Donna Kline's interview with Leader CEO Michael McKibben

The fight goes on. Click here to read Leader's Federal Circuit Opening Brief and click here to read Donna Kline's blog that includes an eyewitness report from the Federal Circuit Appeal Hearing, including the Facebook appeals attorney's apology to his client.

Thursday, March 15, 2012

Federal Circuit Appeal Hearing confirms this blog's analysis that Facebook relies on smoke and mirrors

Facebook's "coffee stain" defense
Facebook's 'coffee stain' defense. Facebook: 'Leader did not give us a 'pristine' copy of their source code.' Judge Moore: 'What do you mean, 'pristine' – does it have a coffee stain on it? . . . You're up here on appeal complaining that you didn't have a pristine copy. I have no clue what you even mean by that. And, that somehow justifies why you didn't include it as any of the evidence?'

Facebook: "Leader did not give us a 'pristine' copy of their source code."
Judge Moore: "What do you mean, 'pristine' – does it have a coffee stain on it? . . . You're up here on appeal complaining that you didn't have a pristine copy. I have no clue what you even mean by that. And, that somehow justifies why you didn't include it as any of the evidence?"


Washington D.C. (March 5, 2012)—Leader and Facebook attorneys squared off in front of a three-judge Federal Circuit panel to present oral arguments in Leader Tech v. Facebook, Case No. 2011-1366 (Fed. Cir.). The judges were: (1) Alan A. Lourie (presiding), (2) Kimberly A. Moore, and (3) Evan J. Wallach (Click here for biographies of the three-judge Federal Circuit panel in the Leader v. Facebook).

The United States Court of Appeals for the Federal Circuit Judges who heard oral argument in Leader Tech v. Facebook, 2011-1366 (Fed. Cir.) on Mar. 5, 2012. (Left to Right) Kimberly A. Moore, Alan A. Lourie (presiding), and Evan J. Wallach. This is the order in which they were sitting (as seen from the gallery) during oral arguments by Leader and Facebook attorneys.
Fig 1. - The United States Court of Appeals for the Federal Circuit Judges who heard oral argument in Leader Tech v. Facebook, 2011-1366 (Fed. Cir.) on Mar. 5, 2012. (Left to Right) Kimberly A. Moore, Alan A. Lourie (presiding), and Evan J. Wallach. This is the order in which they were sitting (as seen from the gallery) during oral arguments by Leader and Facebook attorneys.

United States Federal Circuit Court of Appeals, 717 Madison Pl NW, Washington, DC 20005


Click here to listen to an MP3 recording of the hearing (35 min. 28 sec.).[1]

Click here to read a PDF transcript of the hearing (33 pgs.).



Financial Blogger and former Bloomberg TV Reporter Donna Kline attended the hearing and provides a comprehensive overview of the proceedings at http://www.donnaklinenow.com.

Fig. 2 - Donna Kline is a reporter for The Pittsburgh Business Report and a former reporter for Bloomberg New York.
Facebook abandoned any attempt to overturn the verdict of infringement on 11 of 11 Leader patent claims, or to put forward published prior art. Instead, they focused their entire argument on convincing the justices that they had met their "clear and convincing" burden of proof that inventor McKibben lied about when the invention was ready for patenting.

Judge Wallach asked Leader's attorney why Leader had not introduced its source code to refute Facebook's on sale bar accusation. Leader said that Facebook had the burden of proof, not Leader. In addition, Leader pointed out that technical subjects like computer source code can only be introduced to a jury through expert witnesses. And, since Facebook added the "on sale bar" claim after discovery had closed, Facebook did not present any expert testimony, so, there was no procedural opportunity for Leader to introduce such evidence. In short, Facebook shot themselves in the foot on this issue (hence, they're relying on "smoke and mirrors" now).

Facebook cancelled every opportunity to gather real evidence during discovery

Leader pointed out that Facebook had initially given notice for depositions and evidence from the alleged recipients of the offers, but cancelled all of them. Facebook also petitioned the court and was granted the right to review Leader2Leader source code. Despite having Leader's source code, Facebook did not produce any of this hard evidence at trial. When asked why they didn't show such proofs, Facebook's attorney said the source code they received was not "pristine."

