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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Ex. 17 19 20 21 22 23 24 25 26 27 28 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 1 ::: A P P E A R A N C E S ::: 2 3 FOR THE PLAINTIFF: 4 LAW OFFICES OF PERRY R. CLARK 5 BY: PERRY R. CLARK, 6 ATTORNEY AT LAW 7 825 SAN ANTONIO ROAD 8 PALO ALTO, CA 9 650.248.5817 10 94303 perry@perryclarklaw.com 11 12 13 FOR THE DEFENDANT: 14 WILSON, SONSINI, GOODRICH & ROSATI 15 BY: 16 JOHN L. SLAFSKY, ATTORNEY AT LAW 17 650 PAGE MILL ROAD 18 PALO ALTO, CA 19 650.493.9300 20 jslafsky@wsgr.com 94304 21 22 23 24 25 OPPAPP003141 Page 3 1 ::: INDEX OF EXAMINATIONS ::: 2 3 EXAMINATION BY: 4 PAGE MR. CLARK 4 5 6 7 8 9 10 ::: INDEX OF EXHIBITS ::: 11 12 NUMBER DESCRIPTION 13 Exhibit 1 Expert report of Michael 14 15 Exhibit 2 Document production Nos. 42 GD 002649 to 657 Exhibit 3 18 19 7 Palage 16 17 PAGE Rebuttal expert report of 63 Michael Palage Exhibit 4 Declaration of Michael D. 20 Palage in support of 21 GoDaddy's motion for 22 65 summary judgment 23 24 Exhibit 5 Subpoena to testify at a deposition in a civil action 25 OPPAPP003142 67 Page 4 1 --oOo-- 2 MICHAEL PALAGE, 3 having been first duly sworn by the 4 Certified Shorthand Reporter to tell 5 the truth, the whole truth, and nothing 6 but the truth, testified as follows: 7 8 9 10 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. 11 Are you represented by counsel today? 12 A. I'm -- yes. 13 Q. Who is your counsel? 14 A. That would be -- 15 16 MR. SLAFSKY: I'm going to suggest to the witness that you have to verbalize -- 17 THE WITNESS: 18 BY MR. CLARK: 20 Q. So I -- yes, that would be John Slafsky. 19 I understand. 21 And you're paying your counsel to represent you today? 22 A. No. 23 Q. Who is paying your counsel? 24 A. I don't know. 25 Q. Do you know if it's GoDaddy.com? OPPAPP003143 Page 5 1 A. I do not know. 2 Q. You have no idea? 3 A. I don't know. 4 Q. You're being paid to be here today? 5 A. Correct. 6 Q. Who is paying you to be here? 7 A. GoDaddy. 8 Q. Have you rendered any opinions in this case? 9 A. Yes. 10 Q. Okay. 11 Please describe the conduct of GoDaddy on which your opinions are based. 12 MR. SLAFSKY: I'm going to object as to form. 13 THE WITNESS: So can you rephrase the question 14 on -- as I said, I set forth a number of opinions in 15 my -- both expert report as well as my rebuttal. 16 So if we want to take this one on one, if you 17 want to point to a specific opinion and then we can 18 discuss the actions GoDaddy has taken. 19 BY MR. CLARK: 20 Q. Sure. So without looking at the documents, 21 without looking at your expert reports, you can't 22 describe the conduct of GoDaddy on which the opinions 23 you rendered are based? 24 25 MR. SLAFSKY: Objection, you're mischaracterizing his statement. OPPAPP003144 Page 6 1 THE WITNESS: 2 BY MR. CLARK: 3 Q. So -- I -- 4 You can go ahead and answer. MR. SLAFSKY: 5 objection. 6 You can answer subject to my and specific enough. 7 I don't think the question is clear enough THE WITNESS: So GoDaddy is a registrar and 8 they provide domain name registration services and the 9 domain -- two of the domain names at issue here are both 10 registered -- GoDaddy is the registrar of record in 11 connection with those domain names. 12 BY MR. CLARK: 13 Q. 14 Those domain names are petronastower.net and petronastowers.net? 15 A. Correct, the singular and plural. 16 Q. When did GoDaddy first begin providing services 17 with respect to those domain names? 18 MR. SLAFSKY: Objection. 19 THE WITNESS: I would refer to the records 20 that -- the records that were provided in your experts 21 that would show when the domain name was transferred in. 22 I believe it was shown in GoDaddy's records. 23 originally registered with another registrar, 24 transferred into GoDaddy. 25 It was That specific date, I don't know off the top of OPPAPP003145 Page 7 1 my head. 2 BY MR. CLARK: 3 Q. 4 Okay. So why don't we -- well -- MR. CLARK: Why don't we mark as Palage 5 Exhibit 1 the document entitled "The expert report of 6 Michael Palage." 