Free Declaration in Support - District Court of California - California

Case 5:07-cv-05850-JW

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LAURENCE F. PULGRAM (CSB NO. 115163) [email protected] JEDEDIAH WAKEFIELD (CSB NO. 178058) [email protected] ALBERT L. SIEBER (CSB NO. 233482) [email protected] LIWEN A. MAH (CSB NO. 239033) [email protected] FENWICK & WEST LLP 555 California Street, Suite 1200 San Francisco, CA 94104 Telephone: (415) 875-2300 Facsimile: (415) 281-1350 Attorneys for Named Defendants SUN MICROSYSTEMS, INC., MICHAEL MELNICK, JULIE DECECCO, MICHAEL P. ABRAMOVITZ, LISA K. RADY, and JONATHAN SCHWARTZ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

13 14 15 DONGXIAO YUE, 16 Plaintiff, 17 v. 18 19 20 21 22 23 Defendants. 24 25 26 27 28

Case No. C-07-05850-JW DECLARATION OF JEDEDIAH WAKEFIELD IN SUPPORT OF OPPOSITION TO MOTION TO DISQULAIFY DEFENSE COUNSEL Date: Time: Courtroom: Judge: TBD TBD 8, 4th Floor Hon. James Ware

STORAGE TECHNOLOGY CORPORATION, a Delaware corporation; SUN MICROSYSTEMS, INC., a Delaware corporation; MICHAEL MELNICK, an individual; JULIE DECECCO, an individual; MICHAEL P. ABRAMOVITZ, an individual; LISA K. RADY, an individual; JONATHAN SCHWARTZ, an individual; and DOES 1-1000, inclusive,

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I, Jedediah Wakefield, declare as follows: 1. I am an attorney admitted to practice before this Court, and I am a partner at the

law firm of Fenwick & West LLP ("Fenwick"), counsel for Defendants Sun Microsystems, Inc., Michael Melnick, Julie DeCecco, Michael P. Abramovitz, Lisa K. Rady, and Jonathan Schwartz. I have personal knowledge of the facts set forth in this declaration, and if called to do so I could and would testify competently to the same. The Early Neutral Evaluation in Netbula, LLC v. Distinct Corp. 2. Attached hereto as Exhibit 1 and Exhibit 2, respectively, are true and correct

copies of the Complaint and Answer filed in Netbula, LLC v. Distinct Corporation, Case No. C02-1253-JL (N.D. Cal.) (the "Distinct" case). According to these pleadings, the Distinct lawsuit did not involve the claims Netbula has asserted in this case: copyright infringement, fraud, and breach of Netbula's license agreements. It also did not involve any claims that Netbula or Dr. Yue had infringed trademarks. Rather, it involved Netbula's claims that Distinct infringed the trademarks "Netbula" and "PowerRPC," by virtue of Defendant's inclusion of those marks as "metatags" on its website, as well as the use of those marks in Internet keyword advertising. 3. Plaintiff claims that Fenwick should be disqualified in this case because in 2002,

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Claude Stern, then a Fenwick partner, served as a neutral in an Early Neutral Evaluation ("ENE" of the Distinct litigation as part of the Court's ADR program. Neither I nor anyone who has worked on this case, or the other cases in which Fenwick has represented defendants in copyright lawsuits brought by Dr. Yue or Netbula, performed any work or had any communications with Mr. Stern relating to the ENE. 4. Mr. Stern left Fenwick in approximately June 2003, more than three years before

Plaintiff initiated his lawsuit against Sun. Fenwick's records indicate that any files related to that ENE were transferred to Mr. Stern shortly thereafter. Neither I nor anyone working on this case accessed those records, nor could we, as they were not here. I have not spoken with Mr. Stern about the ENE, nor, to the best of my knowledge, have any Fenwick attorneys done so. Thus, any information that Mr. Stern received in his capacity as a neutral was effectively screened off from the Fenwick lawyers working on this case--and indeed, from all of Fenwick & West--well
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before this case existed. Plaintiff's Pro Se Status in This Case 5. Plaintiff Dongxiao Yue ("Yue," or "Plaintiff") filed this action ("STK II") pro se.

