Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Filing 215

MOTION in Limine to Exclude Testimony of Richard Gralnik Concerning ISP Practices and the Reasonableness of Defendants' Policies filed by Louis Vuitton Malletier, S.A.. (Coombs, J.) (Filed on 8/24/2009)

Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

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J. Andrew Coombs (SBN 123881) [e-mail] Annie S. Wang (SBN 243027) [e-mail] J. Andrew Coombs, A Prof. Corp. 517 E. Wilson Ave., Suite 202 Glendale, California 91206 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Louis Vuitton Malletier, S.A.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE) ) ) ) ) ) ) ) ) ) )

Louis Vuitton Malletier, S.A., v. Plaintiff,

Case No. C 07 3952 JW PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF RICHARD GRALNIK CONCERNING ISP PRACTICES AND THE REASONABLENESS OF DEFENDANTS' POLICIES

Akanoc Solutions, Inc., et al. Defendants.

TO THE COURT AND TO THE DEFENDANTS: PLEASE TAKE NOTICE that Plaintiff Louis Vuitton Malletier, S.A. will and hereby does move the Court to Exclude the Testimony of Richard Gralnik Concerning ISP Practices and the Reasonableness of Defendants' Policies. This motion is based on this Notice of Motion, Motion to Exclude the Testimony of Richard Gralnik Concerning ISP Practices and the Reasonableness of Defendants' Policies, accompanying Memorandum of Points and Authorities, the Declarations and exhibits attached thereto, the exhibits and evidence to be presented at the hearing hereon, the pleadings, records and

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papers on file herein and such other matters and evidence as may be presented at or before the hearing. Dated: August 24, 2009 J. Andrew Coombs, A Professional Corp. ____/s/ J. Andrew Coombs___________________ By: J. Andrew Coombs Annie S. Wang Attorneys for Plaintiff Louis Vuitton Malletier, S.A.

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Louis Vuitton v. Akanoc, et al.: Motion to Exclude Gralnik Testimony

INTRODUCTION Plaintiff Louis Vuitton Malletier, S.A. ("Louis Vuitton" or "Plaintiff") brings this motion to Exclude the Testimony of Richard Gralnik Concerning ISP Practices and the Reasonableness of Defendants' Policies due to Mr. Gralnik's lack of reliable knowledge, skill, training, education and expertise on these matters. In particular, Defendants propose to have Mr. Gralnik testify to certain opinions relating to the handling of abuse complaints by webhosts. The opinions concerning which Mr. Gralnik is not qualified to offer an opinion are highlighted in the following summary of opinions outlined in his two expert reports. In his initial Expert Report dated May 18, 2009, Mr. Gralnik expressed the following five opinions: 1. It is my opinion that Akanoc/Managed Solutions Group's procedures for responding to complaints they receive about the online activities of companies they host are reasonable and are consistent with the options available. 2. It is my opinion that Akanoc/Managed Solutions Group utilizes the most severe recourse an ISP can reasonably apply in response to complaints about the alleged activities of their clients. 3. It is my opinion that unmanaged Internet hosting is a standard business model. 4. It is my opinion that content filtering is not feasible as a mechanism for preventing an ISP's clients from conducting whatever business they choose. 5. It is my opinion that the information returned by a Whois query on the Internet can contain information that is incorrect. On June 25, 2009, Mr. Gralnik signed a Supplemental Expert Report in which he expressed the following additional opinions: 1. It is my opinion that resellers are an integral part of the ISP hosting industry. 2. It is my opinion that hosting companies that have reseller programs offer substantial similar business models for resellers.

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3. It is my opinion that hosting companies follow similar procedures for responding to complaints about websites. 4. It is my opinion that hosting companies do not have a set period of time for responding to a complaint. 5. It is my opinion that if a website is not accessible on the Internet then its content is not publicly available. During his deposition, relevant portions of which are attached hereto as Exhibit B, Mr. Gralnik could identify no training or experience which qualifies him to testify concerning webhost practices or their handling of abuse complaints. (A copy of his resume is attached as Exhibit A.) Worse still, Mr. Gralnik could testify to only the most cursory investigation of such practices with but a couple of webhosts ­ chosen for no specific reason that Mr. Gralnik could identify ­ which consisted of a couple of calls to unidentified webhost "help desks" and a couple of additional telephone calls with Defendant Chen and/or personnel employed by Defendant Chen. ARGUMENT Rule 702 requires that a testifying expert be "qualified as an expert by knowledge, skill, experience, training, or education." Fed. R. Evid. 702. The threshold for qualification is low, a minimal foundation of knowledge, skill, and experience suffices. Hangarter v.Provident Life & Accident Ins. Co., 373 F.3d 998, 1015-16 (9th Cir. 2004. However, the threshold still must be met. The trial court must determine whether so-called "expert" testimony is both reliable and relevant. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) ("Daubert I"). The court has broad discretion in assessing both requirements. See United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000). The reliability requirement ensures "that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Those falling below this level of "intellectual rigor" should not be put forth as

