Lawsuit Filed Against "facebook"
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
2 3 4
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
7
) ) ) ) ) ) ) ) )
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
2
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:
C
E
E
D
I
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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1
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
6
magazine submission as yet; it just hasn't been brought to my
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attention.
8 9
MR. CHATTERJEE:
Okay, your Honor, I'm happy to
provide you with the citations.
I'd like to start with one key
10
fact that I think is important, and I'll just read to you an
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excerpt from their submission that I think their argument
12
pretty much hangs on, and it's the following statement on page
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4 of their brief.
14
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?
8 9
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
11
at the very bottom pursuant to the First Circuit Rules.
12
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
6
Honor, and we can't find it.
A new version of that document
7
was posted on the 02138 website with those handwritten notes
8
removed.
9
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:
14
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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familiar with him.
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MR. CHATTERJEE:
He's in the Midwest, your Honor, and
3
he's someone that our firm has worked with in the past.
In
4
addition, the online diary that has been posted for Mark
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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,
20
materials that are submitted to the Court, even under seal, are
21
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
2
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
5
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
10
It has not
We
All of this information suggests to us that what
statement, and the information came from someplace else.
11
THE COURT:
Well, let me see if I can break that down
12
a bit.
13
focus on the potential sources as more fully developed by your
14
commentary.
15
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
16
in the past 24 hours through this analysis, it certainly seems
17
like at least some of it did.
18
THE COURT:
All right.
Now, let me deal with that
19
aspect of it, just for a moment.
Is not the way to deal with
20
that to pursue a question of contempt against a party with a
21
view toward developing a schedule to pursue it?
22
one side the remedy, for a moment, because if it comes from
23
them, irrespective of whether they pass it on to someone who
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disseminates it, they are directly within the scope of the
25
Court's power to exercise control and sanction, if there's a
I'll put to
11
1
violation of the Court's Orders.
2
MR. CHATTERJEE:
3
THE COURT:
Yes, your Honor, that is true.
All right.
Because there are two aspects
4
of this that I'm interested in that are pressed, well, not
5
altogether pressed by it, but that are part of this.
6
aspect of it is who did it, and the second part is whether or
7
not there is any remedy for it.
8
part of it, it seems to me that further factual development has
9
to be undertaken.
The first
Now, turning to the who did it
I recognize that you brought it along or
10
wanted to bring it along as promptly as possible, nevertheless,
11
I'm confronted with somewhat conflicting factual recitations, I
12
suppose.
13
try to get this right, and because it's a very serious
14
matter --
I have a particular interest in making sure that I
15
MR. CHATTERJEE:
16
THE COURT:
It is, your Honor.
-- if one of the parties in this case has
17
violated the protective order.
18
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
20
motion for summary judgment, are included in the universe of
21
materials that are posted on the web.
22
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.
25
THE COURT:
If I could interrupt, that's one in which
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1
the parties continue to believe or at least have submitted to
2
me that that should remain under seal.
3
MR. CHATTERJEE:
Yes, your Honor.
I don't remember
4
which of the other documents that are up on the web are
5
attached to the first amended complaint.
6
other ones are, but I can't say for certain.
7
THE COURT:
Okay.
I don't believe the
Now, are all of the -- you said
8
there were two documents, two or three documents that aren't in
9
the appellate record; is that right?
10
MR. CHATTERJEE:
Yes, your Honor.
This was the first
11
time we heard about it, about an hour and a half ago, but from
12
our review and our recollection, Thefacebook cash flow
13
statement and the online diary were not part of the appellate
14
record.
15
MR. HORNICK:
16
THE COURT:
17
MR. HORNICK:
Your Honor, this is John Hornick.
Yes. I'm not sure that that's accurate.
I
18
don't know the answer for sure, but I do know that, and we only
19
saw this brief from 02138 about an hour ago ourselves, and
20
we're not aware that the document had come from the First
21
Circuit, but since that time, we've considered this issue that
22
Neel is raising now about where -- whether all of these
23
documents were in the appellate record, and Thefacebook had a
24
motion pending in the First Circuit to dismiss the appeal as
25
moot, and that motion involved the first amended complaint, and
13
1
we do not know at the moment whether the first amended
2
complaint was an exhibit or whether the exhibits to it were
3
exhibits to that motion, but it's entirely possible that the
4
First Circuit may have looked at the first amended complaint in
5
the record.
6
THE COURT:
So, is the suggestion, Mr. Hornick, that
7
they have been somehow incorporated by reference in the First
8
Circuit --
9
MR. HORNICK:
Well, possibly, your Honor.
