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

Filing 270

Declaration of James A. Lowe in Support of 269 MOTION to Dismiss DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 50 AND ALTERNATIVELY FOR NEW TRIAL OR OTHER RELIEF PURSUANT TO RULE 59 filed byAkanoc Solutions, Inc., Steven Chen, Managed Solutions Group, Inc.. (Attachments: # 1 Exhibit 74 to Lowe Decl, # 2 Exhibit 449 to Lowe Decl, # 3 Exhibit 450 to Lowe Decl, # 4 Exhibit 1559 to Lowe Decl, # 5 Exhibit 1598 to Lowe Decl, # 6 Exhibit 1613 to Lowe Decl, # 7 Exhibit 1620 to Lowe Decl, # 8 Exhibit 1621 to Lowe Decl, # 9 Exhibit 1622 to Lowe Decl, # 10 Exhibit 1623 to Lowe Decl, # 11 Exhibit 1624 to Lowe Decl)(Related document(s) 269 ) (Lowe, James) (Filed on 1/19/2010)

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

Doc. 270 Att. 9

Case5:07-cv-03952-JW Document270-10

Filed01/19/10 Page1 of 27

EXHIBIT 1623
Dockets.Justia.com

Case5:07-cv-03952-JW Document270-10

Filed01/19/10 Page2 of 27

Case5:07-cv-03952-JW Document270-10 1 2 ALSO PRESENT: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Filed01/19/10 Page3 of 27

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

2

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 1 2 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

Filed01/19/10 Page4 of 27

INDEX OF PROCEEDINGS

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

3

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 . LOWE : Q GOOD MORNING , M R. CHEN. C- H-E -N. T H E CLERK:

Filed01/19/10 Page5 of 27

PLEASE RAISE YOUR RIGHT HAND . STEVEN CHEN,

BEING C A L L E D A S A WITNESS ON BEHALF OF HIMSELF, HAVING BEEN FIRST DULY SWORN, W A S EXAMINED A N D TESTIFIED A S FOLLOWS : THE WITNESS: T H E CLERK: Y E S. P L E A S E BE SEATED . COULD YOU

PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST NAME FOR T H E R E C O R D. THE WITNESS: STEVE CHEN. S -T- E-V -E,

DIRECT EXAMINATION

ARE YOU A DEFENDANT

IN THIS CASE? A Q YES . AND Y O U HAVE BEEN PRESENT D U R I N G THE E N T I R E

TRIAL SO F A R? A Q A YES . HOW A R E Y O U EMPLOYED? I STARTED THE COMPANY . SO AT THIS P O I N T I 'M

GENERAL MANAGER O F MANAGED SOLUTIONS G R O U P, INC ., AND AKANOC SOLUTIONS . Q A THE OTHER T W O DEFENDANTS IN THIS CASE? YES , THAT 'S CORRECT. 5

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page6 of 27

WHEN CUSTOMER HAS A PROBLEM S I M P L Y BECAUSE A L O T O F TIMES CUSTOMER M I SU S E I T A N D WHEN THEY HAVE PROBLEMS THEN ONCE W E TOUCH I T AND THEY WOULD CLAIM THAT WE SCREWED U P, NOT THEY SCREWED U P. S O W E TEND TO S A Y I F Y O U SCREWED U P O R SOMETHING Y O U CANNOT -- Y O U I D E N T I F Y SOMETHING THAT Y O U C A N N O T FIX , WHAT WE C A N D O I S W E C A N ALWAYS DO A RESTORE A N D RETURN EVERYTHING BACK T O WHEN WE DEPLOYED T H E S E R V E R TO YOU , A N D THEN Y O U CAN TAKE IT FROM THERE UNLESS THEY ARE SOMEONE FAIRLY TECHNICALLY SURE THAT W E KNOW EACH OTHER GOOD E N O U G H THAT THEY WILL S A Y, H E Y, COULD YOU GO INTO MY S E R V E R A N D -- HERE'S T H E P A S S W O R D. COULD YOU G O

INTO MY SERVER A N D MAKE A CONSOLE COMMAND TO IT A N D THIS WILL WORK . I N THAT CASE WE WILL P R O B A B L Y HELP THEM TO DO THAT. Q A BUT DOES THAT H A P P E N VERY O F T E N? NO. VERY , VERY FEW CUSTOMER WILL TRUST THAT

