Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 202

MOTION for Order Excluding Expert Evidence and Testimony by Chris Schwerzler Pursuant to Daubert by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G) (Delgado, William)

Schwerzler, Christopher
Expert Witness

1

Q.

2

12/6/2010

Very good.
Let's talk a little bit about your schooling,

3

which I know we've got into a little bit before, but let

4

me just refresh my recollection.

5
6

As I understand, you have a bachelor's degree
from the University of Michigan?

7

A.

Bachelor's in Engineering.

8

Q.

Did that have any kind of --

9
10

When you say "engineering," was there any kind
of specific engineering?

11

A.

Computer engineering.

12

Q.

And did you have a graduate degree from there

13

as well?

14

A.

No.

15

Q.

Did you ever get any other degree, like a

16

marketing degree?

17

A.

No.

18

Q.

Did you ever take any marketing classes?

19

A.

No.

20

Q.

And you've never gone to law school, right?

21

A.

I've never gone to law school.

22

Q.

All right.

After you graduated from Michigan

23

with your bachelor's degree, where -- what was your

24

first job?

25

A.

Technically, I probably worked for The Weather

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1

worry about it.

2

12/6/2010

I'll rephrase it.

Did you ever perform any of the tasks that you

3

did as part of preparing your expert report in this

4

case?

5

A.

Which tasks would you be referring to?

6

Q.

Well, any of them.

7

through some of the things you've done.

8
9
10

Let's just kind of think

At some point, you received the NCS database t
and that had to be restored, because it was a backup
copy, right?

11

A.

Yes.

12

Q.

Okay.

13

Had you ever done that task before, of

restoring a database?

14

A.

I had never restored the NCS database before.

15

Q.

Did you ever restore any SQL database at all?

16

A.

Not a Microsoft SQL database.

I've primarily

17

dealt with Linux-based MYSQL, and we do our backups

18

slightly different than what was presented to us.

19

Q.

20

restored?

21

A.

Not that I can recall.

22

Q.

Now, have you ever -- had you ever written a

23

24
25

Okay.

Any other types of databases that you

string comparison program before?
A.

Yes, I think I have.

I've actually written my

own versions of STRCMP, S-T-R-C-M-P t at some point in my

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education.

2

Q.

Do you remember when that was?

3

A.

Probably between 1991 and '96.

4

Q.

12/6/2010

And this was in connection with getting your

5

bachelor's degree?

6

A.

Yes.

7

Q.

Any other instances?

8

A.

I may haver as a -- written some string

9

comparison logic r and probably in my high school years r

10

in regards to writing a Commodore 128 ANSI emulator r

11

which I was picking out strings and comparing them in

12

that time framer so

13

Q.

Okay.

The string comp that you did for -- when

14

you were at the University of Michigan, what would that

15

have been for?

16

A.

17

class.

18

Q.

ProbablYr ln regards to a -- just an algorithms

Do you specifically remember writing one of

19

those programs r or you just think you probably did in

20

one of those classes?

21

A.

I'm pretty sure we did something like that

22

ln -- probably at the assembly level, just as an

23

exercise in assembly class.

24

Q.

Okay.

25

A.

Where you're comparing two registers and

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1

walking through itt which is, pretty much t a very simple

2

character-by-character-string comparison.

3
4
5

Q.

Okay.

Had you ever done anything with

trademark matching t trademark specifically?
A.

Probably in the time frame of when we were

6

first registering our trademarks.

7

through the USPTO t between me and Jefft and that would

8

be -- but not

9

register lots of trademarks and covering our butts.

10

Q.

Okay.

I think we looked

I'm not in the business of trying to

So, when you say you went through the

11

PTO, was that in some kind of automated fashion t or you

12

just meant you kind of looked through the --

13

A.

I thought it was online at that point.

Jeff

14

was more involved with the initial registrations of our

15

trademarks t and I'm trying to think.

16

how many years ago we were playing around with

17

DomainTools typo registry.

18

would have probably had seen typos, and I -- but that

19

doesn't have any regard to writing a comparison

20

algorithm, so

I can't remember

But after that point, I

21

Q.

Have you ever held any kind of marketing jobs?

22

A.

Have I held any type of marketing jobs?

23
24

25

I've

stood at trade shows t handing out umbrellas.
Q.

Okay.

Anything

wellt any other type of

marketing responsibility at any of your jobs?

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Expert Witness

1

A.

12/6/2010

I would say that as the director of the

2

company, I have a responsibility to protect our

3

trademarks.

4

Q.

Anything else?

5

A.

Not that I can think of.

6

Q.

And have you had any jobs in the legal field,

7

as a paralegal or a legal assistant?

8

A.

I've never worked as a paralegal.

9

Q.

And certainly not as a lawyer, right?

10

A.

I have not worked as a lawyer.

11

Q.

All right.

12

Have you ever been accredited by

any organization?

13

A.

Not that I can recall.

14

Q.

Have you ever been licensed by any

15

organization?

16

A.

Not that I can recall.

17

Q.

Are you a member of any professional

18

associations?

19

A.

Not that I can recall.

20

Q.

Have you participated in any seminars on, like,

21
22

coding or software, in general?
A.

I think in my last deposition, I referred to a

23

phone. com mobile device conference that I had been to,

24

in regards to programming for that device.

25

Q.

I'm sorry.

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It was what .com?

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Expert Witness

1

A.

Phone.

2

Q.

Phone. com?

3

A.

Yes.

4

Q.

Any other ones that you can recall?

5

A.

Can you repeat the question.

6

Q.

Yeah.

1216/2010

7
8

9

Have you participated in any seminars on

the topic of software or
A.

I've gone to trade shows, such as LinuxWorld,

and listened to people speak.

10

Q.

Okay.

Anything else?

11

A.

Probably, a couple of Macworlds, somewhere in

12

there, some of the tech presentations, but I don't

13

recall topics off the top of my head right now.