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experts and should not be allowed to give opinions on topics of which they are newly associated at best. The offering party must show by a preponderance of the evidence (1) that the expert is qualified to render the opinion, and (2) that the opinion offered has adequate support. Daubert I, 509 U.S. at 588-90. Expert testimony is not admissible if it is speculative. See GE v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L. Ed. 2d 508 (1997). To satisfy the relevance requirement, the proffered expert testimony must assist the trier of fact in understanding or determining a fact in issue. Daubert I, 509 U.S. at 591. In assessing relevance, the court must look to the governing substantive legal standard. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1320 (9th Cir. 1995) ("Daubert II"). Mr. Gralnik fails to satisfy either standard to testify: he has neither the training, education nor experience to qualify as an expert and his minimal, seemingly random investigation of webhost practices fails to demonstrate adequate support for the highlighted opinions, above. As evidenced by Mr. Gralnik's resume, attached as Exhibit A, Mr. Gralnik has worked with computers for over twenty years. What Mr. Gralnik has not done is any work in the Internet industry. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 Q Have you at any time worked for an ISP? A No. Q Have you at any time provided expert testimony on behalf of an ISP before this matter? A No. Q Have you at any time prepared an expert report without having provided testimony concerning ISP practices or the subject matter of this litigation? A No. Q Have you at any time worked for an ISP? A No. Q Is there anything on your resume that you would draw to my attention as evidencing expertise and the issue of internet service provider practices? A To that specific topic, not that I can think of at the moment. Q Is there anything in your professional experience that's not reflected on your C.V. that will reflect expertise in that subject matter? 11 1 A I have expertise and experience in the internet 2 itself. As far as the practices of specific businesses
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3 that use the internet, no. Deposition of Richard Gralnik ("Gralnik Depo"), June 29, 2009, 10:7-11:3 Mr. Gralnik then continues to testify concerning work experience with the Internet which confirms that none has any relationship to websites, website hosting or practices adopted by businesses working in that arena. Declaration of J. Andrew Coombs ("Coombs Decl.") at Ex. B pp. 11:4-13:18. In particular, one job (from the 1980s) predated the Internet as we now know it, specifically including the World Wide Web and the second, with Hewlett Packard did not concern web hosting: 6 7 8 9 10 11 12 13 14 15 16 17 18 Id. at p. 13:6-18. Mr. Gralnik is clearly not an expert on web-hosting practices and responses to abuse complaints. But even were Mr. Gralnik considered an expert on webhost business practices and abuse response, his preparation to testify in this matter is woefully deficient: 34 10 Q Have you looked at the SePRO database? 11 A I haven't seen it directly, no. 12 Q So you couldn't say from firsthand what kind of 13 data is maintained in the SePRO database or whether it 14 would enable the kind of tracking you just described? 15 A No. The information I have about SePRO is 16 based on exhibits that were provided to me from other 17 people. 18 Q Who? 19 A I believe it was Mr. Wilson's report. I have 20 that as an exhibit. 21 Q That's the only version of the SePRO report 22 you've seen? 23 A Yes. 24 Q Do you know who Juliana Luk is, L-u-k?
Louis Vuitton v. Akanoc, et al.: Motion to Exclude Gralnik Testimony

13 Q Did that internet connectivity involve any kind of retail services along the lines provide by web-hosting services? A No. Q Did it involve the response to abuse complaints? A No. Q Does any of the work outlined in your resume or not reflected in your resume reflect any experience in dealing with abuse complaints? A No. Q Did you have any such experience? A No.

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25

I can't think of that as I sit here, no. 35 1 Q You've never talked to her in connection with 2 this matter? 3 A No, I have not.