THEY HAD THAT TYPE O F J U D G M E N T. Q I'M SORRY . YOU WOULD N O T T R U S T THEM , O R THEY

WOULDN'T TRUST Y O U? A Q WE WOULD NOT TRUST THEM. YOU MENTIONED SOMETHING ABOUT PASSWORDS . HOW

A R E P ASSWORDS SET ON THESE SERVERS? 50

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page7 of 27

WE SET UP T H E PASSWORDS RANDOMLY WHEN W E F I R S T

DEPLOYED THE SERVER. Q A WHEN Y O U FIRST RENT I T O U T? WHEN W E F I R S T RENT IT O U T W E HAVE -- I MEAN,

IN LENOX Y O U C A N ASK T H E C O M P U T E R T O GIVE Y O U A L L OF T H E OPERATING SYSTEM TO GIVE YOU A RANDOM PASSWORD AND YOU TURN THAT RANDOM PASSWORD T O THE CUSTOMER . I N A W I N D O W B A S E D S Y S T E M WE HAVE SPECIAL CODES THAT WOULD CODE I T S O THAT WHEN WE ACTIVELY R E T U R N I T T O T H E CUSTOMER WE DOCUMENT THAT. BUT

MOST LIKELY WHEN WE TURN I T OVER TO T H E C U S T O M E R, THEY CHANGE IT RIGHT AWAY. Q SO EXPLAIN H O W A P A S S W O R D W O R K S O N A COMPUTER ?

WHAT DOES I T CONTROL ? A WE ONLY M E T -- WE ONLY T O U C H T H E SO- CALLED

ADMINISTRATIVE PASSWORD . S O A N ADMINISTRATIVE PASSWORD I S THE HIGHEST PASSWORD LEVEL, HIGHEST LEVEL OF THE PASSWORD F O R THAT PARTICULAR SYSTEM THAT CAN GO INTO WE CALL I T ROOT A C C E S S. Q A ROOT ACCESS? YES , ROOT A C C E S S, R-O -O- T. SO IN THAT CASE I T

CONTROLS EVERYTHING. B U T WHEN W E TURN OVER THE CONTROL TO OUR 51

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page8 of 27

CUSTOMER , W E TURN OVER THE ROOT ACCESS TO T H E CUSTOMER . Q BY GIVING THEM THE PASSWORD THAT HAS BEEN

GENERATED? A Q THAT'S CORRECT. AND IN YOUR EXPERIENCE D O THEY USUALLY KEEP

THAT PASSWORD OR DO THEY C H A N G E IT? A NO, THEY CHANGE IT RIGHT AWAY, IN PARTICULAR

F O R C H I N A C U S T O M E R, THEY READ -- I FINALLY F O U N D O U T W H Y THEY C H A N G E THE PASSWORD R E A L L Y FAST IS BECAUSE THEY'R E T Y P I N G IN THEIR CHINESE - - T H I N G S THAT THEY C A N REMEMBER IN CHINESE. Q A OH. BUT IN ENGLISH CHARACTERS S O THAT THEN THEY

COME UP WITH A S E R I E S O F SOMETHING THAT N O B O D Y CAN UNDERSTAND. Q SO THEY'R E T Y P I N G SOMETHING IN ENGLISH FROM

CHINESE IS WHAT Y O U' RE SAYING ? A Q YES . AND WITHOUT THE PASSWORD , D O Y O U HAVE A N Y

A C C E S S T O WHAT IS ON THAT SERVER ? A LIKE T H E OTHER GENTLEMAN TESTIFIED U N L E S S WE

BREAK IN , B R E A K I N MEANING RESET T H E P A S S W O R D A T T H E ADMINISTRATIVE L E V E L. Q WITHOUT DOING THAT , WITHOUT RESETTING THE 52

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page9 of 27

PASSWORD , D O YOU HAVE ANY ACCESS ? A NO, NO , N O. I THINK THAT EVERYBODY HAS SOME

EXPERIENCE THAT LOST PASSWORD FOR YOUR OWN COMPUTER , Y O U' RE IN TROUBLE. TO F I G U R E O U T HOW TO RESET IT . Q AND WHAT HAPPENED IF YOU WERE TO RESET THE IT WILL TAKE A WHILE

PASSWORD LIKE YESTERDAY MR . W I L S O N WAS SUGGESTING? A Q A Q A THEN Y O U GET TO GO INTO THE COMPUTER . AND DO Y O U D O THAT ? NO, WE D O N'T . AND W H Y N O T? THERE' S N O P O I N T F O R IT. I F W E G O INTO ANY

PARTICULAR COMPUTER THAT D O E S N'T BELONG T O U S, FIRST OF A L L, WE' RE GOING TO HAVE A HARD TIME FIGURING O U T WHAT IS IN IT , Y O U KNOW. B U T W E D O N' T

HAVE ANY R E A S O N F O R WANTING T O KNOW WHAT IS IN IT. S O EVEN IF WE BREAK INTO A C O M P U T E R, WHAT IS THAT FOR ? WE HAVE N O R E A S O N TO DO THAT.