14
15

Q.

Had you ever conducted any research independent

of this litigation?

16

MR. HALL:

17

THE WITNESS:

Yes.

MR. DELGADO:

Q.

18

That would be a very vague

question.

19
20

I'm going to object; vague.

Okay.

Let's have it

narrowed down, then.

21

Have you conducted any research into, like,

22

computer science for string comparison algorithms,

23

independent of the litigation?

24

A.

Not that I can recall.

25

Q.

Had you ever conducted any research independent

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Expert Witness

1
2

A.

1216/2010

I would say "that the person who's worked the

most on that would probably be Matt Kallio.

3

Q.

And you had discussions with Mr. Kallio?

4

A.

Yes.

5

Q.

So what was your role?

6

A.

Sound wall.

7

Q.

Which means he bounces ideas off of you?

8

A.

Yes.

9

Q.

Other than being a sound wall for Mr. Kallio,

10

11

I speak with Kallio often.

It's how a lot of our development works.

is there anything else?
A.

That's the only example I can think of right

12

now that would probably be along the lines that you're

13

looking for.

14
15

16
17

Q.

Prior to the litigation, had you conducted any

research into domain name tasting?
A.

I was never interested in doing domain name

tasting, so no.

18

Q.

How about domain name monetization?

19

A.

I had never researched domain name

20

monetization, other than what we do with ours.

21

Q.

22

A.

Have you ever given any lectures

Yes.

At the university level, I had done

anywhere?

23

Okay.

24

presentations with Perry Sampson there about Blue Skies,

25

and I'd also given one of his presentations in a senior

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Expert Witness

1

tech com class, so that would be about the closest thing

2

1216/2010

that I could think of to a lecture.

3

Q.

This is while you were an undergraduate?

4

A.

Yes.

5

Q.

And tech com stands for what?

6

A.

Technical communications.

7

Q.

Anything else you can recall?

8

A.

Not offhand.

9

Q.

Have you ever been published?

10

A.

In what form?

11

Q.

Written any kind of books or magazine articles,

12

or anything like that?

13

A.

No.

14

Q.

Is there in any form, since you asked the

15

question?

16

A.

17

I have had people publish things about our work

at The Weather Underground.

18

Q.

But nothing that you yourself have written?

19

A.

Not that I can recall.

20

Q.

And you've never been an expert before,

21

correct?

22

A.

I've never been an expert in a trial.

23

Q.

Have you been an expert in some other context?

24

A.

I am an expert at taking weather data and

25

putting it online and building a business out of it.

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Schwerzler, Christopher
Expert Witness

1

Q.

Okay.

2

A.

12/6/2010

I guess, expert is all relevant to what

3
4

5

Any other context?

you're -- what field you're talking about.
Q.

Is there any other field that you think you're

an expert in?

6

A.

There's topics I know a lot about.

7

Q.

And those would be?

8

A.

I know a lot about llamas.

9

Q.

That explains the title.

10

A.

Yes.

11

Q.

Okay.

12

A.

Olives.

13

Q.

I'm sorry?

14

A.

Olives, like olive oil.

15

Q.

Got it.

18

19

Olives.

Anything else?

16
17

Anything else?

A.

I'm starting to learn a fair amount about

guitar building.
Q.

Okay.

How about this, any topics that you drew

20

upon for purposes of preparing the expert report in this

21

case?

22
23
24

25

A.

Just my experiences in The Weather Underground,

and computer science from that.
Q.

Okay.

Have you ever acted as a consultant for

a third party before?

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Expert Witness

1

A.

Yes.

2

Q.

Anything else?

3

A.

12/6/2010

Probably the Java Cool Tools award, circa,

4

probably '97, of Sun Microsystems.

5

Q.

What was that for?

6

A.

Java Weather.

7

Q.

Any other ones you can recall?

8

A.

Not offhand.

9

Q.

Have you ever served in any organizations in

10

the field of computer science?
...

11

A.

No.

12

Q.

Had you ever seen a Fuzzy Matching program like

13

the one used by NCS prior to the litigation?

14

A.

A program or the actual algorithm?

15

Q.

Well, either one.

16

A.

I don't think we have seen the actual algorithm

17

used by the Fuzzy Matching, nor has Navigation Catalyst

18

been able to provide it to us.

19
20

21
22

Q.

How about any program that implements the, kind

of, Fuzzy Matching algorithm?
A.

I would say that MYSQL, M-Y-S-Q-L, uses a

string matching in the context of the command "like."

23

Q.

Is that the only one?

24

A.

I don't do a lot with string matching.

25

Q.

Just broadly speaking, is there any other

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experience that you have had which relates to the

2

12/6/2010

topics, ln your expert report, anything I've left out?

3

MR. HALL:

4

MR. DELGADO:

5

Q.

Can you repeat that question?
Sure.

Is there any other experience that you've had

6

which relates to the topics of your expert report or

7

anything that I may have left out in kind of going

8

through your background?

9

A.

Not that I can recall right now.

10

Q.

So would it be fair to say that your field of

11

12

expertise is, essentially, computer science?
A.

MR. DELGADO:

13
14

Yes.

Exhibit 203.

Let's go through and mark this as

It sounds like a good place to start.

15

(Whereupon

16

was marked for identification.)

17

MR. DELGADO;

18

t

Defendants' Exhibit No. 203

Q.

Take a moment to look

through that, and let me know when you're ready.

19

It looks like my copy was a staple of page 3,

20

ln front of page 2, so just don't let that confuse you.

21

Feel free to unstaple it and reorder them, if that

22

helps.

23

A.

Okay.

24

Q.

I'm going to ask you to look now at the page

25

that's marked page 3 of 8.

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1

Q.

Okay.

2

A.

Qwunderground.com.

3

Q.

Okay.

4

A.

That would be Q-W-U-N-D-E-R-G-R-O-U-N-D.

