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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Ex. 1
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CLARK DECL. ISO OPP. SUMMARY JUDGMENT
Case No: 09-CV-5939 PJH
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
PETROLIAM NASIONAL BERHAD
(PETRONAS),
Plaintiff,
CASE NO. 09-CV-5939PJH
vs.
GODADDY.COM, INC.,
Defendant.
_____________________________/
::: CONFIDENTIAL :::
30(b)(6) DEPOSITION OF LAURIE ANDERSON
DATE:
Wednesday, October 12, 2011
TIME:
8:54 a.m.
LOCATION:
BALLARD SPAHR, LLP
1 East Washington Street, Suite 2300
Phoenix, Arizona 85004
REPORTED BY: JANICE HARRINGTON, RPR, CRR, CLR
AZ Certified Court Reporter No. 50844
Registered Professional Reporter
Certified Realtime Reporter
Certified LiveNote Reporter
MBreporting
111 Deerwood Road, Suite 200
San Ramon, California 94583
OPPAPP000001
Page 2
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::: APPEARANCES :::
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FOR PETROLIAM NASIONAL BERHAD (PETRONAS) PLAINTIFF:
Law Offices of Perry R. Clark
By: Perry R. Clark, Attorney At Law
825 San Antonio Road
Palo Alto, California 94303
(650) 248-5817
perry@perryclarklaw.com
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FOR GODADDY.COM, INC., DEFENDANT:
Wilson Sonsini Goodrich & Rosati
By: David L. Lansky, Attorney At Law
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 320-4776
dlansky@wsgr.com:
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OPPAPP000002
Page 3
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::: INDEX OF EXAMINATIONS :::
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EXAMINATION BY:
PAGE
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MR. CLARK
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::: INDEX OF REQUESTS :::
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PAGE
LINE
32
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REQUEST
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Mark the transcript as 30(b)(6)
deposition
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OPPAPP000003
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Page 4
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::: INDEX OF EXHIBITS :::
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NUMBER
DESCRIPTION
PAGE
3
1.
Anderson 30(b)(6) Deposition Notice
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2.
Document, Bates No. GD-001494-001526
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3.
Document, Bates No. GD-002446-2550
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4.
Document, Bates No. GD-00560-561
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5.
Document, Bates No. GD-00562-563
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6.
Document, Bates No. GD-000272-392
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7.
Document, Bates No. GD-000393-419
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8.
Document, Bates No. GD-000614-629
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9.
Document, Bates No. GD-000420-487
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10.
Document, Bates No. GD-000532-559
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11.
Document, Bates No. GD-000500-502
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12.
Document, Bates No. GD-000488-499
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13.
Document, Bates No. PET GD000216-272
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14.
ICANN/Uniform Domain Name Dispute
Resolution Policy
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OPPAPP000004
Page 5
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LAURIE ANDERSON,
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being duly sworn by the Certified Shorthand Reporter
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to tell the truth, the whole truth, and nothing but
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the truth, testified as follows:
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EXAMINATION BY MR. CLARK
Q.
All right.
Good morning.
I'm a lawyer.
My name is
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Perry Clark.
I represent the
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plaintiff in this case, Petroliam Nasional Berhad
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also known as Petronas, and I think counsel probably
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wants to make an appearance as well.
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MR. LANSKY:
Yeah, this is David Lansky
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of Wilson Sonsini Goodrich & Rosati on behalf of the
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deponent.
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BY MR. CLARK:
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Q.
Now, do you understand that the oath you
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took today, that means that the testimony you're
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giving today is under penalty of perjury the same as
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it would be in a court of law?
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A.
Yes.
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Q.
And can I ask that if you don't
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understand any of my questions or need clarification
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of anything I'm asking, that you ask me to clarify
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the question?
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A.
Yes.
MR. CLARK:
Okay, great.
OPPAPP000005
All right.
I'd
Page 6
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like to have the court reporter mark as Exhibit
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number 1 the 30(b)(6) deposition notice that we
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served in this case.
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(DEPOSITION EXHIBIT 1 WAS MARKED.)
BY MR. CLARK:
Q.
So I'm handing the witness what's been
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marked as deposition Exhibit Anderson 1, and have you
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seen this document before?
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A.
I have.
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Q.
And so I'd like to begin by taking your
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deposition as a Rule 30(b)(6) deponent, and we'll
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have this part of the transcript marked as the
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30(b)(6) deposition.
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Now, you have been designated to testify
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on a number of topics in this notice.
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understand that?
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A.
Yes.
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Q.
Okay.
Do you
And if you could turn to page 8 of
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the deposition notice, you'll see there there's
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number 5 -- topic number 5.
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A.
