:3 plaintiff [1] - 65:1 plaintiffs [1] - 52:2 plan [9] - 47:24, 55:12, 55:23, 56:2, 56:20,

62:2, 62:3, 62:5, 62:15 Plate [1] - 107:12 play [1] - 29:22 playing [1] - 66:19 pleadings [1] - 101:1 point [38] - 7:9, 9:21, 13:23, 16:23, 18:8, 25:3, 25:6, 27:17, 29:2, 30:10, 30:22, 40:18, 41:3, 45:21, 46:9, 47:10, 53:3, 53:20, 54:2, 57:10, 58:3, 61:8, 61:24, 81:14, 81:23, 82:21, 82:22, 82:23, 83:10, 85:10, 85:19, 86:10, 86:21, 87:22, 87:23, 88:4, 93:5, 105:23 pointed [1] - 73:25 pointedly [1] - 43:2 pointing [1] - 107:5 points [5] - 14:8, 18:7, 56:19, 80:24, 89:22 policy [1] - 94:7 poor [1] - 68:13 pop [1] - 71:25 portion [2] - 31:9, 37:13 position [5] - 7:18, 34:6, 38:21, 76:3, 98:23 positions [4] - 34:5, 37:7, 52:20, 76:20 possession [4] - 18:5, 24:10, 52:7, 75:13 possible [10] - 11:10, 13:3, 15:18, 29:23, 54:9, 69:23, 70:1, 77:4, 77:5, 107:9 possibly [4] - 13:9, 14:21, 40:22, 71:16 post [6] - 24:9, 75:15, 76:1, 81:17, 86:4, 103:2 posted [27] - 5:17, 7:12, 7:14, 8:7, 9:4, 9:5, 9:16, 11:21, 16:12, 16:15, 16:18, 28:9, 28:19, 29:7, 29:25, 30:10, 36:12, 38:19, 48:6, 49:24, 50:6, 51:8, 61:2, 61:4, 67:19, 75:20, 96:16 posthumous [1] 89:17 posting [9] - 7:6, 8:2, 39:11, 65:11, 80:7, 80:11, 84:9, 84:14,

92:22 postings [3] - 38:24, 39:5 potential [6] - 10:13, 28:11, 32:13, 33:10, 39:7, 43:23 Potentially [1] - 45:14 power [2] - 10:25, 97:21 practicality [2] - 99:7, 99:12 practically [1] - 32:22 practice [2] - 15:15, 39:11 practices [1] - 33:1 pre [3] - 28:10, 48:23, 83:6 pre-existed [2] 28:10, 83:6 pre-existing [1] 48:23 precipitously [1] 100:23 precisely [1] - 56:7 predecessor [2] 14:23, 17:22 preexist [1] - 48:2 preference [1] - 70:22 preliminarily [3] 50:9, 52:3, 63:1 preliminary [11] 56:14, 78:25, 79:1, 79:5, 87:24, 92:6, 92:14, 93:4, 93:6, 99:16, 103:9 premise [1] - 7:19 prepared [7] - 17:19, 38:9, 61:16, 63:14, 76:20, 83:22, 103:3 presence [1] - 92:3 present [6] - 20:6, 47:23, 75:17, 78:9, 78:14, 87:14 presented [7] - 85:2, 85:3, 90:8, 91:3, 96:15, 97:5, 98:1 presenting [1] - 99:1 presently [1] - 100:20 president [1] - 94:20 press [3] - 42:24, 42:25, 83:17 pressed [3] - 11:4, 11:5, 85:3 pressing [1] - 33:13 presumably [1] 22:17 Presuming [1] - 81:4 pretermit [1] - 100:22 pretty [4] - 6:12, 37:21, 49:6, 87:8

previous [1] - 34:5 primarily [1] - 47:13 primary [3] - 23:23, 86:5, 90:22 primary-source [2] 86:5, 90:22 principal [1] - 79:4 principle [1] - 97:15 principled [1] - 99:13 principles [2] - 74:14, 90:15 printout [1] - 45:15 privacy [4] - 86:9, 91:6, 91:7, 91:9 private [20] - 20:16, 20:19, 21:19, 21:20, 27:9, 27:13, 27:18, 29:5, 30:7, 32:20, 65:11, 79:13, 79:23, 83:4, 85:1, 85:13, 92:1, 94:6, 94:8, 94:15 privilege [2] - 60:14, 95:20 privileged [1] - 60:4 probable [2] - 8:21, 50:12 problem [8] - 20:5, 26:21, 33:8, 39:7, 40:4, 52:19, 84:18, 104:16 problematic [2] - 80:5, 105:11 problems [3] - 8:12, 32:16, 66:16 procedural [2] - 89:5, 90:3 proceed [1] - 62:24 proceeded [1] - 27:15 proceeding [1] - 18:21 proceedings [3] - 5:7, 22:1, 95:5 process [8] - 38:10, 39:16, 55:14, 59:22, 60:12, 82:1, 94:16, 104:20 Procter [4] - 65:17, 65:21, 83:12, 91:24 produce [1] - 39:15 produced [16] - 8:9, 10:7, 22:8, 22:9, 22:14, 22:15, 45:2, 47:8, 49:14, 49:24, 50:11, 50:16, 51:2, 56:23, 56:24, 83:20 production [1] - 8:5 professional [1] 18:15 Professor [1] - 102:20 progress [1] - 79:9