Facebook's "coffee stain" defense

Judge Moore blasted Facebook's lack of "pristine" source code argument, asking if the source code had a "coffee stain" on it, and pointing out that Facebook had the obligation to get the discovery they wanted. Facebook only defense for not having a better argument on the source code issue was the limited time available in the hearing for arguing his priority points.

Facebook's Thomas Hungar to Facebook Attorney Jeffrey Norberg: "I'm sorry"

Immediately following the oral arguments, as they prepared to leave the courtroom, Financial blogger Donna Kline overheard Facebook's appeal attorney Thomas Hungar say to Facebook's Cooley Godward LLP attorney Jeffrey Norberg "I'm sorry." Mr. Norberg responded "Don't apologize." Ms. Kline took the exchange to mean that Mr. Hungar did not believe the hearing had gone well for Facebook. Ms. Kline recorded a video from the courthouse of her first impressions immediately following the hearing:


Fig. 3 - Former Bloomberg TV Reporter Donna Kline reports from the Federal Circuit courthouse in Washington D.C. immediately following the oral arguments in Leader Tech v. Facebook, Case No. 2011-1366. Source: Donna Kline Now!

Bizarre Facebook Appeal Brief footnote contradicts their "on sale bar" argument . . . yet more flip-flopping . . . even in the second highest court in the land

Facebook appeal brief contains a footnote that contradicts their entire "on sale bar" argument. They stated:

"Facebook does not believe that the '761 patent reflects a significant advance or solves any significant problem. The terms 'inventor' and 'invention' are used merely for convenience." Facebook Brief, fn. 1.

Facebook appeal brief Footnote No. 1 that wholly contradicts the rest of their appeal argument alleging that Leader's innovation was offered for sale too soon.
Fig. 4 - Facebook Red Brief Footnote 1, pg. 4 — Leader v. Facebook appeal before the United States Court of Appeals for the Federal Circuit.

So let's get this straight. Facebook hung their entire Federal Circuit appeal on discrediting inventor McKibben's testimony; alleging that Leader2Leader contained the invention before Dec. 11, 2002. This is after claiming just the opposite up to three months before trial—that Leader2Leader never contained anything novel or unique. Now, in their appeal brief, they make BOTH arguments . . . in the same brief! This footnote says that Leader2Leader has never contained an invention and that Leader invented nothing. Hello, the "on sale bar" defense requires that an invention exists and that an attempt was made to sell it too soon. Hopefully the Federal Circuit judges will not reward this blatant duplicity.

Fenwick & West LLP failed to disclose its prior association with Leader Technologies in 2002, and failed to disclose Leader's inventions as prior art in Facebook's patent filings from 2008.

"Inequitable conduct" means you have withheld material information from the Patent Office regarding patentability; such lack of disclosure invalidates a patent application

This blog was the first to highlight anomalies in Facebook's intellectual property strategy, namely that the self-confessed hacker Mark Zuckerberg had suddenly become one of the most prolific filer of patents on the planet since 2008. See Section 11 of "Leader's Lawyers Dismantle Facebook's 'Schizophrenic' Appeal Brief." Since that time, Facebook issued its S-1 notice of intent to go public. The S-1 disclosed over 700 patent filings owned by Facebook which were largely filed by the law firm Fenwick & West LLP. Remarkably, Fenwick was Leader Technologies' corporate law firm in 2002 and was privy to all Leader business and technical information, including its patent activity. Also remarkably, Fenwick did not disclose Leader's U.S. Patent No. 7,139,761 in ANY of Facebook's patent filings as prior art. This revelation, and the fact that Fenwick (also Facebook S-1 counsel) are disclosure failures that may prove damaging if not fatal to Facebook. Stay tuned for more on these developments. Click here to read what Donna Kline writes about this "inequitable conduct" in her blog.