A N D ONCE Y O U GET IN , A S M R. WILSON TESTIFIED YESTERDAY, IT TAKES SO MUCH EFFORT F O R SOMEBODY IN H I S - - I T TOOK H I M 2 0 H O U R S T O RECONSTRUCT A PORTION O F T H E DATA, WHAT D O W E NEED TO DO ? Q WELL, LET 'S SAY THAT YOU D I D R E S E T A PASSWORD .

DOES THAT - - DOES YOUR CUSTOMER THEN STILL HAVE 53

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page10 of 27

A C C E S S T O WHAT IS ON THAT MACHINE? A Q A NO, T H E P A S S W O R D CHANGED . SO HE DOESN' T KNOW T H E P A S S W O R D? NO, HE DOESN 'T. YEAH , H E WOULD NOT KNOW THE

REVISED PASSWORD. Q AND DO Y O U T H I N K THAT THAT WOULD MAKE T H E

CUSTOMER HAPPY OR N O T? A CERTAINLY N O T. IF HE CONCEDED THAT IT WAS H I S AND

O W N MACHINE A N D W E JUST W A L K E D THROUGH IT .

NOBODY WOULD B E HAPPY I F SOMEBODY LIKE GOES THROUGH YOUR DESK. Q IT 'S THE SAME THING. ARE THERE ANY WHEN

WHAT ABOUT PRIVACY ISSUES.

Y O U'R E RENTING THESE SERVERS OUT ? T H E COURT: C A N WE USE T H E C H A N G E OF THIS

SUBJECT TO THE PRIVATE ISSUES AS T H E M A R K E R TO COME BACK AFTER OUR BREAK ? M R. LOWE: T H E COURT: T E N MINUTE BREAK. ( WHEREUPON , A RECESS W A S TAKEN. ) ( WHEREUPON , T H E PROCEEDINGS IN THIS M A T T E R WERE HELD OUT OF T H E P R E S E N C E O F T H E JURY:) T H E COURT: M R. LOWE: T H E COURT: READY T O RESUME? Y E S, YOUR H O N O R. S U M M O N THE JURY. 54 SURE. I T'S 10 :30 , A N D WE' LL TAKE A

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page11 of 27

( WHEREUPON , THE FOLLOWING PROCEEDINGS WERE HELD I N T H E PRESENCE OF THE JURY: ) T H E COURT: WITH YOUR EXAMINATION. BY MR . LOWE : Q MAY IT P L E A S E T H E COURT, C A N W E S E E EXHIBIT M R. CHEN, CAN Y O U P L E A S E TELL M E WHAT I T S H O U L D BE IN YOUR BOOK THERE ? VERY WELL. Y O U MAY CONTINUE

21 , PLEASE.

EXHIBIT 21 IS? A

THIS S H O U L D BE A SERVICE AGREEMENT THAT A K A N O C

PROVIDED TO -- T H E A K A N O C WEB SITE. Q A Q IS THIS PUBLISHED ON YOUR W E B SITE? THAT'S CORRECT. AND IS THIS AN AGREEMENT THAT YOU HAVE WITH

YOUR CUSTOMERS ? A Q YES . AND WHAT DOES I T - - DOES IT PROVIDE FOR WHAT

Y O U'R E S U P P O S E D T O D O A N D WHAT T H E CUSTOMER IS SUPPOSED TO DO , RESPECTIVE OBLIGATIONS ? A TO BE VERY H O N E S T WITH Y O U, I PERSONALLY N E V E R

REALLY READ THAT MYSELF . I T JUST BASICALLY W E KNOW WHAT WE' RE DOING A N D W E'V E BEEN DOING IT . Q A OKAY. OTHER THAN THAT I MEAN, I D O N' T READ T H E VERY

DETAIL O F THAT , O F THE AGREEMENT ITSELF. 55

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 Q

Filed01/19/10 Page12 of 27

DOES YOUR RELATIONSHIP WITH YOUR CUSTOMERS

GIVE YOU T H E R I G H T T O LOOK AT INFORMATION THAT THEY PUT O N THE SERVERS? A NO, THEY DON 'T. ONCE WE TURN OVER T H E SO WE -- WE

PASSWORD WE A S S U M E THAT IT 'S THEIRS .

H A D N O R E A S O N TO GO BACK T O T H E SERVER I T S E L F. Q DO YOU THINK Y O U HAVE T H E R I G H T T O LOOK AT A N Y

PRIVATE INFORMATION ON THE SERVERS? A Q A I CERTAINLY DON 'T THINK I HAVE T H E R I G H T. AND W H Y I S THAT ? I RENT SOMETHING T O M Y CUSTOMER AND THEN I T

S H O U L D B E M Y C U S T O M E R'S PROPERTY WHICH I DON 'T THINK THAT I S H O U L D HAVE T H E RIGHT TO GO IN AT MY LEISURE AND CHECK WHAT IS IN IT. JUST LIKE IF I G O T O T H E BANK A N D RENT A SAFETY DEPOSIT , I D O N'T THINK THAT I W O U L D APPRECIATE THAT T H E BANK H A S ANY TYPE OF CAPACITY TO GO INTO MY DEPOSIT A N D SEARCH WHAT IS IN IT EVERY D A Y. I D O N'T THINK IT 'S RIGHT. IF YOU WERE -- FOR EXAMPLE, MR . W I L S O N

YESTERDAY W A S USING THE ANALOGY OF RUNNING SERVERS A N D S O O N LIKE Y O U D O T O RENTING AN APARTMENT I N A N APARTMENT BUILDING. W O U L D Y O U HAVE A RIGHT AS T H E O W N E R O F 56

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 .

