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

Filing 266

MOTION for Leave to File Excess Pages filed by Akanoc Solutions, Inc., Steven Chen, Managed Solutions Group, Inc.. (Attachments: # 1 Proposed Order)(Lowe, James) (Filed on 1/18/2010) Modified on 1/19/2010 (cv, COURT STAFF).

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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 East Wilson Avenue, 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 (HRLx) REPLY OF PLAINTIFF TO DEFENDANTS' EVIDENTIARY OBJECTIONS TO COOMBS DECLARATION IN SUPPORT OF MOTION FOR PERMANENT INJUNCTION; DECLARATION AND EXHIBITS IN SUPPORT Date: January 25, 2010 Time: 9:00 a.m. Court: Hon. James Ware

Akanoc Solutions, Inc., et al. Defendants.

Defendants' objections to the attachment of the trial record to Plaintiff's moving papers for lack of authentication but their objections are properly overruled. The sole authority relied upon by Defendants is factually inapplicable. The transcript at issue in, see Orr v. Bank of America, NT & SA, 285 F.3d 764, 775 (9th Cir. 2002) involved a deposition transcript and not a transcript of proceedings held before the District Court and which have, separately by filed by the Court Reports. Trial transcripts are self-authenticating under Fed. R. Evid. 902(2) or (4). In the alternative, trial transcripts may be authenticated under Fed. R. Evid. 901(b)(4) or (7) according to the following: "(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. ...
Louis Vuitton v. Akanoc, et al.: Reply to Defs Objections to Trial Transcripts

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(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept." Fed. R. Evid. 901(b)(4), (7). The format of the trial transcript pages are unique as each page bears the identifier of either the court reporter by name, "U.S" District Court" or "U.S. Court Reporters" as well as the page number. These documents are public records that are authorized by law to be recorded or filed and in fact were recorded or filed. 28 USC § 753. Defendants' objections should be overruled. "The guiding principle is that proper authentication requires some sort of proof that the document is what it purports to be." Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006) citing Iran v. INS, 656 F.2d 469, 473 (9th Cir. 1981). The pages from the trial transcript on their face provide the necessary indicia of authenticity in their format and content. There has been no indication from Defendants that the transcript excerpts have been altered or are incorrect. The Court should overrule Defendants' objections. A similar result should follow under Fed. R. Evid. 902 which provides in part: "(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. ... (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority." Fed. R. Evid. 902(2) and (4). Aside from the signature on the transcript of the Court Reporter working in his or her official capacity as employed by the United States District Court, the trial transcript has been filed and mandated under General Order No. 59 to be filed electronically. 28
Louis Vuitton v. Akanoc, et al.: Reply to Defs Objections to Trial Transcripts

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USC § 753. Docket Nos.254, 255, 260, 261, 262 and 263 being transcripts of proceedings held each day testimony was presented to the Court. The court reporters involved in this matter have done so as required by Chief Judge Walker, The Judicial Counsel of the United States and Congress, satisfying the requirements of Fed. R. Evid. 902(2) and (4). Most cases involving objections to trial transcripts on the grounds advanced by Defendants relate to the transcripts from other trials in other courts, not the transcript for the trial that took place before the presiding Court. In any event, Defendants do not dispute the authenticity of the transcripts, and the documentation that Defendants require, is attached to the Declaration of J. Andrew Coombs attached hereto. Bonneau v. Clifton, 215 F.R.D. 596, 601 (D. Or. 2003) (court overruling objection when additional pages were submitted in relation to a deposition transcript). Accepting Defendants' arguments and excluding the trial record under these circumstances would be to elevate form over substance, and would be particularly prejudicial given the lack of any discrepancy cited by Defendants. Plaintiff was attempting to aid the Court in providing easier access to the same transcript that the Defendants are in possession and that have been filed with the Court by the court reporters. Plaintiff has already cited with specificity in its moving papers the portions of the transcript that it references and the witnesses that were testifying. Excluding the trial record in this instance without applicable authority advanced by Defendants, would be improper. Defendants' objections should be overruled in their entirety.

Dated: January 11, 2010

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.

Louis Vuitton v. Akanoc, et al.: Reply to Defs Objections to Trial Transcripts

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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 an attorney for Plaintiff Louis Vuitton Malletier, S.A. ("Plaintiff") in an action styled Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., et al. I make this Declaration in support of Plaintiff's Reply to Defendants' Evidentiary Objections to Coombs Declaration. Except as otherwise expressly 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 true and accurate copy of portions of Volume 1 of the

certified court reporter's transcript from the Trial in this matter from August 18, 2009, of the trial testimony of Plaintiff's witness, Mr. Nikolay Livadkin. 3. Attached Exhibit B is a true and accurate copy of portions of Volume 2 of the

certified court reporter's transcript from the Trial in this matter from August 19, 2009, of the trial testimony of Plaintiff's witness Mr. Nikolay Livadkin and the deposition reading of Defendants' employee Ms. Juliana Luk. 4. Attached Exhibit C is a true and accurate copy of portions of Volume 3 of the

certified court reporter's transcript from the Trial in this matter from August 20, 2009, of the deposition reading of Defendant Steve Chen. 5. Attached Exhibit D is a true and accurate copy of portions of Volume 4 of the

certified court reporter's transcript from the Trial in this matter from August 21, 2009, of the trial testimony of Defendant Steve Chen. 6. Attached Exhibit E is a true and accurate copy of portions of Volumes 8 and 9 of

the certified court reporter's transcript from the Trial in this matter from August 25, 2009, of the trial testimony of Defendant Steve Chen and the trial testimony of Defendants' employee Mr. Andrew Cheng and Defendants' expert Mr. Richard Gralnik.

Louis Vuitton v. Akanoc, et al.: Reply to Defs Objections to Trial Transcripts

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7.

Attached Exhibit F is a true and accurate copy of portions of the certified court

reporter's transcript from the Trial in this matter from August 26, 2009, of the Defendants' closing argument as stated by Mr. Lowe. I declare under penalty of perjury that the foregoing is true and correct under the laws of the United States of America. Executed this 11th day of January, 2010, at Glendale, California. ______/s/ J. Andrew Coombs________ J. ANDREW COOMBS

Louis Vuitton v. Akanoc, et al.: Reply to Defs Objections to Trial Transcripts

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EXHIBIT A

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I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION

LOUIS VUITTON MALLETIER , S .A. , PLAINTIFF, V. AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __

) ) ) ) ) ) ) ) ) ) ) )

C -07 -03952 -JW A U G U S T 18, 2009 VOLUME 1 P A G E S 1 - 199

THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206

FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .) OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1
Exhibit A, Page 6

U.S. COURT REPORTERS

1 2 3 ALSO PRESENT: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2
Exhibit A, Page 7

A P P E A R A N C E S: (CONT' D) LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538

U.S. COURT REPORTERS

1 2 3 4 5

INDEX OF PROCEEDINGS

PLAINTIFF'S OPENING STATEMENT P. 82 DEFENDANTS' OPENING STATEMENT P. 97 F O R T H E PLAINTIFF 'S:

6 7 8 9 10 I D E N T. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3
Exhibit A, Page 8

NIKOLAY LIVADKIN

D I R E C T EXAMINATION P. 131

INDEX OF EXHIBITS EVIDENCE 145 170 177

PLAINTIFF'S : 451 74 75

U.S. COURT REPORTERS

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PRODUCT BEARING LOUIS VUITTON TRADEMARKS. I BROUGHT THIS EXHIBIT 82 .1 TO COMPARE T O T H E N O NGENUINE . THIS I S THE CLOSEST I COULD FIND

BECAUSE AGAIN IT' S A PRODUCT THAT W E D O N O T

MANUFACTURE ANYMORE.
BY MR . C O O M B S: Q

AND C A N Y O U DESCRIBE FOR US H O W Y O U CAN

IDENTIFY T H E N O NGENUINE ARTICLE AS NON GENUINE?

A

WELL, AGAIN, QUITE EASY.

THIS PLASTIC

PROTECTION OF THE METALLIC PARTS THAT I JUST

MENTIONED, THE B U C K L E HERE IS QUITE DIFFICULT T O
TURN AND TO CLOSE COMPARED TO T H E GENUINE WHICH WORKS VERY SMOOTHLY. T H E INTERIOR IS NOT T H E SAME . S E E T H E LINING IS N O T T H E SAME. Q THE L I N I N G. THE L I N I N G, SORRY. THE QUALITY O F THE THESE CARDS WHICH YOU WILL

A

METALLIC PARTS IS QUITE POOR.

PROBABLY A R E MADE TO LURE THE CUSTOMER THAT IT' S N O T A N AUTHENTICITY CARD, WE DO NOT DO THESE CARDS . T H E R E'S A LITTLE BOOKLET INSIDE WHICH IS PRINTED NOT IN T H E R I G H T W A Y. PART OF T H E TEXT IS

ACTUALLY C U T S O THAT 'S AN EASY W A Y TO SEE T H AT IT
DOESN 'T COME FROM O U R COMPANY . Q I'L L GIVE Y O U A SHORT BREAK FROM PRODUCT 160

U.S. COURT REPORTERS

Exhibit A, Page 9

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IDENTIFICATION A N D MOVE TO -- A N D A S K YOU A LITTLE

MORE ABOUT THE MANUFACTURING DISTRIBUTION OF
GENUINE LOUIS VUITTON. VUITTON MADE? WHERE IS GENUINE LOUIS

A

LOUIS VUITTON PRODUCTS ARE MADE I N LOUIS THERE ARE

VUITTON' S OWN MANUFACTURING FACILITIES . 14 :

11 IN FRANCE , 2 IN SPAIN , A N D 1 I N S A N DIMAS THAT 'S FOR LEATHER GOODS.

IN CALIFORNIA.

T H E R E'S O N E MANUFACTURING FACILITY IN ITALY F O R S H O E S A N D IN SWITZERLAND FOR WATCHES. Q

AND H O W MANY P E O P L E DOES LOUIS VUITTON EMPLOY

IN T H E U N I T E D STATES .