CBS, NBC, CNBC, Law360, Western Free Press and numerous bloggers are now following Leader v. Facebook


NBC4i.com (WCMH): Could the real developer of Facebook's technology be in Central Ohio?
CNBC: Facebook Stole Our Invention Says Ohio Tech Company Founder
NBC-TV Bay Area: The Company That Sued Facebook And Won

CBS San Fran (KPIX): Federal Appeals Court To Hear Leader v. Facebook Lawsuit

Law360: Facebook Data Patent Evidence Lacking Federal Circuit Hears

CBS-10TV Columbus (WBNS): Westerville Company Sues Facebook For Patent Infringement In The Federal Circuit

WFP Interviews Mike McKibben, Chairman and Founder of Leader Technologies And Plaintiff In Leader v. Facebook



The blogosphere has finally awakened to the facts in this case and news organizations including CBS (KPIX), CBS (WBNS), NBC (Bay Area), NBC (WCMH), CNBC, Law360, Western Free Press as well as numerous blogs and bloggers are now following this case. Donna Kline's blog includes links to this video coverage. CBS-TV (KPIX) San Francisco's Julie Watts interview with Leader's Michael McKibben is embedded below (not viewable on iPad and iPhone), sorry. Viewable on all browsers except Safari. This KPIX video starts with a short advertisement.



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Footnotes:

[1] Leader Tech v. Facebook, Case No. 2011-1366. Hearing of the United States Court of Appeals for the Federal Circuit, Mar. 5, 2012. Sound Recording. Washington D.C. Federal Circuit website. MP3. Accessed Mar. 6, 2012. <http://www.cafc.uscourts.gov/oral-argument-recordings/search/audio.html>.

Thursday, January 26, 2012

How Facebook tricked the jury

OPINION: One blogger's perspective

Facebook doctored evidence as the basis for their only "win" in the patent infringement case Leader v. Facebook which is now on appeal at the Federal Circuit

January 26, 2012—The 3 min. 22 sec.YouTube video below summarizes how Facebook experimented with a 70-person Delaware focus group to confuse the jury with innuendo dressed up to look like evidence of "on sale bar." As a matter of law, Facebook's "victory" cannot stand since it is founded on doctored evidence—a 60%-altered Interrogatory No. 9. (See mock trial Comments in "Facebook's 'clear and convincing' burden of proof in Leader v. Facebook".) Here are links to the two trial documents that comprise Interrogatory No. 9: (1) Doc. No. 627-23 and (2) Doc. No. 627-24.


Lessons in fooling a mostly blue collar jury

Do you find it hard to believe that Facebook's Cooley Godward attorneys would doctor evidence, much less make it the centerpiece of their on sale bar attack? See for yourself at these blog entries:
Facebook's prized "evidence" was a trick. See also No evidence? No problem. Fabricate it.; Missing Facebook Documents; Facebook's jury binder innuendo. Follow other related link in this blog's Table of Posts (on right).
The revelation that Facebook paid 70 people almost $500 each to test how best to fool the jury with pseudo-evidence is further proof that Facebook had no evidence, and instead, resorted to attorney games—"dark arts" that are so destructive to the public's confidence in our legal system.


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Screen captures of the animation slides above (click on any one and the Blogger slide viewer will enable you to view each slide at your own pace):

Slide 1 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater

Slide 2 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater - Part I

Slide 3 of 23
Leader v. Facebook | Facebook treated Interrogatory No. 9 as an 'inventor's admission - Disregarding the illogical association of a 2009 question to events in 2002--which confused the jury...

Slide 4 of 23
Facebook altered this evidence (Interrogatory No. 9)

Slide 5 of 23
Less than 40% of Leader's answer was shown to the jury. Leader objected. The district court overruled

Slide 6 of 23
Possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainer was. Wigmore, Evidence, 2rd. ed. (on the doctrine of completeness. Professor Wigemore is an often-cited legal authority.

Slide 7 of 23
All evidence in support of such conduct is the 'fruit of the poisonous tree. Nardone v. United States, 308 US 338 (Supreme Court 1939)

Slide 8 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater - Part II

Slide 9 of 23
Facebook based their 'on sale bar' attack on attorney-altered evidence

Slide 10 of 23
60% of Interrogatory No. 9 was hidden from the jury

Slide 11 of 23
Facebook then supported their doctored evidence with innuendo and trial theater

Slide 12 of 23
Innuendo is not evidence.