proliferates [1] - 40:4 proliferation [1] 28:11 prompt [2] - 36:20, 99:21 promptly [7] - 11:10, 89:1, 89:5, 89:6, 92:2, 99:20, 100:16 pronounce [1] - 5:23 properly [5] - 5:10, 80:11, 87:11, 101:3, 107:4 property [12] - 6:1, 79:23, 79:24, 80:21, 81:20, 81:21, 83:7, 84:9, 84:25, 88:14, 90:17, 91:5 proportion [1] - 17:19 proposal [4] - 43:24, 101:5, 104:7 propose [3] - 38:12, 62:10, 62:14 proposition [2] 83:22, 83:23 proprietary [2] - 94:4, 96:4 PROSKAUER [2] 3:2, 3:19 prospective [1] 37:22 protect [2] - 5:21, 91:7 protected [5] - 81:7, 81:9, 86:16, 86:19, 107:8 protecting [2] - 91:21, 91:22 protection [8] - 5:25, 20:20, 80:20, 83:19, 85:7, 88:17, 102:9, 103:7 protective [24] - 5:18, 11:17, 37:25, 38:1, 38:3, 43:9, 46:13, 46:16, 55:17, 82:2, 82:7, 82:9, 82:15, 86:14, 86:20, 86:24, 87:1, 87:9, 87:16, 93:14, 100:21, 101:3, 103:11, 105:8 proves [1] - 62:9 provide [16] - 6:9, 14:15, 35:11, 40:14, 53:10, 61:1, 64:8, 64:11, 65:4, 88:11, 90:9, 90:12, 93:2, 99:19, 101:4, 103:23 provided [6] - 5:6, 15:10, 16:5, 45:1, 67:18, 82:24 Providence [3] - 89:2,

14

91:17, 105:11 provident [1] - 93:8 provides [5] - 15:22, 80:13, 80:14, 84:1, 103:25 providing [3] - 93:7, 93:22, 102:17 provisional [2] 52:13, 92:25 prudence [1] - 17:18 prudential [2] - 24:12, 43:3 public [35] - 16:25, 27:15, 27:18, 32:11, 32:19, 37:17, 40:9, 40:17, 41:9, 41:11, 43:1, 60:6, 60:9, 71:20, 71:24, 72:1, 73:17, 73:18, 73:22, 74:8, 74:16, 83:6, 83:8, 84:15, 84:16, 85:15, 93:16, 94:6, 95:13, 98:10, 98:12, 99:1, 99:2, 99:3 public-figure [1] 83:6 publication [1] - 90:20 publicity [1] - 90:14 publicly [8] - 10:3, 14:11, 21:4, 32:7, 32:9, 32:10, 35:22, 72:22 publish [3] - 18:5, 75:25, 102:7 published [1] - 58:5 pull [1] - 9:6 purely [1] - 83:4 purposes [4] - 37:24, 80:5, 81:14, 84:23 pursuant [4] - 7:11, 16:5, 33:4, 92:9 pursue [2] - 10:20, 10:21 pushed [1] - 75:7 put [23] - 9:21, 10:3, 10:12, 10:21, 14:7, 22:18, 22:25, 24:11, 29:20, 32:15, 39:19, 39:24, 40:23, 45:9, 50:2, 50:4, 62:5, 68:15, 68:17, 75:16, 88:9, 94:20, 102:9 putative [1] - 79:3 Putting [1] - 59:25

Q quality [3] - 51:21, 96:15, 99:9 questioned [2] - 51:15

questions [6] - 39:20, 61:14, 74:21, 77:17, 89:20, 89:25 quick [5] - 26:17, 28:1, 33:15, 48:17, 64:5 quickly [9] - 13:22, 29:22, 38:22, 40:22, 40:23, 67:7, 78:1, 94:18, 100:18 QUINN [1] - 2:14 quite [7] - 29:20, 49:5, 60:11, 73:10, 77:12, 90:1, 99:19 quote [3] - 89:21, 90:2, 96:25 quoted [2] - 30:1, 30:2

R raise [5] - 25:10, 31:14, 82:23, 83:10, 97:9 raised [8] - 37:24, 41:16, 71:11, 74:21, 91:12, 97:9, 98:3, 105:23 raising [2] - 12:22, 86:23 ranking [1] - 8:19 rapidly [1] - 7:16 rare [1] - 90:5 rather [11] - 13:17, 14:2, 52:13, 53:8, 56:10, 56:13, 60:20, 78:1, 98:17, 99:13, 107:5 reach [2] - 56:20, 99:10 reached [1] - 93:5 reaches [1] - 90:1 reaching [1] - 53:13 read [13] - 6:10, 26:17, 32:1, 38:22, 68:15, 83:11, 86:12, 86:15, 87:11, 90:25, 96:25, 105:12 readers [3] - 40:20, 75:21, 84:4 reading [7] - 6:15, 28:1, 28:2, 33:15, 38:24, 39:12, 88:13 reads [2] - 80:15, 80:17 real [4] - 38:12, 60:21, 72:1, 105:21 realized [1] - 14:23 really [18] - 5:21, 17:2, 18:12, 27:17, 30:5, 31:22, 33:7, 45:18, 46:2, 46:12, 49:16,

