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Winklevoss twins press Facebook case in Boston federal court after dropping Supreme Court appeal

June 23, 2011 |  3:38 pm

Winklevoss

As the old saying goes, it ain't over until it's over.

And Cameron and Tyler Winklevoss are not finished with Facebook yet. The dramatic seven-year legal feud that inspired "The Social Network" may have one last plot twist.

The Olympic rowers are pressing their case in federal court in Boston that Facebook did not turn over important information during litigation.

In a court filing Thursday, the Winklevosses and their business partner Divya Narendra said they planned to ask the judge to investigate whether Facebook "intentionally or inadvertently suppressed evidence." You can see our earlier coverage on this here.

"These are old and baseless allegations that have been considered and rejected previously by the courts," said Neel Chatterjee, an attorney for Facebook.

The Winklevosses and Narendra said Wednesday that they would not appeal a 2008 settlement they struck with Facebook. They filed papers with the U.S. Court of Appeals for the 9th Circuit in San Francisco saying that after "careful consideration" they had decided not to file a petition to take their case to the U.S. Supreme Court.

In April, the 9th Circuit ruled against the Winklevosses and Narendra--who allege that Facebook founder and Chief Executive Mark Zuckerberg stole their idea for the social networking site--in their effort to have the settlement thrown out. That $65-million cash-and-stock settlement may now be worth hundreds of millions of dollars.

Andrew Noyes, a Facebook spokesman, said Wednesday: "We've considered this case closed for a long time, and we're pleased to see the other party now agrees."

But it appears that the parties are not in agreement. 

In April, the Winklevosses and Narendra said they planned to ask the Boston federal court to look into their claims that Facebook and its lawyers hid instant messages from them during litigation. That request had been suspended during the U.S. Supreme Court appeal. 

"That part of the case will begin now," Tyler Meade, the Winklevosses' attorney, told The Times on Wednesday.

At issue are instant messages that Zuckerberg allegedly sent while at Harvard that were leaked to two media outlets last year.

The Winklevosses and Narendra hired Zuckerberg to help build their social networking site ConnectU in 2003. Instead, they say, Zuckerberg delayed their project while secretly building his own.

The instant messages in question were uncovered by Facebook's legal team when it searched Zuckerberg's computer. In 2010, some of the instant messages were leaked to the news site Silicon Alley Insider. They popped up again in a profile of Zuckerberg in the New Yorker magazine in October before the release of "The Social Network."

In one instant message exchange, Zuckerberg outlined to a friend what he planned to do about Harvard Connect, then the name of the Winklevosses' website. "I'm going to [expletive] them," he wrote. In another, he said of the Winklevosses: "They made a mistake haha. They asked me to make it for them. So I'm like delaying it so it won't be ready until after the Facebook thing comes out."

According to the New Yorker, a small group of lawyers and Facebook executives reviewed the messages during a two-hour meeting in January 2006 at the offices of Jim Breyer, a venture capitalist who sits on Facebook's board. Those sources told the New Yorker that the instant messages did not offer any evidence to support the claim of theft but did portray Zuckerberg in a negative light. In addition, the New Yorker reported that two knowledgeable sources said there were more unpublished instant messages that were just as "damaging."

The dispute over whether Facebook failed to turn over documents blew up shortly after the Winklevosses agreed to the settlement in February 2008. Douglas Woodlock, the federal judge in Boston hearing the case, speculated the Winklevosses were suffering from a case of "buyer's remorse" over the settlement.

But the Winklevosses allege that had they known about the instant messages they would not have agreed to the settlement.

"We had a great case. We just didn't have all the evidence," Cameron Winklevoss said during an interview with The Times in February.

The Winklevosses could not be reached for comment Thursday. 

Legal experts said the Winklevosses face a tough battle in trying to persuade the courts to overturn the settlement, even if they prove that Facebook violated discovery procedures.

RELATED:

Winklevoss twins abandon appeal over Facebook settlement to U.S. Supreme Court

Winklevoss twins plan new appeal

Facebook litigation on hold while Winklevoss twins appeal to the U.S. Supreme Court

-- Jessica Guynn

Photo: Tyler Winklevoss, left, and his brother Cameron Winklevoss. Photo credit: Don Bartletti / Los Angeles Times

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