Slide 13 of 23
In re Bose Corp (Fed. Cir. 2009) 'There is no room for speculation, inference or surmise ... any doubt must be resolved against the charging party [Facebook].

Slide 14 of 23
On May 1-2, 2010 Facebook tested their trial theater tricks with 70 unsuspecting Delaware citizens at the Riverfront Center, Wilmington, Delaware.

Slide 15 of 23
Clear and convincing evidence requires hard facts. Colorado v. New Mexico (Supreme Court 1984)

Slide 16 of 23
Slide 14 - Facebook offered no hard evidence. (1) No source code, (2) No element-by-element test, (3) No third party testimony, (4) No UCC commercial terms test, (5) No expert testimony, (6) No engineering records, (7) No programmer testimony, (8) No secrecy 'deeds' test, (9) No defenses for dispositive proofs: (9a) 'evaluation only' NDA clauses, (9b) registered trademark dates, (9c) experimental testing evidence, (9d) 'no legal effect' NDA clauses, (9e) no 'buyer/seller' relationships clause [WPAFB], (9f) 'no reliance' NDA clauses, (9g) 2009 present tense answer, and (9h) admission that source code was needed [Facebook's Cooley Godward attorney Mark Weinstein's statement to the judge six months before trial].

Slide 17 of 23
Was the jury confused by innuendo plus trial theater?

Slide 18 of 23
Was the jury confused by innuendo plus trial theater? Yes.

Slide 19 of 23
Does well-rehearsed trial theater satisfy the 'clear and convincing' evidence standard?

Slide 20 of 23
Does well-rehearsed trial theater satisfy the 'clear and convincing' evidence standard? No.

Slide 21 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater. The End.

Slide 22 of 23
For more information, go to: facebook-technology-origins dot blogspot dot com
Add caption

Slide 23 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater


Sunday, January 15, 2012

Facebook's prized "evidence" was a trick

OPINION: One blogger's perspective

Facebook concealed over 60% of Interrogatory No. 9; breached the completeness doctrine (Fed. R.Evid. 106)

January 15, 2012 – According to the trial court, Facebook’s lone trial victory for public disclosure/on sale bar in the Leader v. Facebook patent infringement trial was founded on Interrogatory No. 9. The judge allowed Facebook to introduce this evidence over Leader’s objections and the Federal Rules of Evidence 106 (completeness). Here’s what the jury was given, contained in the jury binder sleight of hand: Doc. No. 627-23; Doc. No. 627-24; See Facebook's jury binder innuendo; See also Fig. 1 below.

Facebook's pleadings averaged 24 double-spaced lines per page. Counting the six Interrogatory No. 9 pages between the captions and the signatures, and not counting omitted pages, Facebook redacted 60% of the content.

Facebook's public disclosure/on sale bar argument turned on Interrogatory No. 9 as an alleged "inventor's admission" that the Leader2Leader technology in late 2002 contained the same technology as discussed in the interrogatory. Opinion 45-55. An "interrogatory" is a pre-trial question put to a person who answers under oath. Facebook's attorney Michael Rhodes admitted that Facebook relied on this altered interrogatory as "a foundation for the on-sale issue." Tr. PageID #: 10421:10-11.

Fig. 1 - Facebook concealed more than 60% of Interrogatory No. 9, which their Cooley Godward attorney Michael Rhodes admitted to the trial court was a "foundation" for their on sale bar argument. Professor Wigmore, an often-cited legal scholar, admonishes against allowing such doctored evidence. See John Henry Wigmore, Encyclopedia Britannica Online. This figure is an animated GIF (6MB). Interrogatory No. 9 is mocked up with textual greeking to approximate a complete interrogatory, consistent with other full interrogatories in evidence. Here are the doctored Interrogatories No. 9 as shown to the jury by Facebook: Doc. No. 627-23; Doc. No. 627-24.
The trial court's allowance of this dramatically altered interrogatory is a clear breach of the Doctrine of Completeness (founded on the Federal Rules of Evidence Rule 106). The problems associated with Facebook's concealment is best described by legal scholar Professor John H. Wigmore:
"Possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainder was."
Wigmore, Evidence, 3rd ed.
(on the doctrine of completeness)
Facebook concealed more than 60% of the contents of Interrogatory No. 9 from the jury.