54:19, 55:3, 55:8, 61:10, 69:25, 78:3, 91:5 reason [13] - 17:2, 28:10, 39:23, 40:21, 41:9, 43:10, 54:23, 62:21, 65:9, 74:5, 79:6, 93:11, 97:11 reasonable [5] - 55:1, 56:2, 56:9, 84:10 reasons [3] - 31:4, 65:22, 99:15 receipt [1] - 93:1 received [5] - 7:17, 9:11, 14:11, 53:1 recent [1] - 98:15 recently [1] - 7:18 Recess [1] - 66:4 recess [3] - 3:2, 66:3, 107:18 recitation [1] - 14:15 recitations [1] - 11:11 recognize [3] - 11:9, 54:10, 59:22 recognized [1] - 8:24 recollection [6] 12:12, 13:16, 16:4, 16:7, 23:7, 60:23 recollections [1] 23:8 reconvene [3] - 36:20, 61:13, 62:11 record [26] - 7:19, 7:24, 9:18, 9:24, 12:9, 12:14, 12:23, 13:5, 13:11, 15:14, 15:15, 15:20, 23:5, 23:10, 23:12, 34:12, 34:24, 44:6, 51:3, 51:6, 78:11, 78:12, 93:2, 96:20 recording [1] - 85:13 records [3] - 13:12, 15:9, 42:23 recreate [1] - 68:16 recreated [1] - 69:5 recur [1] - 89:17 red [1] - 24:5 redact [3] - 17:24, 67:23, 72:16 redacted [7] - 18:3, 50:2, 50:3, 51:10, 85:11, 100:14 redacting [2] - 25:12, 71:16 redaction [4] - 31:20, 74:7, 85:6, 100:8 reduced [3] - 58:12, 88:18, 100:12 refer [1] - 85:18

reference [12] - 13:7, 22:11, 31:2, 45:6, 73:10, 90:14, 97:3, 97:10, 99:8, 101:10 referenced [2] - 31:1, 91:23 references [1] - 55:18 referred [4] - 13:17, 65:16, 65:17, 98:4 referring [1] - 69:7 refers [1] - 73:22 refine [1] - 47:22 reflect [1] - 104:12 reflecting [1] - 21:19 reflection [1] - 97:14 refreshing [1] - 60:23 regard [1] - 95:7 regarding [4] - 52:22, 61:1, 63:2, 90:13 related [6] - 29:13, 35:20, 64:24, 80:24, 81:24, 99:7 Related [1] - 1:6 relates [1] - 35:15 relatively [2] - 8:18, 100:16 relaxation [1] - 100:21 relayed [1] - 66:20 relevance [1] - 35:6 relevant [6] - 21:13, 26:11, 49:1, 78:7, 80:12, 95:10 relief [3] - 37:23, 61:20, 84:23 remain [2] - 12:2, 105:4 remained [2] - 14:10, 81:9 remaining [1] - 101:20 remains [1] - 21:13 remarkably [1] - 99:19 remarks [2] - 35:19, 39:24 remedial [1] - 37:24 remedies [2] - 81:17 remedy [8] - 10:22, 11:7, 36:8, 37:19, 81:20, 82:5, 82:18, 91:15 remember [4] - 11:22, 12:3, 13:18, 42:24 reminded [1] - 97:17 remove [1] - 67:20 removed [3] - 8:8, 67:24, 95:16 Renee [1] - 2:14 repeated [1] - 86:13 replication [1] - 15:17 report [7] - 66:10, 66:12, 99:1, 102:24,

103:21, 103:22, 104:21 reported [2] - 72:22, 97:18 Reporter [3] - 1:22, 108:4, 108:17 reporter [11] - 5:9, 15:1, 54:6, 66:17, 67:10, 69:21, 70:2, 70:9, 70:19, 90:13, 91:2 reporter's [1] - 83:24 reporting [1] - 72:24 reposted [1] - 28:8 represent [1] - 76:1 representation [3] 52:22, 75:14, 95:15 representations [2] 60:2, 60:5 Represented [4] - 2:4, 2:21, 3:7, 4:2 representing [1] 27:4 reproduced [3] 68:21, 68:22, 96:13 reproduction [1] 45:4 republishing [2] 83:19 reputations [1] 91:22 request [14] - 5:18, 10:1, 13:18, 15:5, 16:6, 17:11, 61:20, 64:8, 67:24, 69:14, 100:1, 100:3, 100:24, 106:5 requested [1] - 102:13 requests [3] - 5:12, 5:16, 107:12 require [3] - 15:16, 89:6, 103:15 required [2] - 31:5, 56:8 requires [2] - 18:16, 41:16 requiring [1] - 56:10 research [1] - 78:8 resignation [1] - 99:13 resigned [1] - 99:9 resist [1] - 19:18 resolution [2] - 87:25, 88:1 resolve [3] - 43:23, 89:1, 92:2 resolved [1] - 97:3 resort [1] - 61:10 respect [33] - 5:13, 9:25, 26:5, 27:16, 33:12, 36:6, 36:8,

15

36:19, 37:1, 37:14, 37:23, 55:5, 56:22, 59:11, 60:2, 63:4, 70:18, 71:25, 74:7, 74:19, 75:1, 76:18, 85:4, 85:9, 85:12, 94:2, 97:20, 97:23, 100:14, 100:17, 100:22, 101:5, 102:18 respectfully [3] 17:20, 18:16, 72:2 respond [6] - 38:22, 39:16, 40:6, 63:14, 100:16, 107:14 responded [1] - 99:19 respondents [1] 79:3 responds [1] - 24:19 response [6] - 60:21, 70:5, 99:21, 100:17, 100:25, 102:15 responsibilities [1] 105:14 responsibility [1] 105:15 responsible [1] - 81:6 restate [1] - 64:22 restrain [4] - 5:16, 5:19, 81:16, 92:20 restraining [2] 64:24, 93:4 restraint [22] - 5:12, 76:11, 81:14, 81:18, 83:9, 84:24, 85:17, 89:11, 89:14, 89:20, 92:1, 92:16, 96:2, 96:23, 97:21, 97:23, 98:1, 98:9, 99:4, 99:10, 102:6, 102:14 restraints [3] - 37:20, 91:15, 91:16 restrict [1] - 99:4 result [5] - 55:14, 55:16, 81:12, 81:13, 89:4 resulted [1] - 40:13 retire [1] - 62:2 retraining [1] - 79:5 return [1] - 56:15 returned [1] - 58:12 retype [1] - 68:16 reveals [2] - 9:9, 9:10 reverse [1] - 84:14 review [6] - 12:12, 37:17, 90:22, 93:8, 102:25, 104:6 revisit [1] - 46:22 rhetoricians [1] 78:15