All I'm
10
saying is that it's not clear that those documents were not in
11
any way part of the appellate record or in the appellate
12
court's records.
13
THE COURT:
All right.
14
MR. CHATTERJEE:
And, your Honor, just to speak to
15
that, Mr. Hornick is correct, we did file a motion to dismiss
16
the appeal as moot.
17
the first amended complaint; rather, we referred to it in a
18
request for judicial notice, but I just, I can't remember for
19
certain.
20
THE COURT:
My recollection is that we did not attach
There is one other dimension I just want
21
to throw out now.
Mr. Lovett, my courtroom deputy, in paging
22
through quickly, noticed that for at least one of the documents
23
there's a docket stamp, which indicates that at some point that
24
document was in the file in this court, the copy is something
25
that comes out of the court itself.
Now, it could have gone to
14
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the First Circuit, it could have come, frankly, from the
2
clerk's office here, since we're now taking names rather than
3
making a determination of who did it.
4
MR. CHATTERJEE:
Your Honor, it is true that we have
5
been able to identify documents.
These documents have been
6
submitted to a court or were sought to be submitted through an
7
evidentiary hearing where it was put on an exhibit list and not
8
actually entered at various points in time.
9
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
11
publicly accessible, and we received confirmation that, in
12
fact, it was still confidential.
13
THE COURT:
Well, the submission that you've just
14
brought my to my attention about the source for 02138, at least
15
their recitation of the source and the offer to provide a
16
declaration, it says it comes from the appeals court.
17 18
MR. BALIN:
Your Honor, this is Robert Balin, from
Davis Wright Tremaine, the attorney for 01238.
19
THE COURT:
Right.
20
MR. BALIN:
And I don't want to interrupt, but I think
21
there may be, at least possibly, a misunderstanding, at least,
22
when we've come in, we came in last night about 6:00 when our
23
predecessor counsel realized he had a conflict.
24
THE COURT:
All right.
25
MR. BALIN:
We have tried to ascertain the facts as
15
1
best as counsel can, and our understanding is that the reporter
2
here, an issue went to the District Court, there were documents
3
missing from the file there, he was sent down the hallway to
4
the First Circuit Clerk's Office.
5
request card to ask for the documents and the clerk brought
6
him, she wheeled out, I think he said it was three boxes or
7
thereabouts, many, many documents.
8
appendix.
9
the records from the District Courts themselves, that somehow
10
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.
15
appendix and the record itself, and the practice has been, in
16
the First Circuit, at least, in certain cases, to require the
17
replication of documents in the files of the District Court for
18
submission to the First Circuit.
19
First Circuit would have copies of originals in the -- from the
20
District Court that would be outside of the record appendix
21
itself.
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 --
16
1 2
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
1
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
2 3 4
CONNECTU, INC., Plaintiff,
5
v.
6
8
FACEBOOK, INC., MARK ZUCKERBERG, EDUARDO SAVERIN, DUSTIN MOSKOVITZ, ANDREW MCCOLLUM, CHRISTOPHER HUGHES, and THEFACEBOOK, LLC,
9
Defendants
7
) ) ) ) ) ) ) ) )
Civil Action No.: 1:07-CV-10593-DPW Related Action No. 1:04-CV-11923-DPW
10 11
BEFORE:
THE HONORABLE DOUGLAS P. WOODLOCK
12 13
MOTION HEARING
14 15 16 17 18
John Joseph Moakley United States Courthouse Courtroom No. 1 One Courthouse Way Boston, MA 02210 Friday, November 30, 2007 12:35 p.m.
19 20 21 22 23 24 25
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
2
1 APPEARANCES: 2 3 4
Plaintiff ConnectU, Inc. Represented by:
5 6 7
Daniel P. Tighe, Esq. GRIESINGER, TIGHE & MAFFEI, LLP 176 Federal Street Boston, MA 02110
8 9 10 11
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
12 13 14 15 16
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
17 18 19 20
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)
3
1 2 3 4
Steven M. Bauer, Esq. Mark Batten, Esq. (Appearance via telephone after recess) PROSKAUER ROSE LLP One International Place 22nd Floor Boston, MA 02110
5 6 7 8 9
Defendant Eduardo Saverin Represented by: Nathan E Shafroth, Esq. (Appearance via telephone) HELLER EHRMAN LLP 333 Bush Street San Francisco, CA 94104
10 11 12
Robert B. Hawk, Esq. (Appearance via telephone) HELLER EHRMAN LLP 275 Middlefield Road Menlo Park, CA 94025
13 14 15 16 17
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
18 19 20 21
Steven M. Bauer PROSKAUER ROSE LLP One International Place 22nd Floor Boston, MA 02110
22 23 (Appearances continued next page) 24 25
4
1 2 3 4
02138 Represented by: Elizabeth Ritvo, Esq. BROWN RUDNICK One Financial Center Boston, MA 02111
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Robert P. Balin, Esq. (Appearance via telephone) Laura Handman, Esq. Amber Husbands, Esq. DAVIS, WRIGHT & TREMAINE 1633 Broadway New York, NY 10019-6708
5
1 2
P
R
O
CLERK LOVETT:
C
E
E
D
I
N
G
S:
The Honorable Court is now in session.