Plaintiff's company, Netbula, LLC ("Netbula"), has never been a party in this case. On January 28, 2008, Plaintiff filed a notice of substitution of counsel and proposed order naming Elena Rivkin as counsel of record, which was entered the following day. See Docket Nos. 34-35. On February 21, 2008, Plaintiff filed a second notice of substitution of counsel, this time seeking to return to pro se status. Docket No. 47. On March 10, 2008, Plaintiff filed a "Re-Notice of Pro Se Appearance" reaffirming that Ms. Rivkin no longer representing him. Docket No. 56. The three motions Plaintiff filed thereafter were all on a pro se basis. See Docket Nos. 58, 63, 65. Plaintiff's Pro Se Activities in Related Cases. 6. Plaintiff's motion to disqualify Fenwick is based in part on communications

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occurring in connection with the related case of Netbula, LLC v. Storage Technology Corp., Case No. 06-07391-JW (N.D. Cal.) ("STK I"). Netbula was represented by counsel in STK I. However, as I will discuss in more detail below, Dr. Yue participated or attempted to participate in his individual capacity and without counsel, both in STK I and the related case of Netbula, LLC v. BindView Development Corp., Case No. 06-0711-MJJ-WDB (N.D. Cal.) ("BindView"). 7. On October 9, 2007, Dr. Yue filed a pro se motion to intervene in his individual

capacity in the BindView case, ostensibly to "enforce" a protective order and preclude use in the subsequent STK I case of materials Netbula had produced in BindView. Even though Dr. Yue had not previously been a party to the BindView litigation, Dr. Yue brought that motion individually and without representation by counsel. See BindView Docket No. 307. 8. On October 22, 2007, Dr. Yue filed, in his individual capacity and appearing pro

se, a motion to intervene in STK I, seeking a preliminary injunction and impoundment of Sun's property. See STK I Docket No. 68. 9. On October 30, 2007, in STK I, Dr. Yue filed, in his individual capacity and

appearing pro se, an Opposition to Defendants' Motion for Administrative Relief for consideration of a declaration (filed about 8 hours late) in support of Defendants' Motion for
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Summary Judgment. STK I Docket No. 90. Prior to that, from October 25 through October 30, 2007, he had threatened to file a motion to strike, a motion for sanctions, and an "emergency motion for an integrity hearing," all relating to Defendants' summary judgment motion in STK I. 10. On November 5, 2007, Dr. Yue attempted to substitute himself, pro se, as

"counsel" for himself as an individual cross-defendant, in lieu of counsel Vonnah M. Brillet, who had previously appeared for Dr. Yue individually in the STK I case. STK I Docket No. 95. 11. On November 19, 2007, Dr. Yue, in his individual capacity and appearing pro se,

filed the present action, in which he claimed to own personally (independent from Netbula) certain copyrights he wished to enforce. STK II Docket No. 1. Even before his complaint, Dr. Yue had been threatening, pro se and in his individual capacity, to bring this separate lawsuit since October 2007. Direct Communications With Plaintiff 12. On October 16, 2007, after receiving electronic notification that Dr. Yue had filed

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a motion to intervene and enforce a protective order in the BindView case, Mr. Pulgram wrote to Vonnah Brillet, counsel of record for Netbula in STK I at the time, to request service of the papers. In that e-mail, he noted that direct communication with Dr. Yue would be needed if Dr. Yue were attempting to represent himself, stating: "If Mr. Yue is now attempting to represent himself as an individual in his effort to intervene, unrepresented by counsel, then we may need to speak with him directly. Please provide your instructions in this regard" (emphasis added). A true and correct copy of Mr. Pulgram's October 16, 2007 e-mail to Ms. Brillet is attached hereto as Exhibit 3. I was "cc'd" on that e-mail. I understand that Ms. Brillet never responded. 13. Instead, the next day, October 17, 2007, Dr. Yue e-mailed Mr. Pulgram, our

colleagues Liwen Mah and Albert Sieber, and me, with copies of his motion to intervene and motion to enforce. A true and correct copy of Dr. Yue's e-mail (without the attachments) is attached hereto as Exhibit 4. 14. On October 26, 2007, Dr. Yue e-mailed us again, this time seeking a stipulation to