A

IN THE U N I T E D S T A T E S LOUIS VUITTON EMPLOYS

MORE THAN 1 ,30 0 P E O P L E AND MANY IN THE HEADQUARTERS
IN T H E L O C A L COMPANY OF N E W YORK . I N T H E STORE CHAIN THERE ARE A R O U N D 1 00 S T O R E S A C R O S S THE U N I T E D S T A T E S. W E EMPLOY A

L I T T L E B I T MORE THAN 30 0 P E O P L E IN THE WORKSHOP PRODUCTION IN SAN DIMAS , CALIFORNIA , A N D WE EMPLOYED I THINK 30 PEOPLE I THINK IN THE CUSTOMER SERVICE DEPARTMENT I N SAN FRANCISCO . Q

AND ONCE LOUIS VUITTON PRODUCT IS

MANUFACTURED, HOW IS IT DISTRIBUTED ? A
ONCE LOUIS VUITTON PRODUCTS ARE MANUFACTURED,

THEY' RE DISTRIBUTED THROUGH O N E MAIN LOGISTICS 161

U.S. COURT REPORTERS

Exhibit A, Page 10

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C E N T E R LOCATED IN T H E S U BURBS OF PARIS A N D F O R THESE PRODUCTS MANUFACTURED I N CALIFORNIA , THEY 'RE DISTRIBUTED THROUGH THE LOGISTICS C E N T E R BASED IN

MEMPHIS.
Q

AND A R E T H O S E L O G I S T I C CENTERS OWNED BY LOUIS

VUITTON?

A
Q

YES , THEY A R E.

AND THEY' RE OPERATED BY THEM?
YES , THEY A R E.

A
Q

AND A R E T H E R E A N Y OTHER LOGISTIC CENTERS F O R

LOUIS VUITTON PRODUCTS?

A

WELL, THERE ARE LOCAL REGIONAL STORAGE

FACILITIES, B U T I WOULDN'T CALL THEM LOGISTICS CENTER. Q THE STORAGE CENTERS A R E OPERATED AND

MAINTAINED BY LOUIS VUITTON? A
Q BY LOUIS VUITTON. SO ARE THERE A N Y LICENSEES FOR LOUIS VUITTON

MERCHANDISE ? A
Q NO, THERE A R E N O LICENSEES.

AND DOES LOUIS VUITTON U S E WHOLESALERS TO

DISTRIBUTE ANY OF I T S M E R C H A N D I S E?

A
Q

NO.

ARE THERE A N Y I N T E R V E N I N G T H I R D PARTIES

BETWEEN THE LOUIS VUITTON OWNED PRODUCTION 162

U.S. COURT REPORTERS

Exhibit A, Page 11

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FACILITIES THAT YOU DESCRIBED AND THE CONSUMER OTHER THAN LOUIS VUITTON ITSELF?

A

NO.

LOUIS VUITTON PRODUCTS ARE PRODUCED I N

OUR OWN MANUFACTURING FACILITIES AND ARE DISTRIBUTED THROUGH A W H O L L Y OWNED AND CONTROLLED STORE CHAIN . Q

AND C A N Y O U DESCRIBE HOW T H E S T O R E C H A I N I S

STRUCTURED?

A

THERE ARE A R O U N D 4 50 STORES A R O U N D T H E WORLD

A N D I N MOST OF T H E CONTINENTS .
Q

AND H O W A B O U T DEPARTMENT S T O R E S?
THERE ARE I N D E E D ALSO CORNERS IN HIGH-E N D THESE CORNERS ARE STAFFED B Y

A

DEPARTMENT STORES .

LOUIS VUITTON PERSONNEL . Q IS ANY FINISHED LOUIS VUITTON PRODUCT MADE IN

ASIA? A
Q NO. DOES LOUIS VUITTON ASSIGN ITS TRADEMARKS T O

ANYONE ELSE ? A
Q NO.

AND DOES IT SELL PRODUCT ON LINE?
YES , I T DOES B U T I N JUNE OF 20 09 LOUIS VUITTON

A

PRODUCTS WERE SOLD O N T W O WEB SITES , E LUXURY .C O M, WHICH IS A WEB SITE BELONGING TO LOUIS VUITTON AND LOUIS VUITTON' S O W N WEB SITE LOUISVUITTON .C O M A N D 163

U.S. COURT REPORTERS

Exhibit A, Page 12

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CURRENTLY L O U I S VUITTON IS SELLING OUR PRODUCTS . Q IT ? LOUIS VUITTON PRODUCTS A R E EXPENSIVE , I S N' T

A
Q

YES , THEY A R E.

AND W H Y I S THAT ?
WELL, LOUIS VUITTON'S PRODUCTS A R E, IF I C A N WE -- OUR CUSTOMERS D R E A M

A

S A Y, A S Y M B O L OF LUXURY .

ABOUT THE BEST PRODUCT, THE PERFECT PRODUCT, AND
THIS IS COSTLY . L O U I S VUITTON , O N E OF THE KEYS TO LOUIS VUITTON' S SUCCESS IS T H E QUALITY , A N D WE REQUIRE T H E HIGH QUALITY STANDARDS AT A N Y L E V E L FROM T H E HEAD OFFICES THROUGH T H E S T O R E S AND MANUFACTURING FACILITIES. T H E R E A R E QUALITY C H E C K S AND AT A L L LEVELS O F T H E PRODUCTION A N D THEY'R E SUPPLEMENTED BY SELF- CHECKS BY T H E O P E R A T O R D U R I N G THE VARIOUS OPERATIONS THAT H E P E R F O R M S WHEN T H E P R O D U C T S H E'S

MADE.
THIS REQUIRES , O F COURSE, VERY CAREFUL SELECTION O F R A W MATERIALS WHICH COST -- WHICH ARE COSTLY. SOME OF THE R A W MATERIALS SUCH A S T H E

EXOTIC AND SOME EXOTIC LETTERS ARE EVEN S O RARE AND SO DIFFICULT T O S O U R C E THAT WHEN A CUSTOMER MAKES

AN ORDER F O R SUCH PRODUCT, HE NEEDS TO WAIT UNTIL
164

U.S. COURT REPORTERS

Exhibit A, Page 13

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T H E PARTICULAR OR PIECE OF E X O T I C LEATHER IS

AVAILABLE C O U L D COME FROM -- IT' S DIFFICULT TO
SOURCE. Q SO IF LOUIS VUITTON C A N COMMAND SUCH A PRICE

FOR ITS PRODUCT WHY DOES I T CARE ABOUT THE N O NGENUINE PRODUCT THAT WE HAVE BEEN LOOKING AT ?

A
Q

WELL, I WASN 'T -I'M SORRY . DID I INTERRUPT ?

A

WE ALSO M A N U F A C T U R E I N COUNTRIES WITH HIGH WE SHOULD BE PARTICULARLY I N E U R O P E.

LABOR COSTS .

WE 'RE PROBABLY AMONGST THE LAST COMPANIES THAT DO N O T O U TSOURCE PRODUCTION I N L O W COST PRODUCTION COUNTRIES PRECISELY BECAUSE W E NEED TO S O U R C E T H E BEST QUALITY PRODUCT . Q SO --

A

ALSO THE SALE O F LUXURY GOODS REQUIRES QUITE

EXPENSIVE COMMUNICATION AND ADVERTISING CAMPAIGNS WHICH IS THIS ADDITIONA L COST GOES TO THE E N D P R I C E OF T H E PRODUCT . Q SO A CONSIDERABLE EXPENSE O N MARKETING? YES . SO IF LOUIS VUITTON C A N COMMAND A PREMIUM

A
Q

PRICE FOR ITS PRODUCT, THEN WHY DOES I T CARE ABOUT T H E N O NGENUINE PRODUCT THAT Y O U' VE BEEN LOOKING AT ?

A

WELL, IT' S A B I G PROBLEM F O R U S.

NOT ONLY 165

U.S. COURT REPORTERS

Exhibit A, Page 14

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BECAUSE IT' S A CUSTOMER W H O PURCHASES A N O NGENUINE PRODUCT WILL P R O B A B L Y N O T BUY O U R PRODUCT , B U T ALSO BECAUSE PEOPLE W H O HAVE -- W H O LOVE O U R PRODUCT SO

MUCH THAT THEY WOULD SAVE MONEY FOR A LONG TIME TO
B U Y A B A G THAT THEY DREAMED F O R A LONG TIME, THEY

ARE GENUINELY DISGUSTED WHEN THEY SEE A CHEAP
IMITATIONS OF THIS B A G ALL OVER THE PLACE . W E RECEIVE MANY, MANY COMPLAINTS O F SUCH PEOPLE. Q SO HOW IS IT THAT LOUIS VUITTON I S H A R M E D BY

THESE N O NGENUINE PRODUCTS.

A

THE IMAGE OF T H E COMPANY AS A LUXURY BRAND

SUFFERS FROM THESE PRODUCTS. Q SO GIVEN THAT, WHAT DOES LOUIS VUITTON DO TO

ADDRESS THE PROBLEM -- WHEN W E TALK ABOUT
"N O NGENUINE SALES " W E'R E TALKING ABOUT MERCHANDISE THAT LOUIS VUITTON H A S NOT MADE; IS THAT CORRECT?

A
Q

YES .

AND SO WHAT DOES L O U I S VUITTON DO TO T R Y T O

CURTAIL THE SALE OF SUCH M E R C H A N D I S E?

A

LOUIS VUITTON EMPLOYS WITHIN THE INTELLECTUAL

PROPERTY DEPARTMENT 40 PEOPLE FULLY DEDICATED O N THIS KIND O F I S S U E S MAINTAINING OUR R I G H T S A N D ENFORCING THEM . THIS TEAM OF 40 PEOPLE IS M A I N L Y B A S E D I N 166

U.S. COURT REPORTERS

Exhibit A, Page 15

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PARIS WITH LOCAL OFFICERS AROUND THE WORLD I N NEW YORK, BUENOS A I R E S, MULAN, DUBAI , HONG KONG, A N D TOKYO . Q

AND WHAT KIND O F B U D G E T DOES L O U I S VUITTON

ALLOCATE TO DEALING WITH THIS ISSUE ON AN A N N U A L
BASIS ?

A

AROUND 15 MILLION EUROS PER YEAR WHICH WOULD

BE MORE THAN $ 20 MILLION. Q TURNING T O YOUR OFFICES AND H O W D I D YOU LEARN

ABOUT LOUIS VUITTON DISTRIBUTION OF COUNTERFEITS? A
THERE ARE SEVERAL INFORMATION ABOUT LOUIS THE ONE

VUITTON DISTRIBUTION OF COUNTERFEITS. S O U R C E W E G E T IS BY OUR CUSTOMERS.