5

Probably, I believe, one called

6

tickettoworkfrornhome.net, I believe.

7

@watherunderground,

8

W-A-T-H-E-R-U-N-D-E-R-G-R-O-U-N-D.com.

9

theweatherundergound, spelled

Probably

10

T-H-E-W-E-A-~:H-E-R-U-N-D-E-R-G-O-U-N-D,

11

"R."

12

going.

13

Q.

Probably,

Let's see ..

missing the

Give me efiough time, and I can keep

Well, let me ask you this:

To the best of your

14

knowledge, have all of those -- have printouts of all

15

these archival whois records been provided to us?

16
17

A.

I would think that would be a better question

to ask to my legal.

18

Q.

So, sitting here today, you don't know?

19

A.

Has every domain I've looked at under

20

DomainTools been printed out and presented to you?

21

Q.

22

right.

23

A.

24

25

The archival of whois records you looked at,

No, I wouldn't think that you have not seen

that.

Q.

Okay.

And how was it that you -- so did you

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2
3

4

1216/2010

print out some and not others?

A.

I do not believe I printed out any for this

particular request.
Q.

Well -- okay.

5

How about just kind of along the way, as you

6

were doing your research or preparing your report; do

7

you recall printing out any of the archival whois

8

records that you were looking at?

9

A.

Yes.

The tickettoworkfromhome example was used

10

as an exhibit in the Misino second half deposition, so

11

that would be an example of -- that got printed, but

12

that was not done for this expert report.

13
14

Q.

Did you do that for every single archival whois

record that you looked at?

15

A.

No, I did not.

16

Q.

Okay.

17

18

Did you have conversations with your

attorneys about your expert report?
A.

Without getting into privileged information, I

19

would say yes, I had conversations in regards to MYS-

20

the time line on which I was to present them, my expert

21

findings.

22

rough draft of my findings, and I believe we had a

23

conversation in regards to this particular third Request

24

for Production and the questions and the time line

25

involved with it.

I had a conversation in which we discussed a

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somewhere around 18 to 19 percent.
Q.

And in your role as either a member of the

3

board of directors or shareholder, have you made any

4

decisions related to the litigation?
MR. HALL:

5

Well, I'm going to object, to the

6

extent that some of this is getting outside of the scope

7

as an expert.
MR. DELGADO:

8

9

Okay.

Well, I don't think so.

I

mean, in various cases you're allowed to explore a

10

potential bias on the part of the expert.

11

that he's a salaried employee or might share in the

12

proceeds of any damages award, I'm clearly entitled to

13

know that.

14

to keep asking my questions.

15
16

17

Q.

To the extent

So I'll note your objection, but I'm going

So the question was, did you play any role in

decisions related to the litigation.
A.

Yes, I believe I played a role at the board

18

level, that we were going to file suit in both this --

19

or both in California and in Michigan.

20
21

Q.

Were you involved in any kind of investigation

prior to the decision to filing suit?

22

A.

Not that I recall.

23

Q.

And in terms of when you made the decision to

24

file suit, did you play any role as to which particular

25

claims you might bring or not bring?

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trademark," possibly, "deleted."

2

12/6/2010

of -- off the top· of my head.

3

4

Q.

Did you keep any kind of document that would

show all the searches that you ran against?

5

A.

No.

6

Q.

All right.

7

Go down to the -- go down to the
Yeah, that one.

The general observations there, number one is C
Sharp programming language.

10
11

I have not recorded every search.

first page of the initial report.

8
9

That's all I can think

Had you had previous experience with the
programming language C?

12

A.

with C, yes, I have.

13

Q.

How about C Sharp?

14

A.

No, not a lot.

15

Q.

How about c++?

16

A.

Yes.

17

Q.

Do you know the difference between these

18

different languages --

19

A.

With C Sharp is a --

20

Q.

Hold on.

21

record gets blown.

22
23
24

25

Let me get my question out before the

Do you know the difference between any of these
languages, if any?
A.

They are very similar in nature.

being, I believe, Microsoft's product.

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C Sharp

And most of my

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career has been in either Linux or Macintosh

2

development.

3

12/6/2010

development toolset.

4
5

Q.

I'm not super familiar with the Microsoft

Is either

are either C or c++ used in Linux

or Macintosh?

6

A.

Yes.

7

Q.

But C Sharp is not?

8

A.

Not to my knowledge.

9
10
11

I don't know if Microsoft

ever published a Macintosh development product that may
have been in that flavor, but I've never used it.
Q.

Look at the second page.

There's a paragraph

12

that -- I'm sorry, the next page.

The paragraph that

13

says, "The key finding being," and then it gives some

14

code.

15

A.

Yes.

16

Q.

And then it has a paragraph below that.

17

A.

Where it says "To do implement," under -- below

18

that?

19

Q.

Correct.

20

A.

Yes.

21

Q.

The paragraph starts with, "It is my belief,"

22

and then it goes on from there.

23

A.

Okay.

24

Q.

All right.

25

Is that -- what is stated in that

paragraph, having now gotten the database and done some

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further explorations and seen the program in operation,

2

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is there -- is this still your opinion, this paragraph?

3

A.

Let me read it.

4

Q.

Sure.

5

A.

"It is my belief that this function is intended

6

to first load all the known trademarks from the USPTO

7

database and then does nothing (returns NULL or nothing

8

in computer science speak) as a match to anything passed

9

into the function to be checked for trademark

10

violations."

11

The function I list above is what I believe is

12

still in my find- -- or in the discovery materials, and

13

I believe that particular function does nothing after

14

loading the trademarks.

15

Q.

Have you found other functions that do in fact

16

load the trademarks and then go -- goes beyond that

17

stuff?

18

A.

Yes.

After this initial report was filed,

19

there was another spot identified in the code that does

20

actually make use of the same loading of trademarks and

21

then actually does do Fuzzy comparison against

22

trademarks and candidate domains.

