Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 140

Declaration of Joseph G. Fiorino in Support of 112 Go Daddy's Motion for Summary Judgment filed by GoDaddy.com, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Slafsky, John) (Filed on 11/23/2011) Modified on 11/28/2011 (vlk, COURT STAFF).

EXHIBIT 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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PETROLIAM NASIONAL BERHAD
(PETRONAS),
Plaintiff,
vs.

CASE NO. 09-CV-5939 PJH

GODADDY.COM, INC.,
Defendant.

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

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DEPOSITION OF KEVIN FITZSIMMONS

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Tuesday, November 8, 2011

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Pages 1 - 82

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Reported by:

Shelley M. Sailor, CSR #10254

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Q.

I'm going to stop you again.

Can you

explain to me what URL forwarding is?
A.

URL forwarding in this case is forwarding a

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domain name to another domain name.

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were to type in, as an example, shoretel.eu, we

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could redirect that to shoretel.com.

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Q.

So if somebody

Why would you want to redirect it from one

domain name to another?
A.

There may be a number of reasons you would

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want to redirect a domain name from one to another.

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But oftentimes your content is actually hosted on

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Shoretel.com, and you just want users to go to that

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particular -- be directed to that particular site

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even though they typed in another domain that maybe

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perhaps is, you know, a Europe-based domain.

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Q.

Is there -- you mentioned shoretel.eu as an

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example of a domain name subject to this URL

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forwarding service.

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that your company has that is subject to URL

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forwarding?

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A.

Are there other domain names

That was an example.

I do believe we do do

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forwarding on that .eu to a specific URL on our .com

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website, but I can't tell you off the top of my head

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exactly what forwarding we currently have in place.

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We do have forwarding for a number of our
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education department.

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their operating systems and administering their

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operating systems.

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5

Q.

And they offer classes in

Have you ever taken any legal studies

classes?

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A.

I have not.

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Q.

Have you ever done any work for ICANN?

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A.

I have not.

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Q.

Have you ever attended an ICANN meeting?

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A.

I have not.

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Q.

Are you a member of any ICANN constituency

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or group?

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A.

No, I am not.

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Q.

Have you ever done any work for a domain

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name registrar?

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A.

No.

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Q.

Have you ever done any work for a domain

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name registry?

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A.

No.

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Q.

Have you ever done any work in any

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connection with trademark law?

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A.

No.

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Q.

Do you have any prior experience with

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cybersquatting?
A.

I have knowledge of cybersquatting.

I
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don't have any direct experience with it.

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Q.

How do you have knowledge of it?

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A.

In the field that I'm in, I'm aware of what

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cybersquatting is.
Q.

What is your understanding of what

cybersquatting is?
A.

My understanding of cybersquatting is

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somebody registering a domain name that is

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trademarked by another entity, and that's it.

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Q.

Have you ever published any articles

concerning DNS?

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A.

I have not.

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Q.

Have you ever published any articles

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concerning registration or maintenance of DNS?

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A.

No.

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Q.

Have you ever published any articles

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concerning URL forwarding?

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A.

No.

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Q.

Have you ever published any articles

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concerning routing?

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A.

No.

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Q.

Have you ever published any articles

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concerning trademark law?

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A.

No.

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Q.

Have you ever published any articles
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concerning cybersquatting?

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A.

No.

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Q.

Have you ever conducted any research

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projects concerning domain name registration?

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A.

No.

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Q.

Have you ever conducted any research

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projects concerning URL forwarding?

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A.

No.

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Q.

Have you ever conducted any research

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projects concerning trademark law?

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A.

No.

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Q.

Have you ever conducted any research

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projects concerning cybersquatting?

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A.

No.

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Q.

Have you ever given any public

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presentations concerning the DNS?

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A.

No.

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Q.

Have you ever given any public

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presentations concerning registration or maintenance

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of DNS?

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A.

No.

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Q.

Have you ever given any public

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presentations concerning URL or domain name

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forwarding?

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A.

No.
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2

Q.

Have you ever given any public

presentations concerning trademark law?

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A.

No.

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Q.

Have you ever given any public

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presentations concerning cybersquatting?

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A.

No.

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Q.

You answered some questions earlier about

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your prior experience or lack thereof with respect

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to court litigation.

When I refer to testimony

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here, I'm going to use it in a broad sense, which

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might encompass testimony before a legislative body

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or an agency.