OUR CUSTOMERS

CAN REACH OUR CUSTOMER SERVICE DEPARTMENTS B Y PHONE CALL OR AN E-MAIL A N D THEY ACTUALLY DO SO VERY OFTEN A N D R E P O R T COUNTERFEIT SALES TO US. W E ALSO EMPLOY A N EXTERNAL SERVICE PROVIDER SPECIFICALLY FOR ONLINE DISTRIBUTION O F COUNTERFEITS. THIS COMPANY MAINTAINS THE DATABASE

F O R U S O F C O U N T E R F E I T W E B SITES AND THIS DATABASE IS UP DATED TWICE A M O N T H W H E R E N E W COUNTERFEIT WEB SITES A R E A D D E D. Q

AND H O W D O CUSTOMERS COMPLAINTS A B O U T O N L I N E

INFORMATION REACH YOUR OFFICE ?

A

THEY REACH OUR OFFICE VIA OUR CUSTOMER SERVICE 167

U.S. COURT REPORTERS

Exhibit A, Page 16

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DEPARTMENT. F O R EXAMPLE, WHEN A N E -MAIL IS RECEIVED BY T H E C SD, T H E C SD WILL R E P L Y T O T H E CUSTOMER AND WILL COPY O U R INTELLECTUAL PROPERTY DEPARTMENT TO T H E E -MAIL. Q RESPONSE T O THE CUSTOMER.

SO YOUR O F F I C E WOULD RECEIVE A COPY OF THE

RESPONSE BEING SENT TO THE CONSUMER ?

A
Q

YES .

AND DOES YOUR O F F I C E RETAIN THOSE REPORTS IN

THE NORMAL COURSE ?

A
Q

YES . DID Y O U TAKE -WE ALSO - - T H E R E A R E ALSO MANY CUSTOMERS W H O

A

COME TO THE S T O R E S A N D COMPLAIN ABOUT IT, IN THIS CASE THE S T O R E S THAT WOULD TRANSFER INFORMATION TO US . W E ALSO RECEIVE INFORMATION FROM A WIDE NETWORK OF AGENTS A N D INVESTIGATORS A N D LAWYERS

A R O U N D T H E WORLD WHO WORK WITH U S.
Q

AND W H Y D O CUSTOMERS COME INTO T H E L O U I S

VUITTON STORES TO COMPLAIN ABOUT N O NGENUINE

MERCHANDISE ? A
WELL, THAT H A S HAPPENED ON SEVERAL OCCASIONS

A N D I T'S BECOMING A REAL PROBLEM F O R L O U I S VUITTON
BECAUSE IT ACTUALLY DIVER T S O U R STAFF FROM SELLING 168

U.S. COURT REPORTERS

Exhibit A, Page 17

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PRODUCTS TO AUTHENTICATING GOODS . P E O P L E COME A N D MAKE PURCHASES ON THE INTERNET A N D T H I N K I N G THAT THEY HAVE PURCHASED AN

AUTHENTIC L O U I S VUITTON ITEM AND ACTUALLY THEY
RECEIVE A FAKE SO THEY COME I N T H E STORE AND THEY

A S K O U R STAFF TO AUTHENTICATE T H E PRODUCT .
VERY OFTEN T H E GOAL OF THIS

AUTHENTICATION IS TO A S K L O U I S VUITTON TO PROVIDE A
CERTIFICATE SO THAT THE CUSTOMER -- SO THAT THESE PEOPLE GET A REFUND FROM THEIR CREDIT CARD O R FROM COMPANIES SUCH AS P A Y P A L. Q I T H I N K B Y YOUR FEET THERE SHOULD BE A BINDER IF YOU COULD

OF V O L U M E 1 A N D I N I T EXHIBIT 74 .

TAKE A LOOK AT IT A N D I D E N T I F Y I T F O R US.

A

EXHIBIT 7 4 I S A RESPONSE V I A E -MAIL BY OUR

CUSTOMER SERVICE DEPARTMENT T O A LOUIS VUITTON CUSTOMER , A N D WE HAVE BEEN BLIND C O P I E D O N THIS E- MAIL. I N T H E HISTORY O F T H E E-MAIL WE ACTUALLY SEE THE ACTUAL COMPLAINT RECEIVED B Y THE LOUIS VUITTON CUSTOMER. Q

AND THIS IS THE TYPE OF CUSTOMER COMPLAINT

THAT YOU WERE DESCRIBING EARLIER THAT IS ROUTINELY C O P I E D, THE RESPONSE IS ROUTINEL Y C O P I E D TO YOUR OFFICE? 169

U.S. COURT REPORTERS

Exhibit A, Page 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A
Q

YES .

AND IT 'S A D O C U M E N T THAT IS RETAINED IN T H E

N O R M A L C O U R S E OF YOUR - -

A

YES .

M R. COOMBS :
EVIDENCE . T H E COURT:

I W O U L D MOVE EXHIBIT 74 INTO

A G A I N, IT' S N O T NECESSARY TO
IF

FORMALLY MOVE AS LONG A S T H E R E'S NO OBJECTION. Y O U KNOW THERE 'S A T E N D E R E D OBJECTION -- BUT OTHERWISE 7 4 I S I N EVIDENCE AND WILL B E DISPLAYED.

(WHEREUPON, PLAINTIFF'S EXHIBIT NUMBER 74 , HAVING BEEN PREVIOUSLY MARKED FOR IDENTIFICATION , WAS ADMITTED INTO EVIDENCE .)

M R. COOMBS :

I APOLOGIZE.

C A N YOU READ

T H E C O N S U M E R COMPLAINT THAT I S REFLECTED IN EXHIBIT 74 ? THE WITNESS: THIS CUSTOMER REPORTS THE

W E B SITE AT OZ B R A N D, AND IT 'S ONE OF T H E W E B SITES POSTED B Y THE DEFENDANTS FOR WHICH THEY HAVE BEEN NOTIFIED .

AND IT READS , " I A M SICK A N D T I R E D O F

COPIES O F YOUR PRODUCTS ." T H E COURT: YOU KEEP GOING . L E T ME INTERRUPT Y O U B E F O R E

IS THERE A W A Y TO ZOOM I N O N THAT 170

U.S. COURT REPORTERS

Exhibit A, Page 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

EXHIBIT SO WE CAN S E E WHAT IS BEING READ?

M R. COOMBS : M O M E N T, SIR .
T H E COURT:

IF YOU WOULD WAIT JUST A

A L L RIGHT.

G O A H E A D.

GO

AHEAD .
THE WITNESS: COPIES O F YOUR PRODUCTS . "I 'M SICK A N D TIRED OF IT' S DESTROYED YOUR B R A N D I DID FIND A B I G I T LOOKS LIKE FAKES ,

WHICH MY WIFE AND I LIKE A L O T. PRODUCER A N D S E L L E R IN CHINA.

A N D I HEREB Y GIVE YOUR THE W E B PAGE WHICH I FOUND
THROUGH ALIBABA.C O M. " Q HAVE Y O U FOLLOW ED THAT W E B SITE? YES .

A
Q

AND WHAT DO YOU KNOW ABOUT THAT W E B SITE?
THIS I S O N E OF THE W E B S I T E S ORIGINALLY B E F O R E

A

THE COMPLAINT THAT W E ORIGINALLY COMPLAINED ABOUT TO DEFENDANTS. Q WHAT I S THE OTHER REASONS THAT YOU DESCRIBE

REPORTS FROM YOUR OFFICE O F THE REPORTS O F ONLINE

MONITORING?
THAT WORKS?

C O U L D Y O U DESCRIBE FOR T H E JURY H O W

A

AS I SAID , L O U I S VUITTON IT H A S I T S OWN O N L I N E

OFFER OF GOODS THROUGH THE W E B SITE LOUISVUITTON.C O M. I T'S VERY IMPORTANT F O R U S THAT

THIS WEB SITE HAVE A GOOD RANKING O N S E A R C H ENGINES 171

U.S. COURT REPORTERS

Exhibit A, Page 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A N D THAT I T S POSITIONS ON SEARCH ENGINES SUCH A S
YAHOO , G O O G L E, A N D TWITTER IS N O T P O L L U T E D B Y T H E COUNTERFEIT MERCHANDISE . S O W E WOULD REGULARLY MONITOR SEARCH ENGINES BY ACQUIRING THEM, S E A R C H ENGINES OR S E A R C H TERMS SUCH AS LOUIS VUITTON A N D MAKE SURE THAT NEXT TO O U R W E B SITE THAT USUALLY APPEARS A T T H E FIRST POSITION THERE A R E N O O T H E R O F F E R S FOR COUNTERFEIT GOODS . I F T H E R E A R E SUCH, WE WOULD ACT AGAINST THEM AS A P R I O R I T Y. Q YOU MENTIONED THAT Y O U RECEIVE REPORTS FROM WHY

OUTSIDE VENDORS, INVESTIGATORS A N D SO FORTH. IS THAT?

D O YOU HAVE ANY UNDERSTANDING A S T O WHY

THEY BRING THOSE REPORTS T O YOUR ATTENTION?

A

WELL, AS I SAID , THEY A R E SERVICE PROVIDERS S O

SOME OF THEM WANT TO DO BUSINESS WITH US, A N D, THEREFORE, THEY T R Y TO BE NICE B Y SENDING US INFORMATION . Q

AND IS R O B H O L M E S AN INVESTIGATIVE A G E N C Y ONE

OF THOSE VENDORS THAT Y O U DEAL?

A
Q

YES .

AND H O W LONG HAVE YOU BEEN WORKING WITH

MR . H O L M E S ON THE INVESTIGATION WITH O N L I N E
INFRINGEMENT O F L O U I S VUITTON 'S PROPERTIES? 172

U.S. COURT REPORTERS

Exhibit A, Page 21

Exhibit A, Page 22

EXHIBIT B

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION

LOUIS VUITTON MALLETIER , S .A. , PLAINTIFF, V. AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __

) ) ) ) ) ) ) ) ) ) ) )

C -07 -03952 -JW A U G U S T 19, 2009 VOLUME 2 P A G E S 1 - 230

THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206

FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .)

24 25 OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1
Exhibit B, Page 23

U.S. COURT REPORTERS

1 2

A P P E A R A N C E S: (CONT' D) ALSO PRESENT: LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2
Exhibit B, Page 24

U.S. COURT REPORTERS

1 2 3 4 5 6 7 8 NIKOLAY LIVADKIN

INDEX OF PROCEEDINGS

DIRECT EXAMINATION P. 4 ( RESUMED) C R O S S-EXAMINATION P . 1 0 3 REDIRECT EXAMINATION P . 173 RECROSS -EXAMINATION P. 1 7 9 FURTHER REDIRECT P. 1 8 2

D E P O S I T I O N R E A D O F J U L I A N A L U K P. 186 INDEX OF EXHIBITS

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3
Exhibit B, Page 25

F O R T H E PLAINTIFF 'S: 75 .1

MARKED

ADMITTED 29

U.S. COURT REPORTERS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

OF COPYRIGHT I NFRINGEMENTS . HOWEVER , I N P R A C T I C E I T'S ALSO USED F O R THE IDENTIFICATION O F TRADEMARK IDENTIFICATIONS . Q

AND APPROXIMATELY HOW MANY OF THESE LETTERS

G E T SENT O U T O N A MONTHLY BASIS?