3
You may be seated.
4
Civil Action 04-11923 ConnectU, Inc. v. Facebook, Inc., et al.
5
THE COURT:
Calling the case of Civil Action 07-10593
Well, this is Judge Woodlock.
I have a
6
roll call that's been provided here, and in the course of the
7
proceedings, I think Mr. Lovett indicated to counsel who were
8
appearing by phone that they should identify themselves each
9
time they speak so that the court reporter will be able to get
10
the names properly.
11
from you first on the question of what I guess I'd have to call
12
requests for a prior restraint, and I want to hear what your
13
views are with respect to that at the outset.
14
I guess, Mr. Chatterjee, I'd like to hear
MR. CHATTERJEE:
I'm happy to do so, your Honor, and
15
thank you for giving us this hearing on an expedited basis.
16
The requests that we are placing to the Court is to restrain
17
specific documents that have been posted online that are
18
subject to the Court's protective order.
19
to restrain the commentary and the articles that have been
20
written about them.
21
stop that commentary, but we are really trying to protect our
22
confidential information that has gotten out.
23
law is fairly clear, the Bartnicki case, I can never pronounce
24
it right, in drawing a distinction as to the scope of First
25
Amendment protection between what is commentary and what are
This is not a request
In a perfect world, we want to try and
In our view, the
6
1
things like this that are documents and our property.
2
ZYPREXA case, that was actually cited to in papers that were
3
just submitted to you by the magazine, actually talks about
4
that very distinction.
5
THE COURT:
The
I'll have to say that I have not seen the
6
magazine submission as yet; it just hasn't been brought to my
7
attention.
8 9
MR. CHATTERJEE:
Okay, your Honor, I'm happy to
provide you with the citations.
I'd like to start with one key
10
fact that I think is important, and I'll just read to you an
11
excerpt from their submission that I think their argument
12
pretty much hangs on, and it's the following statement on page
13
4 of their brief.
14
All of the --
THE COURT:
Just a moment.
I'm glad to listen to a
15
dramatic reading, but I think I'd like to follow along.
16
there a copy of the document here?
17
MR. CHATTERJEE:
18
MS. RITVO:
19
Is
Yes, your Honor, I believe.
Excuse me.
This was hand-delivered to the
Court on behalf of the magazine.
20
THE COURT:
Okay.
21
MR. CHATTERJEE:
Go ahead.
I now have it.
Your Honor, if you look at page 4,
22
the first complete paragraph, it states, "All of the documents
23
were lawfully obtained by Luke O'Brien, a freelance journalist
24
and the author of the article in question from the clerk's
25
office of the United States Court of Appeals for the First
7
1 2
Circuit." Your Honor, this is one of approximately 11 exhibits
3
that were submitted to the First Circuit Court of Appeals,
4
three of which are under seal.
5
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
7
the Court of Appeals appeal?
8 9
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
11
at the very bottom pursuant to the First Circuit Rules.
12
single one of the documents that's posted online has that
13
number on it.
14
posted online, the online diary of Mark Zuckerberg and the cash
15
flow statement of Facebook from about a year and a few months
16
ago are, as far as we know, and we're still, we're rapidly
17
going through this to confirm it, because we only received
18
notice of this position recently, is not in the appellate
19
record at all.
20
what they have said they would submit in a declaration under
21
oath from Mr. O'Brien, it's false.
22
additional evidence to support that.
23
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
24
the appellate record, as well as is attached to various court
25
files, that document that was submitted did not have certain
8
1
handwritten notes on the side of the document, and those
2
handwritten notes were on the online posting that came up.
3 4
THE COURT:
Do you know what iteration of that
document does have handwritten notes on it?
