Petroliam Nasional Berhad v. GoDaddy.com, Inc.
Filing
153
DECLARATION of Perry Clark in Opposition to 152 Opposition/Response to Motion, filed byPetroliam Nasional Berhad. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20 (Part 1 of 3), # 22 Exhibit 20 (Part 2 of 3), # 23 Exhibit 20 (Part 3 of 3))(Related document(s) 152 ) (Clark, Perry) (Filed on 12/9/2011)
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CLARK DECL. ISO OPP. SUMMARY JUDGMENT
Case No: 09-CV-5939 PJH
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
PETROLIAM NASIONAL BERHAD,
Plaintiff,
-vs-
Case No. 09-CV-5939 PJH
GODADDY.COM, INC.,
Defendant.
/
AND RELATED COUNTER ACTION.
DEPOSITION OF MICHAEL PALAGE
PAGES 1 to 91
DATE:
FRIDAY, NOVEMBER 4, 2011
TIME:
10:05 A.M.
LOCATION:
601 CALIFORNIA AVENUE
PALO ALTO, CA
REPORTED BY: LOUISE MARIE SOUSOURES,
Certified LiveNote Reporter
CSR No. 3575
::: MBreporting :::
111 Deerwood Road, Suite 200
San Ramon, CA
94583
925.989.6080
OPPAPP003140
Page 2
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::: A P P E A R A N C E S :::
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FOR THE PLAINTIFF:
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LAW OFFICES OF PERRY R. CLARK
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BY: PERRY R. CLARK,
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ATTORNEY AT LAW
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825 SAN ANTONIO ROAD
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PALO ALTO, CA
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650.248.5817
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94303
perry@perryclarklaw.com
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FOR THE DEFENDANT:
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WILSON, SONSINI, GOODRICH & ROSATI
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BY:
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JOHN L. SLAFSKY,
ATTORNEY AT LAW
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650 PAGE MILL ROAD
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PALO ALTO, CA
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650.493.9300
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jslafsky@wsgr.com
94304
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OPPAPP003141
Page 3
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::: INDEX OF EXAMINATIONS :::
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EXAMINATION BY:
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PAGE
MR. CLARK
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::: INDEX OF EXHIBITS :::
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NUMBER
DESCRIPTION
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Exhibit 1
Expert report of Michael
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Exhibit 2
Document production Nos.
42
GD 002649 to 657
Exhibit 3
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19
7
Palage
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17
PAGE
Rebuttal expert report of
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Michael Palage
Exhibit 4
Declaration of Michael D.
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Palage in support of
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GoDaddy's motion for
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65
summary judgment
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Exhibit 5
Subpoena to testify at a
deposition in a civil action
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OPPAPP003142
67
Page 4
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--oOo--
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MICHAEL PALAGE,
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having been first duly sworn by the
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Certified Shorthand Reporter to tell
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the truth, the whole truth, and nothing
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but the truth, testified as follows:
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EXAMINATION BY MR. CLARK:
Q.
Good morning.
My name is Perry Clark, I'm a
lawyer, I represent the plaintiff in this case,
Petroliam Nasional Berhad.
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Are you represented by counsel today?
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A.
I'm -- yes.
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Q.
Who is your counsel?
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A.
That would be --
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MR. SLAFSKY:
I'm going to suggest to the
witness that you have to verbalize --
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THE WITNESS:
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BY MR. CLARK:
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Q.
So I -- yes, that
would be John Slafsky.
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I understand.
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And you're paying your counsel to represent you
today?
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A.
No.
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Q.
Who is paying your counsel?
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A.
I don't know.
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Q.
Do you know if it's GoDaddy.com?
OPPAPP003143
Page 5
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A.
I do not know.
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Q.
You have no idea?
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A.
I don't know.
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Q.
You're being paid to be here today?
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A.
Correct.
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Q.
Who is paying you to be here?
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A.
GoDaddy.
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Q.
Have you rendered any opinions in this case?
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A.
Yes.
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Q.
Okay.
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Please describe the conduct of GoDaddy
on which your opinions are based.
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MR. SLAFSKY:
I'm going to object as to form.
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THE WITNESS:
So can you rephrase the question
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on -- as I said, I set forth a number of opinions in
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my -- both expert report as well as my rebuttal.
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So if we want to take this one on one, if you
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want to point to a specific opinion and then we can
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discuss the actions GoDaddy has taken.
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BY MR. CLARK:
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Q.
Sure.
So without looking at the documents,
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without looking at your expert reports, you can't
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describe the conduct of GoDaddy on which the opinions
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you rendered are based?