Facebook's version of Interrogatory No. 9 was the foundation of their on sale bar argument.
Remarkably, the foundation of Facebook's on sale bar argument is a single interrogatory in which over 60% of its content was concealed from the jury over Leader's objection. All of Facebook's other evidence keys off this interrogatory. Surely a fragmented interrogatory cannot survive the "heavy burden" of clear and convincing standard of proof.

The legal standard of "clear and convincing" evidence is required for Facebook to prove its case. Without it, Facebook cannot win legally. Doc. No. 601 Final Jury Instructions, No. 4.7 ("clear and convincing evidence").

Facebook's "heavy burden" of "clear and convincing" evidence was affirmed recently by the US  Supreme Court. See Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238 (Supreme Court 2011) at 2247 ("a defendant raising an invalidity defense bore "a heavy burden of persuasion," requiring proof of the defense by clear and convincing evidence"); Id. at 2248 ("the burden of proving prior inventorship 'rests upon [the defendant], and every reasonable doubt should be resolved against him,' without tying that rule to the vagaries and manipulability of oral testimony . . . [a]nd, more than 60 years later, we applied that rule where the evidence in support of a prior-use defense included documentary proof—not just oral testimony").

Facebook concealed Leader’s written objections, thus stripping away the context for Interrogatory No. 9

The 2009 interrogatory asked what current Leader products and services practice (present tense) the invention. McKibben answered "Leader2Leader® powered by the Digital Leaderboard® engine is covered by the '761 Patent." Doc. No. 627-23 (DTX 0963); Doc. No. 627-24 (DTX 969). This question did not ask about Leader history, yet Facebook asserted at trial that Leader should have expanded the answer to include times past. However, Leader had no such burden. This assertion is akin to asking you what you are wearing, but then arguing that you should have expanded your answer to include everything you have ever worn.

More Facebook obfuscation

Facebook's counsel contradicted himself. He first asked the jury "He [McKibben] never showed you the product, did he? And he didn’t say it has this one or this one or this one." However, this implication of a burden shift contradicted his earlier statement that “my burden is higher." Tr. PageID# 11510:20-22; 11528:9-16; 11497:5. Such contradictory arguments (that easily confuse a jury) are well-known obfuscation, sometimes called the "dark arts." See Facebook’s' trial conduct; Facebook's "court room theater"; Facebook's "I'm tired" tactic; Missing Facebook Documents; Facebook's jury binder innuendo; Expert witness practices "dark arts".
“[C]ounsel's strategy consisted of efforts to obfuscate, cover-up, and subvert evidence.” Advanced Display Systems, Inc. v. Kent State University, 212 F. 3d 1272 (Fed. Cir. 2000) at 1288.

Misrepresented the legal standard. E-Pass Technologies, Inc. v. 3Com Corporation (Fed. Cir. 2009) at II.

“[D]eliberately obfuscated their claim.” Wright v. United States, 728 F. 2d 1459 (Fed. Cir. 1984) at 140.
Facebook's burden never shifted to Leader

The U.S. Supreme Court recently confirmed Facebook's "clear and convincing" burden of proof, citing 30 years of Federal Circuit precedent:
"[A] patent is valid and imposes the burden of proving invalidity on the attacker. That burden is constant and never changes and is to convince the court of invalidity by clear evidence."

"[A]n infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance" (emphasis added).

"[T]he burden of proving [on sale bar] invalidity [is] on the attacker [Facebook]. That burden is constant and never changes" citing Judge Rich, a principal drafter of the 1952 Patent Act (emphasis added).

Microsoft v. i4i at 2243, 2245; Supra.
Microsoft v. i4i and Leader v. Facebook have similar fact patterns

In Microsoft v. i4i, Microsoft alleged that an i4i product with the brand name "S4" was sold more than 12 months before the priority date. i4i did not dispute that, but its two inventors testified that S4 did not contain the invention at that time. The testimony of the two inventors was all Microsoft had since the S4 source code had been destroyed years before. The jury ruled that Microsoft had not met its clear and convincing burden of proof to overcome the inventor's testimony.