A

Id. at pp. 34:10-35:3. Mr. Gralnik then testifies to his review of Defendants' terms of service and the fact that he did not discuss the remedies for violation of those terms of service with Defendants' employees that were interviewed (Steve Chen and Andrew Cheng). From the discussion which follows at 37:15-39:5 it is clear that Mr. Gralnik did not interview anyone with the Defendants concerning their actual practices as they related to abuse complaints. This is borne out elsewhere in the deposition where he does describe his actual preparation. 41 23 Q You testified earlier that among other things, 24 you interviewed Steve Chen in preparation for this 25 expert report? 42 1 A Yes. 2 Q Did you interview him once or more than once? 3 A I think I talked to him twice. 4 Q And was it in person or telephonic? 5 A Telephone. 6 Q And how long were the communications? 7 A I think I talked to Steve about 45 minutes. 8 Q On both occasions or each or -- I'm sorry. In 9 total? 10 A I'm sorry. I don't recall the exact length of 11 the conversation. I think it was a total of 45 minutes. 12 Q And that was before you prepared your expert 13 report here? 14 A Yes. 15 Q Have you had any conversations with him since 16 then? 17 A I think I spoke to him once about getting in 18 touch with Andrew Chang. 19 Q And that's it. 20 A As I recall sitting here now. 21 Q And you spoke with Andrew Chang how many times? 22 A I think just the one time. 23 Q And how long was that conversation? 24 A I believe that was also about a half hour, 45 25 minutes. Id. at pp. 41:23-42:25. Mr. Gralnik's preparation with reference to the practices of the industry was, if anything, even more cursory despite the fact that he had no experience or training with webhost practices.
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43 6 Q You also interviewed Eric Willis and Eric 7 Bursley with Rackspace; is that correct? 8 A Yes. 9 Q And those were telephonic interviews as well? 10 A Yes. 11 Q And how long were each of those interviews? 12 A 20 minutes, half an hour I think. Id. at p. 43:6-12. Mr. Gralnik's choice of Rackspace appears to have been based on somewhat random considerations. 9 10 11 12 13 Id. at p. 44:9-13. His review of limited written review from two other ISPs was similarly random. Coombs Decl. at Ex. B. pp. 44:14-45:20. Apart from this nominal investigation, Mr. Gralnik spoke with the help desk at a couple of additional ISPs. Id. at pp. 52:5-53:6. These companies did not explain to Mr. Gralnik what their procedures were in responding to abuse complaints. 53 7 Q Did they describe what procedures were employed 8 internally to track the complaints once they were 9 received? 10 A No, they didn't. 11 Q Did they describe what personnel was dedicated 12 to dealing with abuse complaints? 13 A No. 14 Q Did they describe what training those employees 15 obtained? 16 A No. 17 Q Did they describe what procedures were employed 18 to deal with recidivist complaints, repetition, where 19 they had multiple problems concerning the same customer? 20 A I don't recall talking about recidivist 21 specifically, but we did talk about escalating a process 22 where if there wasn't an adequate response, that they 23 would go to a more severe form of action. 24 Q Did any of them discuss terminating customers? 25 A I believe they did, yes. 54 1 Q Do you remember which ones? 2 A I believe it was Go Daddy. I think Site5, 3 maybe HostGator. I'd have to check.
Louis Vuitton v. Akanoc, et al.: Motion to Exclude Gralnik Testimony

44 What research did you do to identify Rackspace as one of the largest ISPs in the country? A Searches on Google, reading their web page, looking at various materials that talked about different companies available.

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Id. at pp. 53:7-54:3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 Id. at 55:10-56:13. Finally, conducted interviews and a chat session which were no more revealing. Mr. Gralnik did not even secure the full name of the individuals with whom he communicated for a total of about an hour. Mr. Gralnik's paltry preparation is evident from his inability to confirm the opinions concerning which stated he would testify. 22 23 24 25 1 2 3 4
Testimony

55 Q Okay. What criteria did they use in making the decision to terminate customers in response to abuse complaints? A They wouldn't tell me. Q I think you said that the ISP generally wouldn't tell you what investigation they would do in response to receipt of an abuse complaint; is that correct? A I'm thinking about Go Daddy right now, that they have an abuse department and would not describe what safeguards or steps their security or abuse department would take in response to these. But let's see. They didn't say they would actually shut down the site. They said they have their own safeguards. They wouldn't tell me what those safeguards were. Q They didn't tell you what timeline they would 56 respond to abuse complaints? A None of the companies I spoke to talked about timelines or particular amounts of time they would allow to lapse before they took action, and I don't recall seeing anything in any of the acceptable use policies that spelled out any kind of time periods in response either. Q Are you familiar with the Digital Millennium Copyright Act? A I know of it. Q Are you familiar with the phrase "expeditious removal"? A No, I'm not.