Filed01/19/10 Page13 of 27

WHAT D O Y O U HAVE T O D O B E F O R E YOU FORWARD ON

THOSE COMPLAINTS? A IT COMES IN DIFFERENT FORMS . IT MAY VARY IN A

VERY SHORT SPOT, VISIBLE SPOT IN T H E W H O L E COMPLAINT. S O I NEED TIME T O READ THOSE AND FIND EXACTLY WHICH DOMAIN NAME THEY'R E COMPLAINING. ONCE I HAVE T H E D O M A I N NAME I NEED TO PING I T. USUALLY I D O T W O PINGS. I ASSUME MOST ATTORNEYS D O N' T KNOW THIS. THEY WILL C O M P L A I N THAT IT 'S XYZ .C O M A N D SO I PING X Y Z.C O M AND THEN I W O U L D ALSO PING WWW .X Y Z.C O M. Q A IS THERE A DIFFERENCE ? YES . A L O T OF TIME P E O P L E REGISTER THE SAME SO IT MAY AND AND

D O M A I N B U T WITHOUT W WW OR DIFFERENTLY.

BE WW W.X Y Z. COM A N D I T'S POINTING TO THIS ONE B U T THEN THE X Y Z.C O M IS POINTING TO THE OTHER IP . S O I CHECK THAT, A N D I WANT TO MAKE SURE THAT THE COMPLAINT, WITHOUT KNOWLEDGE OF THE ATTORNEY , THAT I N D E E D A N Y ONE OF IT IS W I T H I N M Y NETWORK. Q A N D ONCE I FIND THAT NETWORK --

WELL, BEFORE WE DO THAT, Y O U MENTIONED BRIEFLY COULD Y O U TELL US WHAT YOU MEAN

PINGING.

BY THAT AND WHAT YOU 'RE TALKI N G ABOUT THERE? 94

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page14 of 27

IT' S JUST GO TO A N Y C O M P U T E R THAT H A S A D O S

PROMPT B U T MOST O F T H E PEOPLE D O N'T U S E I T S O PROBABLY EVERY USER WOULD NOT KNOW. Y O U GO TO THE D O S P R O M P T AND Y O U TYPE P- I-N -G, SPACE , T H E DOMAIN NAME, WHICHEVER DOMAIN NAME YOU WANT TO LOOK F O R AND IT COMES BACK WITH T H E I P I N F O R M A T I O N I F I N D E E D IT' S A LIVE IP. Q A WHAT D O Y O U MEAN I F I T'S A LIVE I P? A LIVE IP AT LEAST IS BEING REGISTERED IN THE

NAMES OF -- IT DOESN 'T MEAN T H E WEB SITE IS LIVE B U T I T DOES AT LEAST PROVE IT 'S BEING REGISTERED. Q A THE X Y Z.C O M IS REGISTERED SOMEWHERE? YES . LET 'S ASSUME THIS VERY EASY . IF YOU GO

TO D O M A I N REGISTRAR, Y O U WIPE O U T YOUR NAME SERVER INFORMATION ON T H E W E B SITE, THEN I F ANYBODY WANTS TO FIND XYZ .C O M THEN Y O U C A N N O T BE RESOLVED TO ANYTHING . JUST LIKE IF YOU GO TO T H E FRANCHISE TAX BOARD AND YOU WIPE OUT YOUR BUSINESS ADDRESS AND THEN PEOPLE CAN FIND THE COMPANY BUT CANNOT FIND THE ADDRESS INFORMATION . Q OKAY. SO WHEN YOU PING YOU 'RE ABLE TO FIND

O U T SOMETHING IS REGISTERED? A Q YES . AND IF IT IS REGISTERED THEN Y O U' RE ABLE T O 95

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 FIND OUT AN IP ADDRESS? A Q YES .