In Leader v. Facebook, Facebook alleged that a product with the brand name "Leader2Leader" was sold more than 12 months before the priority date. Leader did not dispute that, but its two inventors testified that Leader2Leader did not contain the invention at that time. Unlike i4i's absence of source code, Facebook was given access to the full Leader source code. Even so, Facebook did not present any of that source code at trial to support its on sale bar accusation. Instead, Facebook presented Interrogatory No. 9, and reinforced it with a smattering of emails and documents that mentioned the Leader2Leader brand name.

The Microsoft v. i4i jury concluded that Microsoft had not met its burden of proof by merely showing that a product with the brand name "S4" had been sold. In other words, proof requires more than inferences and allegations.

The Leader v. Facebook jury, on the other hand, decided that mere reference to a brand name "Leader2Leader" was sufficient inference proof that the brand must have contained the invention, even though Facebook presented no source code to prove it.

The fact patterns are similar in that both Microsoft and Facebook relied largely on the testimony of the two inventors in each case for their on sale bar evidence. Both Microsoft and Facebook argued that mere reference to a brand name was sufficient proof. Neither i4i nor Leader denied use of the brand name more than 12 months before the critical date. Each of the two inventors for i4i and Leader testified that their respective brand names S4 and Leader2Leader did not embody their inventions more than 12 months before the critical date. Neither Microsoft or Facebook presented any source code evidence to prove their accusations. Both Microsoft and i4i were found to infringe.

What is glaringly different is the fact that while Microsoft had no i4i source code, Facebook did have Leader's source code, but did not present any of it at trial.

What is also different is the outcome of the cases regarding on sale bar. The Microsoft v. i4i jury ruled that Microsoft had failed to prove on sale bar by clear and convincing evidence. In other words, it found that mere references to brand names are not proof of the kind needed to meet the "heavy burden."

Surprising, with arguably stronger facts than i4i's (Facebook had Leader's source code), the Leader v. Facebook jury ruled that Facebook had met its "clear and convincing" burden for on sale bar—even though they used only references to a brand name; effectively replicating Microsoft's no-hard-proof argument.

Reference to brand names are not proof of innovative source code

The main apparent difference between these cases, as was highlighted by the trial judge's Opinion, is this Interrogatory No. 9, and the smattering of "Leader2Leader" references in documents and emails ushered in behind it to reinforce the innuendo. Leader argues that brand name references are not the kinds of hard evidence required to meet Facebook's clear and convincing burden of proof. The Microsoft v. i4i trial court, Federal Circuit, and now the US Supreme Court appear to agree with Leader that mere citing of brand names are not enough.

Facebook confused the jury with a self-styled "substantial" evidence standard instead of  actual "clear and convincing" evidence

Facebook argues that its evidence is "substantial." However, substantial volume is not the criteria. That it might substantially support a dubious theory is also not the criteria. Indeed, Facebook's "evidence" merely supports their presumptions founded on Interrogatory No. 9--that the 2009 interrogatory admitted that the brand name Leader2Leader, for all time (and especially in 2002), embodied the invention. Leader's two inventors testified that it did not, and could not, because it was not ready. Without source code to prove otherwise, or at least very detailed engineering documents showing the Claim 1 tracking component, context component and storage component, nothing in evidence proves Facebook's theory. As a result, Facebook's "evidence" is nothing more than attorney trickery dressed up to look like evidence.

Was Facebook’s fragmented interrogatory dubious?

Facebook presented 60%-redacted Interrogatory No. 9 as a part of its jury binder hocus-pocus. The trial court overruled Leader's objection to its admissibility. Tr. PageID #: 10421:7-8.

What was redacted? Facebook concealed Leader's many objections to the questions, and especially that they were vague and ambiguous. Hindsight says this objection was prophetic, given Facebook's subsequent effort to re-purpose the interrogatory. Leader also objected to use of the interrogatory outside the context of expert testimony. Tellingly, Facebook presented no expert testimony on the subject of public disclosure/on sale bar.

Even the trial court was ambiguous as to whether Facebook's evidence was "clear and convincing." The trial court wrote only that "there was evidence to support a finding." Opinion 55. The law is clear that the mere existence of some evidence is not enough to support the clear and convincing standard.

