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)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Ex. 1

19
20
21
22
23
24
25
26
27
28
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
1

::: APPEARANCES :::

2
3
4
5
6

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
[phone]
[e-mail]

7
8
9
10
11

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
[phone]
[e-mail]:

12
13
14
15
16
17
18
19
20
21
22
23
24
25

OPPAPP000002

Page 3
1

::: INDEX OF EXAMINATIONS :::

2
EXAMINATION BY:

PAGE

3
MR. CLARK
4
5
6
7
::: INDEX OF REQUESTS :::
8
PAGE

LINE

32

15

REQUEST

9
10

Mark the transcript as 30(b)(6)
deposition

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

OPPAPP000003

5

Page 4
1

::: INDEX OF EXHIBITS :::

2

NUMBER

DESCRIPTION

PAGE

3

1.

Anderson 30(b)(6) Deposition Notice

6

4

2.

Document, Bates No. GD-001494-001526

9

5

3.

Document, Bates No. GD-002446-2550

14

6

4.

Document, Bates No. GD-00560-561

28

7

5.

Document, Bates No. GD-00562-563

28

8

6.

Document, Bates No. GD-000272-392

32

9

7.

Document, Bates No. GD-000393-419

32

10

8.

Document, Bates No. GD-000614-629

48

11

9.

Document, Bates No. GD-000420-487

51

12

10.

Document, Bates No. GD-000532-559

53

13

11.

Document, Bates No. GD-000500-502

61

14

12.

Document, Bates No. GD-000488-499

63

15

13.

Document, Bates No. PET GD000216-272

66

16

14.

ICANN/Uniform Domain Name Dispute
Resolution Policy

71

17
18
19
20
21
22
23
24
25

OPPAPP000004

Page 5
1

LAURIE ANDERSON,

2

being duly sworn by the Certified Shorthand Reporter

3

to tell the truth, the whole truth, and nothing but

4

the truth, testified as follows:

5
6

EXAMINATION BY MR. CLARK
Q.

All right.

Good morning.

I'm a lawyer.

My name is

7

Perry Clark.

I represent the

8

plaintiff in this case, Petroliam Nasional Berhad

9

also known as Petronas, and I think counsel probably

10

wants to make an appearance as well.

11

MR. LANSKY:

Yeah, this is David Lansky

12

of Wilson Sonsini Goodrich & Rosati on behalf of the

13

deponent.

14

BY MR. CLARK:

15

Q.

Now, do you understand that the oath you

16

took today, that means that the testimony you're

17

giving today is under penalty of perjury the same as

18

it would be in a court of law?

19

A.

Yes.

20

Q.

And can I ask that if you don't

21

understand any of my questions or need clarification

22

of anything I'm asking, that you ask me to clarify

23

the question?

24
25

A.

Yes.
MR. CLARK:

Okay, great.

OPPAPP000005

All right.

I'd

Page 6
1

like to have the court reporter mark as Exhibit

2

number 1 the 30(b)(6) deposition notice that we

3

served in this case.

4
5
6

(DEPOSITION EXHIBIT 1 WAS MARKED.)
BY MR. CLARK:
Q.

So I'm handing the witness what's been

7

marked as deposition Exhibit Anderson 1, and have you

8

seen this document before?

9

A.

I have.

10

Q.

And so I'd like to begin by taking your

11

deposition as a Rule 30(b)(6) deponent, and we'll

12

have this part of the transcript marked as the

13

30(b)(6) deposition.

14

Now, you have been designated to testify

15

on a number of topics in this notice.

16

understand that?

17

A.

Yes.

18

Q.

Okay.

Do you

And if you could turn to page 8 of

19

the deposition notice, you'll see there there's

20

number 5 -- topic number 5.

21

A.

Okay.

22

Q.

And do you understand that you've been

23

designated to testify on that topic which is the

24

domain name forwarding service to which Go Daddy

25

refers in paragraph 29 of its amended answer, June

OPPAPP000006

Page 21
1

Q.

Okay.

So as Go Daddy's designated

2

representative for topic number 5 in the Rule

3

30(b)(6) deposition notice which is the domain name

4

forwarding service to which Go Daddy refers in

5

paragraph 29 of its amended answer, you don't know if

6

Go Daddy could have performed the registration and

7

maintenance of the domain names petronastower.net and

8

petronastowers.net without providing that domain name

9

forwarding service?

10
11

MR. LANSKY:
question.

12
13
14

Object to the form of the

THE WITNESS:

Can you repeat?

