Six months of discovery delays
Facebook dragged its feet on discovery throughout the first six months of 2009. For example, Facebook would say they would not provide a document, but when Leader filed a motion to compel the document, Facebook would then provide the document in their opposition to the motion—the very document that they had just said they would not provide. Leader had provided two-and-a-half times more documents to Facebook than Facebook provided to Leader. Judge's Conference, May 28, 2009, Tr. 1062:12-24.
"I don’t want Facebook to be trashed . . . I love my company"
Facebook counsel Heidi Keefe's argument for giving Leader limited access to Facebook's documents was "I don’t want Facebook to be trashed." Judge Farnan replied "Don't be so defensive," to which Ms. Keefe responded "I love my company." Id., Tr. 1063:18-23.
Ms. Keefe's affection for her client aside, Facebook's discovery document preparation was further clouded by the appearance of a new inside counsel at Facebook who was simultaneously working for Facebook's outside counsel—a move that coincides with Facebook's inability to produce documents from its formative years of 2004 and 2005. California Legal Ethics, Cornell Univ. Law ("zealousness requires an attorney to represent his client to the best of his ability, but it does not require that he become insurer of either his client's self-esteem or his public reputation").
Dates
Attorney Samuel Citron O'Rourke is currently Deputy General Counsel, Intellectual Property at Facebook. See Sam O'Rourke LinkedIn Profile. Prior to joining Facebook Mr. O'Rourke was a colleague of Facebook's Leader v. Facebook outside counsels Heidi Keefe and Mark Weinstein at the law firm of White & Case LLP. Attorney Ted Ullyot joined Facebook during this case.
Mr. O'Rourke’s current LinkedIn profile page states that he joined Facebook in May 2008. Id., May 2008. However, court records in HTC Corp et al v. TPL et al, 08-cv-00882-JF (CA ND Feb. 27, 2009) show that he did not leave White & Case LLP until at least February 27, 2009 where he had been co-counsel with Mark R. Weinstein until being withdrawn by Mr. Weinstein—nine months later. To add to the confusion, Mr. O'Rourke was also co-counsel with Heidi Keefe and Mark Weinstein in the firm of Cooley LLP in Cross Atlantic Capital, Inc. v. Facebook, Inc., 07-CV-02768-JP (CA ND Jan. 19, 2011) and remained so until being withdrawn by Ms. Keefe on January 19, 2011. To insure that these records were not simply untimely clerk filings, the court pleadings in Acer, Inc. et al v. TPL, et al, 08-cv-877-JF (CA ND Oct. 21, 2008) show that Mr. O'Rourke was indeed an active counsel of record at White & Case LLP along with Mark Weinstein late into 2008.
Engagements
On the surface Mr. O'Rourke's LinkedIn page would lead one to believe that his tenure as inside counsel at Facebook pre-dated the Leader v. Facebook lawsuit, which commenced on Nov. 19. 2008. However, numerous federal court records indicate that he did not join Facebook until sometime in early 2009—timing which coincides with the Leader v. Facebook discovery disputes and would place him in the center of the obfuscation that triggered Leader's motion to compel.
The ambiguous nature of Mr. O'Rourke's status creates equally ambiguous legal questions as to whether or not attorney-client privilege would apply to Mr. O'Rourke's insider activities during Leader v. Facebook discovery. Heidi Keefe did not withdraw Mr. O'Rourke from the Cross Atlantic Capital v. Facebook case until Jan. 19, 2011. See link above. Technically speaking, since Mr. O'Rourke was still Facebook counsel for White & Case LLP (later replaced by Cooley LLP) in Cross Atlantic, Ms. Keefe could make an argument that Mr. O'Rourke's actions during Leader v. Facebook discovery were attorney-client privileged, and therefore not subject to discovery, deposition or subpoena, even though he claimed to be a Facebook insider simultaneously.
Musical Chairs
On Sep. 4, 2009, almost a year into the Leader v. Facebook lawsuit, Heidi Keefe and Mark Weinstein changed firms to Cooley Godward LLP and brought the Leader v. Facebook, 08-cv-082-JJF/LPS (D.Del. Sep. 4, 2009) lawsuit with them. See also Cooley Press Release, Aug. 31, 2009. Attorney Michael Rhodes who was already at Cooley, later became the trial litigator in Leader v. Facebook. See Law.com, Dec. 01, 2009. On the subject of Facebook user security and privacy, it is Mr. Rhodes who stated to the jury in his closing argument:
"There's 500 million of you people out there. We can't control it.
All we can do is react after the fact."
Michael Rhodes, Facebook, Trial Transcript, Jul. 27, 2010, Tr. 11479:7-9.
Who worked for whom, and when?
The public record is silent on exactly when Mr. O’Rourke joined Facebook as inside counsel. Facebook issued no customary press release for his hiring. Instead, he just appeared. The record is also unclear as to exactly who he worked for. Court records indicate that he worked for his former bosses Heidi Keefe and Mark Weinstein even after he went inside at Facebook and was ostensibly managing them.
Insider? Outsider? Insider-Outsider?
More Questions than Answers
These facts raise more questions than answers. Why didn’t Facebook announce Mr. O'Rourke's hiring in a manner similar to other Facebook hiring announcements like Chief Legal Counsel, Ted Ullyot's? See Cnet, Sep. 29, 2008; LA Times, Sep. 29, 2008.
Once inside, and presumably with the keys to the document vault, what did Mr. O'Rourke do to facilitate the discovery of documents for the 2004 and 2005 Facebook formative years? What happened that eventually led Facebook to claim that they had no 2004/2005 documents? What was Mr. O'Rourke's role in collecting and processing these documents? Why was his arrival at Facebook unannounced for many months? Why is his early history at Facebook unknown? To whom did he report? Who knew about his early activity? What part did he play in the discovery delays? Since it is not reasonable that no 2004/2005 documents were available, were they destroyed? Why does he say on his LinkedIn profile that he joined Facebook in May 2008 when it appears that he actually joined sometime after February 2009? Is the LinkedIn date a typo? What did Facebook do with its 2004 and 2005 documents to prevent spoilation? See Footnotes [1][2]. Since there were multiple lawsuits against Facebook prior to Leader v. Facebook, weren't all Facebook documents locked down long ago? What prompted his former boss Heidi Keefe's "I love my company" emotional outburst in front of Judge Farnan during the discovery hearing?
Perhaps there are good answers to these questions, but the questions keep piling up.
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Footnotes
[1] Bruzzano, Melissa A,. "Spoilation of Evidence in California," 24 Sw. U. L. Rev. 123 (1994-1995). Accessed Aug. 13, 2011 <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/swulr24&div=10&id=&page=>.
[2] Richard E. Best. "Discovery of Electronic Data. Electronic Discovery Law. 2004. Accessed Aug. 14, 2011 <http://california-discovery-law.com/electronic_discovery_sanctions_spoliation.htm>.
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