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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Expert Witness
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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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Expert Witness
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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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Schwerzler, Christopher
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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Schwerzler, Christopher
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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Schwerzler, Christopher
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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Schwerzler, Christopher
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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Expert Witness
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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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Expert Witness
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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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Expert Witness
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2
3
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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
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of -- off the topĀ· 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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Expert Witness
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career has been in either Linux or Macintosh
2
development.
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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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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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2
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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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1
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.
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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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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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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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2
3
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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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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