A
Q

A HUNDRED PLUS. AND C A N Y O U ESTIMATE FOR US T H E RATE OF

RESPONSE THAT YOU RECEIVED F O R T H E S E LETTERS IN TERMS OF SUCCESSFULLY R E M O V I N G T H E OFFERING THAT

ARE THE SUBJECT O F THE LETTERS? A
FOR LETTERS SENT T O U .S. BASED W E B H O S T S THIS SOMETIMES IT DOESN 'T

RATE IS ALMOST 10 0 PERCENT .

WORK FOR T H E F I R S T - - A T T H E FIRST ATTEMPT, BUT IT USUALLY WORKS WITH A FOLLOW-U P LETTER. Q

AND DO Y O U HAVE EXPERIENCE TRANSMITTING

SIMILAR DEMANDS T O WHOLESALERS O F INTERNET CAPACITY SUCH AS DEFENDANTS C L A I M T O B E HERE ?

A

I HAVE INDEED EXPERIENCE WITH NOTIFYING

COMPETITORS TO DEFENDANTS, A COMPANY THAT H A S Q U I T E SIMILAR ACTIVITY. Q

AND DO Y O U HAVE A SIMILAR R E S P O N S E T O T H O S E A S

Y O U HAVE H A D WITH DEFENDANTS, OR IS IT MORE GENERAL CONSISTENT PRACTICE THAT YOU HAVE HAD WITH DEFENDANTS?

A

WELL, IN THE BEGINNING W E HAVE H A D TROUBLE 19

U.S. COURT REPORTERS

Exhibit B, Page 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

OBTAINING ANY RESPONSE.

I T WAS A SIMILAR

EXPERIENCE TO THE O N E W E H A D WITH DEFENDANTS , HOWEVER, AFTER A FEW THREATENING LETTERS THEY STARTED COOPERATING WITH U S. Q

AND C A N Y O U DESCRIBE THE N A T U R E O F THAT

COOPERATION ?

A

WELL, THIS COMPANY H A S RESELLERS SUCH A S T H E

ONES THAT T H E DEFENDANTS HAVE SO WE WERE REFERRED TO T H E RESELLERS DIRECTLY. W E OBTAINED THE CONTACT

INFORMATION OF T H E RESELLERS AND WE SENT OUR NOTIFICATION DIRECTLY T O THEM . I N A F E W C A S E S, WE DID N O T RECEIVE A N Y COOPERATION FROM THE RESELLERS A N D WE ASKED THIS COMPANY TO DO SOMETHING ABOUT IT , A N D THEY A C T U A L L Y HELPED U S. THEY COOPERATED AND THEY - - I IMAGINE

THEY FORCED THEIR RESELLER TO C O M P L Y.

M R. LOWE:

EXCUSE M E.

EXCUSE M E.

IT

S O U N D S LIKE T H E WITNESS IS ABOUT TO SPECULATE. T H E COURT: SUSTAINED. THE JURY WILL IT WAS

D I SREGARD T H E ANSWER AFTER "I SUSPECT. "

INTERRUPTED BY T H E OBJECTION, B U T T H E R E WERE WORDS SAID ABOUT THE SUSPICIONS ABOUT WHAT O C C U R R E D, AND Y O U S H O U L D DIS REGARD THAT. G O AHEAD AND REASK ANOTHER QUESTION. BY MR . C O O M B S: 20

U.S. COURT REPORTERS

Exhibit B, Page 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q

COULD YOU S C R O L L DOWN .

AND WHAT NEXT D I D YOU

DO IN CONNECTION WITH W E N D Y9 2 9?

A

I'M SORRY .

I C A N N O T SEE .

I W O U L D HAVE TO

REFER TO T H E - Q HAVING DETERMINED THAT THE OFFERS WERE

COUNTERFEIT OR UNAUTHORIZED, WHAT D I D YOU DO NEXT WITH 929 ?

A

WELL, THE USUAL PROCEDURE W A S NOTIFY T H E

OPERATOR A N D T H E WEB HOST. Q COULD YOU PULL UP EXHIBIT 6 3.2 A N D A D V I S E

WHETHER THAT WAS PART O F YOUR FURTHER INVESTIGATION? I 'M SORRY. 6 4.2 .

A

THIS I S A DOMAIN TOOLS PRINTOUT O F OCTOBER

30 TH, 20 06 SHOWING THAT T H E W E B SITE W E N D Y9 2 9.N E T

A N D I T I S IDENTIFIED WITH DEFENDANTS A N D FOR A K A N O C
SOLUTIONS. Q

AND Y O U V E R I F I E D T H E IP ADDRESS U S I N G T H E

ALTERNATIVE MECHANISMS THAT YOU DESCRIBED EARLIER? A
Q THAT HAS BEEN DONE AND DOUBLE- CHECKED.

AND WHAT DID Y O U D O NEXT IN CONNECTION WITH

WENDY 929 ?

A
Q

I SENT NOTIFICATION T O T H E WEB HOST. I W O U L D A S K THE WITNESS TO LOOK A T EXHIBIT 60

A N D TELL US WHAT THAT I S? A
THIS I S A NOTIFICATION SENT TO MANAGED 69

U.S. COURT REPORTERS

Exhibit B, Page 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

T H E COURT: BY MR . C O O M B S: Q

SUSTAINED.

WHAT INVESTIGATION D I D Y O U DO IN RESPONSE TO

T H E INFRINGEMENTS THAT YOU DETERMINED EXISTED O N

ATOZBRAND.C O M? A
WELL, I T R I E D T O N O T I F Y THE -- I HAD NOTIFIED

THE OPERATOR AND I TRIED O N SEVERAL OCCASIONS T O N O T I F Y T H E WEB HOST MANAGED SOLUTIONS GROUP AND

A K A N O C A S T H E WEB SITE WAS M O V I N G FROM A SERVER ASSIGNED TO MANAGED SOLUTIONS GROUP TO I T S S E R V E R ASSIGNED TO A K A N O C, VICE V E R S A. A N D AS THERE WAS NO REACTION , I ASKED
YOUR OFFICE TO FILE A COMPLAINT AGAINST DEFENDANTS

MANAGED SOLUTIONS GROUP AND AKANOC.
Q I W O U L D A S K YOU TO TAKE A LOOK AT EXHIBIT 15

A N D A S K YOU IF THAT IS PART O F T H E DEMAND
CORRESPONDENCE THAT YOU JUST DESCRIBED ?

A
Q

YES .

AND D I D Y O U RECEIVE A N Y RESPONSE TO THAT

COMMUNICATION?

A
Q

NO.

AND SO Y O U SENT A FOLLOW -UP L E T T E R THEREAFTER ?
YES .

A
Q

AND I WOULD ASK Y O U T O LOOK AT EXHIBIT 17.

A N D I S THAT A COPY O F T H E FOLLOW -UP THAT WAS
79

U.S. COURT REPORTERS

Exhibit B, Page 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THINK YOU MENTIONED EARLIER THAT YOU RECEIVED A REPORT CONCERNING INFRINGEMENT A T THAT SITE.

A
Q

I'M SORRY .

ARE Y O U F A M I L I A R WITH T H E W E B SITE B A G9 2 5. COM ?
YES . I W O U L D A S K THE WITNESS TO LOOK A T EXHIBIT I S THAT A WEB SITE PRINTED O N O R A B O U T T H E

A
Q 72 .1.

DATE INDICATED ?

A

IT HAS BEEN PRINTED O U T ON OCTOBER 9 TH, 20 06 IT 'S A P R I N TO U T O F T H E WEB SITE

IN MY O F F I C E. B A G9 2 5.C O M. Q

AND WERE YOU ABLE TO DETERMINE WHETHER THE

PRODUCTS OFFERED WERE GENUINE ?

A
Q 73 .2.

THE PRODUCTS A R E N O NGENUINE . I W O U L D A S K THE WITNESS TO LOOK A T EXHIBIT

A

THIS I S A DOMAIN TOOLS PRINTOUT O N THE QUERY

F O R T H E BAG 925 .C O M PRINTED O U T O N OCTOBER 9T H, 20 06. I T TELLS U S THAT THE WEB SITE HAS BEEN POSTED B Y AKANOC SOLUTIONS , I N C. Q

AND Y O U SEPARATELY VERIFIED T H E I P ADDRESS

INDICATED I N T H E --

M R. LOWE:
T H E COURT:

OBJECTION, LEADING. SUSTAINED. 81

U.S. COURT REPORTERS

Exhibit B, Page 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MR . C O O M B S: Q DID Y O U D O A N Y T H I N G FURTHER TO V E R I F Y HOSTING

INFORMATION ?

A

I D O U B L E- CHECKED THIS INFORMATION BY NETSCAN

TOOLS . Q NETSCAN T O O L S. I WOULD A S K T H E WITNESS T O LOOK AT EXHIBIT 73. 1?

A

THIS I S A DOMAIN TOOLS PRINTOUT O F A

HISTORICAL CHECK FOR T H E HOSTING OF B A G9 2 5.C O M PRINTED OUT ON OCTOBER 3RD , 2 008 . Q

AND I WOULD ASK T H E WITNESS TO LOOK AT 73. 3.

THAT IS ANOTHER P R I N T O U T?

A

THAT'S ANOTHER PRINTOUT SHOWING T H E HOSTING I T HAS BEEN PRINTED OUT I N

HISTORY FOR B A G9 2 5.C O M.

MY O F F I C E O N JULY 24 TH, 20 08.
Q

AND IN RESPONSE TO YOUR INVESTIGATION, WHAT

D I D Y O U DO NEXT I N T E R M S O F ADDRESSING T H E SALE OF N O NGENUINE MERCHANDISE? I D O N'T MEAN AFTER THE

73 .3, B U T A F T E R Y O U DETERMINED THAT THERE W A S N O NGENUINE MERCHANDISE, WHAT ACTION D I D YOUR OFFICE TAKE?

A
Q 2.

I CONTACTED THE W E B O P E R A T O R A N D THE HOST.