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Have you ever testified concerning the DNS?

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A.

No.

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Q.

Have you ever testified concerning the

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registration or maintenance of domain names?

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A.

No.

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Q.

Have you ever testified concerning URL

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forwarding?

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A.

No.

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Q.

Have you ever testified concerning

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trademark law?

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A.

No.

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Q.

Have you ever testified concerning

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cybersquatting?
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really doesn't have a role in this particular

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depiction.

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Q.

Let's move to page 2 of your report.

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A.

Okay.

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Q.

Can you walk me through the graphic that's

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on page 2?
A.

Sure.

So in this case you've got an end

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user that wants to register a new, a domain, and

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they can go to any number of registrars which are

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represented at the bottom of the diagram.

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registrars:

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Register.com.

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Three

GoDaddy, Network Solution,

And in this case the user enters their

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information into the registrar.

So their contact

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information, their credit card.

And then that

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information is then propagated out to the registry,

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which is VeriSign in this case.

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Q.

At the top of the page you say:

"By

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registering a domain name, a person (called the

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registrant) is able to designate the Authoritative

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Name Server [sic] that is associated with that

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domain name."

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A.

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Is that correct?

That's correct.
MR. CLARK:

Actually it says "Domain Name

Server."
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BY MR. SLAFSKY:
Q.

Oh, I'm sorry.

Is there one authoritative

domain name server or two or three?
A.

Does it matter?

There needs to be two, two authoritative

domain name servers that the end user can specify.

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Q.

Why do there need to be two?

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A.

Redundancy is one reason.

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Q.

Why is redundancy important?

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A.

Because if the primary authoritative domain

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name server cannot be reached, then your domain

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can't be resolved.

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Q.

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server?

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A.

What is an authoritative domain name

It's a domain name server that contains the

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authoritative records for a domain, so the actual

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record that is authoritative for that domain.

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Q.

How does one designate an authoritative

domain name server?

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A.

It's done through a registrar.

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Q.

Is there any other way of doing it?

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A.

No.

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Q.

What would happen if there was no

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authoritative domain name server in the process?
A.

If there is no authoritative domain name

server, you wouldn't be able to resolve.
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Q.

Okay.

Do you have any understanding of the

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services that GoDaddy in particular rendered in

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connection with the two domain names that you cite

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here in this lawsuit following the initial

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registration?

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A.

Yes.

I understand they provided

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registration services, URL forwarding services, DNS

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services for these two domain names.

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Q.

Do you consider those services to be

unusual in any way?
A.

I think they are part of their normal

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service offerings that you would find for a

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provider.

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Q.

A provider being a registrar?

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A.

Or a hosting provider.

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Q.

You testified earlier about the

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identification of the authoritative domain name

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server.

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A.

Right.

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Q.

Where does that fit into this process here?

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A.

So that occurs with the registrar.

There's

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an identification of where the authoritative DNS

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records are being held.

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Q.

That's an identification by whom?

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A.

By the customer.

The customer's saying I
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want my authoritative DNS records at this DNS server

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or -- it could be any DNS server that they choose.

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Q.

And over the course of the domain name

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registration, if a customer wants to change that

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information, is he or she able to do that?

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A.

Yes, they are, through the registrar.

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Q.

Is there any other way to update that

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information?

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A.

Not that I'm aware of, no.

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Q.

Can we turn to page 4 of your report.

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A.

Yes.

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Q.

If I'm not mistaken, the statements on this

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page in particular, the bullet points are based on

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your review of particular GoDaddy documents; is that

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correct?

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A.

Correct.

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Q.

So I believe it's the fourth bullet point

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down, it refers to April 26, 2008 and May 3rd, 2008.

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It says:

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'petronastower.net' and 'petronastowers.net' to

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'auto renew'."

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"GoDaddy set the domain names

What does "auto renew" mean?
A.

Auto renew as it pertains to this comment

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here is a function where the domain would renew

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itself upon expiration automatically and charge the
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of domain name resolution."

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Is that an accurate statement of your
opinion?

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A.

Correct.

Yes.

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Q.

Can you explain to me why you believe that

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domain name registrars do not play a direct or

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active role in the process of domain name

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resolution?

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A.

In my opinion, the domain name resolution

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process is a separate function from registration in

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that the DNS servers themselves are not part of

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registration.

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any entity.

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Q.