Filed01/19/10 Page15 of 27

AND WHEN DO YOU FIND OUT WHETHER THAT I P

ADDRESS IS IN THE RANGE OF IP 'S THAT HAVE BEEN ASSIGNED TO Y O U FROM ARIN? A Q A Q A Q IF IT' S SOMETHING LIKE 2 05. 209 , I T'S OURS. SO YOU KNOW YOURS? YES . AND SO Y O U RECOGNIZE YOURS? YES . AND THEN HOW DO Y O U DETERMINE IF IT IS

SOMETHING O R A N I P ADDRESS THAT IS ASSIGNED TO YOU , H O W D O Y O U FIND O U T WHICH CUSTOMER MIGHT BE USING IT ? A Q A WE GO TO OUR O W N D A T A B A S E W E CALL CPRO. C-P -R- O? C-P -R- O, YES . SO CPRO T H E R E'S A FIELD THAT

Y O U TYPE IN T H E I P ADDRESS A N D I T WILL SHOW WHO IS USING THAT PARTICULAR I P A T THAT PARTICULAR TIME. Q A Q A Q A AT THAT M O M E N T IN TIME? YES . AND THEN YOU DO WHAT? THEN I FORWARD THE COMPLAINT. TO THAT C U S T O M E R? TO THAT PARTICULAR CUSTOMER . 96

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 IS? A Q

Filed01/19/10 Page16 of 27

AFTERNOON SESSION ( WHEREUPON , THE FOLLOWING PROCEEDINGS WERE HELD I N T H E PRESENCE OF THE JURY: ) T H E COURT: PERHAPS THE MOST CHALLENGING S O D A Z Z L E US.

TIME, FRIDAY AFTERNOON. M R. LOWE: HALLWAY, YOUR HONOR. T H E COURT:

WE HAVE DANCING G I R L S I N T H E I WISH. A L L RIGHT. L E T ME ALLOW YOU

TO F I N I S H YOUR EXAMINATION . M R. LOWE: THANK Y O U.

WOULD YOU P L E A S E LOOK AT EXHIBIT 131 5. M R. CHEN, COULD YOU P L E A S E TELL US WHAT

THIS I S A DOMAIN TOOLS SCREEN SHOT AND DOWN

BELOW IT H A S T H E DOS P R O M P T PING DATA. Q A AND WHERE D I D THIS COME FROM? I GOT THIS A WHILE AGO WHILE I WAS USING O R

CHECKING OR LEARNING D O M A I N T O O L S. Q A Q SO YOU G O T THIS INFORMATION YOURSELF ? YES . OKAY. SO D I D THIS COME FROM T W O DIFFERENT

P L A C E S WHAT WE S E E O N O N E SHEET NOW ? A YES . ONE IS FROM A D O S PROMPT WHICH I COPY

PASTED A N D THEN ANOTHER CAME FROM DOMAIN TOOLS. Q THAT YOU COPY AND PASTED ? 107

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 A Q YES . OKAY. TO MAKE I T O N E COPY. OKAY.

Filed01/19/10 Page17 of 27

A N D WHAT IS T H E PURPOSE OF THESE --

WHAT DO THESE TWO ITEMS SHOW? A AS I SAID I SPENT ABOUT A M O N T H T R Y I N G TO

UNDERSTAND HOW D O M A I N T O O L S WORK . J U R O R: WE C A N'T S E E. O H, I T U R N E D IT OFF .

T H E COURT:

Y O U MAY PROCEED. THE WITNESS: AND A S I WAS EXPLAINING A

WHILE A G O THAT I TRIED TO UNDERSTAND H O W DOMAIN TOOLS WORK AND I PROBABLY SPENT PROBABLY A M O N T H A N D SIGN UP GOLD MEMBER SO I KNOW WHAT IS IN IT A N D EVENTUALLY I COME TO T H E CONCLUSION THAT THIS I S NOT A REALTIME DATABASE . Q A A REALTIME? YES . NOT SOMETHING THAT Y O U C A N GET AN EXACT

PING DATA O N I T. Q A Q IS PING DATA REALTIME ? PING DATA WILL BE REALTIME, Y E S. SO IT GIVES A R E P O R T OF WHAT I S G O I N G O N THIS

VERY SECOND , FOR EXAMPLE? A YES , I N THIS PARTICULAR CASE I F Y O U LOOK A T

EVEN THE IP ADDRESS SHOWING 2 04. 108

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page18 of 27

WHAT A R E WE LOOKING A T, THE D O M A I N T O O L S

PRINT OUT ? A YES . UNDER SERVER DATA AND Y O U HAVE T H E I P

ADDRESS. Q A Q CAN WE HIGHLIGHT THAT . AND S E E T H E IP LOCATION. NOW , WHAT IS -- FIRST OF A L L, WHAT D O M A I N NAME

A R E Y O U LOOKING F O R HERE? A Q THIS I S ESHOES9 9.N E T. ALL RIGHT . SO GO BACK U P T O T H E IP ADDRESS,

P L E A S E, FOR THIS ON THE D O M A I N T O O L S. A SO AT THAT PARTICULAR POINT IT W A S SHOWING

20 4.1 6.1 92. 77 AND UNDER THAT IP LOCATION IT SAYS NEW YORK . Q A Q A Q A IT HAS A K A N O C SOLUTIONS ON THAT LINE T H O U G H? YES . HAS A K A N O C EVER BEEN IN NEW YORK? NO. ALL RIGHT . AND I DOCUMENT THIS A N D JUST T O B E SURE THAT I

UNDERSTAND THAT THIS IS N O T R E A L L Y A REAL TIME DATABASE . Q OKAY. COULD Y O U G O DOWN TO T H E PING AND WHAT

INFORMATION AT T H E B O T T O M OF THIS PAGE .