AND I WOULD ASK T H E WITNESS TO LOOK AT EXHIBI T
I S THAT A COPY O F T H E FOLLOW UP OF T H E HOST F O R 82

U.S. COURT REPORTERS

Exhibit B, Page 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

WE FOLLOWED UP WITH A MORE F O R M A L L E T T E R AND NO RESPONSE . THIS WEB SITE HAS ALSO MOVED SEVERAL TIMES AND HAS CHANGED SEVERAL TIMES AND THE RANGE

ASSIGNED TO T H E DEFENDANTS .
Q

AND I WOULD ASK T H E WITNESS TO LOOK AT EXHIBIT

5 THAT HAS BEEN IDENTIFIED .

A

THIS I S A F O L L O W-U P L E T T E R SENT O N M A R C H 1 9TH ,

20 07 SENT T O AKANOC SOLUTIONS , I N C. , ASKING THEM T O RESPOND TO OUR FEBRUARY 21 ST, 20 07 LETTER . Q

AND Y O U R E C E I V E D N O R E S P O N S E T O THAT

COMMUNICATION?

A
Q

NO, I DIDN'T . I W O U L D A S K THE WITNESS -- DO YOU STILL HAVE

EXHIBIT 159 8?

A
Q

YES . THOSE ARE T H E FIVE -- WE JUST TALKED ABOUT T H E

FIVE WEB SITES THAT ARE INDICATED A T T H E TOP ; CORRECT?

A
Q

YES . DID LOUIS VUITTON CONTINUE TO IDENTIFY WEB

SITES INFRINGING LOUIS VUITTON INTELLECTUAL PROPERTIES ON SERVERS THAT Y O U DETERMINED WERE OWNED BY T H E DEFENDANTS ?

A

YES . 85

U.S. COURT REPORTERS

Exhibit B, Page 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q 15 98?

AND A R E T H O S E REPORTS REFLECTED I N EXHIBIT

A
Q

YES . YOU HAVE NO KNOWLEDGE OF T H E S P E C I F I C A C T I O N,

IF A N Y, WAS TAKEN IN RESPONSE TO T H E NOTICES THAT WERE TRANSMITTED --

M R. LOWE:
LEADING. T H E COURT: BY MR . C O O M B S: Q

EXCUSE M E.

OBJECTION.

SUSTAINED.

IS THIS - - Y O U MENTIONED EARLIER THIS D O C U M E N T

W A S INACCURATE IN RESPECT TO THE FIRST FIVE WEB SITES LISTED O N THE EXHIBIT. IS IT INACCURATE IN

ANY OTHER RESPECTS? A
YES , I T'S -- IT GIVES US A LIST O F D O M A I N

NAMES A N D A DATE ON WHICH THE DEFENDANTS HAVE RECEIVED THEIR NOTIFICATION FROM OUR PART , HOWEVER , T W O O F T H E DATES DID N O T CORRESPOND TO A C T U A L NOTIFICATION. Q WHICH DATES WERE T H O S E?

A
Q

MARCH 1ST , 2 008 W A S A REQUEST FOR PRODUCTION. ACTUALLY THERE IS NO MARCH 1ST .
DO YOU MEAN

JANUARY 1ST ?

A
Q

OR JANUARY 3 RD, 20 08. THIS D O C U M E N T W A S NOT PREPARED BY Y O U; IS THAT 86

U.S. COURT REPORTERS

Exhibit B, Page 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q

WHAT ARIN REPORTS ARE Y O U TALKING ABOUT ? I'M TALKING ABOUT IP WHOIS REPORTS O B T A I N E D

A

FROM ARIN. Q IS THERE AN EXHIBIT THAT WE HAVE SEEN T O D A Y

THAT CAME FROM ARIN?

A
Q

TODAY?

N O.

IN FACT, YOU HAVEN 'T PRESENTED A N Y ARIN

REPORT, HAVE Y O U?

A
Q

I BELIEVE THERE ARE MANY WITHIN THE EXHIBITS. HAVE W E SEEN A N Y O F THEM IN THIS TRIAL? YOU HAVEN 'T DIRECTED ME TO ANY OF THEM.

A
Q

AND YOUR COUNSEL HASN 'T EITHER ; I S THAT RIGHT ?
NO, BECAUSE THE D O M A I N T O O L S R E P O R T ARE

A

PROVIDING THE SAME INFORMATION.

M R. LOWE:
YOUR HONOR. T H E COURT: PLAINTIFF'S COUNSEL?

I THINK THAT'S A L L I HAVE,

A N Y QUESTIONS FROM THE

M R. COOMBS :

YOUR H O N O R, JUST A COUPLE

THAT WILL HOPEFULLY HELP CLARIFY . FURTHER REDIRECT EXAMINATION BY MR . C O O M B S: Q YOU INDICATED THAT LOUIS VUITTON HAS A -- HAS

W O R K E D O U T A W A Y OF DEALING WITH T H E R E S E L L E R SITUATION THROUGH SOFT LAYER WHICH YOU UNDERSTAND 182

U.S. COURT REPORTERS

Exhibit B, Page 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

TO HAVE A SIMILAR SORT OF RELATIONSHIP WITH ITS CUSTOMERS T O THE RELATION THAT THE DEFENDANT HAS WITH ITS CUSTOMERS?

A

WELL, ACTUALLY WE FOUND OUT THAT SOME O F THEM

RESELLERS O R DOWNSTREAM PROVIDERS FOR SOFT LAYER

A R E T H E SAME A S SOME OF T H E DOWNSTREAM PROVIDERS O F
DEFENDANTS. Q

AND DOES SOFT L A Y E R PROVIDE INFORMATION THAT

A L L O W S Y O U TO CONTACT T H E DOWNSTREAM P R O V I D E R
DIRECTLY ?

A

SOFT L A Y E R H A S PROVIDED TO ARIN W H O I S - - H A S

PROVIDED IN ARIN WHOIS IP REPORT SUFFICIENT INFORMATION ALLOWING US TO CONTACT DIRECTLY THE DOWNSTREAM PROVIDER OR THE RESELLER . Q SO INSTEAD O F H A V I N G ABUSE@ SOFTLAYER .C O M A S A

CONTACT IN THAT CONTEXT , I T W O U L D HAVE AN E- MAIL SPECIFIC TO T H E DOWNSTREAM PROVIDER ?

A
Q

YES .

AND WHEN YOU COMMUNICATE WITH THE DOWNSTREAM

PROVIDER , YOU COMMUNICATE WITH THEM THE SAME WAY Y O U HAVE TESTIFIED T O EARLIER TODAY IN TERMS OF DEALING WITH I S P' S?

A

YES , W E W O U L D ADDRESS -- E X C U S E M E - - W E W O U L D

ADDRESS OUR NOTIFICATION D I R E C T L Y T O T H E DOWNSTREAM
PROVIDER . 183

U.S. COURT REPORTERS

Exhibit B, Page 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DOWN.

W E W O U L D COPY SOFT LAYER TO THE E- MAIL

A N D I F O U R LETTER IS IGNORED BY THE DOWNSTREAM
PROVIDER OR T H E R E S E L L E R, WE WOULD ADDRESS T H E SITUATION D I R E C T L Y WITH T H E SOFT LAYER A N D THAT 'S USUALLY ENOUGH TO SOLVE T H E PROBLEM . Q THANK YOU . I HAVE NO FURTHER QUESTIONS. T H E COURT: VERY WELL. Y O U MAY STEP

THE WITNESS: T H E COURT:

THANK Y O U. CALL YOUR NEXT WITNESS .

M S. WANG:

YOUR HONOR, O U R NEXT WITNESS

WILL BE JULIANA L U K, A N D W E'L L B E READING IT . T H E COURT: IT RESPONSIVELY? VERY WELL, Y O U'R E G O I N G T O D O

SOMEONE WILL READ THE QUESTION

AND SOMEONE WILL READ THE ANSWER ? M S. WANG:
T H E COURT: Y E S. SOMETIMES THE CASE IS THAT

T H E WITNESS IS N O T HERE A N D T H E DEPOSITION WILL BE READ TO YOU OF THAT WITNESS. TO HAVE YOU F O L L O W

THAT, RATHER THAN HAVING T O HAVE Y O U S A Y QUESTION

A N D A N S W E R AND READ IT, SOMEONE IS GOING TO STAND AT T H E WITNESS STAND A N D READ T H E A N S W E R AND
SOMEONE WILL STAND A T THE MICROPHONE AND READ THE QUESTION . 184

U.S. COURT REPORTERS

Exhibit B, Page 36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q

AND WHEN YOU S A Y, "I UNPLUG IT ," YOU SEND AN

E- MAIL T O SOMEONE AT A K A N O C T O U N P L U G?

A
Q

TO THE SUPPORT DEPARTMENT. TO SOMEONE A T T H E SUPPORT DEPARTMENT TO U N P L U G

THAT SPECIFIC IP ADDRESS?

A
Q

YES .

AND WHAT KINDS OF SITUATIONS W O U L D Y O U DISCUSS

WITH STEVE IN YOUR J O B AT AKANOC ?

A

MASSIVE SPAMMING, FRAUD EBAY S I T E S, MICROSOFT

COPYRIGHT INFRINGEMENT. Q DO YOU KNOW IF STEVE EVER R E S P O N D S T O E -MAILS

THAT ARE SENT TO THOSE ACCOUNTS?

A
Q

HE DOES.

ARE THERE A N Y K I N D S O F COMPLAINTS THAT YOU

FORWARD ON TO STEVE FOR HANDLING ?

A
Q

I D O N' T REMEMBER. IS STEVE THE ONLY OTHER PERSON W H O H A S ACCESS

TO T H E A C C O U N T S THAT Y O U H A N D L E FOR A K A N O C?

A
Q

I D O N' T KNOW . YOU SAID SOMETHING ABOUT MICROSOFT COPYRIGHT

INFRINGEMENT COMPLAINTS ?

A
Q

YES . WAS THERE SOMETHING S P E C I F I C A B O U T T H O S E

COMPLAINTS THAT Y O U FELT Y O U NEEDED TO SPEAK TO STEVE ABOUT ? 194

U.S. COURT REPORTERS

Exhibit B, Page 37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A

MICROSOFT IS SO B I G S O I THINK IT 'S JUST
I D O N'T KNOW. WERE THERE ANY OTHER COMPLAINTS

SERIOUS. Q

THANK YOU .

FROM COMPANIES REGARDING COPYRIGHT INFRINGEMENT OR TRADEMARK INFRINGEMENT THAT Y O U FELT R E Q U I R E D, YOU KNOW, A DISCUSSION WITH STEVE OR A N Y O N E ELSE AT

AKANOC? A
Q NO. IT WAS JUST THE MICROSOFT COMPLAINTS ?