allow him to substitute as Plaintiff and assert additional claims against StorageTek. Dr. Yue concluded his e-mail by writing: "If you do not stipulate to the substitution, I will commence the
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new action next week." Dr. Yue's e-mail was cc'd to Netbula's counsel, Vonnah Brillet. A true and correct copy of Dr. Yue's October 26, 2007 e-mail is attached hereto as Exhibit 5. 15. Ms. Brillet, as a recipient of the electronic communications in question,

presumably received instantaneous copies of them. However, at no time did she object to me or anyone at Fenwick regarding the direct communications with Dr. Yue. Instead, she encouraged them. For instance, after I had repeatedly sought to meet and confer with her concerning certain discovery matters in the STK I case, she told me she was not authorized to do so, but later advised that she would get Dr. Yue and have him talk to me directly. She did just that, bringing Dr. Yue to her office, putting him on a speaker phone, and having him discuss the case with me directly while she was present. 16. After Dr. Yue filed his October 22, 2007 motion to intervene in STK I, seeking a

preliminary injunction and impoundment of Sun's property [STK I Docket No. 68], Defendants believed that the motion had not been properly served, was untimely, and should be taken off calendar. Pursuant to Civil L.R. 6-3(a)(2), On October 25, 2007, my colleague Mr. Pulgram contacted Dr. Yue to request a stipulation to take that motion off calendar, before asking the court to do so. Exhibit A to Dr. Yue's declaration in support of the instant motion contains a copy of that e-mail, in which Mr. Pulgram also stated that Defendants would not agree to Plaintiff's request to intervene and substitute in as a party. The e-mail was copied to Ms. Brillet. I understand that she never responded. Dr. Yue refused the stipulation, and Sun filed its motion on October 26, 2007. The Court granted Sun's motion to take Dr. Yue's motion off calendar on October 31, 2007. 17. In response to Mr. Pulgram's October 25 e-mail, Dr. Yue sent an e-mail (also on

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October 25, 2007) that raised the issue of the timeliness of a declaration filed by Defendants in connection with their summary judgment motion. In it, Dr. Yue wrote: "SUN's refusal to withdraw that motion may be my basis for a motion for sanctions." A true and correct copy of Dr. Yue's October 25, 2007 e-mail is attached hereto as Exhibit 6. 18. On October 26, 2007, Dr. Yue (unsolicited by Fenwick) e-mailed us to argue that

Defendants should have cited certain extrinsic evidence that he asserted was relevant to
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Defendants' summary judgment motion in the STK I case. In that e-mail, Dr. Yue threatened to file a motion to strike. Ms. Brillet was copied on this e-mail. That day, Mr. Pulgram responded directly to Ms. Brillet, asking that she advise Dr. Yue to refrain from such communications. A true and correct copy of Mr. Pulgram's October 26, 2007 e-mail to Ms. Brillet (with confidential information redacted) is attached hereto as Exhibit 7. 19. After Dr. Yue kept communicating on these subjects, Fenwick sent an October 31,

2007 e-mail (attached as Exhibit B to Dr. Yue's Declaration) to Ms. Brillet, this time with a copy to Dr. Yue, asking again that Ms. Brillet instruct him not to communicate with Fenwick in matters other than those in which he was acting pro se. 20. On October 27, 2008, Dr. Yue wrote an e-mail addressing the administrative

motion filed by Defendants in STK I regarding Dr. Yue's pro se motion for a preliminary injunction. In it, he stated that he (not Netbula) intended to file an opposition. He filed the Opposition on October 30, 2007. Dr. Yue also again threatened to file a separate action against Defendants Sun and StorageTek. A true and correct copy of Dr. Yue's October 27, 2008 e-mail is attached hereto as Exhibit 8. 21. Based on Dr. Yue's threat to file a new lawsuit as a pro se plaintiff, Mr. Pulgram