IS T H E D O M A I N OR THE IP ADDRESS FOR THIS DOMAIN 109

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 SHOWN BY T H E PING ? A

Filed01/19/10 Page19 of 27

SO IT IS SHOWING 6 1.1 45. 126 .13 3.

AND BY

LOOKING AT THE PING TIME I T H A S 592 MILLISECONDS. SO MOST LIKELY THIS IS IN CHINA. Q A Q A AND H O W D O Y O U KNOW THAT ? BECAUSE O F THE PING TIME . BECAUSE I T T A K E S A LONG TIME? IN THE S T A T E S I T'S PROBABLY ANYWHERE BETWEEN

15 MILLISECONDS A L L OF THE W A Y T O LESS THAN 100 MILLISECONDS I F I T'S IN T H E EAST COAST . Q SO IT HAS TO T R A V E L A L L THE W A Y A R O U N D THE

WORLD ON T H E I N T E R N E T? A Q THAT'S CORRECT. AND SO A R E T H E -- IS THE IP ADDRESS SHOWN IN

T H E PING T H E SAME AS T H E I P ADDRESS SHOWN IN T H E DOMAIN TOOLS REPORT? A Q A Q NO, IT IS N O T. AND WERE THOSE DONE A T T H E SAME TIME ? YES , THAT 'S CORRECT. AND SO WHAT CONCLUSION D I D YOU REACH FROM THAT

EXPERIMENT? A AS I SAID , I SPENT A MONTH AND I DOCUMENT

V I E W E D THIS TYPE OF DIFFERENT INFORMATION , A N D THERE 'S NO POINT FOR ME TO INVESTIGATE A N Y FURTHER . Q ALL RIGHT . IF YOU LOOK PLEASE AT EXHIBIT 110

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page20 of 27

A N D I F I T'S SHOWING SOME O T H E R NETWORK 'S IP NOT WITHIN M Y NETWORK , THEN I WOULD CONSIDER THEY HAVE DONE THEIR JOB . Q A OKAY. THEY M A Y, WHICH IS T H E O N E THAT I R E A L L Y LIKE ,

IS THAT THEY M A Y NOT RESPOND AT ALL . Q A WHY DO Y O U LIKE THAT? BECAUSE THAT -- THERE 'S NO CONFUSION . IF THEY

D O N'T RESPOND TO ME, AT LEAST I CAN DISABLE THE IP A N D N O QUESTION I S A S K E D BECAUSE Y O U D O N' T RESPOND TO ME . IF YOU RESPOND TO ME WITH A N Y TYPE O F

LEGITIMATE ARGUMENTS , THEN I STILL NEED T O WORK WITH YOU . B U T IF YOU JUST DON 'T RESPOND, IT' S E A S I E R F O R ME. Q DO YOU EVER TRY TO ARGUE WITH THE P E O P L E W H O

MADE THE COMPLAINT T O Y O U AT LOUIS VUITTON S A Y I N G W H Y A R E YOU S A Y I N G T H E S E T H I N G S OR SOMETHING LIKE THAT? A Q A ARGUE WITH T H E COMPLAINER O R T H E COMPLAINE E? THE COMPLAINER? THE COMPLAINER? Y E S. MANY TIMES I EVEN HAVE

T H E A T T O R N E Y CALL ME DIRECTLY ON T H E P H O N E A N D ASK ME TO R E M O V E A PARTICULAR WEB SITE WHEREAS I D I D R E M O V E T H E WEB SITE. 115

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page21 of 27 S O W E D O N' T

BECAUSE WE HAVE N O CONTROL OVER IT. KNOW HOW TO F O L L O W U P WITH THOSE . Q

NOW , L E T' S TAKE A COMPLAINT A N D Y O U SEND I T O N

TO T H E C U S T O M E R S A Y I N G WE HAVE T A K E N I T O F F OUR S E R V E R O R SOMETHING, A N D THEN Y O U V E R I F Y IT' S N O T THERE ANYMORE; IS THAT RIGHT? A Q THAT'S RIGHT . NOW , WHAT C A U S E S Y O U TO TAKE A N Y STRONGER