5
MR. CHATTERJEE:
We had searched our production, your
6
Honor, and we can't find it.
A new version of that document
7
was posted on the 02138 website with those handwritten notes
8
removed.
9
produced with handwriting on them.
We have looked through other documents that have been We found some editorial
10
changes to Dyvia Narendra's deposition.
11
deposition, as you know, your Honor, you can always make
12
certain changes if you have problems with them.
13
THE COURT:
14
MR. CHATTERJEE:
At the end of the
Right. We have submitted that handwriting,
15
as well as the handwriting on the side of the notes to the
16
Harvard application, to a handwriting expert, and, obviously,
17
we did not have a whole lot of time for this and the sample
18
size is relatively small, but under the accepted standards for
19
handwriting analysis, between a ranking of 1 being a definite
20
match and 9 being no match, the expert is telling us it's
21
roughly a 3, which is a probable match.
22
THE COURT:
23
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
9
1
familiar with him.
2
MR. CHATTERJEE:
He's in the Midwest, your Honor, and
3
he's someone that our firm has worked with in the past.
In
4
addition, the online diary that has been posted for Mark
5
Zuckerberg, the document that's posted is in a file format
6
called a pdf file.
7
up certain information that isn't disclosed on the page called
8
metadata.
The metadata is historical information about that
9
document.
What that document reveals, the metadata document,
When you download a pdf file, you can pull
10
is it reveals that someone named Lindsey B, we believe that's
11
an employee of 02138, received the document, received a dot doc
12
file, which is a Microsoft Word file format.
13
significance, because if they got it from a court file, it
14
wouldn't be in an electronic format, it would be in a hard copy
15
format.
16
that is available online, and then posted.
17
electronic data came from somewhere, and it didn't come from
18
the Court record.
19
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,
20
materials that are submitted to the Court, even under seal, are
21
put in the pdf format at some point.
22
MR. CHATTERJEE:
Yes, your Honor, that is true,
23
however, these documents from the online journal are -- the
24
only place we could find in the court record where they were
25
submitted was with respect to the first amended complaint, and
10
1
we made a specific request to your Honor, which is currently
2
under advisement, to keep that document under seal.
3
yet been put online and is not currently publicly available.
4
One other important fact about that particular document, the
5
dot doc metadata indicates that the file was created on the
6
first -- no, I'm sorry, on the 10th of January, 2006.
7
produced the document on the 7th of January, 2006, three days
8
earlier.
9
they've said in these papers, at least, is not an accurate
10
It has not
We
All of this information suggests to us that what
statement, and the information came from someplace else.
11
THE COURT:
Well, let me see if I can break that down
12
a bit.
13
focus on the potential sources as more fully developed by your
14
commentary.
15
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
16
in the past 24 hours through this analysis, it certainly seems
17
like at least some of it did.
18
THE COURT:
All right.
Now, let me deal with that
19
aspect of it, just for a moment.
Is not the way to deal with
20
that to pursue a question of contempt against a party with a
21
view toward developing a schedule to pursue it?
22
one side the remedy, for a moment, because if it comes from
23
them, irrespective of whether they pass it on to someone who
24
disseminates it, they are directly within the scope of the
25
Court's power to exercise control and sanction, if there's a
I'll put to
11
1
violation of the Court's Orders.
2
MR. CHATTERJEE:
3
THE COURT:
Yes, your Honor, that is true.
All right.
Because there are two aspects
4
of this that I'm interested in that are pressed, well, not
5
altogether pressed by it, but that are part of this.
6
aspect of it is who did it, and the second part is whether or
7
not there is any remedy for it.
8
part of it, it seems to me that further factual development has
9
to be undertaken.
The first
Now, turning to the who did it
I recognize that you brought it along or
10
wanted to bring it along as promptly as possible, nevertheless,
11
I'm confronted with somewhat conflicting factual recitations, I
12
suppose.
13
try to get this right, and because it's a very serious
14
matter --
I have a particular interest in making sure that I
15
MR. CHATTERJEE:
16
THE COURT:
It is, your Honor.
-- if one of the parties in this case has
17
violated the protective order.
18
that of the materials that have been submitted to me in
19
connection with the motion, pending motion to dismiss and the
20
motion for summary judgment, are included in the universe of
21
materials that are posted on the web.
22
MR. CHATTERJEE:
I also want to understand what
Any?
Yes, your Honor, and I don't remember
23
the exact exhibit numbers, but the online diary of Mark
24
Zuckerberg is one of the attachments.