77 Q So you're unable to form any conclusion concerning the reasonableness or the procedures of Akanoc as reflected by the fact that there are 16 websites hosted on Akanoc servers five months after 78 notification to Akanoc? A I can't say anything about what actions were taken or what may have happened in the intervening five months.
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5 Q You've had no discussion with anyone acting on 6 behalf of defendants, specifically including Mr. Chen or 7 Mr. Chang, concerning what was done in response to these 8 notifications? 9 A No, I haven't asked that. Id. at pp. 77:22-78:9. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant its Motion to exclude Mr. Gralnik's testimony on ISP practices and his opinions on the reasonableness of Defendants' policies. Dated: August 24, 2009 J. Andrew Coombs, A Professional Corp. ___/s/ J. Andrew Coombs_____________________ By: J. Andrew Coombs Annie Wang Attorneys for Plaintiff Louis Vuitton Malletier, S.A.

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DECLARATION OF J. ANDREW COOMBS I, J. Andrew Coombs, declare as follows: 1. I am an attorney at law duly admitted to practice before the Courts of the State of

California and the United States District Court for the Northern District of California. I am counsel of record for Plaintiff Louis Vuitton Malletier, S.A. ("Plaintiff" or "Louis Vuitton") in an action styled Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., et al., Case No. C 07 3952 JW. I submit this declaration in support of Plaintiff's motion to Exclude the Testimony of Richard Gralnik Concerning ISP Practices and the Reasonableness of Defendants' Policies. Except as otherwise stated to the contrary, I have personal knowledge of the following facts and, if called as a witness, I could and would competently testify as follows. 2. Attached Exhibit A is a copy of Exhibit 1530 and identified by Defendants as

curriculum vitae for Mr. Gralnik. 3. Attached as Exhibit B are true and accurate copies of portions of the transcript from

the deposition testimony of Richard Gralink which took place on or about June 29, 2009. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 24th day of August, 2009, at San Jose, California. ________/s/ J. Andrew Coombs__________ J. ANDREW COOMBS

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Exhibit A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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Exhibit B

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

LOUIS VUITTON MALLETIER, S.A.,

) ) Plaintiff, ) ) vs. ) CASE No. C073952JW ) AKANOC SOLUTIONS, INC., MANAGED ) SOLUTIONS GROUP, INC., STEVEN CHEN ) and DOES 1 through 10, inclusive, ) ) Defendants. ) ____________________________________)

DEPOSITION OF RICHARD GRALNIK Glendale, California Monday, June 29, 2009

Reported by: NDS Job No.:

Damaris Martinez CSR No. 12925 132459

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material supplied today? A Q Yes, they are. I'm going to give you a document previously

marked as Defendants' Exhibit 1530. Is that a copy of your C.V.? A Q A Q Yes, it is. Have you at any time worked for an ISP? No. Have you at any time provided expert testimony

on behalf of an ISP before this matter? A Q No. Have you at any time prepared an expert report

without having provided testimony concerning ISP practices or the subject matter of this litigation? A Q A Q No. Have you at any time worked for an ISP? No. Is there anything on your resume that you would

draw to my attention as evidencing expertise and the issue of internet service provider practices? A To that specific topic, not that I can think of

at the moment. Q Is there anything in your professional

experience that's not reflected on your C.V. that will reflect expertise in that subject matter?

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A itself.