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replied to Dr. Yue in an October 29, 2007 e-mail, copying Ms. Brillet, and confirming Dr. Yue's status as an unrepresented party: I am responding to you individually, and copying Netbula's counsel, because I understand that you are threatening to file a new action in your individual capacity, in which you are, and intend to remain, unrepresented by counsel. If I am incorrect in these assumptions, I request that you and/or Ms. Brillet advise me. Neither Ms. Brillet nor Plaintiff advised that Mr. Pulgram, me, or anyone at Fenwick that we were incorrect in assuming that Dr. Yue was threatening to take action in his individual capacity, and was unrepresented by counsel. A true and correct copy of Mr. Pulgram's October 29, 2007 email is attached hereto as Exhibit 9. 22. In that e-mail, Mr. Pulgram cautioned that Defendants would seek the expenses

incurred in defending this duplicative lawsuit, and repeatedly implored Yue to get a lawyer:
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We therefore suggest that you consider the consequences very seriously before filing such inappropriate pleadings--and obtain the advice of qualified counsel before you do so. Magistrate Judge Chen's ruling should have demonstrated that filing unwarranted motions is a serious matter and has very real consequences. I realize, of course, that I cannot keep you from filing with the Court whatever it is that you choose to file. It only costs a few hundred dollars to commence a lawsuit that could cost thousands to defend, and which Sun would seek to recover from you personally thereafter. I therefore reiterate the importance of your obtaining counsel as to all the consequences before you act. 23. Dr. Yue responded on October 30, 2007 with a lengthy e-mail, in which he

threatened to file "an emergency motion for an integrity hearing" for Defendants' failure to cite allegedly relevant extrinsic evidence in connection with their summary judgment motion. A true and correct copy of Dr. Yue's October 30, 2008 e-mail (with confidential information redacted) is attached hereto as Exhibit 10. 24. The third e-mail attached to Plaintiff's motion (Exhibit C to his declaration)

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concerned this case, which Plaintiff filed as a pro se litigant. In that e-mail, Plaintiff personally sought Defendants' stipulation to accept service by e-mail of a separate complaint and possibly TRO application. In response, Mr. Pulgram sent an e-mail, copied to Ms. Brillet, which first noted "I am responding to you personally on the understanding that you are acting in your individual capacity and unrepresented by counsel." He then agreed to accept service of a TRO, but noted that Plaintiff would need to serve properly a new summons and complaint. Mr. Pulgram also reiterated the point he had made to Plaintiff and Netbula's counsel in his October 29 e-mail shown in Exhibit 9: that Defendants would seek to recover from Plaintiff personally. 25. The last communication Plaintiff identifies--Exhibit D to Yue's declaration-- was

a response to an e-mail from Dr. Yue about Defendants Administrative Motion to consider whether the STK I and STK II cases should be related. In a December 5 e-mail (of which Dr. Yue only includes a portion in his declaration), he had complained that Sun should not have filed the related case motion, and made a request that Sun withdraw that motion: I have filed a Petition with the Ninth Circuit, which seeks to vacate the
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various orders and reinstate my access to the district court provided by the equal protection clause of the US constitution. Until CA9 rules on my petition, I won't be able to file anything on Judge Jenkins's docket to oppose SUN's administrative motions. SUN knows that I can't file an opposition at this point, therefore, its motion to relate cases is prejudicial to my case (Yue v. STK) by design. To avoid further complications, I request SUN defendants to withdraw their motion to relate cases or delay it until the Ninth Circuit rules on my Petition, so that I can respond to your motion. Otherwise, SUN's unseemly "related case motion" would generate unnecessary burden for the courts. Again, my request is simple: wait till the Ninth Circuit makes the decision.

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Any attempt to be clever will be unwise. A true and correct copy of Dr. Yue's December 5 e-mail is attached hereto as Exhibit 11. In his response, shown in Exhibit D to Dr. Yue's declaration, Mr. Pulgram responded to Yue's assertion that the related case motion was improper, and to Yue's claim that Sun had filed its motion to prejudice Yue's lawsuit. Id. Mr. Pulgram, responding to both Netbula's counsel and Plaintiff, pointed out that Netbula was free to raise the points Plaintiff had raised. Id. To my knowledge, Ms. Brillet never responded. Netbula never filed a response to the administrative motion. I declare under penalty of perjury that the foregoing is true and correct. Executed in San Francisco on April 9, 2008. /s/ JEDEDIAH WAKEFIELD Jedediah Wakefield
25689/00405/LIT/1283560.2

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