ACTION? A FOR INSTANCE , I F ANOTHER COMPLAINT C O M E S I N

AND SOMETIMES EVEN SAY A SECOND COMPLAINT , THEN I' LL VERIFY IT AGAIN OR IF IT 'S STILL WITHIN -EVEN WITHIN T H E SAME S E R V E R O R WITH A DIFFERENT IP MOST OF THE TIME I W O U L D JUST U N P L U G T H E SERVER SO WHOEVER OPERATES THAT SERVER KNOWS, Y O U CANNOT JUST MOVE AROUND . I F THEY COME BACK WITH ANY REPLY O R ANY QUESTION TO T H E S E C U R I T Y DEPARTMENT S A Y I N G W H Y IS MY -- W H Y D I D YOU U N P L U G M Y W H O L E S E R V E R, THEN I WOULD A N S W E R T O THEM Y O U C A N N O T LET THIS PARTICULAR W E B SITE IN THIS SERVER BECAUSE YOU A R E JUST DODGING THE -- Y O U A R E DODGING WHAT WE A S S I G N Y O U AS THAT PREVIOUS IP AND TO A DIFFERENT IP . W O N'T WORK. Q NOW , I F Y O U UNPLUG T H E S E R V E R, DOES THAT 120 THAT

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page22 of 27

AFFECT OTHER USERS DOWN THE LINE ? A GONE. Q A Q AND H O W DOES THAT AFFECT YOUR CUSTOMER? ALL T H E C U S T O M E R A R E NOT FUNCTIONING . SO YOUR C U S T O M E R'S CUSTOMER A R E A L L OFF T H E YES , EVERYTHING ON MY S E R V E R I S BASICALLY

INTERNET ? A YES . THAT'S ASSUMING THAT THIS PARTICULAR

PERSON I S MANAGING THAT PARTICULAR SERVER . Q AND WHAT DOES A CUSTOMER HAVE TO DO TO GET Y O U

TO PLUG THEM BACK IN ? A I W O U L D TELL THEM TO MOVE THAT D O M A I N NAME O U T

OF MY NETWORK. Q Y O U? A OH, THEY WOULD COME BACK IN A LITTLE TIME AND AND WHAT DO THEY HAVE TO DO TO PROVE THAT TO

S A Y W E ALREADY CHANGED THE NAME SERVER REGISTRATION, MEANING THAT THEY MOVE T H E IP TO SOMEWHERE ELSE . AND ONCE I C A N PING THAT

PARTICULAR IP IS NOT IN MY NETWORK, THEN THEY MUST HAVE DONE SOMETHING. Q NOW , U N D E R WHAT CIRCUMSTANCES WOULD YOU

DISABLE -- EXCUSE ME -- DISABLE AN IP ADDRESS INSTEAD OF UNPLUGGING T H E ENTIRE S E R V E R? A MOST L I K E L Y AS I EXPLAINED, IF Y O U D O N' T 121

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page23 of 27

RESPOND TO MY REQUEST F O R A CERTAIN P E R I O D O F TIME , THEN THAT PUTS ME IN T H E P O S I T I O N T O JUST DISABLE Y O U. Q SO YOU TYPICALLY D O THAT IF Y O U D O N' T HEAR

FROM THEM? A Q THAT'S CORRECT. BUT IF Y O U S E E REPEATED PROBLEMS ON A S E R V E R,

Y O U'L L U N P L U G THE S E R V E R? A Q THAT I S CORRECT . NOW , D O Y O U EVER STOP DOING BUSINESS WITH SOME

CUSTOMER OF YOURS BECAUSE OF COMPLAINTS LIKE THIS? A IF THEY A L W A Y S REACT TO RESPONSES TO T H E

COMPLAINT THAT WE SEND THEN F O R CONTRACTUAL REASONS I CAN TERMINATE THEM AS LONG AS THEY RESPOND TO WHAT WE ARE SENDING OR -- SO WE CAN 'T JUST S A Y WE D O N'T LIKE YOU SO WE TERMINATE Y O U BECAUSE THEY P A Y FOR THEIR SERVICE . T H E COURT: I WANT TO MAKE SURE THAT THE

JURY UNDERSTANDS THAT ALTHOUGH THE WITNESS I S TESTIFYING AS TO HIS UNDERSTANDING AND H I S B U S I N E S S PRACTICE , H E I S N O T CITING TO Y O U - - I T W O U L D B E U P TO T H E C O U R T T O I N S T R U C T Y O U ON THE L A W. I N O T H E R W O R D S, WHAT H E M A Y OR MAY N O T D O UNDER A CONTRACT, THERE MAY B E HIS UNDERSTANDING O F WHAT HE WOULD DO UNDER A C O N T R A C T A N D WHAT H E 122