I have expertise and experience in the internet As far as the practices of specific businesses

that use the internet, no. Q Okay. What is the nature of your expertise and

experience dealing with the internet itself? A I've worked as a networking consultant

specifically for a couple of companies in the past, doing network design and implementation that often included network connectivity to the internet or dealing with information traveling to or from the internet. Q A Q A Systems. Q A Q A Q Were you employed by either of those companies? Yes, I was. I see Prime Computers, 1983 through 1989? That's correct. That's essentially before the worldwide web; is And what were those two companies? Prime Computer. And the other? The other is Desk Talk, D-e-s-k T-a-l-k,

that correct? A Q A Yes. And when did you work for Desk Top -- Talk? From 1990 until -- they were bought by But I was with the company

Hewlett Packard in 2001.

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through the buyout and worked for Hewlett Packard for about a year or so after the buyout. period. Q So that would be largely included within the So that contiguous

description of services and expertise under the Hewlett Packard entry on your C.V.; is that correct? A Q Yes. While at Hewlett Packard, did you have any

responsibility for operating their web presence? A Q No. You were engaged in working on their intranet

and its connection to the internet? A I was involved with working on the network

management software. Q Could you elaborate a little bit on how that

pertains to the subject matter of this litigation? A The company I worked for before it was bought

by Hewlett Packard was a network consulting company. And our business focused primarily around the design implementation of computer networks, which paralleled in structure the way the internet is implemented or connected to the internet. And the company evolved into a network management software company which monitored the performance of networks that, again, either paralleled

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the construction of the internet in terms of architecture, or use the internet as part of their construction. And in the course of that work, I was involved quite a bit with internet-type activity. Q Did that internet connectivity involve any kind

of retail services along the lines provide by web-hosting services? A Q No. Did it involve the response to abuse

complaints? A Q No. Does any of the work outlined in your resume or

not reflected in your resume reflect any experience in dealing with abuse complaints? A Q A Q No. Did you have any such experience? No. Under "Online Security," which I -- are you

employed by Online Security? A Q Yes, I am. In your declaration, I think you used the word I was wondering if there was a difference

"associate."

or a reason for using that term as opposed to "employed"?

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and Andrew Chang, you know, they receive a complaint and they would go through this procedure of whatever website the complaint was about, pinging it, getting the IP address back, looking it up, see if it was in their address space, and then looking it up further to see who it was assigned to and if it was still active in their space. And then taking the next steps, as far as the

notification or the disabling of the IP address or the disconnecting of the machine. Q A Q Have you looked at the SePRO database? I haven't seen it directly, no. So you couldn't say from firsthand what kind of

data is maintained in the SePRO database or whether it would enable the kind of tracking you just described? A No. The information I have about SePRO is

based on exhibits that were provided to me from other people. Q A Who? I believe it was Mr. Wilson's report. I have

that as an exhibit. Q That's the only version of the SePRO report

you've seen? A Q A Yes. Do you know who Juliana Luk is, L-u-k? I can't think of that as I sit here, no.

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Q

You've never talked to her in connection with

this matter? A Q No, I have not. To your knowledge, it's either Steve Chen or

Andrew Chang who handle security complaints on behalf of the defendants in this matter? A If I recall, I think her name comes up in one I'd have to But I

of the deposition transcripts I reviewed.

go back and look at it to refresh my memory. think I have seen that name before. Q Yeah.

Well, I guess what I'm asking is what is

your understanding of who handled the abuse complaints addressed to the defendants in this matter? A Steve Chen, Andrew Chang, I believe, had Again, I don't remember the

participated in that.

specific details of the testimony, but I think they did mention somebody else. Q Have you looked at the terms of service or

acceptable use policies for the defendants? A Q Yes, I have. Do they have any other procedures available to

them under those terms of service or acceptable use policies to address abuse complaints other than what you've described today? A If I recall, there were a list of a few options

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expressed in your report. About two-thirds of the way down the table for web pages, you identify a net policy hyphen com under score world sports document. A Q Yes. It's my understanding that's an amicus brief Do you see that?

filed in some litigation about 10 years ago; is that correct? A Q A Q I believe so, yes. And on whose behalf was the amicus brief filed? I'd have to look at it. I don't remember.

And what was it about that amicus brief that

you thought made it germane to the opinions expressed in this expert report? A Can I look at it again, please? If I remember correctly, it was basically background information about the process of domain name registration and the nature of domain names. Q And having looked at the amicus brief, does it

refresh your recollection on whose behalf it was filed? A Q No, it doesn't. That's fine. You testified earlier that among other things, you interviewed Steve Chen in preparation for this expert report?