23

24

25

Q.

All right.

Go to the page that starts -- or

. not starts with, but has the title "Conclusions."
A.

Okay.

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precludes trademark registrations.
Q.

And the answer -- or the question was, why, and

3

you gave me one example.

4

So my question is, is there

anything else?

5

A.

Do you want more examples?

6

Q.

Well, I'm trying to get -- I'm trying to figure

7

out if the opinion has changed or has not changed, I

8

should say.

9

reasons why the opinion has not changed.

10

A.

So I'm trying to figure out all possible

I would say that also the code hasn't been

11

shown to have been used at all points at registration,

12

so, therefore, it could not have precluded the

13

registration of trademarks prior to its existence.

14

Q.

Okay.

The second part of that, which I'm going

15

to get to now, it says,

16

business model," and I think what that's referring to is

17

the registration of typographical variations of

18

trademarks appear to be defendant's business model.

19

Is that still your opinion today?

20

A.

"Which appears to be defendant's

I would say that the defendant has a portfolio

21

that is riddled with near miss trademark registrations.

22

And whether that's your primary business model or a part

23

of -- thereof, cannot be determined by me at this point

24

without proper financial documents, so I will not make a

25

conclusion one way or the other that that is your

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primary business model.

2

have profited -- or the defendants have profited through

3

this practice.

4

Q.

But I do believe that you

The next paragraph says, liThe coders appear to

5

have intentionally designed the software to allow for

6

the registration of typographical variations of

7

high-traffic websites."

8

Do you see that?

9

A.

Yes.

10

Q.

Is that your opinion today?

11

A.

Is it my opinion that the coders

from this

12

document, when I wrote this statement, would be that it

13

looked like they had not completed it.

14

be that they were accumulating a large number of near

15

misses.

16

a system that they are aware of, was not even being used

17

prior to registration, especially during the tasting

18

periods of 2007 up to mid 2008.

19

The result would

I would think that the coders today implemented

So therefore, I would say that the coders were

20

aware that their system was not even being used to

21

preclude registration at that time, and that they were

22

partaking in a system designed to accumulate

23

high-traffic website near miss registrations.

24

25

Q.

But in terms of the language you have here,

where it says, "Intentionally designed the software to

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And then, I believe shortly after that we

2

actually received the stored procedures that I had

3

requested, which made it easier to connect the code to

4

the databases as the stored procedures, or the layer in

5

12/6/2010

between there.

6

Q.

Okay.

Did you keep track in any way as to what

7

you were looking at on a particular day or for a

8

particular task?

9

A.

I believe that there -- in my discovery

10

requests there are digital files in there that have

11

notes that I took throughout the course of discovery,

12

queries I ran, results --

13

Q.

Okay.

14

A.

-- threads of my discovery, thoughts.

15

Q.

I think I have some of those, so we'll mark

16

those.

17
18

19
20

Did you capture everything that you did in
those notes?
A.

I don't think you could capture everything and

be productive in going through that much discovery.

21

Q.

Okay.

So the answer is no?

22

A.

You're asking me if I captured everything?

23

Q.

Correct.

24

A.

I think the question is vague.

25

Q.

Well, in looking at the database and running

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these queries that you rant did

2

note of each query that you ran or result?

YOU t

for example

t

make a

3

A.

I did not record every query I ran.

4

Q.

Did you keep track of every single table that

5

6

7
8

9
10
11
12
13

you looked at?
A.

I did not record every table that I went

through.
MR. DELGADO:

Okay.

I think I can stop here

and take a break for lunch t and we'll come back and take
a look at the report itself.
THE VIDEOGRAPHER:

Off the record.

The time is

12:13 p.m.

(Lunch recess from 12:13 to 1:00 p.m.)

14
15
16
17
18
19
20
21
22

23
24

25

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Q.

2

All right,

12/6/2010

Let me -- let me address that.

It's my understanding that there's a second

3

component, which is the blacklist -- which has been a

4

term that's been used -- and that any candidate domain

5

name that matches against the blacklist is flagged, and

6

then it continues through the review process.

7

Sitting here today, is it your understanding

8

that there's actually,

in fact, two different what I

9

will call blacklists:

One is this exclusion file and

10

then the other is a blacklist that has terms on it that

11

only flags things as it goes through the candidate

12

process.

13

A.

I have not studied any form of an exclusion

14

file in the materials.

15

possible, but it doesn't seem to have stopped many of

16

the instances that we are alleging.

17

Q.

18

question.

19

20
21
22

Okay.

Whether it exists or not, is

So that was going to be my next

Have you seen this exclusion file?
A.

I may have seen it.

I may not have recognized

it as what you're calling the exclusion file.
Q.

How about the blacklist; have you seen the

23

spreadsheet or any kind of document with a bunch of

24

terms that -- it is your understanding that this is what

25

would be the blacklist that the software uses?

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A.

12/6/2010

I believe that samples have been presented

2

throughout the course of discovery.

3

there is a table in the domain_park set of tables that

4

is -- what you are r probab1Yr referring to as the

5

blacklist of exact matches, that cause a blacklist flag

6

to be acknowledged.

7

8

9
10
11
12

Q.

Okay.

I

also believe that

And in your reportr is there anywhere

where you talk about that blacklist table?
A.

Not currently in this -- not in this

supplemental report.
Q.

Okay.

I

don't believe so.

Are you considering supplementing your

report again to address the blacklist table?

13

A.

It's possible.

14

Q.

Wellr as you sit here todaYr have you given

15

16

that thought, or have you put any work towards that end?
A.

I will probably reflect upon that r and I may

17

supplement my report.

18

statement, it doesn't seem to have precluded the alleged

19

abuses r so

20

Q.

Okay.

But going back to my original

I guess r what I'm trying to figure out

21

iS r right now, have you done any work towards a new

22

report that addresses the blacklist?