rid [1] - 85:9 right-hand [1] - 57:20 rights [5] - 24:9, 80:21, 86:10, 91:6, 106:11 ringing [1] - 40:8 risen [1] - 99:20 risk [1] - 102:19 RITVO [6] - 6:18, 24:17, 24:19, 25:1, 66:2, 101:6 Ritvo [3] - 4:3, 87:6, 101:5 RMR [3] - 1:21, 108:4, 108:16 road [1] - 77:5 Road [3] - 2:23, 3:11, 3:17 Robert [5] - 3:10, 4:5, 8:24, 14:17, 99:24 role [3] - 31:17, 63:2, 78:16 roll [1] - 5:6 ROM [2] - 56:24, 57:7 ROSE [2] - 3:2, 3:19 roughly [1] - 8:21 round [1] - 67:25 RUDNICK [1] - 4:3 rule [3] - 61:19, 88:25, 97:5 rules [1] - 97:3 Rules [1] - 7:11 ruling [4] - 87:24, 97:6, 101:18, 106:3 run [1] - 38:19 rushed [1] - 42:20 rushing [1] - 75:25

S salacious [1] - 96:15 salient [3] - 26:21, 95:1, 96:1 salutary [1] - 93:21 sample [2] - 8:17, 49:5 samples [1] - 48:2 San [2] - 3:9, 65:3 sanction [1] - 10:25 Santa [1] - 65:3 sat [1] - 52:9 sauce [1] - 55:2 save [2] - 65:25, 106:8 SAVERIN [1] - 1:6 Saverin [1] - 3:6 saw [3] - 12:19, 28:7, 68:18 Saxon [1] - 91:14 scan [1] - 59:5 scanned [7] - 58:2, 59:1, 68:14, 69:12,

69:18, 69:19, 69:20 scanning [5] - 58:16, 58:18, 58:22, 59:8, 69:8 scattered [1] - 52:5 scent [2] - 45:10, 45:12 schedule [3] - 10:21, 56:9, 104:5 Schoenfeld [1] - 2:9 scope [6] - 5:24, 10:24, 80:19, 82:14, 83:18, 85:17 scrambled [1] - 52:3 Scribd [1] - 28:4 PDFCOKE [1] - 28:5 scrivner [1] - 28:13 se [2] - 31:25, 63:2 seal [22] - 7:4, 9:20, 10:2, 12:2, 14:10, 19:15, 22:25, 40:12, 40:13, 41:13, 41:19, 44:6, 58:24, 81:5, 81:7, 101:7, 101:12, 101:15, 105:4, 106:24 sealed [1] - 19:7 searched [1] - 8:5 seated [2] - 5:3, 66:6 second [15] - 11:6, 41:3, 42:16, 44:14, 45:22, 53:3, 61:24, 67:25, 68:10, 71:21, 73:20, 76:14, 77:22, 78:18, 82:23 secret [3] - 88:7, 91:10, 91:20 secrets [1] - 83:3 section [1] - 88:5 sections [1] - 18:19 Security [2] - 18:2, 50:1 see [17] - 10:11, 22:10, 22:20, 29:7, 35:17, 38:18, 45:24, 47:9, 62:24, 65:25, 69:17, 79:6, 80:16, 80:17, 86:13, 97:11, 106:14 seek [4] - 47:15, 102:9, 103:6, 106:3 seeking [1] - 32:21 seeks [2] - 56:10, 100:12 seem [2] - 60:1, 93:12 selection [1] - 86:3 sense [5] - 29:14, 37:16, 90:21, 90:24, 94:1 sensitive [4] - 26:14, 34:4, 46:22, 47:16

sensitivity [1] - 59:22 sent [8] - 15:3, 40:11, 57:4, 57:5, 68:13, 69:12, 69:14, 69:21 separate [5] - 16:23, 41:17, 74:20, 86:9, 88:15 September [1] - 78:10 sequences [1] - 56:9 sequentially [1] - 63:7 series [4] - 61:14, 89:23, 90:3, 91:5 serious [2] - 11:13, 46:24 seriously [2] - 38:2, 55:24 served [1] - 40:12 serves [1] - 107:13 service [2] - 97:15, 98:25 session [3] - 5:2, 66:5, 93:3 set [3] - 55:1, 84:7, 93:20 sets [1] - 16:24 setting [2] - 59:23, 105:20 several [2] - 21:15, 45:20 Shafroth [1] - 3:8 Shame [1] - 71:18 shame [6] - 23:21, 31:3, 36:17, 73:24, 94:12, 95:18 shape [1] - 80:2 shared [1] - 89:12 shoe [1] - 96:7 short [5] - 16:1, 19:4, 25:9, 60:25, 98:6 shortly [3] - 77:2, 77:3, 103:13 Shortly [1] - 36:3 shout [2] - 54:11, 55:8 showings [1] - 41:12 shown [2] - 58:12, 98:7 shut [1] - 76:13 Shuttlesworth [1] 105:13 side [10] - 8:1, 8:15, 10:12, 10:22, 44:8, 48:3, 50:6, 59:25, 90:10, 91:4 sign [1] - 48:18 signed [1] - 48:19 significance [1] - 9:13 signing [1] - 87:2 similar [4] - 31:8, 52:17, 64:25, 84:8 simply [10] - 18:23,