25
THE COURT:
If I could interrupt, that's one in which
12
1
the parties continue to believe or at least have submitted to
2
me that that should remain under seal.
3
MR. CHATTERJEE:
Yes, your Honor.
I don't remember
4
which of the other documents that are up on the web are
5
attached to the first amended complaint.
6
other ones are, but I can't say for certain.
7
THE COURT:
Okay.
I don't believe the
Now, are all of the -- you said
8
there were two documents, two or three documents that aren't in
9
the appellate record; is that right?
10
MR. CHATTERJEE:
Yes, your Honor.
This was the first
11
time we heard about it, about an hour and a half ago, but from
12
our review and our recollection, Thefacebook cash flow
13
statement and the online diary were not part of the appellate
14
record.
15
MR. HORNICK:
16
THE COURT:
17
MR. HORNICK:
Your Honor, this is John Hornick.
Yes. I'm not sure that that's accurate.
I
18
don't know the answer for sure, but I do know that, and we only
19
saw this brief from 02138 about an hour ago ourselves, and
20
we're not aware that the document had come from the First
21
Circuit, but since that time, we've considered this issue that
22
Neel is raising now about where -- whether all of these
23
documents were in the appellate record, and Thefacebook had a
24
motion pending in the First Circuit to dismiss the appeal as
25
moot, and that motion involved the first amended complaint, and
13
1
we do not know at the moment whether the first amended
2
complaint was an exhibit or whether the exhibits to it were
3
exhibits to that motion, but it's entirely possible that the
4
First Circuit may have looked at the first amended complaint in
5
the record.
6
THE COURT:
So, is the suggestion, Mr. Hornick, that
7
they have been somehow incorporated by reference in the First
8
Circuit --
9
MR. HORNICK:
Well, possibly, your Honor.
All I'm
10
saying is that it's not clear that those documents were not in
11
any way part of the appellate record or in the appellate
12
court's records.
13
THE COURT:
All right.
14
MR. CHATTERJEE:
And, your Honor, just to speak to
15
that, Mr. Hornick is correct, we did file a motion to dismiss
16
the appeal as moot.
17
the first amended complaint; rather, we referred to it in a
18
request for judicial notice, but I just, I can't remember for
19
certain.
20
THE COURT:
My recollection is that we did not attach
There is one other dimension I just want
21
to throw out now.
Mr. Lovett, my courtroom deputy, in paging
22
through quickly, noticed that for at least one of the documents
23
there's a docket stamp, which indicates that at some point that
24
document was in the file in this court, the copy is something
25
that comes out of the court itself.
Now, it could have gone to
14
1
the First Circuit, it could have come, frankly, from the
2
clerk's office here, since we're now taking names rather than
3
making a determination of who did it.
4
MR. CHATTERJEE:
Your Honor, it is true that we have
5
been able to identify documents.
These documents have been
6
submitted to a court or were sought to be submitted through an
7
evidentiary hearing where it was put on an exhibit list and not
8
actually entered at various points in time.
9
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
11
publicly accessible, and we received confirmation that, in
12
fact, it was still confidential.
13
THE COURT:
Well, the submission that you've just
14
brought my to my attention about the source for 02138, at least
15
their recitation of the source and the offer to provide a
16
declaration, it says it comes from the appeals court.
17 18
MR. BALIN:
Your Honor, this is Robert Balin, from
Davis Wright Tremaine, the attorney for 01238.
19
THE COURT:
Right.
20
MR. BALIN:
And I don't want to interrupt, but I think
21
there may be, at least possibly, a misunderstanding, at least,
22
when we've come in, we came in last night about 6:00 when our
23
predecessor counsel realized he had a conflict.
24
THE COURT:
All right.
25
MR. BALIN:
We have tried to ascertain the facts as
15
1
best as counsel can, and our understanding is that the reporter
2
here, an issue went to the District Court, there were documents
3
missing from the file there, he was sent down the hallway to
4
the First Circuit Clerk's Office.
5
request card to ask for the documents and the clerk brought
6
him, she wheeled out, I think he said it was three boxes or
7
thereabouts, many, many documents.
8
appendix.
9
the records from the District Courts themselves, that somehow
10
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.
15
appendix and the record itself, and the practice has been, in
16
the First Circuit, at least, in certain cases, to require the
17
replication of documents in the files of the District Court for
18
submission to the First Circuit.
19
First Circuit would have copies of originals in the -- from the
20
District Court that would be outside of the record appendix
21
itself.
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 --
16
1 2
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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