A
Q

AND T H E EBAY .
SO YOU H A D S T A T E D THAT Y O U TALKED TO STEVE

ABOUT FRAUD EBAY COMPLAINTS AND MICROSOFT COPYRIGHT
INFRINGEMENT COMPLAINTS ?

A
Q

YES .

AND IS THERE A N Y O T H E R R E A S O N WHY Y O U S P O K E T O

HIM ABOUT THESE COMPLAINTS SPECIFICALLY?

A
B I G. Q

BECAUSE I KNOW MICROSOFT AND EBAY , THEY ARE

AND IS THAT THE ONLY REASON THAT YOU T A L K E D T O

STEVE ABOUT THESE COMPLAINTS?

A
Q

YES .

AND DO Y O U EVER READ THE COMPLAINTS?
I D O N' T READ T H E W H O L E COMPLAINT LETTER . I

A

ONLY TRY TO FIND THE D O M A I N NAME A N D T H E IP ADDRESS SO I CAN FORWARD TO THE CUSTOMER . 195

U.S. COURT REPORTERS

Exhibit B, Page 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A
Q

I D O N' T KNOW . DID Y O U EVER REQUIRE ANY O N E O F YOUR CUSTOMERS

TO DO SOMETHING O T H E R THAN RESOLVE IT WITHIN 24 HOURS ?

A
Q

NO. WOULD YOU EVER CHECK TO MAKE SURE THAT THEY

COMPLIED WITH YOUR REQUEST THAT THEY RESOLVED THE PROBLEM WITHIN 24 HOURS ?

A
Q

NO. DID Y O U EVER R E V I E W A N Y WEB SITE CONTENT T O

MAKE SURE THAT SOMETHING THAT SOMEONE WAS
COMPLAINING ABOUT WAS REMOVED ?

A
Q

NO. DID Y O U EVER CHECK TO S E E I F A W E B SITE THAT

WAS THE SUBJECT O F A COMPLAINT HAD MOVED FROM ONE IP ADDRESS TO ANOTHER I P ADDRESS W I T H I N T H E BLOCK

ASSIGNED TO A K A N O C? A
Q NO.

ARE Y O U F A M I L I A R WITH T H E $ 25 PENALTY F O R

VIOLATION O F YOUR AGREEMENTS WITH THE CUSTOMERS ?

A
Q

YES .

AND WHEN WAS THAT PENALTY E N F O R C E D?
I D O N' T T H I N K - - I T N E V E R ENFORCED. DO YOU KNOW WHEN I T W A S SUPPOSED TO BE

A
Q

ENFORCED ? 201

U.S. COURT REPORTERS

Exhibit B, Page 39

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

E- MAIL ADDRESS ?

A
Q

YES .

AND HAVE YOU SEEN THIS L E T T E R BEFORE ?
NO. YOU D O N'T R E C A L L EVER S E E I N G T H E LETTER ? NO, I DON 'T THINK SO. WHEN Y O U SEND M E S S A G E S T O O T H E R P E O P L E, IS

A
Q

A
Q

YOUR "FROM" ADDRESS SECURITY@ AKANOC .C O M?

A
Q

YES .

ASK T H E WITNESS TO R E V I E W EXHIBIT 31 ATTACHED

TO T H E DEPOSITION OF S T E V E N CHEN AN E- MAIL BETWEEN STEVE CHEN AND SECURITY DATED ON OR ABOUT SEPTEMBER 12 TH, 20 07?

A
Q CHEN?

YES . DO YOU R E C A L L R E C E I V I N G THIS E -MAIL FROM S T E V E

A
Q

I D O N' T R E M E M B E R, NO.

AND IF T H E WITNESS C A N R E V I E W THE MESSAGE

BEGINNING " THE RULE IS VERY C L E A R, WHEN W E HAVE A COMPLAINT WITH CERTAIN WEB SITE, THAT WEB SITE NEEDS TO BE O U T O F O U R NETWORK," A N D O N U N T I L T H E SIGNATURE STEVEN. D O Y O U REMEMBER EVER RECEIVING ANY KIND OF E- MAIL LIKE THIS FROM M R. CHEN?

A

I D O N' T REMEMBER. 209

U.S. COURT REPORTERS

Exhibit B, Page 40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q

DID STEVE EVER GIVE Y O U ANY INSTRUCTION LIKE

THIS AS STATED IN THIS E-MAIL ?

A
Q

YES .

AND H O W O F T E N W A S THAT?
VERY SELDOM.

A
Q

AND WHAT WAS THAT IN REGARD TO ? MICROSOFT , EBAY , P A Y PAL SITES .
I'M SORRY . WAS IT YOUR TESTIMONY THAT YOU D I D

A
Q

NOT RECEIVE ANY COMPLAINTS FROM LOUIS VUITTON O R THAT YOU COULD N O T R E M E M B E R I F Y O U RECEIVED ANY COMPLAINTS FROM LOUIS VUITTON ?

A
Q

TO ME NEVER SEEN T H O S E LETTERS . WHEN YOU SAID THOSE LETTERS , YOU MEAN THE

LETTERS THAT I S H O W E D Y O U OR ANY LETTERS FROM L O U I S VUITTON?

A
Q

ANY .
I W O U L D A S K THE WITNESS TO REVIEW EXHIBIT 38

ATTACHED TO T H E DEPOSITION OF S T E V E N CHEN WHICH APPEARS TO BE AN E-MAIL BETWEEN SECURITY AND STEVE
CHEN DATED SEPTEMBER 14 TH, 20 07. D O Y O U RECALL RECEIVING THIS E- MAIL FROM STEVE CHEN?

A
Q

YES . ON THE FIRST PAGE OF THE EXHIBIT THERE' S A

MESSAGE THAT I T I S A N I P ADDRESS AND I T SAYS
210

U.S. COURT REPORTERS

Exhibit B, Page 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SERVER?

A
Q

YES .

AND W A S THAT BECAUSE THE CUSTOMER F A I L E D T O

RESPOND TO THE COMPLAINT O N SEPTEMBER 12, 20 07?

A
Q

YES .

AND D I D Y O U HAVE T O A S K STEVE OR ANYBODY ELSE

BEFORE YOU MADE THE REQUEST T O HAVE THIS SERVER UNPLUGGED?

A

REGARDING TO MICROSOFT O R E BAY OR P A Y P A L

A R O U N D THAT TIME EVEN T H E COUNTERFEIT WEB SITE I
CAN UNPLUG. Q DID Y O U D O THAT ON A REGULAR B A S I S? NOT ON A REGULAR B A S I S BECAUSE USUALLY I W O U L D S O I F H E UNPLUGGED, THEN I

A

CC COPY TO MR. CHEN.

D O N'T HAVE TO TAKE A N Y ACTION . Q BUT W A S I T YOUR PROCEDURE, STANDARD PROCEDURE

TO U N P L U G T H E COUNTERFEIT WEB SITE?

A
Q

AT THAT TIME , Y E S. AND DO Y O U S T I L L U N P L U G COUNTERFEIT WEB SITES

AS Y O U D E S C R I B ED? A
Q YES . SO BEGINNING A R O U N D SEPTEMBER OF 200 7 A L L OF

T H E W A Y TO THE PRESENT --

A
Q

YES . -- WHEN Y O U RECEIVE A COMPLAINT REGARDING 221

U.S. COURT REPORTERS

Exhibit B, Page 42

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

COUNTERFEIT W E B S I T E S, YOU U N P L U G T H O S E?

A

I W O U L D S T I L L SEND A COMPLAINT TO T H E

CUSTOMER , C C COPY TO MR . CHEN A N D THEN M O S T L Y I WOULD LEAVE IT TO H I M BECAUSE I DON 'T -- I ONLY WORK PART-TIME . IF I H A P P E N TO KNOW THAT T H E

CUSTOMER DIDN' T COMPLY, THEN I WILL UNPLUG I T B U T

MOSTLY I D O N'T .
T H E COURT: H O W MUCH MORE DO Y O U HAVE ?

IT S O U N D S LIKE Y O U A R E GOING TO NEED A L I T T L E MORE TIME. I T L O O K S LIKE THERE 'S ABOUT TEN PAGES .

M S. WANG:
PAGES . T H E COURT:

ACTUALLY I HAVE THREE MORE

THEN L E T'S F I N I S H THIS UP SO

WE D O N'T HAVE TO LOOK FORWARD TO C O M I N G BACK A N D LISTENING. BY MS . WANG : Q WHAT D O Y O U MEAN B Y I F Y O U HAPPEN TO KNOW THAT

T H E C U S T O M E R D I D NOT REPLY ?

A

FOR EXAMPLE, IF ANOTHER COMPLAINT IS C O M I N G

UP , I MEAN A L O T OF COMPLAINTS C O M I N G IN, THEN I KNOW THAT H E - - T H E CUSTOMER DIDN'T COMPLY.

AND TO

MICROSOFT A N D EBAY A N D PAY P A L, THESE COMPANY I
KNOW THEY A R E VERY B I G, Y O U KNOW , A N D SO I W O U L D S E E I F THEY H A D A N Y COMPLAINT COMING I N O R N O T. SOMETIMES EBAY W O U L D COME IN -- W I T H I N 222

U.S. COURT REPORTERS

Exhibit B, Page 43

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

T W O DAYS THEY WILL SENT ME T W O COMPLAINTS W I T H I N T W O DAYS THEN I KNOW THAT THE CUSTOMER DIDN' T COMPLY S O I WILL SHUT THEM DOWN. Q WHEN Y O U TALK A B O U T MICROSOFT AND EBAY AS

THESE BIG COMPANIES, WOULD YOU CONSIDER LOUIS VUITTON A BIG COMPANY A S WELL ?

A
Q

I D O N' T KNOW . HAVE YOU EVER HEARD O F LOUIS VUITTON ? NO. HAVE Y O U EVER H E A R D O F L V? YEAH, FROM M Y DAUGHTER. WHAT D O Y O U KNOW A B O U T L V? FROM M Y D A U G H T E R S A Y I N G THAT S H E LIKES -- IS SOMETHING LIKE THAT? I DON 'T KNOW.

A
Q

A
Q

A

IT HANDBAGS ?

I NEVER BUY THAT. Q THE O N E PAGE E- MAIL D A T E D A U G U S T 28T H FROM

SECURITY TO RE BOOT@A K A N O C. COM , D I D YOU SEND THAT E- MAIL?