31:4, 42:8, 52:20, 74:5, 75:5, 84:9, 100:15, 101:12, 103:2 single [1] - 7:12 site [4] - 28:17, 28:23, 63:20, 63:24 sites [1] - 28:20 situations [1] - 83:16 Sixth [1] - 91:24 size [3] - 8:18, 59:6, 59:7 skill [1] - 108:7 skip [2] - 20:23, 27:24 slippery [4] - 27:17, 27:22, 79:13, 84:19 slippery-slope [2] 27:17, 84:19 slope [4] - 27:17, 27:22, 79:13, 84:19 small [1] - 8:18 smaller [2] - 59:7, 69:2 smart [1] - 98:22 sneakiness [1] - 98:25 sneaky [1] - 98:22 Social [2] - 18:1, 50:1 solely [1] - 75:2 solved [1] - 66:13 someone [20] - 8:25, 9:3, 9:10, 10:23, 19:22, 45:9, 49:10, 72:4, 74:8, 75:2, 85:18, 86:23, 90:25, 91:9, 91:11, 94:21, 95:3, 95:12, 97:20, 98:19 someplace [1] - 10:10 somewhat [6] - 11:11, 31:8, 40:22, 80:22, 84:7, 88:15 somewhere [3] - 9:17, 47:8, 47:9 soon [1] - 18:2 sooner [1] - 107:13 sorry [15] - 10:6, 17:13, 27:8, 43:17, 45:11, 57:1, 57:13, 57:18, 70:7, 71:23, 72:8, 75:7, 77:12, 101:23, 103:4 sort [13] - 18:22, 20:12, 25:3, 25:4, 42:8, 44:7, 47:21, 48:9, 52:5, 74:25, 80:10, 92:21, 96:11 sought [4] - 14:6, 22:24, 40:12, 94:14 sounding [1] - 102:19 source [36] - 14:14,

16

14:15, 36:7, 37:10, 37:11, 38:12, 39:13, 42:19, 45:12, 47:17, 54:19, 54:20, 55:10, 60:3, 60:4, 61:1, 62:3, 62:10, 62:12, 62:22, 63:5, 80:11, 80:12, 83:19, 84:2, 84:14, 84:15, 86:5, 90:22, 90:25, 93:17, 95:22, 104:13 sources [3] - 10:13, 29:15, 61:3 speaking [5] - 43:18, 54:8, 59:19, 68:5, 82:1 special [2] - 43:5, 92:15 specific [8] - 5:17, 10:1, 17:6, 17:8, 18:12, 31:16, 61:20, 74:6 specifically [6] - 17:5, 23:11, 24:8, 65:16, 97:8, 106:15 spell [2] - 67:9, 102:21 spirited [1] - 97:25 splattered [1] - 31:18 spoken [1] - 71:18 spring [1] - 36:1 St [1] - 3:14 staff [2] - 67:23, 68:16 stage [2] - 31:12, 82:6 stamp [4] - 13:23, 20:14, 44:11, 45:1 stamped [1] - 45:3 stand [3] - 16:14, 19:24, 107:17 standard [1] - 84:21 standards [3] - 8:18, 92:5, 92:14 stands [1] - 59:11 start [7] - 6:9, 19:9, 27:18, 32:20, 38:14, 38:15, 80:23 start-up [1] - 32:20 started [1] - 97:5 state [1] - 96:20 statement [19] - 6:12, 7:15, 10:10, 12:13, 21:2, 23:4, 23:10, 26:19, 29:16, 32:16, 33:18, 36:4, 37:1, 46:18, 72:19, 79:16, 88:6, 95:7, 96:3 STATES [1] - 1:1 states [1] - 6:22 States [5] - 1:16, 1:22, 6:25, 83:1, 108:5 Steno [1] - 1:24

stenographer's [1] 100:11 stenotype [1] - 108:8 step [7] - 30:6, 34:19, 42:13, 46:6, 60:15, 61:5 Step [1] - 46:7 Stephen [1] - 85:22 steps [1] - 38:10 Steven [2] - 3:1, 3:19 sticker [1] - 45:22 still [7] - 7:16, 14:12, 21:13, 23:2, 38:18, 44:6, 59:11 stock [2] - 32:3, 32:4 stop [5] - 5:21, 17:3, 17:4, 70:15, 102:22 story [4] - 28:14, 72:25, 73:17, 74:16 stranger [1] - 74:25 strangers [3] - 36:14, 87:2, 92:11 streamline [1] - 77:1 Street [3] - 2:6, 3:9, 106:23 strongly [1] - 98:17 student [2] - 74:4 stylized [1] - 81:19 subject [21] - 5:18, 7:6, 31:7, 35:10, 35:13, 37:14, 37:25, 41:9, 77:11, 81:17, 87:16, 93:14, 95:17, 95:24, 96:22, 98:20, 98:21, 99:17, 100:7, 103:11, 105:7 submission [8] - 6:6, 6:11, 10:12, 14:13, 15:18, 26:16, 28:2, 59:12 submissions [3] 88:8, 94:15, 100:15 submit [5] - 7:20, 53:4, 53:6, 70:3, 102:5 submitted [24] - 6:3, 7:3, 7:25, 8:14, 9:20, 9:25, 11:18, 12:1, 14:6, 19:10, 20:7, 21:25, 22:21, 23:18, 26:19, 28:14, 44:12, 44:14, 44:25, 50:5, 50:24, 51:14, 104:7 submitting [3] - 40:15, 52:13, 52:15 subscribed [1] - 71:1 subscriber [1] - 74:4 subsequent [1] 91:15 substance [3] - 19:14,