Evidence in legal proceedings is redacted when: (a) it is not relevant to the case, (b) protects someone’s privacy, or (c) is under a protective order. None of these reasons apply to the interrogatory. Instead, Facebook concealed Leader's objections to the interrogatory that would have allowed the jury to view the statements in their full context.

Again, Facebook's redactions beg the question about what was redacted and how did it prejudice Leader? Current news about Martin Luther King Jr. illustrates this point about the impact of redaction on meaning. MLK's family complains that a redacted quote on the Martin Luther King Jr. National Memorial makes him sound arrogant. While reasonable minds can disagree whether it does or doesn't, the family considered it an unacceptable truncation of a larger thought. MLK did not say he was a drum major, but was reflecting on that moniker if others considered it applicable to him.
Redacted MLK statement:
"I was a drum major for justice, peace and righteousness."
Original MLK statement:
 “If you want to say I was a drum major, say I was a drum major for justice, peace and righteousness. ”
Clearly, context matters. Facebook concealed ALL of Leader's objections to the request, and without this full context for Interrogatory No. 9, common sense alone says that Facebook led the jury down a slippery slope.

Dubious evidence creates dubious conclusions

Without proper context, Facebook's 60%-redacted Interrogatory No. 9 is dubious. Such dubious evidence can only result in an equally dubious jury conclusion.

As a result, the "additional" evidence cited by the trial court in its footnote to support Facebook's obscured Interrogatory No. 9 are equally the fruit of a poisoned tree of evidence. Opinion 55.

Facebook’s 60% redaction created a "false notion"

Professor Wigmore said:
"To look at a part [of an utterance] alone would be to obtain a false notion of the thought."
Wigmore, Evidence; United States v. Corrigan, 168 F. 2d 641 (1948) at 645 (emphasis added).
The dangers inherent in Facebook's concealment of the proper context are easily illustrated by use of Facebook’s own remaining words in the interrogatory as a hypothetical example.


Facebook asked about Leader products and services:

Fig. 2 - Facebook's unaltered Interrogatory No. 9. Facebook asks Leader about their products and services. Doc. No. 627-23.

Or, did Facebook ask for a patent claim chart (redacted)?

Fig. 3 - Facebook's Interrogatory No. 9--REDACTED (to intentionally alter its context and meaning). This is now a request for a patent claim chart, and not for information about products and services. This simple example shows how redactions can be misleading. Doc. No. 627-23.
In this example, Facebook asked in Fig. 2 for a statement about Leader’s products and services. However, the hypothetical Fig. 3 redaction appears to ask not about products and services, but about a patent claim chart. The hypothetical redaction in Fig. 3 makes the request ambiguous. This simple example using all-Facebook words further illustrates the sagacity of Professor Wigmore’s admonition against tampering with evidence. The error in allowing Facebook's doctored version of Interrogatory No. 9 is evident.

Facebook breached the completeness doctrine by introducing a doctored Interrogatory No. 9

In overruling Leader's objection, the trial court prevented the jury from obtaining a full contextual view of Interrogatory No. 9, including Leader's many objections. The well-settled doctrine of completeness is intended to prevent just the sorts of prejudices suffered here.
"Rule 106. Remainder of or Related Writings or Recorded Statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Federal Rules of Evidence Rule 106.

"[F]airness dictates that the balance be received so that the jury will not be misled." United States v. Rubin, 609 F. 2d 51 (1979) at 63.

"The rationale of the doctrine of completeness has been stated by Professor Wigmore: 'To look at a part [of an utterance] alone would be to obtain a false notion of the thought. * * * One part cannot be separated and taken by itself without doing injustice, by producing is representation'; and again, 'possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainder was'; consideration of the whole is needed 'to avoid the danger of mistaking the effect of a fragment.' See Wigmore, Evidence, 3rd ed., §§ 2094, 2104, 2113, 2119, 2120." United States v. Corrigan, 168 F. 2d 641 (1948) at 645 (emphasis added).
The trial court's rationale in allowing Facebook to introduce a heavily-doctored (and so evidently prejudicial) Interrogatory No. 9 is baffling. Without Interrogatory No. 9, Facebook's on sale bar argument dies.

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