23
24

25

A.

No.

I have not done any work towards any

report that addresses the blacklist r to this date.
Q.

Okay.

Now r the first sentence here says,

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"Since my original report, I have found another path in

2

the code provided that appears to actually make some use

3

1216/2010

of the USPTO database."

4
5

6

How is it that you came to find this other part
of the code?
A.

I believe I identified this one once I had

7

access to the -- what are referred to as stored

8

procedures.

9

able to actually run larger queries, looking for

When I had the stored procedures, I was

10

references to particular tables.

In this case, I

11

believe, the table I was searching for was called Search

12

Trademark

13

second, I could probably identify it, if this report is

14

complete.

15

Q.

Okay.

16

A.

Yes, I believe it's referred to as

without the -- actually, if you hold on one

17

dbo.search_trademark, containing some 1.3 million in

18

change entries.

19

Q.

Okay.

Now, earlier I asked you about some of

20

the searches you ran with respect to when you first got

21

the discovery documents in connection with preparing

22

your very first report.

23

trademark, Fuzzy, deleted," as some of the potential

24

searches you may have run.

25

A.

I think you said, "Blacklist,

Do you remember that?

I remember your -- yes, the recollection of --

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recklation of -- or recalling of the record.
Q.

Okay.

Look at the code itself where it says,

3

"Checks a domain name against trademark database, and

5

there's a potential trademark concern."

6

A.

Correct.

7

Q.

Did this portion of the code not come up when

8

you ran your search for "trademark" on the PDF files?

9

A.

It's possible.

10

Q.

It's possible that it did or did not come up?

11

A.

It's possible it did not.

12

It's possible that

it did.

13

Q.

Do you recall whether it came up or not?

14

A.

I do not recall.

15

Q.

Okay.

Let's go to the next page.

The first

16

full paragraph says, "This appears to be where the Algo

17

tool does 'Fuzzy Matching, '" end quotes,

18

the match results to the, open quote,

19

'search_algo_client_data_trademarks,'" closed quote,

20

"table."

21
22

23

Is it your opinion that it

1S

"and records

the Algo tool

that does the Fuzzy Matching?
A.

I do not think that is the only place that

24

Fuzzy Matching is done, seeing that some of the results

25

seem to indicate, I believe, Source.

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2

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What would happen if you increased 85 percent

to 90 percent?
A.

3

I would believe that the examples would be

4

fewer but, probably, there would be less possible false

5

positives.

6

Q.

What is a false positive?

7

A.

In shorter domains such as the one everyone

8

loves to use, Time, a single edit distance can sometimes

9

change the word in a way that it is another word, and

10

that would be something many people would take objection

11

to.

12

Larger domains, not so much the case.
Q.

So how does your PHP script, kind of, take into

13

account that with shorter domain names, a single edit

14

could change the objectionableness of the domain names?

15

A.

It doesn't.

It treats them the same, but I

16

would expect that 85 percent is going to rule out some

17

of the shorter ones, based on -- let's take, for

18

example, if you had a four-letter domain, one letter

19

being different, it's going to cause a 75 percent match,

20

and it's going to fallout.

21

picked 85, being greater than 80, and that 80 could

22

actually catch a four-out-of-five-Ietter variation.

23
24

25

Q.

Okay.

That may have been why I

Now, this PHP script that you created,

that was specifically for purposes of this litigation?
A.

Yes.

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2

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Had you ever created a PHP script like this

before?
A.

I've created many PHP scripts, not like this

5

Q.

Not like this one?

6

A.

Not for the purpose of doing trademark

7

matching.

8

Q.

3

4

9

10
11
12

one.

Okay.

Has anybody else ever used your PHP

script, Mr. Kallio, for example?
A.

I believe I'm the only one that's run and

modified the script.
Q.

To the best of your knowledge, did

13

Mr. Kallio seen the -- why don't we call it the finished

14

version of this script, the one that appears in the

15

Appendix to the report.

16
17

A.

I don't believe Mr. Kallio has reviewed my

expert report, no.

18

Q.

Okay.

19

A.

Oh, wait.

I will amend that.

He did do a

20

proofing of the text, not so much the examples In the

21

appendixes, as far as typos and misspellings, for the

22

final version.

23

Q.

Okay.

24

A.

So, I want to be accurate.

25

Q.

Could you use the PHP script to compare the

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portfolio to the PTO database?
A.

Could I use PHP to compare your portfolio to

the US trademark database?

4

Q.

Yes.

5

A.

Yes, I could do that.

6

Q.

Okay.

7

I may have asked you this before.

sorry if I did.

8
9

Well, the one that appears in Appendix B.

I'm

I can't remember.

For purposes of determining edit distance, did
you consider an alternative to Levenshtein distance?

10

A.

No.

11

Q.

Okay.

12

A.

A decent text comparison algorithm.

13

Q.

Well, did you consider any other ones at all?

14

A.

Oh, I think we considered using similar_text,

Levenshtein seemed to meet my needs.
And what were those needs?

15

and we ended up using both.

16

either one, stand-alone.

17

multiple techniques, it would be even better.

18

think that if I wanted to spend even more time doing a

19

job that the defendants should have done more properly,

20

I could have developed further algorithms, such as what

21

I was talking about before, with analyzing the QWERTY

22

distance and traversal of the keyboard to determine

23

whether two strings were similar.

24
25

Q.

Okay.

I think we could have used

But I think that by using
And I

Let me see if I understand, kind of,

your earlier testimony.

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MR. DELGADO:

1
2

answers.

3

12/6/2010

I think he's given me other

It's not really -- haven't been answers to the

question.

4

MR. HALL:

5

MR. DELGADO:

6

Q.

Can you repeat your question.
Sure.

The question was, if underground. com was in

7

fact peddling pornography, or not weather-related, would

8

plaintiffs still be claiming rights to underground. com?
MR. HALL:

9

I'll object as being compound.