101:11, 101:14 substantially [3] 32:14, 35:22, 88:18 substantive [2] - 89:4, 91:25 success [3] - 92:17, 92:18, 93:10 Success [1] - 92:18 successful [2] 41:22, 92:19 suffer [1] - 41:23 sufficient [2] - 94:24, 100:17 sufficiently [1] - 84:22 suffusing [1] - 85:24 suggest [7] - 33:15, 42:6, 52:13, 52:21, 63:4, 100:13, 103:5 suggested [2] - 40:11, 63:8 suggesting [4] 10:14, 41:25, 42:1, 53:13 suggestion [4] - 13:6, 23:19, 55:10, 62:1 suggestions [2] 30:19, 55:19 suggests [5] - 10:8, 28:2, 38:24, 96:16, 98:17 suitors [1] - 33:10 summary [3] - 11:20, 82:11, 82:14 Superior [2] - 65:2, 65:3 support [1] - 7:22 supporting [1] - 88:14 suppose [5] - 11:12, 84:17, 87:13, 100:1, 105:12 supposed [2] - 38:6, 82:3 Supreme [3] - 64:21, 83:1, 89:13 surely [1] - 31:14 surprised [1] - 40:19 suspect [2] - 29:19, 32:13 suspected [1] - 69:2 SUTCLIFFE [2] - 2:23, 3:16 system [1] - 105:3

T tab [1] - 68:21 tag [1] - 91:5 talks [5] - 6:3, 32:1, 32:2, 32:3, 65:16 tap [2] - 91:19, 93:2

tapped [2] - 63:6, 63:7 tasks [1] - 61:13 taste [1] - 55:3 tat [1] - 55:19 tech [1] - 71:25 tee [1] - 82:7 telephone [11] - 2:8, 2:9, 2:9, 2:13, 2:13, 2:14, 3:2, 3:8, 3:10, 4:5, 75:6 temporary [2] - 79:5, 93:4 temptation [1] - 19:19 tend [1] - 94:17 tendered [1] - 93:1 tends [1] - 80:22 Termaine [1] - 67:12 terms [5] - 18:8, 56:11, 74:23, 91:21 test [1] - 47:17 tested [1] - 106:9 testify [1] - 95:25 testimony [5] - 25:19, 86:11, 86:12, 86:15, 94:13 THE [296] - 1:11, 5:5, 6:5, 6:14, 6:20, 7:5, 8:3, 8:13, 8:22, 8:25, 9:19, 10:11, 10:18, 11:3, 11:16, 11:25, 12:7, 12:16, 13:6, 13:13, 13:20, 14:13, 14:19, 14:24, 15:11, 16:1, 16:4, 16:9, 16:18, 16:21, 17:5, 17:12, 17:15, 17:17, 18:9, 18:12, 18:18, 19:2, 19:5, 19:9, 19:16, 19:18, 19:22, 20:2, 20:9, 20:11, 20:15, 20:21, 20:25, 21:8, 21:11, 21:16, 21:21, 21:24, 22:3, 22:8, 22:10, 22:19, 23:1, 23:6, 23:13, 23:16, 23:25, 24:2, 24:7, 24:14, 24:18, 24:21, 24:25, 25:2, 25:6, 25:15, 25:24, 26:3, 26:7, 26:15, 27:2, 27:6, 27:11, 27:24, 28:12, 28:21, 28:25, 29:9, 29:14, 30:5, 30:16, 30:21, 30:25, 31:12, 31:16, 32:6, 32:9, 32:22, 32:25, 33:6, 33:13, 33:20, 33:24, 34:10, 34:13, 34:17, 34:19, 35:2, 35:4, 35:6,

35:17, 35:24, 36:3, 36:6, 36:24, 37:3, 37:6, 38:21, 39:4, 39:11, 39:22, 40:5, 41:2, 41:14, 42:3, 42:12, 43:1, 43:8, 43:13, 43:16, 43:21, 44:13, 44:20, 44:24, 45:4, 45:9, 45:12, 45:15, 45:18, 45:24, 46:2, 46:13, 46:25, 47:5, 47:11, 47:19, 48:8, 48:15, 48:17, 48:21, 48:23, 49:1, 49:3, 49:8, 49:20, 50:13, 50:19, 50:21, 50:24, 51:4, 51:12, 51:22, 51:25, 52:12, 53:2, 53:11, 53:15, 53:22, 54:5, 54:10, 54:14, 54:25, 55:7, 56:18, 57:1, 57:3, 57:21, 58:6, 58:11, 58:15, 58:20, 59:3, 59:9, 59:15, 59:21, 59:25, 60:8, 60:11, 60:19, 61:12, 61:25, 62:8, 62:17, 63:12, 63:21, 63:24, 64:9, 64:13, 64:16, 64:19, 65:6, 65:13, 65:18, 65:24, 66:3, 66:5, 66:7, 66:9, 66:15, 66:23, 67:2, 67:9, 67:13, 68:1, 68:4, 68:7, 68:9, 68:20, 68:25, 69:6, 69:11, 69:17, 69:19, 69:22, 70:4, 70:8, 70:12, 70:15, 70:18, 70:23, 71:5, 71:8, 71:17, 71:21, 72:3, 72:7, 72:9, 72:11, 72:14, 72:17, 73:1, 73:5, 73:8, 73:13, 73:20, 73:22, 74:18, 75:10, 75:16, 76:2, 76:8, 76:10, 76:15, 76:22, 77:7, 77:14, 77:18, 77:21, 78:2, 78:24, 79:11, 79:17, 79:20, 80:2, 81:3, 81:9, 82:4, 82:25, 83:21, 84:17, 85:18, 86:3, 86:18, 86:22, 87:23, 88:12, 88:20, 88:25, 92:13, 96:20, 97:1, 100:9, 101:8, 101:10, 101:19, 101:22, 101:24, 102:11, 103:8,