A
Q

YES . IT READS THAT D U E TO FAILURE T O RESPOND TO YOU

NOTICES OVER 4 8 H O U R S, PLEASE CONFIRM AND TK S.

TESTIFIED EARLIER THAT YOU USUALLY GIVE P E O P L E A 1 2 HOUR RESPONSE TIME AND SOMETIMES YOU GIVE THEM LONGER LIKE 48 HOURS ?

A

IF I RECEIVE MORE COMPLAINTS A F T E R 1 2 H O U R S O R 223

U.S. COURT REPORTERS

Exhibit B, Page 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ABOUT WANTING TO KNOW W H I C H COMPANY WERE
COMPLAINING A N D YOUR RESPONSE TO BE THAT SHE DIDN' T KNOW WHO W A S C O M P L A I N I N G?

A
Q

I UNDERSTAND THAT. OKAY. IS THERE AN INSTANCE WHERE Y O U D I D NOT

FORWARD THE COMPLAINT O N T O T H E CUSTOMER?

A

I FORWARDED IT.

THEY D O N'T UNDERSTAND.

I T'S

THEIR PROBLEM.

THEY D O N'T UNDERSTAND WHAT I 'M

FORWARDING TO THEM. Q OKAY. SO IN THIS INSTANCE YOU H A D FORWARDED

T H E COMPLAINT THAT Y O U HAD RECEIVED TO NORAQ , A N D S H E W R O T E BACK TO Y O U THAT S H E W A N T E D TO KNOW W H I C H COMPANY WAS COMPLAINING ; I S THAT CORRECT?

A
Q

YES .

AND THEN IN YOUR E -MAIL YOU WROTE , I T D O E S N'T
CAN YOU TELL M E WHAT THAT

MATTER WHO COMPLAINED.

MEANS IN REFERENCE T O THIS CONVERSATION? A
WELL, JUST A N ANSWER. S H E WANTS TO KNOW O R

WHICH COMPANY IS COMPLAINING AND I JUST TELL H E R, IT DOESN 'T MATTER .

ALL Y O U HAVE TO DO IS TO R E M O V E

ALL O F THE COMPLAINT WEB SITES O R DOMAINS .
Q DO YOU TREAT SPAMHAUS COMPLAINTS DIFFERENTLY

THAN OTHER COMPLAINTS?

A
Q

YES .

AND H O W I S THAT ?
225

U.S. COURT REPORTERS

Exhibit B, Page 45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A
Q

BECAUSE I 'M INSTRUCTED T O D O S O. WHAT A R E YOU INSTRUCTED TO DO? WHENEVER SPAMHAUS SENDS US A COMPLAINT, WE

A

JUST UNPLUG T H E S E R V E R AND D I SCONTINUE T H E SERVICE TO T H E C U S T O M E R. Q NOW , I S EXHIBIT 50 AN E- MAIL D A T E D SEPTEMBER

15 TH, 20 07 FROM S E C U R I T Y T O SUPPORT @TOOMING. COM ? CAN YOU PLEASE REVIEW THAT ?

A
Q

YES . OKAY. D I D Y O U WRITE THIS E -MAIL STARTING WITH

"DEAR S I R"?

A
Q

YES . I'M SORRY . WHEN Y O U WRITE SOMETHING LIKE THE

SECOND NOTE FROM THIS COMPLAINANT, DOES THAT MEAN YOU RECEIVED A PRIOR COMPLAINT FROM THE CUSTOMER W I T H I N T H E PAST T W O OR THREE DAYS FROM SEPTEMBER 15 TH?

A
Q

YES .

AND IT W R I T E S " MAKE SURE Y O U KEEP A L L O F T H E

RECORDS SO THAT I F T H E AUTHORITIES NEEDS EVIDENCE, WE C A N PROVIDE THEM, " WHAT D I D Y O U MEAN B Y THAT ?

A
Q

INSTRUCTION FROM S T E V E. STEVE HAD TOLD YOU TO WRITE THAT TO THE

CUSTOMER ?

A

YES , REGARDING FRAUD OR IDENTITY THEFT. 226

U.S. COURT REPORTERS

Exhibit B, Page 46

Exhibit B, Page 47

EXHIBIT C

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION

LOUIS VUITTON MALLETIER , S .A. , PLAINTIFF, V. AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __

) ) ) ) ) ) ) ) ) ) ) )

C -07 -03952 -JW A U G U S T 20, 2009 VOLUME 3 P A G E S 1 - 267

THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206

FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .) OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1
Exhibit C, Page 48

U.S. COURT REPORTERS

1 2

A P P E A R A N C E S: (CONT' D) ALSO PRESENT: LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2
Exhibit C, Page 49

U.S. COURT REPORTERS

1 2 3 4 5 6 MICHAEL WILSON 7 8 9 ROBERT HOLMES

INDEX OF PROCEEDINGS

D I R E C T EXAMINATION P. 11 C R O S S-EXAMINATION P . 3 8 REDIRECT EXAMINATION P . 8 4

D E P O S I T I O N R E A D O F S T E V E N C H E N P. 87 D I R E C T EXAMINATION P. 167 C R O S S-EXAMINATION P . 1 9 6 REDIRECT EXAMINATION P . 253 RECROSS -EXAMINATION P. 2 5 9 INDEX OF EXHIBITS

10 I D E N T. 11 12 13 14 15 16 17 18 19 97 .2, 1 0 9 4 9 1 20 21 22 23 24 25 3
Exhibit C, Page 50

EVIDENCE

FOR THE PLAINTIFF : 65 , 8 1, 116 , 1 2 8, 1 4 1, 173 , 1 8 5, 1 9 5, 210 , 5 8 4, 5 8 6, 588 & 590 94 , 9 5.3 , 9 5.4 , 9 5.5 , 9 8.3 , 9 9.3 , 99 .4, 99 .5, 1 6 9, 160 , 1 6 0. 1, 160 .2, 1 6 1, 162 .1, 1 6 2.2 , 1 6 3, 1 6 4, 164 .1, 6 1 4.2 , 1 6 5, 1 6 6, 166 .1, 1 6 6.2 , 2 1 2, 2 1 3.2 , 2 1 3. 3, 213 .4, 2 8 6, 287 , 2 8 7. 1, 2 8 7.2 , 3 5 3, 3 5 3.1 , 3 5 3. 2, 356 , 3 5 7, 3 5 7.1 , 3 6 0, 3 6 1, 361 .1, 3 6 1.2 , 4 0 2, 4 0 3, 403 .1, 4 0 3.2 , 4 0 4, 4 0 5, 405 .1, 4 0 5.2 , 4 0 6, 4 0 6.1 A N D 4 0 6. 2 25

31 35

U.S. COURT REPORTERS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q

WOULD HE FORWARD I T T O T H E CUSTOMER OR TO

JULIANA LUK F O R H A N D L I N G?

A
Q

FORWARD I T T O S E C U R I T Y@A K A N O C.

AND DO Y O U HAVE A N Y R E A S O N TO DISPUTE THAT A N Y

OF T H E LETTERS M A R K E D A S E X H I B I T S 1 , 2 , 3 , A N D 4 WERE AT ANY TIME RECEIVED BY AKANOC ?

A
Q

I JUST NEVER SEEN IT. BUT DO Y O U HAVE A N Y R E A S O N TO DISPUTE I T THAT

THEY WERE ACTUALLY RECEIVED?

A
Q

NO.

AND DO Y O U HAVE A N Y R E A S O N TO DISPUTE THAT T H E

SITES REFERRED TO IN THOSE LETTERS WERE I N FACT H O S T E D O N SERVERS AT A K A N O C'S FACILITY ?

A

WE -- I DEFINITELY HAVE NO IDEA W H E R E T H O S E

W E B S I T E S POINTED TO AT THAT TIME. Q I'L L MARK AS 6 A L E T T E R DATED APRIL 20, 20 07

A N D A S K THE WITNESS IF HE HAS SEEN THAT. A
Q I HAVE NO RECOLLECTION O F THIS .

AND WOULD Y O U HAVE A N Y W A Y OF DETERMINING

WHETHER OR NOT THIS LETTER W A S, IN FACT, RECEIVED BY Y O U O N O R A B O U T T H E DATED IT BEARS?

A

I REMEMBER I RECEIVED ONE O F THIS FROM YOUR

O F F I C E A N D I TOOK IT TO T H E O F F I C E AND SINCE IT 'S CONCERNING AKANOC , S O I P R E T T Y MUCH JUST PUT IT IN THE PILE . 129

U.S. COURT REPORTERS

Exhibit C, Page 51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q

SO WHEN Y O U SAY Y O U TOOK IT TO T H E O F F I C E,

THAT' S BECAUSE T H E O N O N D A G A D R I V E S IS YOUR HOME

ADDRESS? A
Q THAT'S CORRECT.

AND SO DO Y O U R E C A L L RECEIVING A LETTER AT

YOUR HOME?

A
Q

YES . CONCERNING LOUIS VUITTON ? YES . WHEN Y O U SAY Y O U TOOK IT TO YOUR OFFICE A N D

A
Q

P U T I T O N A PILE, WHAT DOES THAT MEAN?

A
Q

I MEAN P U T I T O N T H E DESK. WHOSE DESK? THAT PARTICULAR -- THAT EMPTY DESK I W A S

A

TALKING ABOUT BECAUSE THAT W A S, AT THE TIME THAT W A S T H E PLACE THAT W E P U T ALL OF THIS TY P E O F LETTERS. Q

AND TO YOUR KNOWLEDGE WHAT HAPPENED WITH T H E

L E T T E R A F T E R Y O U PUT IT ON T H E DESK ?

A

THERE WERE - - THERE WERE TOO MANY PEOPLE

TRYING T O SHARE THE WORKLOAD OVER THERE S O I HAVE NO IDEA. Q OKAY. TO T H E E X T E N T THAT I UNDERSTAND THAT

Y O U C A N' T S A Y WHAT HAPPENED WITH THIS LETTER , B U T IN TERMS OF A K A N O C'S POLICIES A N D PROCEDURES , WHAT 130

U.S. COURT REPORTERS

Exhibit C, Page 52

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S H O U L D HAVE HAPPENED WITH THE L E T T E R A F T E R I T W A S P U T O N T H E DESK?

A

WE -- VERY, VERY S E L D O M THAT W E RECEIVE

COMPLAINT THROUGH E- MAIL, I MEAN , THROUGH REGULAR

MAILS .

SO MOST O F T H E ABUSE ISSUES WERE ALL SO THIS TYPE OF

REVOLVED IN T H E E -MAIL FORMAT .