THE WITNESS:
11

legal action against underground. com, nor have we.
MR. DELGADO:

12
13

I don't think that we would take

Q.

Okay.

Let's go to the next

page where it starts with "Analysis of the time line."

14

A.

Okay.

15

Q.

All right.

16

paragraph.

17

intended to start dealing in riskier registration

18

practices and saw the opportunity to obscure their

19

identity and add a lawyer of corporate legal protection

20

to their actions."

21
22

A.

Go down to the second to last

It says, "My opinion is that the defendants

That's one of the typos, I believe, that was

edited in the later verSlon.

23

Q.

So I assume "add a layer."

24

A.

I almost left it as lawyer, because it seemed

25

appropriate, but I think it was meant to be layer.

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Q.

Okay.

What is the basis for that opinion?

2

A.

I believe that had your defendants chosen to

3

operate a legitimate domaining practice, they probably

4

would have used the parent company as the registrant,

5

rather than creating this shell of a company called

6

Navigation Catalyst Systems, registered late in 2003,

7

prior to what I believe is the first real abusive

8

behavior, it would seem, in their registration

9

activities.

10

Q.

Any other basis for that opinion?

11

A.

I

12

Q.

All right.

think that speaks for itself.
Let's go to the next page.

Go down to one, two, three, four

13

the fifth

14

paragraph, "The use of 'DNS error data'''; do you see

15

that?

16

A.

Yes, I do.

17

Q.

The last sentence says,

"Those targets will

18

often and likely represent the brands and trademarks of

19

legitimate companies."

20

Do you see that?

21

A.

I see that.

22

Q.

Okay.

23

A.

Would you read the full paragraph.

24

Q.

Sure.

25

And that opinion

lS

based on what?

"The use of 'DNS error data'

lS

to

intentionally target the actual intent of the user.

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is effectively using humans as QWERTY typo generators.

2

By doing so, you will end up with large amounts of typos

3

of the users' intended targets.

4

often and likely represent the brands and trademarks of

5

12/6/2010

legitimate companies."
And my question is, what do you base that on?

6
7

Those targets will

A.

The fact that you

the defendants heavily

8

registered similar domains to top trafficked websites.

9

I also based it upon Professor Korf's findings in the

10

end of his report, where he says that Firstlook is ln

11

the business of registering high trafficked domain

12

names.

13

Q.

14

15

I think the two are not exclusive.
Okay.

But that belief, what do you base that

on, that they're not exclusive?
A.

That the high trafficked websites yield a

16

potential to make cache, and I believe that is what is

17

being exploited here by registering confusingly similar

18

domains.

19

Q.

The next paragraph says, "These brands and

20

trademarks often represent the hard efforts and the many

21

man-years of work it takes to make a successful

22

business."

23

Do you see that?

24

A.

Yes.

25

Q.

What do you base that on?

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2

A.

1216/2010

My personal experience in building a successful

online business.

3

Q.

4

value?

5

A.

Have you ever testified on anything like brand

6

Not that I can recall.

I don't think I've

testified -- in a legal context, are you asking?

7

Q.

Right.

8

A.

No, I don't believe so.

9

Q.

It goes on to say, IIIn the on-line space, the

10

domain name is the identity and one of the primary

11

assets of one successful business, not something that

12

you register millions of.1I

13

14

What is that based on?
A.

Probably, most of the top 2,000 websites on the
t~~m

15

Internet, most of

16

domains.

17

exceptions to that model, where they've registered all

18

sorts of crazy domains.

19

register only a handful of

Some of them, like Microsoft, might be

But that -- I think that, for the most part,

20

you only need one domain to be a successful online

21

website.

22

and speculative domaining is a product of evil, and I

23

think some people have been very successful in

24

registering non-offending or infringing trade -- or

25

domains, and have sold them for good money and made very

And I'm not going to say that all domaining

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percentage of the current portfolio is a near miss of a

2

higher-ranking Quantcast top million domain."

3

For purposes of this statement, when you say

4

"near miss," if I were to quantify that, that would mean

5

it would be what we saw before, in terms of it being an

6

85 percent match and an edit distance of two or less?

A.

7

8

Yes, I believe that my exhibit was created with

85 and two or less.

Q.

9

Okay.

Does this tell us what percentage of the

10

portfolio is a near miss, as that term is defined, to

11

trademarks in the PTO database?
A.

12
13

I have not analyzed the domain portfolio versus

the USPTO on a complete basis.

14

Q.

Have you done it on an incomplete basis?

15

A.

I don't think that you can generate a

16

percentage on an incomplete subset.

Q.

17
18

But what did you mean when you said,

"I haven't

done it on a complete basis"?

A.

19

That I haven't gone through the exerClse of

20

taking your entire portfolio and matching it against the

21

one point however many million USPTO trademarks there

22

are.

23

discovery.

24

Q.

25

That may be something to do before the end of

Do you have any understanding as to when the

Fuzzy Match system that Mr. Misino wrote was first

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Q.

You weren't there for that?

2

A.

I believe that was shortly after I left.

3

Q.

Okay.

4

A.

I've read a very, very rough transcript.

5

Q.

12/6/2010

Do you have any opinion, based on that

Have you read any of that testimony?

6

testimony, as to whether Mr. Misino's explanation is

7

valid or not valid?

8
9

10
11

12
13

14

A.

I am not going to state opinion on an

incomplete and noncertified version of the transcript.
Q.

Okay.

What do you recall reading as far as a

position for why "the" and ".com" are not compared?
A.

I don't recall actually seeing his explanation

of that.
Q.

Okay.

All right.

Let's go to point number 11.

15

It says, "The defense is intentionally using DNS error

16

data to come up with a list of candidates to register.

17

This practice will yield a large number of near

18

trademarked terms."

19
20

That conclusion that it would yield a large
number of near trademarked terms is based on what?

21

A.