7 (Exhibit No. 1 was marked.) 8 BY MR. CLARK: 9 Q. 10 Exhibit No. 1 is your expert report in this case? 11 MR. SLAFSKY: 12 MR. CLARK: 13 THE WITNESS: 14 Q. Yes. It appears to be, yes. BY MR. CLARK: 15 Is that a question? 16 Please point out the conduct of GoDaddy on which the opinions contained in Exhibit 1 are based. 17 MR. SLAFSKY: 18 If you understand the question, answer his 19 question. 20 Object to the form. If you don't understand the question -THE WITNESS: 21 BY MR. CLARK: 22 Q. Could you try again, perhaps? 23 Sure. So could you please turn to page 4 of your expert report, Exhibit 1? 24 A. Yes. 25 Q. It says "Based on my professional expertise as OPPAPP003146 Page 8 1 set forth above, it is my opinion that the services 2 provided by GoDaddy in connection with the domain names 3 petronastower.net and petronastowers.net are consistent 4 with core registrar services routinely provided by all 5 the leading registrars." 6 Do you see that? 7 A. Yes. 8 Q. What are these services provided by GoDaddy in 9 connection with the domain names petronastower and 10 petronastowers.net to which you refer in paragraph 17 of 11 page 4 of your report? 12 A. 13 So in that opinion, I -- I did two things. One, I read the -- started off with the amended 14 complaints which talked about the allegations in 15 connection with this matter. 16 I then, as far as determining whether GoDaddy's 17 actions were consistent with other ICANN-accredited 18 registrars, I then undertook an analysis in this initial 19 report of looking at the top ten ICANN-accredited 20 registrars based upon market share and looking at the 21 core bundled services they provide in connection with 22 the domain name registration services. 23 24 25 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 1 be domain name registration, they provide registration, 2 they provide DNS resolution and they also provide, in 3 this case for free, what is it, URL forwarding. 4 There are a number of other free services and 5 bundled services that ICANN-accredited registrars such 6 as GoDaddy provide as part of their bundled services. 7 Those, I would say, are the three out of -- 8 that is not meant to be the exact enumerated list. 9 There are others. 10 11 12 Those are, I think, the three that are most relevant in connection with the subject matter. Q. Okay. Please describe what GoDaddy did with 13 respect to domain name registration of petronastower.net 14 and petronastowers.net. 15 A. My understanding of what would have occurred is 16 a registrant -- so again, let me qualify this. 17 based on my understanding of traditional domain name 18 practices and I've seen nothing inconsistent with the 19 records to prove otherwise, what would happen here would 20 be a domain name registrant would generally go to the 21 GoDaddy web interface, would request a transfer in. 22 records in this case reveal this was not a new 23 registration but an existing registration that was 24 transferred in. 25 This is The Under current practices, that registrant would OPPAPP003148 Page 10 1 have to provide an auth code to enable the transfer of 2 that registration from the existing registrar to the new 3 registrar of record. 4 5 So that would be GoDaddy's first actions taken in connection with these two domain names. 6 Again, off the top of my head, I do not know 7 when these transfers in were processed. 8 generally -- it generally does not happen 9 It's instantaneously. 10 There's some protocols regarding certain 11 periods of time as far as auto ACK, NAC and other 12 protocols. 13 Q. What else did GoDaddy do with respect to the 14 domain name registration of petronastower and 15 petronastowers.net? 16 MR. SLAFSKY: I'm going to object to these 17 series of questions on the ground you're asking him 18 questions about what GoDaddy did and you're not limiting 19 the questioning to his understanding based on the 20 allegations in this case. 21 He has identified in his expert report a number 22 of documents he relied on in coming to his opinion and 23 in particular, he cited your first amendment complaint 24 as the basis for his opinion. 