E- MAILS -- I MEAN , THROUGH REGULAR MAILS -- I MEAN , LETTERS ACTUALLY SOMETHING FROM, LIKE, THINGS LIKE SUBPOENA WE NEED TO RESPOND, OR SOMETHING LIKE COME IN FROM LEGAL AUTHORITY , W E NEED TO RESPOND. BUT

GENERAL COMPLAINTS, WE JUST D O N' T HAVE A LOT OF EXPERIENCE WITH I T A N D WE DON 'T HAVE A N Y MECHANISM TO TAKE CARE O F L E T T E R COMPLAINTS. Q SO THERE WAS NO REAL POLICY TO H A N D L E - T H E COURT: L E T ME INTERRUPT Y O U. IT

DIDN' T S O U N D Y O U WERE G O I N G T O F I N I S H IN A M I N U T E OR T W O A N D YOU PROMISED US AN HOUR AND WE 'VE BEEN GOING FOR ABOUT 4 5 MINUTES . L E T' S TAKE A LUNCH BREAK, A N D W E'L L COME BACK AT 1:0 0 O 'CLOCK . ( WHEREUPON , T H E LUNCH RECESS W A S T A K E N.)

131

U.S. COURT REPORTERS

Exhibit C, Page 53

Exhibit C, Page 54

EXHIBIT D

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION

LOUIS VUITTON MALLETIER , S .A. , PLAINTIFF, V. AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __

) ) ) ) ) ) ) ) ) ) ) )

C -07 -03952 -JW A U G U S T 21, 2009 VOLUME 4 P A G E S 1 - 208

THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206

FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .) OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1
Exhibit D, Page 55

U.S. COURT REPORTERS

1 2

A P P E A R A N C E S: (CONT' D) ALSO PRESENT: LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2
Exhibit D, Page 56

U.S. COURT REPORTERS

1 2

INDEX OF PROCEEDINGS FOR THE DEFENDANTS:

3 4 STEVEN CHEN 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3
Exhibit D, Page 57

DIRECT EXAMINATION P. 5 C R O S S-EXAMINATION P . 1 6 5

U.S. COURT REPORTERS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THIS R O W DOWN HERE ON THIS C H A R T REPRESENTS RESELLERS OF SERVICES ; I S THAT RIGHT ?

A
Q

YES . HOW DOES THIS WORK THEN FOR SOMEBODY USING

YOUR SERVERS GOING T O SOMEBODY DOING BUSINESS WITH YOUR RESELLERS ?

A

I D O N' T REALLY KNOW T H E I R RELATIONSHIP, B U T I

TURN OVER M Y SERVICE TO MY RESELLER A N D I N TURN THEY MAY R E S E L L T H E WHOLE THING TO ANYBODY THAT

ACTUALLY OPERATES THE WEB SITE O R SOME OTHER
PURPOSE OR SOME O T H E R A P P L I C A T I O N. I D O N'T R E A L L Y KNOW WHAT MY RESELLERS DO WHEN THEY RECEIVE A DEPLOYMENT. Q SO IF YOU HAVE A R E S E L L E R THAT Y O U TESTIFIED

ABOUT , THEY CONTROL THE S E R V E R? A
IN SOME C A S E S Y E S AND IN SOME CASES NO. I

HAVE SEEN I F I H A D A COMPLAINT T O M Y R E S E L L E R, MY CONSENT -- MY RESELLER MAY COME BACK WITH THAT I FORWARDED T H E INFORMATION TO -- I FORWARDED THE COMPLAINT T O M Y C U S T O M E R, OR THEY M A Y COME BACK A N D S A Y, WE ONLY TAKE A C T I O N O N I T. WHAT DOES THAT

MEAN?

WHETHER THEY TALK T O T H E I R E N D USER O R N O T,

I DON 'T KNOW. Q SO YOU D O N'T CONTROL THE S E R V E R.

MAYBE THE

RESELLER DOES OR MAYBE -- THEIR CUSTOMER DOES? 78

U.S. COURT REPORTERS

Exhibit D, Page 58

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ANYTHING AFTER THAT IS A C L E A R R E C O R D.
Q SO FROM JUNE 20 07 ON? THAT I S CORRECT .

A
Q

AND IF Y O U H A D GOTTEN T H E COMPLAINT PRIOR TO

JUNE OF 200 7, WOULD YOUR P R A C T I C E I N H A N D L I N G THAT COMPLAINT BEEN A N Y DIFFERENT THAN T H E WAY Y O U TESTIFIED HERE TODAY ?

A

NO.

A T THAT TIME WE DON 'T HAVE A LAWSUIT.

WE

WOULD KEEP GOING EXACTLY T H E SAME W A Y. Q DO YOU HAVE ANY IDEA WHY T H E I P ADDRESSES FOR

THESE -- L E T'S ASSUME THAT LOUIS VUITTON THOUGHT THAT THERE -- THAT T H E S E DOMAINS , T H E S E W E B SITES WERE BEING HOSTED ON YOUR SERVERS A N D THAT'S W H Y THEY FILED A LAWSUIT . DO YOU HAVE ANY IDEA WHY

THEY WERE N O L O N G E R ON YOUR R A N G E O R THEY WERE NOT FUNCTIONING AT T H E TIME OF T H E LAWSUIT ?

A

SOMEBODY MUST HAVE DONE SOMETHING TO TRIGGER

THE I P FROM CHANGING . Q SOMETHING C A U S E D SOMETHING TO CAUSE THE IP TO

CHANGE?

A

MOST L I K E L Y WE SEE SOMETHING A N D WE FORWARD I T

TO T H E C U S T O M E R A N D THE CUSTOMER D E C I D ES TO MOVE I T

AROUND.
Q NOW I WANT T O DROP DOWN TO A N U M B E R OF THESE

ENTRIES AND T R Y T O F O C U S O N T H E ONES THAT 146

U.S. COURT REPORTERS

Exhibit D, Page 59

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TO INTELLECTUAL P R O P E R T Y INFRINGEMENT CLAIMS ; I S THAT ALSO NOT CORRECT?

A
Q

THAT I S CORRECT .

AND IT ALSO PROVIDES FOR IMPOSING FEES UNDER

PARAGRAPH S U B 4; IS THAT ALSO N O T CORRECT ?

A
Q

THAT'S CORRECT.

AND IT DOESN 'T ACTUALLY SPECIFY A MINIMUM OR

MAXIMUM IN THE N U M B E R A M O U N T OF FEES THAT C A N B E
IMPOSED; IS THAT ALSO T H E CASE?

A
Q

THAT'S CORRECT.

AND IT ALSO SAYS THAT A K A N O C R E S E R V E S T H E

RIGHT TO R E M O V E T H E OFFENDING CONTENT UNDER SUB . 5, IS THAT ALSO N O T THE CASE?

A
Q

THAT'S CORRECT.

AND A L L O F T H E S E T O O L S THAT A R E P R O V I D E D F O R

BY YOUR OWN CONTRACT HAVE BEEN PART OF THAT CONTRACT SINCE AKANOC STARTED DOING BUSINESS ?

A
Q

THAT I S CORRECT .

AND THEY HAVE BEEN W I T H I N T H E ARSENAL O F

AKANOC'S CONTRACTUAL RIGHTS T O DEAL WITH COPYRIGHT A N D TRADEMARK INFRINGEMENT FROM 200 3 A N D 200 4
WHENEVER AKANOC FIRST STARTED DOING BUSINESS ?

A
Q

THAT I S CORRECT .

AND N O W, ONE THING I HAVEN' T SEEN IS TERMS OF

T H E SERVICE AGREEMENT O R ACCEPTABLE U S E P O L I C Y FOR 168

U.S. COURT REPORTERS

Exhibit D, Page 60

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MANAGED SOLUTIONS GROUP . A

IS THERE ONE ?

NO, THERE W A S N O T SIMPLY BECAUSE OF -T H E COURT: Y O U WEREN' T A S K E D - - Y O U WERE

JUST ASKED WAS THERE ? THE WITNESS: BY MR . C O O M B S: Q SITE? DOES MANAGED SOLUTIONS GROUP MAINTAIN A WEB NO .

A
Q

NO.

AND H A S I T EVER MAINTAINED A W E B SITE S I N C E

MANAGED SOLUTIONS GROUP SPLIT OFF FROM MANAGED? A
Q NO.

AND DOES IT HAVE O N E TODAY?
NO. DOES YOUR CUSTOMERS HAVE A RELATIONSHIP WITH

A
Q

MANAGED? A
Q IT DOES N O T.

AND THAT' S TRUE IF T H E I P I S O W N E D B Y MANAGED

SOLUTIONS G R O U P?

A
Q

THAT'S CORRECT.

AND SO IT 'S A GENERAL P U B L I C THAT IS LOOKING

AT A WEB SITE THAT I S W I T H I N THE MANAGED SOLUTIONS
GROUP BLOCK OF IP NUMBERS, IT WOULD A P P E A R THAT

MANAGED SOLUTIONS GROUP IS , I N FACT , T H E OWNER OR
OPERATOR OR T H E I SP WEB HOST OF THE APPLICABLE WEB 169

U.S. COURT REPORTERS

Exhibit D, Page 61

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LOCATING WITH YOUR SERVERS HERE IN SAN JOSE?

A
Q

THAT'S CORRECT. SO IN ADDITION TO THE FACT THAT Y O U PROVIDE

T H E SERVERS , T H E ROUTERS, THE BANDWIDTH THAT Y O U WERE TESTIFYING T O THIS MORNING, THERE 'S ALSO T H E FACT THAT THE BASIC CONNECTIVITY THAT AKANOC OFFERS THAT ENHANCES BASICALLY THE INTERNET EXPERIENCES FOR PEOPLE THAT ARE VISITING HOSTING SITES O N YOUR SERVERS?

A
Q

THAT I S CORRECT . LET 'S ACTUALLY TALK A B O U T T H E DIGITAL I THINK

MILLINEUM COPYRIGHT ACT F O R JUST A MOMENT .

IT 'S EXHIBIT 5 4 F O R ONE OF T H E INTERIM DESIGNATION OF T H E DEFENDANTS ; I S THAT CORRECT?

A
Q ON ?

YES .

AND C A N Y O U TELL M E WHAT DATE THAT W A S FILED

T H E COURT:

I F T H E R E'S A DATE O N T H E

DOCUMENT I' LL HAVE Y O U SCROLL DOWN TO THE DATE LINE. THE WITNESS: BY MR . C O O M B S: Q NOVEMBE