22

exhibi ts.

23

Q.

The output of my tests, as included as

24

25

The PHP scripts that compare domain names to

domain names?
A.

Domain names to top trafficked websites.

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12/6/2010

And did you do any kind of analysis as to

2

whether or not these top trafficked websites actually

3

had a trademark?
A.

4

I

would say that even if they weren't In the

5

USPTO, they are probably common law trademarks through

6

use.

7

Q.

And that understanding is based on?

8

A.

A conversation with counsel.

9

Q.

"This is what the defendants want/ as the

10

actual content sites have traffic that they can monetize

11

the misspellings of."
How did you determine defendants' intent for

12
13

14

the purposes of that conclusion?
A.

I

believe heavily, based on Professor Korf's

15

statement and his findings as well/ that Firstlook is In

16

the business of registering highly traffic websites, and

17

highly trafficked websites yield advertisement

18

potential/ and that is what

19

business is about.

20
21
22

Q.

All right.

I

I

believe the defendants'

think we're done with this

exhibit.
Before you began doing any work as an expert

23

witness in this case, did you have any kind of an

24

opinion about the business model of registering domain

25

names in bulk?

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A.

12/6/2010

I guess, I was unaware that companies would

2

register domains in the quantities that the defendants

3

have.

4

that had fairly impressive-sized portfolios.

5

thinking probably tens, 20s, maybe 1,000, early domains.

6

But I was unaware that there were businesses out there

7

that registered tens of thousands, hundreds of

8

thousands, or in the case of tasting, millions of

9

domains.

I knew there was speculative domainers out there
I was

10

Q.

And when was it that you first learned that?

11

A.

Throughout the course of this lawsuit.

12

Q.

Before doing any work as an expert, did you

13

have any notion as to what you might find in the NCS

14

software?

15

A.

I believe we had our suspicions, and that's why

16

I think you will see in our original claim of the

17

lawsuit -- I don't think that my opinion has changed

18

drastically, other than now I'm aware that there are

19

more parties than what were originally aware of involved

20

in how this business works.

21

Q.

What were those suspicions?

22

A.

That the defendants register large volumes of

23
24

25

trademark infringing domains.
Q.

Do you have any -- did you have any opinions,

though, as the software component of their business and

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2

how that operated?
A.

I believe early in the case, it was represented

3

to us that it was a completely automated system.

4

since then, I believe the depositions have shown

5

otherwise.

6

of scoring of domains, but I believe there's also a

7

human aspect.

8

filed a lawsuit that NCS had no employees.

9

came out very shortly in to the case.

10
11

12

Q.

And

I believe that there's an automated portion

And I also was unaware of when we first
I think that

Did you have any opinions about the

effectiveness of the software to screen out trademarks?

A.

I would probably have to say I didn't think it

13

was very effective, in that our trademarks or near

14

misspellings of them were registered.

15
16

17

Q.

What about any opinions on how one could

effectively design a program to screen for trademarks?
A.

I don't believe that a company has the right to

18

bulk register domains if they cannot come up with a

19

system that does not infringe on other parties'

20

trademarks.

21

Q.

And -- okay.

So, with respect to that, would

22

that system have to be 100 percent effective, in your

23

opinion?

24

25

A.

I would hope it would be, or else you're likely

going to be dealing with lots of litigation.

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Q.

2

after you

3

12/6/2010

some work for this case as an expert?

4
5

A.

And did any of these opinions change over time
where you reviewed some discovery and did

I don't think my opinions have changed

substantially.

6

MR. DELGADO:

Okay.

214?

7

THE REPORTER:

Yes.

8

MR. DELGADO:

Okay.

9

(Whereupon, Defendants' Exhibit No. 214

10

was marked for identification.)

11

THE WITNESS:

Okay.

12

MR. DELGADO:

Q.

13
14
15
16
17

document
A.

Can you tell me what this

lS.

This appears to be a signed version of my

expert report continuation.
Q.

And did you provide this to your counsel back

in October -- on October 10th, 2010?

18

A.

Yes, I believe so.

19

Q.

All the content that's in this report would

20
21

have been there as of October 10th, 2010?
A.

I believe, with the exception of -- I believe

22

the NCS on the first page, the reference to 058791 was

23

still in the form of NCSXXXX, because I didn't know the

24

number off the top of my head.

25

printing this, and I also added my signature to it.

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I prepared that prior to

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Q.

When did you do that?

2

A.

That would have probably been once I realized

3

that you guys were operating under the wrong copy.

4

prior to my third responses, I wanted to get an accurate

5

verSlon of this out to you.
Q.

6

7

In terms of a date, do you remember when that

waSj sometime in the last month?

A.

8

9

And

I would have to guess someplace around --

probably around November 20th, or so.

10

Q.

Were those the only two changes that were made?

11

A.

That I recall.

12

Q.

All right.

13

A.

I will state that this version, I believe,

14

should have a section that was not in the last one,

15

referred to as "Categorization Tool Records," on page

16

14.

17

Q.

Right.

18

A.

That was added just after the original draft

19

that we were working with here.

20

Q.

Okay.

21

A.

And just prior to the -- I think, your

22

receiving of that copy -- or where the miscommunication

23

happened, I am unaware.

24

25

Q.

Page 3, I'm just going to go through some of

the changes that appear in the draft here.

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2

Point number two

the word "registration" is

inserted between "domain" and "activity."

3
4

t

Why was that change made?
A.

This is probably the product of the last t

5

probablYt proofreading of the grammatical mistakes t that

6

were after this version.

7

was one of the earliest -- or the only rough draft that

8

I presented to counsel.

9

were made t

10
11
12

13

Because I believe this version

And then t I believe t the edits

and then it sat for -- until we realized that

you were working with the wrong copy.
Q.

When you said lithe edits were made t

"

who -- did

you make those edits?
A.

Yes.

And I also believe that I specified that

14

Mr. Kallio proofed this.