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page24 of 27

WHEN THEY RENT S E R V E R THEY UP LOAD A L O T O F T H E STUFF . S O I WOULD IMAGINE THAT WHETHER THEY USE EVERYTHING INSIDE OR SOMETHING, THEY M A Y BE JUST A PACKAGE OF EVERYTHING I N I T A N D SO ASSUMING I'M T H E W E B SITE OPERATOR IF I RAN VIRUS I N S I D E O F T H E U N I T E D S T A T E S AND UP LOAD A L L OF THE SAME CONTENT A T T H E SAME TIME, THEN IT' S A M A T T E R O F H O W I C H A N G E MY NAME SERVER INFORMATION . Q SO LET 'S SAY T H E NAME S E R V E R I S P O I N T I N G T O

YOUR SERVER FOR THIS DOMAIN NAME AND YOU SOMEHOW SHUT THEM DOWN , C A N THEY JUST POINT TO ANOTHER S E R V E R W H E R E THEY HAVE THE SAME INFORMATION? A Q AS I SAID , T E N MINUTES. I'D LIKE YOU TO LOOK AT EXHIBIT 1 598 , P L E A S E.

C A N Y O U TELL M E WHAT THAT IS? A THIS I S A SUMMARY REPORT BASED ON A L L O F T H E

E- MAIL L O G THAT W E HAVE F O R COMPLAINTS COMING I N A N D H O W WE DID T H E C H E C K I N G, HOW WE RE ACT TO EVERY SINGLE COMPLAINT. Q EVERY COMPLAINT OR JUST THE COMPLAINTS FROM

LOUIS VUITTON? A Q THIS I S JUST FOR LOUIS VUITTON . AND DOES THIS REFLECT COMPLAINTS THAT WERE

MADE FROM T H E BEGINNING OF THIS LAWSUI T A N D UP 138

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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 UNTIL N O W? A Q YES , THAT 'S CORRECT.

Filed01/19/10 Page25 of 27

SO EVERY TIME Y O U GET N E W COMPLAINTS FROM

LOUIS VUITTON, Y O U M A I N T A I N E -MAIL RECORDS FROM T H E TIME OF THIS LAWSUIT ? A Q YES , THAT 'S CORRECT. AND WERE THOSE E-MAIL RECORDS PROVIDED TO

LOUIS VUITTON THAT A R E SHOWN IN SUMMARY I N THIS CHART ? A Q YES , THAT 'S CORRECT. NOW , L E T' S G O THROUGH A FEW OF THESE SO Y O U

C A N EXPLAIN TO US WHAT THESE ENTRIES MEAN . OVER ON T H E LEFT C O L U M N T H E FIRST ONE IS UNDER T H E WORD COMPLAINT A P E1 6 8. COM . DOMAIN NAME ? A Q THAT'S CORRECT. AND UNDER T H E C O L U M N NOTICE DATE, WHAT DOES THAT'S A

THAT MEAN? A THAT'S T H E DATE I WAS NOTICED ON THIS

PARTICULAR DOMAIN . Q AND W A S THAT ACTUALLY T H E DATE THAT YOU G O T

T H E COMPLAINT IN THIS CASE ? A Q THAT'S CORRECT. UNDER THE NEXT COLUMN IT SAYS RESOLUTION.

WHAT DOES THAT ENTRY MEAN? 139

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10 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

Filed01/19/10 Page26 of 27

THAT MEANS WHEN I CHECKED THAT PARTICULAR

D O M A I N NAME , T H E IP ADDRESS I S N O T WITHIN O U R RANGE . Q A Q AND Y O U C H E C K I T B Y PINGING ? BY PINGING, YES . AND N O W T H E R E'S ANOTHER NOTICE DATE. WHAT

DOES THAT R E L A T E TO? A SO JANUARY 3 RD OF 200 8 I RECEIVE ANOTHER

COMPLAINT FROM LOUIS VUITTON. Q A ABOUT APRIL1 68. COM ? THAT'S CORRECT. AND THEN A T THAT TIME I CHECK

IT 'S SHOWING A DIFFERENT I P ADDRESS . Q AND A DIFFERENT IP ADDRESS. AND WHAT I S THE

RESOLUTION OF THAT? A Q THAT T H E IP ADDRESS I S N O T WITHIN MY RANGE . AND SO BOTH TIMES YOU G O T COMPLAINTS THIS

D O M A I N NAME WASN' T U S I N G YOUR IP ADDRESS? A Q THAT'S CORRECT. AND Y O U DIDN 'T GET AN Y MORE COMPLAINTS SINCE

THAT TIME - A Q APPARENTLY N O T. -- ABOUT THAT O N E? OKAY .

EXPLAIN TO US ABOUT T H E NEXT LINE ATOZBRAND.C O M. A I S THAT ANY DIFFERENT?

THAT'S PRETTY MUCH T H E SAME . 140

U.S. COURT REPORTERS

Case5:07-cv-03952-JW Document270-10

Filed01/19/10 Page27 of 27