25 So he can speak to what's in the first amended OPPAPP003149 Page 48 1 Now, that limitation on liability doesn't 2 relate to any of the conduct of GoDaddy in this case, 3 does it? 4 MR. SLAFSKY: Object as to form. 5 THE WITNESS: Just a quick question here. 6 We're reading the Congressional record. 7 actual text of the implemented language of the Lanham 8 Act? 9 BY MR. CLARK: 10 Q. It is, yes. 11 A. Just to make sure. 12 13 MR. SLAFSKY: Stop for a second. This whole paragraph is -- 14 MR. CLARK: 15 THE WITNESS: 16 Is this the Let's assume it is. I don't want to assume that statement. 17 MR. SLAFSKY: Do you want me to get a copy of 18 the ACPA and we can look at it at the same time? 19 up to you. 20 MR. CLARK: 21 MR. SLAFSKY: 22 MR. CLARK: 23 It's (Recess taken 11:11 to 11:21.) 24 Q. Can we take a break? Good idea. BY MR. CLARK: 25 Why don't we do that. If you could refer to Exhibit 1, please, which OPPAPP003150 Page 49 1 is your initial expert report. 2 A. Yes. What page? 3 Q. Page 4, please. 4 A. Page 4. 5 Q. And in numbered paragraph 19, it states "It is 6 my further opinion that, based upon the allegations set 7 forth in the first amended complaint and my analysis of 8 GoDaddy's conduct, there has been no bad faith exhibited 9 by GoDaddy; in particular, there has been no bad faith 10 in connection with the domain name registration and 11 resolution services that it has provided in connection 12 with the domain names petronastower.net and 13 petronastowers.net." 14 Do you see that? 15 A. Yes, I do. 16 Q. Okay. What documents did you rely on in 17 determining what GoDaddy's conduct was in rendering your 18 opinions in this case? 19 A. 20 The first amended complaint. I read the allegations. 21 Q. Anything else? 22 A. In rendering this report, that would be the -- 23 that would be the principal document that I relied upon 24 as well as the broader context of the services GoDaddy 25 provided in relation to the top ten registrars. OPPAPP003151 Page 50 1 2 Q. Focusing on exactly what GoDaddy did, you reviewed the first amended complaint. 3 4 Okay. Were there any other documents on which you rely that described GoDaddy's conduct? 5 A. In this report? 6 Q. Right, yes. 7 A. I would believe it would be the first amended 8 complaint -- referring to page 3 of my expert report, 9 the first bullet point is plaintiff's first amended 10 complaint, the second bullet point would be GoDaddy's 11 notice of motion, motion and Memorandum of Points and 12 Authorities in support of defendant's motion to dismiss 13 first amended complaint and then it would be the court 14 order denying the motion to dismiss. 15 That is where the three documents that provided 16 the factual basis for my opinion in connection with 17 GoDaddy's actions in connection with the domain names. 18 Q. Okay. You didn't review Petronas' opposition 19 to GoDaddy's motion and Memorandum of Points and 20 Authorities related to its motion to dismiss the first 21 amended complaint? 22 MR. SLAFSKY: Object as to form. 23 THE WITNESS: In forming this opinion in this 24 document, no. 25 BY MR. CLARK: OPPAPP003152 Page 51 1 Q. No, you did not? 2 A. No. 3 Q. Right. 4 5 So you did not review that opposition in forming your opinions set forth in Exhibit 1, right? 6 MR. SLAFSKY: Objection. 7 THE WITNESS: In this report, no. 8 BY MR. CLARK: 9 Q. You did not review it? 10 A. Did not review it in connection with this 11 report. 12 Q. When were you first contacted regarding this A. The week of the U.S. Junior National Tae Kwon 13 case? 14 15 Do championships, held in end of June, beginning of 16 July. 17 Q. Who contacted you? 18 A. John Slafsky. 19 Q. And did he contact you by phone? 20 A. Yes. 21 Q. And what did he say? 22 MR. SLAFSKY: So I'm just going to object to 23 the extent the question calls for any protected 24 communications. 25 So anything other than compensation or facts or OPPAPP003153

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