And I believe Mr. Ferguson

15

also was in San Francisco that daYt and he did a quick

16

pass of it as well.

17

Q.

And t approximatelYt when do you think that was?

18

A.

ProbablYt right around October t early -- the

19

20

first week of October t I would guess.
Q.

Now

t

getting back to the question of the

21

addition of the word "registration t " do you know why

22

that particular word was added in there?

23

A.

May I take a second to see what it was before?

24

Q.

Yeah t go ahead.

25

A.

Because I think it's more accurate in that

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there was actually registration activity that happened

2

involved with this tasting, not that I -- or could I

3

think of another example of where you could taste

4

something without registering it, but

5

Q.

You could or could not think of it?

6

A.

I can not think of how you -- one would taste a

7

domain without registering it.

8

Q.

On page 7 -- go ahead and go to page 7.

9

A.

Okay.

10

Q.

In the middle, there's a -- kind of a -- just a

11

random line that says,

12

Berryhill."

13

A.

"Expert Report of John

What does that mean?

I did spot that at the end, after I had cleaned

14

this up.

15

that went through all versions.

16

17
18

Yep, I -- it's probably a copy and paste error

Does it appear in this version as well?
Q.

I don't think so.

It doesn't appear in the

prior version.

19

Was there ever any part of any of the drafts of

20

this report where you talked about the expert report of

21

John Berryhill and then wound up taking it out?

22

A.

I might have left it as a place marker.

This

23

may have actually came out of one of my rough text files

24

that I included in the discovery or Request for

25

Production number three.

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It's possible that it got

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copied as a line out of there into here.

2

12/6/2010

been a memo.

It could have

3

Q.

Okay.

4

A.

I don't think I was trying to make any exact

5

statement about the expert report of John Berryhill in

6

conjunction with that, and

7

Q.

Okay.

Let's go to page

8

and 15.

9

appear in the previous draft.

10
11

A.

let's go to page 14

I think you indicated that this section didn't

Yes,

Correct?

"Characterization Tool Records" were added

late.

12

Q.

All right.

Tell me what this section is about.

13

A.

This is data I found within, what I believe, is

14

the characterization history.

15

believe, are terms that were added by human beings doing

16

their characterization work, to take the candidate

17

domain and typing it, likely, into Google and finding

18

the real domain and then recording key words under the

19

seed_keyword one, seed_keyword two, for the sake of

20

optimizing the advertising.

21

Q.

It would be, what I

Prior to this lawsuit, had you ever heard of a

22

company that produces a program called "Keyword

23

Country"?

24

A.

No.

25

Q.

Having read the deposition of Mavi Llamas, are

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you now familiar with "Keyword Country," the existence

2

of it?

3

A.

12/6/2010

I'm aware of it now that you're claiming that

4

it's in the Llamas deposition, or Llamas, I believe.

5

have not done any research on that.

6

Q.

Okay.

Let's go to page 16.

I

In the second

7

paragraph it says, "From reviewing the history of the

8

defendants' registration, it shows that for the most

9

part from 1993 to 2003 they were in the business of

10

registering non trademarked domains.

11

jackpotloterry.com, iwinbig.com, and seekingcredit.com."

12
13

14

Names like

The domain name videopokersO.com was deleted;
why was that?
A.

That may have been in regards to a conversation

15

I had with counsel.

16

be on the edge of a trademark

17

a good example

18

the earlier registrations

19

any thorough trademark analysis.

20

not recognize any of the domains being registered prior

21

to the end of 2003

22

registered l as being something I recognized.

23

Q.

I

I think Enrico said that that might
I

so I didn't think it made

but -- I will also say thatl looking at

1

I

I have not run them through
I just personally did

other than Navigation Catalyst being

Go to page 17, the second to last paragraph.

24

There was language in the old report that said l "They

25

have tried to hide that through the use of a proxy

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service created by their former chief counsel Chris
. Pirrone.

They have no intent of stopping this

practice. "
That does not appear in this draft.

4

5

12/6/2010

Can you

tell me why that change was made?
A.

6

Probably, through my notes -- I'm not sure if

7

I -- did I actually physically write that or -- I don't

8

know.

9

counsel, in that they said that that sounded a bit

10

hostile, but -Q.

11
12

I may have been editing on the fly there with

When you were editing this, how is it that you

received input from counsel?

A.

13

I produced the rough draft.

We walked through

14

it.

15

saying, and they gave me only a very limited list of

16

suggestions.

17

They -- mostly so they understood what I was

Q.

And, to the best of your recollection, one of

18

the suggestions was to eliminate that particular

19

language that we just discussed?

20

A.

I believe so.

21

Q.

There's also language In the previous draft at

22

the end of that paragraph that said,

23

ACPA was created exactly for this reason and that

24

Professor Korf's employers and some of their partners,

25

like Sinclare Vabalon, BRG, represent the worst

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"I believe that the

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intentional abusers of trademarks in modern history."

2

Is that another paragraph --

3

A.

I think I

4

Q.

Hold on.

5

A.

Okay.

6

Q.

I'll just ask you, why did that get deleted?

7

A.

Why were they deleted?

8

Q.

Why did that phrase or that sentence get

9

10

Let me

let me just finish this.

deleted?

A.

I believe I removed that reference to Sinclare

11

Vabalon because I was curious to see what the record

12

would bring forth.

13
14

Q.

Did counsel give you any suggestions as to

removing this sentence, or did the

15

A.

I do not recall that that was the case.

16

Q.

Okay.

17

So that was entirely your option or your

decision to delete that sentence?

18

A.

Yes.

19

Q.

Page 18, point number eight, the language has

20

changed, from the earlier draft, saying,

21

precautions" to "It does not appear that any significant

22

precautions."

23
24

25

"No

Why was that change made?

A.

I'm unsure.

I might have just chosen to reword

it after my final read.

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