BY MR. CLARK:
Q.

So you understand that you're Go Daddy's

15

designated representative for topic 5 in Petronas'

16

Rule 30(b)(6) deposition notice, correct?

17

A.

Yes.

18

Q.

And topic number 5 is the domain name

19

forwarding service to which Go Daddy refers in

20

paragraph 29 of its amended answer dated June 20,

21

2011, correct?

22

A.

Yes.

23

Q.

Do you know if Go Daddy would have been

24

able to perform the registration and maintenance of

25

the domain names Petronas Towers -- petronastower.net

OPPAPP000007

Page 59
1
2

Q.

Do you have any other information related

to this entry on this page?

3

MR. LANSKY:

4

THE WITNESS:

5
6

Object to the form.
No.

BY MR. CLARK:
Q.

Okay.

Now, as part of its agreements

7

with its registrant customers, is Go Daddy authorized

8

to use the registrant's domain names for certain

9

purposes?

10
11

MR. LANSKY:

14

You can

answer if you understand.

12
13

Object to the form.

THE WITNESS:

Can you be more specific?

BY MR. CLARK:
Q.

Well, you know, pursuant to Go Daddy's

15

agreements with its registrant customers, is Go Daddy

16

allowed to, you know, to make changes to A records

17

for particular domain name without getting the

18

permission of the registrant?

19
20
21
22

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?

23

A.

I don't know.

24

Q.

Okay.

25

So if you want, you can return to

Exhibit 1 which is the deposition notice, and topic

OPPAPP000008

Page 60
1

number 14.

Is it correct that you've been designated

2

as Go Daddy's 30(b)(6) deponent for topic number 14?

3

A.

I'm sorry, am I on the right one?

4

Q.

It on page 8.

5

A.

Yes.

6

Q.

And topic number 14 is agreements

7

covering the services Go Daddy provided with respect

8

to the disputed domain names?

9

A.

Yes.

10

Q.

What agreements are there governing the

11

services Go Daddy provided with respect to the

12

disputed domain names?

13
14

A.

The domain of the UDRP which is the

domain dispute resolution policy.

15

Q.

Any others?

16

A.

With respect to disputed domains, that's

17
18

it, I believe.
Q.

Okay.

And so what agreements govern the

19

services Go Daddy provided with respect to the domain

20

name petronastower.net and petronastowers.net?

21
22

A.

Go Daddy's domain name registration

agreement.

23

Q.

Okay.

Any others?

24

A.

I believe that would be it.

25

Q.

Okay.

So Go Daddy had a domain name

OPPAPP000009

Page 61
1

registration agreement that governed the services it

2

provided for the domain names Petronas Tower and

3

petronastower.net?

4

MR. LANSKY:

5

THE WITNESS:

6
7

Object to the form.
Yes.

BY MR. CLARK:
Q.

And that was the only agreement that

8

you're aware of that governed the services Go Daddy

9

provided?

10
11

MR. LANSKY:

Objection; misstates

testimony.

12

THE WITNESS:

They would -- I believe

13

since they transferred in, they would be subject to

14

the transfer agreement.

15
16
17

(DEPOSITION EXHIBIT 11 WAS MARKED.)
BY MR. CLARK:
Q.

Okay.

I'm handing the witness a document

18

that's been marked as Anderson 11.

19

that and tell me what that document is.

20
21
22

A.

Take a look at

This is the Go Daddy Domain Name Transfer

Agreement.
Q.

Okay.

And was this the Domain Name

23

Transfer Agreement that was in effect at the time the

24

domain names Petronas Tower and petronastower.net

25

were transferred to Go Daddy?

OPPAPP000010

Page 62
1

A.

I don't know.

2

Q.

If you look in the third full paragraph,

3

there's a reference there to Go Daddy or its

4

licensor.

5

to when it refers to the licensor?

Do you know what this document's referring

6

A.

I do not.

7

Q.

If you wanted to find out whether or not

8

this agreement was in effect at the time of the

9

transfer of the domain names Petronas Tower and

10

petronastower.net, how would you find that out?

11

A.

I would contact our legal department.

12

Q.

And you didn't contact them in preparing

13

for this deposition on that issue?

14

MR. LANSKY:

Object to the form and that

15

implicates the attorney-client privilege so don't

16

answer that one.

17
18
19

MR. CLARK:

Okay.

See my problem here is

I just don't have enough paper.
MR. LANSKY:

Or time.

I just want to

20

give you a heads-up, we're getting close to the start

21

time of our next deposition.