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MR. SLAFSKY:
Objection, you're
mischaracterizing his statement.
OPPAPP003144
Page 6
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THE WITNESS:
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BY MR. CLARK:
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Q.
So -- I --
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You can go ahead and answer.
MR. SLAFSKY:
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objection.
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You can answer subject to my
and specific enough.
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I don't think the question is clear enough
THE WITNESS:
So GoDaddy is a registrar and
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they provide domain name registration services and the
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domain -- two of the domain names at issue here are both
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registered -- GoDaddy is the registrar of record in
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connection with those domain names.
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BY MR. CLARK:
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Q.
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Those domain names are petronastower.net and
petronastowers.net?
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A.
Correct, the singular and plural.
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Q.
When did GoDaddy first begin providing services
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with respect to those domain names?
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MR. SLAFSKY:
Objection.
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THE WITNESS:
I would refer to the records
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that -- the records that were provided in your experts
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that would show when the domain name was transferred in.
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I believe it was shown in GoDaddy's records.
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originally registered with another registrar,
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transferred into GoDaddy.
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It was
That specific date, I don't know off the top of
OPPAPP003145
Page 7
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my head.
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BY MR. CLARK:
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Q.
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Okay.
So why don't we -- well --
MR. CLARK:
Why don't we mark as Palage
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Exhibit 1 the document entitled "The expert report of
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Michael Palage."
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(Exhibit No. 1 was marked.)
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BY MR. CLARK:
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Q.
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Exhibit No. 1 is your expert report in this
case?
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MR. SLAFSKY:
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MR. CLARK:
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THE WITNESS:
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Q.
Yes.
It appears to be, yes.
BY MR. CLARK:
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Is that a question?
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Please point out the conduct of GoDaddy on
which the opinions contained in Exhibit 1 are based.
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MR. SLAFSKY:
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If you understand the question, answer his
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question.
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Object to the form.
If you don't understand the question -THE WITNESS:
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BY MR. CLARK:
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Q.
Could you try again, perhaps?
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Sure.
So could you please turn to page 4 of
your expert report, Exhibit 1?
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A.
Yes.
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Q.
It says "Based on my professional expertise as
OPPAPP003146
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set forth above, it is my opinion that the services
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provided by GoDaddy in connection with the domain names
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petronastower.net and petronastowers.net are consistent
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with core registrar services routinely provided by all
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the leading registrars."
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Do you see that?
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A.
Yes.
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Q.
What are these services provided by GoDaddy in
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connection with the domain names petronastower and
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petronastowers.net to which you refer in paragraph 17 of
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page 4 of your report?
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A.
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So in that opinion, I -- I did two things.
One, I read the -- started off with the amended
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complaints which talked about the allegations in
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connection with this matter.
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I then, as far as determining whether GoDaddy's
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actions were consistent with other ICANN-accredited
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registrars, I then undertook an analysis in this initial
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report of looking at the top ten ICANN-accredited
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registrars based upon market share and looking at the
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core bundled services they provide in connection with
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the domain name registration services.
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Q.
Okay.
So what are the services of GoDaddy to
which you refer in paragraph 17?
A.
So the services that are provided -- that would
OPPAPP003147
Page 9
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be domain name registration, they provide registration,
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they provide DNS resolution and they also provide, in
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this case for free, what is it, URL forwarding.
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There are a number of other free services and
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bundled services that ICANN-accredited registrars such
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as GoDaddy provide as part of their bundled services.
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Those, I would say, are the three out of --
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that is not meant to be the exact enumerated list.
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There are others.
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Those are, I think, the three that are most
relevant in connection with the subject matter.
Q.
Okay.
Please describe what GoDaddy did with
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respect to domain name registration of petronastower.net
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and petronastowers.net.
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A.
My understanding of what would have occurred is
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a registrant -- so again, let me qualify this.
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based on my understanding of traditional domain name
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practices and I've seen nothing inconsistent with the
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records to prove otherwise, what would happen here would
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be a domain name registrant would generally go to the
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GoDaddy web interface, would request a transfer in.
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records in this case reveal this was not a new
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registration but an existing registration that was
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transferred in.
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This is
The
Under current practices, that registrant would
OPPAPP003148
Page 10
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have to provide an auth code to enable the transfer of
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that registration from the existing registrar to the new
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registrar of record.
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So that would be GoDaddy's first actions taken
in connection with these two domain names.
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Again, off the top of my head, I do not know
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when these transfers in were processed.
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generally -- it generally does not happen
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It's
instantaneously.