17

103:19, 104:3, 104:18, 105:5, 106:4, 106:8, 106:17, 106:21, 107:2, 107:10, 107:17 Thefacebook [6] 2:19, 12:12, 12:23, 54:21, 56:13, 93:11 THEFACEBOOK [1] 1:8 themselves [8] - 5:8, 15:9, 39:13, 41:23, 60:24, 88:19, 93:12, 94:13 theory [1] - 89:22 thereabouts [1] - 15:7 they've [6] - 10:9, 42:23, 47:16, 48:9, 79:25, 102:3 thinking [4] - 33:2, 60:23, 63:1, 87:3 third [11] - 23:19, 23:20, 24:15, 26:8, 26:9, 36:13, 64:23, 85:7, 89:18, 94:11 thoughtful [2] - 90:1, 102:25 thoughts [4] - 21:20, 85:13, 88:22, 91:10 three [14] - 7:4, 10:7, 12:8, 15:6, 47:8, 49:21, 50:17, 51:7, 51:9, 63:25, 64:1, 64:11, 65:4, 65:20 throughout [1] - 77:20 throw [3] - 13:21, 45:10, 45:12 thrust [2] - 62:17, 98:14 Thucydides [1] 97:19 tidied [1] - 99:17 Tighe [6] - 2:5, 52:2, 60:16, 60:18, 60:19, 76:22 TIGHE [8] - 2:6, 52:1, 52:24, 53:3, 53:12, 54:2, 60:18, 76:23 timely [1] - 80:9 tit [1] - 55:19 titillation [1] - 85:1 today [14] - 14:10, 19:24, 27:4, 28:9, 34:6, 39:24, 40:1, 48:2, 72:22, 77:2, 78:7, 89:7, 94:17, 99:25 together [3] - 40:23, 62:5, 88:10

tolerable [1] - 90:9 took [2] - 22:5, 24:5 top [3] - 54:9, 57:8, 68:22 topic [1] - 90:13 toward [5] - 10:21, 36:10, 38:11, 80:3, 93:7 towards [1] - 54:13 tracks [1] - 53:7 trade [4] - 80:5, 83:3, 84:8, 88:7 traded [1] - 21:4 tradition [1] - 91:14 traditional [1] - 92:5 traditions [1] - 90:23 traffic [1] - 31:18 transcript [8] - 25:20, 31:9, 71:12, 100:11, 100:12, 100:14, 108:6 Transcript [1] - 1:24 transcription [1] 108:8 transparency [4] 84:3, 94:8, 98:14, 100:2 treat [2] - 93:6, 93:22 treatment [2] - 82:16, 90:1 Tremaine [1] - 14:18 TREMAINE [1] - 4:7 trial [1] - 42:14 tried [3] - 14:25, 77:20, 105:6 troubles [1] - 43:15 true [8] - 9:22, 11:2, 14:4, 46:19, 54:25, 59:2, 97:6, 108:7 truly [1] - 72:21 try [13] - 5:20, 11:13, 18:9, 18:14, 19:16, 48:4, 52:4, 55:1, 64:3, 78:17, 80:18, 102:9, 105:15 trying [11] - 5:21, 19:20, 29:11, 29:22, 30:5, 40:16, 43:22, 54:8, 62:19, 99:9, 101:24 Tuesday [3] - 70:21, 70:24, 71:5 turn [10] - 26:15, 59:10, 62:12, 69:19, 73:3, 92:5, 92:13, 95:9, 96:3, 96:10 turning [3] - 11:7, 23:13, 71:21 Turning [1] - 97:8 turns [1] - 44:9

tutor [1] - 20:10 two [34] - 7:13, 11:3, 12:8, 16:23, 21:9, 25:14, 32:17, 36:8, 38:14, 43:16, 43:21, 44:17, 45:1, 46:7, 50:10, 51:4, 51:5, 51:13, 52:6, 56:19, 64:5, 64:8, 65:10, 65:19, 66:13, 66:21, 67:7, 70:6, 80:24, 83:13, 100:9, 103:18 type [5] - 20:4, 83:9, 84:12, 85:16, 91:9 typed [1] - 68:18