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A Q A Q A Q A Q total? A

Yes. Did you interview him once or more than once? I think I talked to him twice. And was it in person or telephonic? Telephone. And how long were the communications? I think I talked to Steve about 45 minutes. On both occasions or each or -- I'm sorry. In

I'm sorry.

I don't recall the exact length of

the conversation. Q

I think it was a total of 45 minutes.

And that was before you prepared your expert

report here? A Q then? A I think I spoke to him once about getting in Yes. Have you had any conversations with him since

touch with Andrew Chang. Q A Q A Q A minutes. And that's it. As I recall sitting here now. And you spoke with Andrew Chang how many times? I think just the one time. And how long was that conversation? I believe that was also about a half hour, 45

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Q A Q A Q A Q A Q A Q

And that was telephonic as well? Yes, it was. Did you know either of them before you were No. You also interviewed Eric Willis and Eric Yes. And those were telephonic interviews as well? Yes. And how long were each of those interviews? 20 minutes, half an hour I think. And there are notes reflecting your

engaged as an expert in this matter?

Bursley with Rackspace; is that correct?

conversations with Mr. Willis and Bursley included in the materials you produced today? A Q A Q this? A I called Rackspace with questions about the nature of their business, and those were the two people I spoke to in the process of getting my questions answered. Yes. And did you know Mr. Willis or Mr. Bursley No. How did you come to contact them concerning

before you were retained as an expert in this matter?

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Q A

And why Rackspace as opposed to another entity? Rackspace, to my knowledge, is one of the Based on that, I decided

largest ISPs in the country.

they were a good company to talk to as representative of typical practices in the industry. Q anyone? A Q No. What research did you do to identify Rackspace Did -- was Rackspace suggested to you by

as one of the largest ISPs in the country? A Searches on Google, reading their web page,

looking at various materials that talked about different companies available. Q In your written materials you refer to an

acceptable use policy published by ServerBeach. Do you recall that? A Q Yes. Do you have any understanding as to any

relationship between ServerBeach and Rackspace? A It's my understanding I don't know of any

relationship between them. Q You also at some point provided some material

concerning PEER 1; is that correct? A Q Yes. And you relied upon that material in support of

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your expert opinions in this matter? A Q A Q Yes. And do you have any understanding of a My understanding is that they're competitors. And how is it that you came to look at

relationship between PEER 1 and Rackspace?

ServerBeach's acceptable use policy rather than Rackspace's? A Q A Just from the website. And it was happenstance, or was there a Again, ServerBeach is a well-known hosting

particular reason you selected ServerBeach? company on the internet that I felt was representative of a typical company. Q A Q A Q report? A Q Yes. And did you -- was that in writing? And PEER 1, how did you come to select them as I believe PEER 1 is actually the company that You got to PEER 1 through ServerBeach? Yes. Did you have an agenda in anticipation of any a company to approach concerning a sales proposal? ServerBeach -- is related to ServerBeach.

of the interviews that you described on page 9 of your

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or by the customer, whereas scalable implies the capacity and size of the system. versa. Q When you spoke with other ISPs, not Akanoc or Managed Solutions, did you discuss with them their procedures for logging complaints received, abuse complaints? A Q A Q A Q I believe I did. Okay. Tell me what they told you. It's easier for you to find out -May I look at my notes, please? I'm sorry. What was the question, again, please? I was asking what the other ISPs you spoke A small system can be managed and large system can be unmanaged, or vice

with -- how they described their procedures in response to a -- an abuse complaint? A Okay. The notes I'm looking at right now are handwritten notes from talking to people at Rackspace, Go Daddy, and a company called VeriSign. I also have as part of my supplemental report, online conversations and a phone call that I had with people from a company called The Planet, Site5, HostGator, and Go Daddy. And they were pretty much consistent in terms of their responses to abuse complaints in terms of notifying the customer about a

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problem with the site, about what if -- you know, they actually wouldn't say if there was any investigation that they did of it. The ones that said they did an

investigation would not give me any details of what that meant; that their ultimate sanction was to basically to shut the site down. Q Did they describe what procedures were employed

internally to track the complaints once they were received? A Q No, they didn't. Did they describe what personnel was dedicated

to dealing with abuse complaints? A Q No. Did they describe what training those employees

obtained? A Q No. Did they describe what procedures were employed

to deal with recidivist complaints, repetition, where they had multiple problems concerning the same customer? A I don't recall talking about recidivist

specifically, but we did talk about escalating a process where if there wasn't an adequate response, that they would go to a more severe form of action. Q A Did any of them discuss terminating customers? I believe they did, yes.