So those DNS servers can be run by

Okay.

But the identification of those

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domain name servers is done by the registrar; is

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that correct?

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A.

Correct.

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Q.

If the domain name registrars do not

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identify those domain name servers, can there be

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resolution?

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A.

No.

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Q.

And because that's only a one-time process,

But that's a one-time process.

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in your opinion you do not believe that is a direct

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or active role.

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A.

Is that accurate?

Correct.
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BY MR. SLAFSKY:
Q.

I can read the whole sentence, but that's

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correct, the last clause of the first sentence.

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"GoDaddy caused to be programmed to link those

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domain names to the IP address of another server

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controlled and operated by GoDaddy."

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A.

Correct.

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Q.

So what do you mean by "GoDaddy caused to

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be programmed" in this context?
A.

So the customer initiates the request, and

GoDaddy actually programmatically does the change.
Q.

Programmatically, you mean through

technological means?
A.

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Right.
MR. SLAFSKY:

I think we are about to run

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out of videotape, so I am just going to take a quick

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break here so the videographer can do his magic.

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THE VIDEOGRAPHER:

We are going off the

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record.

The time is 11:21 a.m.

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of videotape number one in the deposition of Kevin

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Fitzsimmons.

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(A recess was taken.)

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THE VIDEOGRAPHER:

Here marks the end

We are back on the

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record.

The time is 11:29 a.m.

Here marks the

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beginning of videotape number two in the deposition
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Q.

Professional.

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A.

Professional?

I think the references made

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in the report include references to RFCs, as I

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mentioned earlier.

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believe those support my opinions.

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MR. SLAFSKY:

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I

I'm going to mark as Exhibit

No. 6 the First Amended Complaint in this matter.

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And to the ICANN agreements.

(Exhibit No. 6 was marked for
identification.)
BY MR. SLAFSKY:
Q.

Mr. Fitzsimmons, I just ask you to take a

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moment to look at this document.

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you to read all of it.

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I am not expecting

Is this document familiar to you?

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A.

Yes.

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Q.

Have you reviewed the document?

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A.

Yes.

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I believe I have seen this document.

I believe I have reviewed this

document.

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MR. SLAFSKY:

I am going to mark as

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Exhibit 7 a copy of the amended answer and

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counterclaim in this matter.

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(Exhibit No. 7 was marked for

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identification.)

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BY MR. SLAFSKY:

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Q.

I'm going to ask you again,
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Mr. Fitzsimmons, to take a quick look at this

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document as well.

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Once again, I'm not asking you to review

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everything, but I am going to ask you if you are at

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all familiar with this document.

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A.

Yeah, I don't believe I have seen this

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document before.

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have seen this document previously.

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Q.

I am not sure whether or not I

And other than Exhibit 6, which is the

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First Amended Complaint, have you reviewed any court

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filings or pleadings in connection with this

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lawsuit?

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A.

There may have been others.

I didn't spend

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a lot of time looking at the pleadings.

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looking more so at the amendments in my report here.

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Q.

I was

And to the extent you did review other

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court filings or pleadings in this matter, would it

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have been in the context of your discussions with

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Mr. Clark?

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A.

Correct.

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Q.

You didn't independently do any review or

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analysis of court documents that may be publicly

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available?

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A.

No.
MR. SLAFSKY:

I am going to mark as Exhibit
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R E P O R T E R ' S

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C E R T I F I C A T E

I, SHELLEY M. SAILOR, duly authorized to

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administer oaths pursuant to Section 2093(b) of the

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California Code of Civil Procedure, do hereby

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certify that the witness in the foregoing deposition

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was by me duly sworn to testify the truth in the

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within-entitled cause; that said deposition was

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taken at the time and place therein cited; that

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testimony of said witness was reported by me and

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thereafter transcribed under my direction into

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typewriting; that the foregoing is a complete and

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accurate record of said testimony; and that the

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witness was given an opportunity to read and correct

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said deposition and to subscribe the same.

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the signature of the witness not be affixed to the

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deposition, the witness shall not have availed

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himself of the opportunity to sign or the signature

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has been waived.

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counsel nor attorney for any of the parties in the

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foregoing deposition and caption named nor in any

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way interested in the outcome of the cause named in

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said caption.

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DATED:

Should

I further certify that I am not of

November 10, 2011

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SHELLEY M. SAILOR, CSR NO. 10254
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