U U.S.C [1] - 87:10 ultimate [2] - 30:11, 90:5 ultimately [2] - 74:14, 90:1 un-ringing [1] - 40:8 unacceptable [1] 99:3 unambiguous [1] 89:23 under [41] - 7:4, 7:20, 8:18, 9:20, 10:2, 12:2, 14:10, 22:25, 24:4, 24:10, 26:19, 40:12, 40:13, 41:13, 41:19, 44:6, 58:24, 60:24, 71:1, 77:8, 78:13, 81:5, 81:7, 81:19, 82:15, 86:14, 87:4, 87:14, 88:17, 95:7, 95:20, 98:7, 101:7, 101:11, 101:14, 105:3, 105:4, 106:24 under-seal [1] 106:24 undergraduate [1] 16:19 underlying [7] - 38:5, 80:16, 80:17, 80:20, 84:2, 85:20, 92:11 understood [1] 82:12 undertaken [1] - 11:9 undertaking [1] - 55:2 undertook [1] - 93:15 unfairly [1] - 36:15 unfiltered [2] - 80:14, 80:15 unfortunately [1] 73:13 UNITED [1] - 1:1

United [5] - 1:16, 1:22, 6:25, 83:1, 108:5 universe [4] - 11:20, 16:9, 37:21, 38:17 unless [3] - 21:3, 81:15, 101:10 unlikely [1] - 36:25 unnecessary [1] 77:5 unruly [1] - 93:23 unseal [2] - 100:3, 100:6 unsealing [1] - 100:15 unsuccessful [1] 93:7 untidy [1] - 98:21 up [37] - 8:2, 9:7, 12:4, 16:10, 20:6, 23:19, 24:3, 31:3, 32:20, 36:17, 37:17, 39:24, 47:23, 50:2, 50:4, 52:10, 54:7, 65:24, 66:16, 66:17, 66:19, 67:21, 68:17, 72:25, 73:23, 76:14, 78:1, 82:8, 83:24, 84:10, 91:24, 94:12, 95:18, 99:17, 106:11, 106:23, 107:13 updated [1] - 32:14 upper [1] - 57:20 upshot [1] - 90:2 urge [2] - 74:22, 102:22 urgent [1] - 17:2 URQUHART [1] - 2:14 useful [2] - 63:18, 75:21

V validity [1] - 38:5 valuation [4] - 32:19, 35:10, 35:13, 35:15 value [2] - 73:16, 97:1 various [6] - 7:24, 14:8, 32:4, 78:11, 102:16, 102:17 vein [1] - 97:21 venture [1] - 33:2 Version [1] - 51:8 version [7] - 8:6, 50:2, 50:3, 51:8, 57:19, 58:5, 69:4 versions [1] - 50:18 vetted [2] - 70:25, 103:7 via [10] - 2:8, 2:9, 2:9, 2:13, 2:13, 2:14, 3:2, 3:8, 3:10, 4:5

view [25] - 5:22, 10:21, 24:9, 36:10, 38:11, 40:11, 41:9, 53:15, 53:24, 55:21, 60:25, 73:9, 77:4, 79:4, 80:3, 83:24, 87:25, 90:19, 93:7, 93:20, 100:18, 101:1, 102:25, 105:7, 105:19 viewed [3] - 35:22, 94:19, 95:2 views [5] - 5:13, 43:2, 47:20, 95:23, 96:11 vigilant [1] - 40:16 violated [2] - 11:17, 37:25 violation [4] - 11:1, 43:4, 55:13, 92:10 violative [1] - 93:20 vis [2] - 77:25 vis-a-vis [1] - 77:25 visitors [1] - 75:21 voluminous [1] 20:24 voluntarily [1] - 36:10 voluntary [3] - 24:15, 95:23, 102:18

W wait [1] - 76:12 waiver [1] - 84:19 walking [1] - 27:22 Wall [1] - 106:23 Walsh [8] - 19:13, 19:19, 19:21, 20:3, 20:5, 20:7, 20:9, 26:17 Walter [1] - 97:18 wants [2] - 62:4, 80:17 Washington [1] - 2:11 waters [1] - 106:10 web [16] - 11:21, 12:4, 16:10, 16:12, 28:3, 28:15, 29:25, 30:3, 36:12, 80:8, 80:13, 86:4, 102:8, 102:10, 102:24, 103:2 website [9] - 8:7, 28:7, 29:6, 50:4, 51:8, 65:12, 67:20, 75:22, 80:1 websites [1] - 99:10 weigh [1] - 98:13 Weinstein [1] - 98:16 well-known [2] 71:19, 71:24 well-recognized [1] 8:24

18

West [2] - 8:25, 65:2 wheeled [1] - 15:6 White [1] - 17:25 whole [3] - 8:17, 85:19, 90:3 willful [1] - 97:24 willfulness [3] - 87:19, 97:15, 97:16 willing [3] - 46:10, 70:2, 80:25 Winklevoss [2] 46:17, 52:23 Winklevosses [1] 52:6 wire [1] - 91:19 wish [2] - 76:16, 91:13 witness [1] - 69:24 witnesses [1] - 53:17 Wolfson [1] - 2:13 woman [3] - 72:6, 74:8, 97:11 woman's [1] - 97:23 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 young [3] - 94:17, 94:21 yourself [1] - 106:10

Z zebra [1] - 53:8 zenith [1] - 95:14 ZUCKERBERG [1] -

1:6 Zuckerberg [28] 2:19, 7:14, 7:23, 9:5, 11:24, 16:15, 16:19, 19:13, 20:6, 20:17, 21:18, 21:24, 27:3, 27:13, 29:7, 44:22, 51:10, 71:13, 73:12, 73:18, 74:1, 74:16, 74:20, 95:3, 95:22, 96:17, 96:19 Zuckerberg's [11] 17:23, 20:4, 22:4, 22:6, 26:16, 27:9, 29:1, 49:23, 75:1, 85:23, 95:6 ZYPREXA [6] - 6:2, 64:21, 83:12, 83:13, 86:8, 98:14

§ § [1] - 87:10

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