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Q A

Do you remember which ones? I believe it was Go Daddy. I'd have to check. I think Site5,

maybe HostGator. Q A Q A report. Q Okay.

Where would you check? In the notes from those conversations. And are those not what are in front of you now? No. Those were just part of my supplemental

Are there additional notes that are

included here that would reflect those conversations? A Yes. For example, I've got here -- well, the conversation was their acceptable use policies. I'm

looking right now in my supplemental report, at the acceptable use policy of a hosting facility called The Planet, and they list six steps that they would take in response to a violation, which if I check my notes, I believe pretty much match the Akanoc six steps as well; issue a written or verbal warning; suspend posting privileges; suspend the account; terminate the account; bill the user for administrative costs or re-activation charges; bring legal action to enjoin violations, collect damages and so on. Q I think the question was, you indicated your

notes of your conversation with Go Daddy would reflect

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what -- their procedure in terms of terminating customers. your report. Would they be otherwise in this production? A There was -- actually, Go Daddy it wasn't an They didn't have that facility on their And I don't recall those being attached to

online chat. website.

But I spoke with someone directly and wrote

down notes when I spoke to them, which should be in here. Q Here it is. Okay. What criteria did they use in making the

decision to terminate customers in response to abuse complaints? A Q They wouldn't tell me. I think you said that the ISP generally

wouldn't tell you what investigation they would do in response to receipt of an abuse complaint; is that correct? A I'm thinking about Go Daddy right now, that

they have an abuse department and would not describe what safeguards or steps their security or abuse department would take in response to these. see. site. But let's

They didn't say they would actually shut down the They said they have their own safeguards. They

wouldn't tell me what those safeguards were. Q They didn't tell you what timeline they would

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respond to abuse complaints? A None of the companies I spoke to talked about

timelines or particular amounts of time they would allow to lapse before they took action, and I don't recall seeing anything in any of the acceptable use policies that spelled out any kind of time periods in response either. Q Are you familiar with the Digital Millennium

Copyright Act? A Q I know of it. Are you familiar with the phrase "expeditious

removal"? A Q No, I'm not. Are you aware of the requirement that ISPs

record an agent for service with the United States Copyright Act under that legislation? A Q No, I'm not. Do you know whether or not the defendants in

this action have registered under -- recorded under that act? A Q I don't know. Did both Akanoc and Managed Solutions have

published terms of use? A Q I believe so, yes. I think you were looking at one of them earlier

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that correct? A I guess that would be the right number of

months, yes. Q And does it seem to you reasonable and

consistent with the procedures that you've found from other ISPs that after five months, those domains should continue to be hosted on Akanoc servers? A I don't know the history of those domains or

whether they were notified and came back, whether they were not notified at all. I have no information about

what was done with those particular domain names. Q What circumstances would make it reasonable and

consistent for those domain names to be hosted on Akanoc servers more than five months after notification by Louis Vuitton? A All I can say about the list is that that name

came up with an IP address in Akanoc's space on the specific date when the list was prepared, which if I can remember correctly was May 28th. What happened between January and May, I have no information. Q So you're unable to form any conclusion

concerning the reasonableness or the procedures of Akanoc as reflected by the fact that there are 16 websites hosted on Akanoc servers five months after

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notification to Akanoc? A I can't say anything about what actions were

taken or what may have happened in the intervening five months. Q You've had no discussion with anyone acting on

behalf of defendants, specifically including Mr. Chen or Mr. Chang, concerning what was done in response to these notifications? A No, I haven't asked that. MR. COOMBS: Mark as Exhibit 605 a one-page

e-mail dated May 18, 2009 from Eric Willis to Richard at Online Security dot com. (Plaintiff's Exhibit 605 was marked for identification by the reporter and is attached hereto.) BY MR. COOMBS: Q Is that an e-mail that you received on or about

May 18, 2009? A Q Yes. And it reflects a transmission of a quote from

Rackspace for hosting package? A Q Yes. Last sentence says "As you requested, I did not

add a firewall." Why did you not request a firewall? Is that

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