Okay.
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Q.
And do you understand that you've been
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designated to testify on that topic which is the
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domain name forwarding service to which Go Daddy
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refers in paragraph 29 of its amended answer, June
OPPAPP000006
Page 21
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Q.
Okay.
So as Go Daddy's designated
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representative for topic number 5 in the Rule
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30(b)(6) deposition notice which is the domain name
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forwarding service to which Go Daddy refers in
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paragraph 29 of its amended answer, you don't know if
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Go Daddy could have performed the registration and
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maintenance of the domain names petronastower.net and
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petronastowers.net without providing that domain name
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forwarding service?
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MR. LANSKY:
question.
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Object to the form of the
THE WITNESS:
Can you repeat?
BY MR. CLARK:
Q.
So you understand that you're Go Daddy's
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designated representative for topic 5 in Petronas'
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Rule 30(b)(6) deposition notice, correct?
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A.
Yes.
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Q.
And topic number 5 is the domain name
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forwarding service to which Go Daddy refers in
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paragraph 29 of its amended answer dated June 20,
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2011, correct?
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A.
Yes.
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Q.
Do you know if Go Daddy would have been
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able to perform the registration and maintenance of
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the domain names Petronas Towers -- petronastower.net
OPPAPP000007
Page 59
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Q.
Do you have any other information related
to this entry on this page?
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MR. LANSKY:
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THE WITNESS:
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Object to the form.
No.
BY MR. CLARK:
Q.
Okay.
Now, as part of its agreements
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with its registrant customers, is Go Daddy authorized
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to use the registrant's domain names for certain
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purposes?
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MR. LANSKY:
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You can
answer if you understand.
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Object to the form.
THE WITNESS:
Can you be more specific?
BY MR. CLARK:
Q.
Well, you know, pursuant to Go Daddy's
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agreements with its registrant customers, is Go Daddy
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allowed to, you know, to make changes to A records
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for particular domain name without getting the
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permission of the registrant?
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A.
If we had a court order or if there was
an agreement.
Q.
Okay.
And was there a court order to set
the A record for petronastowers.net to 000?
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A.
I don't know.
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Q.
Okay.
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So if you want, you can return to
Exhibit 1 which is the deposition notice, and topic
OPPAPP000008
Page 60
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number 14.
Is it correct that you've been designated
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as Go Daddy's 30(b)(6) deponent for topic number 14?
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A.
I'm sorry, am I on the right one?
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Q.
It on page 8.
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A.
Yes.
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Q.
And topic number 14 is agreements
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covering the services Go Daddy provided with respect
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to the disputed domain names?
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A.
Yes.
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Q.
What agreements are there governing the
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services Go Daddy provided with respect to the
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disputed domain names?
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A.
The domain of the UDRP which is the
domain dispute resolution policy.
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Q.
Any others?
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A.
With respect to disputed domains, that's
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it, I believe.
Q.
Okay.
And so what agreements govern the
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services Go Daddy provided with respect to the domain
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name petronastower.net and petronastowers.net?
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A.
Go Daddy's domain name registration
agreement.
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Q.
Okay.
Any others?
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A.
I believe that would be it.
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Q.
Okay.
So Go Daddy had a domain name
OPPAPP000009
Page 61
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registration agreement that governed the services it
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provided for the domain names Petronas Tower and
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petronastower.net?
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MR. LANSKY:
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THE WITNESS:
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Object to the form.
Yes.
BY MR. CLARK:
Q.
And that was the only agreement that
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you're aware of that governed the services Go Daddy
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provided?
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MR. LANSKY:
Objection; misstates
testimony.
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THE WITNESS:
They would -- I believe
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since they transferred in, they would be subject to
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the transfer agreement.
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(DEPOSITION EXHIBIT 11 WAS MARKED.)
BY MR. CLARK:
Q.
Okay.
I'm handing the witness a document
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that's been marked as Anderson 11.
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that and tell me what that document is.
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A.
Take a look at
This is the Go Daddy Domain Name Transfer
Agreement.
Q.
Okay.
And was this the Domain Name
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Transfer Agreement that was in effect at the time the
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domain names Petronas Tower and petronastower.net
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were transferred to Go Daddy?
OPPAPP000010
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A.
I don't know.
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Q.
If you look in the third full paragraph,
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there's a reference there to Go Daddy or its
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licensor.
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to when it refers to the licensor?
Do you know what this document's referring
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A.
I do not.
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Q.
If you wanted to find out whether or not
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this agreement was in effect at the time of the
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transfer of the domain names Petronas Tower and
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petronastower.net, how would you find that out?
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A.
I would contact our legal department.
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Q.