22

MR. CLARK:

23

MR. LANSKY:

24

11, but maybe they'll be a

little flexible.

25

What time is that?

BY MR. CLARK:

OPPAPP000011

Page 63
1

Q.

All right.

So there's the Domain Name

2

Transfer Agreement.

3

the services that Go Daddy provided with respect to

4

the disputed domain names?

5
6

What other agreements governed

MR. LANSKY:

Objection; asked and

answered but go ahead.

7

THE WITNESS:

I believe that the Domain

8

Name Registration Agreement would have covered it as

9

well and the Universal Terms of Service.

10
11

BY MR. CLARK:
Q.

12
13
14

Okay.

Universal Terms of Service.

(DEPOSITION EXHIBIT 12 WAS MARKED.)
BY MR. CLARK:
Q.

I'm now handing the witness a document

15

that has been marked Anderson Exhibit 12.

16

tell me what this document is?

17
18
19

A.

Can you

This is the Go Daddy Universal Terms of

Service.
Q.

Now, could you turn to the page bearing

20

document number GD-00490 and could you read the first

21

sentence of the second full paragraph?

22
23
24
25

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
1

THE WITNESS:

Oh, I'm sorry.

"Go Daddy

2

reserves the right to terminate services if your

3

usage of the services results and/or is subject of

4

legal action or threatened legal action against Go

5

Daddy or any of its affiliates or partners without

6

consideration for whether such legal action or

7

threatened legal action is eventually determined to

8

be with or without merit."

9

BY MR. CLARK:

10

Q.

Do you have any reason to believe that

11

the Universal Terms of Service of Exhibit 11 was not

12

in force and effect at the time Petronas complained

13

about the domain names petronastower.net and

14

petronastowers.net?

15

A.

Can you repeat that please?

16

Q.

I'm just asking, was this agreement -- is

17

Exhibit 12 the version of the Universal Terms of

18

Service that was in effect in 2010?

19

A.

I don't know based on this.

20

Q.

Okay.

Now, is there anything in any of

21

the agreements Go Daddy had with the registrant of

22

the domain names Petronas Tower and

23

petronastowers.net that would have prevented it from

24

canceling or suspending those domain names in

25

response to complaints it received from Petronas?

OPPAPP000013

Page 65
1

A.

We could not have canceled the domain

2

names because we are subject to the UDRP.

3

would have had to have either an arbitration decision

4

or a court order to transfer the domain names or

5

cancel them.

6

Q.

Uh-huh.

So we

But is there anything in the

7

Universal Terms of Service agreement or any other

8

agreement between Go Daddy and the registrant that

9

would have prevented Go Daddy from suspending those

10

domain names in response to the complaints from

11

Petronas?

12

MR. LANSKY:

13

THE WITNESS:

14
15

Object to the form.
I don't -- I don't know.

BY MR. CLARK:
Q.

Is there anything in any of the

16

agreements between Go Daddy and the registrant of the

17

domain names petronastower.net and petronastowers.net

18

that would have prevented it from stopping its domain

19

name forwarding service for those domain names?

20

MR. LANSKY:

21

THE WITNESS:

22
23

Object to the form.
I don't know.

BY MR. CLARK:
Q.

Do you know if Go Daddy ever received any

24

complaint or any communication from the registrant of

25

those domain names when Go Daddy stopped providing

OPPAPP000014

Page 73
1

routing be changed, then there would be nothing that

2

we could do without being directed to do so.

3

BY MR. CLARK:

4

Q.

So it's your testimony that the Uniform

5

Domain Name Dispute Resolution Policy prohibits -- or

6

rather prohibited Go Daddy from discontinuing its

7

domain name forwarding service for the domain names

8

petronastower.net and petronastowers.net?

9

MR. LANSKY:

10

THE WITNESS:

Object to the form.
We can't make changes to a

11

domain name without the direction of a court or an

12

arbitration forum.

13

BY MR. CLARK:

14

Q.

And you can't discontinue your domain

15

name forwarding service without the direction of a

16

court or an arbitration forum?

17

MR. LANSKY:

18

THE WITNESS:

19
20

Object to the form.
I don't know.

BY MR. CLARK:
Q.

Do you know if the Uniform Domain Name

21

Dispute Resolution policy governs Go Daddy's conduct

22

with respect to its domain name forwarding service?

23
24
25

A.

No.
MR. CLARK:

Okay.

So it sounds like

there's another witness.

OPPAPP000015