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There's some protocols regarding certain
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periods of time as far as auto ACK, NAC and other
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protocols.
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Q.
What else did GoDaddy do with respect to the
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domain name registration of petronastower and
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petronastowers.net?
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MR. SLAFSKY:
I'm going to object to these
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series of questions on the ground you're asking him
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questions about what GoDaddy did and you're not limiting
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the questioning to his understanding based on the
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allegations in this case.
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He has identified in his expert report a number
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of documents he relied on in coming to his opinion and
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in particular, he cited your first amendment complaint
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as the basis for his opinion.
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So he can speak to what's in the first amended
OPPAPP003149
Page 48
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Now, that limitation on liability doesn't
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relate to any of the conduct of GoDaddy in this case,
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does it?
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MR. SLAFSKY:
Object as to form.
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THE WITNESS:
Just a quick question here.
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We're reading the Congressional record.
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actual text of the implemented language of the Lanham
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Act?
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BY MR. CLARK:
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Q.
It is, yes.
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A.
Just to make sure.
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MR. SLAFSKY:
Stop for a second.
This whole
paragraph is --
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MR. CLARK:
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THE WITNESS:
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Is this the
Let's assume it is.
I don't want to assume that
statement.
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MR. SLAFSKY:
Do you want me to get a copy of
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the ACPA and we can look at it at the same time?
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up to you.
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MR. CLARK:
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MR. SLAFSKY:
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MR. CLARK:
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It's
(Recess taken 11:11 to 11:21.)
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Q.
Can we take a break?
Good idea.
BY MR. CLARK:
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Why don't we do that.
If you could refer to Exhibit 1, please, which
OPPAPP003150
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is your initial expert report.
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A.
Yes.
What page?
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Q.
Page 4, please.
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A.
Page 4.
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Q.
And in numbered paragraph 19, it states "It is
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my further opinion that, based upon the allegations set
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forth in the first amended complaint and my analysis of
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GoDaddy's conduct, there has been no bad faith exhibited
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by GoDaddy; in particular, there has been no bad faith
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in connection with the domain name registration and
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resolution services that it has provided in connection
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with the domain names petronastower.net and
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petronastowers.net."
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Do you see that?
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A.
Yes, I do.
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Q.
Okay.
What documents did you rely on in
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determining what GoDaddy's conduct was in rendering your
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opinions in this case?
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A.
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The first amended complaint.
I read the allegations.
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Q.
Anything else?
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A.
In rendering this report, that would be the --
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that would be the principal document that I relied upon
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as well as the broader context of the services GoDaddy
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provided in relation to the top ten registrars.
OPPAPP003151
Page 50
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2
Q.
Focusing on exactly what GoDaddy did,
you reviewed the first amended complaint.
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Okay.
Were there any other documents on which you
rely that described GoDaddy's conduct?
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A.
In this report?
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Q.
Right, yes.
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A.
I would believe it would be the first amended
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complaint -- referring to page 3 of my expert report,
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the first bullet point is plaintiff's first amended
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complaint, the second bullet point would be GoDaddy's
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notice of motion, motion and Memorandum of Points and
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Authorities in support of defendant's motion to dismiss
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first amended complaint and then it would be the court
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order denying the motion to dismiss.
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That is where the three documents that provided
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the factual basis for my opinion in connection with
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GoDaddy's actions in connection with the domain names.
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Q.
Okay.
You didn't review Petronas' opposition
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to GoDaddy's motion and Memorandum of Points and
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Authorities related to its motion to dismiss the first
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amended complaint?
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MR. SLAFSKY:
Object as to form.
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THE WITNESS:
In forming this opinion in this
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document, no.
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BY MR. CLARK:
OPPAPP003152
Page 51
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Q.
No, you did not?
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A.
No.
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Q.
Right.
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5
So you did not review that opposition in
forming your opinions set forth in Exhibit 1, right?
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MR. SLAFSKY:
Objection.
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THE WITNESS:
In this report, no.
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BY MR. CLARK:
9
Q.
You did not review it?
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A.
Did not review it in connection with this
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report.
12
Q.
When were you first contacted regarding this
A.
The week of the U.S. Junior National Tae Kwon
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case?
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Do championships, held in end of June, beginning of
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July.
17
Q.
Who contacted you?
18
A.
John Slafsky.
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Q.
And did he contact you by phone?
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A.
Yes.
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Q.
And what did he say?
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MR. SLAFSKY:
So I'm just going to object to
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the extent the question calls for any protected
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communications.
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So anything other than compensation or facts or
OPPAPP003153
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