And you didn't contact them in preparing
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for this deposition on that issue?
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MR. LANSKY:
Object to the form and that
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implicates the attorney-client privilege so don't
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answer that one.
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MR. CLARK:
Okay.
See my problem here is
I just don't have enough paper.
MR. LANSKY:
Or time.
I just want to
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give you a heads-up, we're getting close to the start
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time of our next deposition.
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MR. CLARK:
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MR. LANSKY:
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11, but maybe they'll be a
little flexible.
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What time is that?
BY MR. CLARK:
OPPAPP000011
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Q.
All right.
So there's the Domain Name
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Transfer Agreement.
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the services that Go Daddy provided with respect to
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the disputed domain names?
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What other agreements governed
MR. LANSKY:
Objection; asked and
answered but go ahead.
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THE WITNESS:
I believe that the Domain
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Name Registration Agreement would have covered it as
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well and the Universal Terms of Service.
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BY MR. CLARK:
Q.
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Okay.
Universal Terms of Service.
(DEPOSITION EXHIBIT 12 WAS MARKED.)
BY MR. CLARK:
Q.
I'm now handing the witness a document
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that has been marked Anderson Exhibit 12.
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tell me what this document is?
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A.
Can you
This is the Go Daddy Universal Terms of
Service.
Q.
Now, could you turn to the page bearing
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document number GD-00490 and could you read the first
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sentence of the second full paragraph?
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A.
"You understand and agree that all
content and materials contained in this agreement" -Q.
Sorry, in the wrong place.
MR. LANSKY:
Up here.
OPPAPP000012
GD-00490.
Page 64
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THE WITNESS:
Oh, I'm sorry.
"Go Daddy
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reserves the right to terminate services if your
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usage of the services results and/or is subject of
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legal action or threatened legal action against Go
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Daddy or any of its affiliates or partners without
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consideration for whether such legal action or
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threatened legal action is eventually determined to
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be with or without merit."
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BY MR. CLARK:
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Q.
Do you have any reason to believe that
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the Universal Terms of Service of Exhibit 11 was not
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in force and effect at the time Petronas complained
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about the domain names petronastower.net and
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petronastowers.net?
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A.
Can you repeat that please?
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Q.
I'm just asking, was this agreement -- is
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Exhibit 12 the version of the Universal Terms of
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Service that was in effect in 2010?
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A.
I don't know based on this.
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Q.
Okay.
Now, is there anything in any of
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the agreements Go Daddy had with the registrant of
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the domain names Petronas Tower and
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petronastowers.net that would have prevented it from
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canceling or suspending those domain names in
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response to complaints it received from Petronas?
OPPAPP000013
Page 65
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A.
We could not have canceled the domain
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names because we are subject to the UDRP.
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would have had to have either an arbitration decision
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or a court order to transfer the domain names or
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cancel them.
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Q.
Uh-huh.
So we
But is there anything in the
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Universal Terms of Service agreement or any other
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agreement between Go Daddy and the registrant that
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would have prevented Go Daddy from suspending those
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domain names in response to the complaints from
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Petronas?
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MR. LANSKY:
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THE WITNESS:
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Object to the form.
I don't -- I don't know.
BY MR. CLARK:
Q.
Is there anything in any of the
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agreements between Go Daddy and the registrant of the
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domain names petronastower.net and petronastowers.net
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that would have prevented it from stopping its domain
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name forwarding service for those domain names?
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MR. LANSKY:
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THE WITNESS:
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Object to the form.
I don't know.
BY MR. CLARK:
Q.
Do you know if Go Daddy ever received any
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complaint or any communication from the registrant of
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those domain names when Go Daddy stopped providing
OPPAPP000014
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routing be changed, then there would be nothing that
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we could do without being directed to do so.
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BY MR. CLARK:
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Q.
So it's your testimony that the Uniform
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Domain Name Dispute Resolution Policy prohibits -- or
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rather prohibited Go Daddy from discontinuing its
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domain name forwarding service for the domain names
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petronastower.net and petronastowers.net?
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MR. LANSKY:
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THE WITNESS:
Object to the form.
We can't make changes to a
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domain name without the direction of a court or an
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arbitration forum.
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BY MR. CLARK:
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Q.
And you can't discontinue your domain
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name forwarding service without the direction of a
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court or an arbitration forum?
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MR. LANSKY:
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THE WITNESS:
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Object to the form.
I don't know.
BY MR. CLARK:
Q.
Do you know if the Uniform Domain Name
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Dispute Resolution policy governs Go Daddy's conduct
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with respect to its domain name forwarding service?
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A.
No.
MR. CLARK:
Okay.
So it sounds like
there's another witness.
OPPAPP000015
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