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

Filing 218

RESPONSE to 202 MOTION for Order Excluding Expert Evidence and Testimony by Chris Schwerzler Pursuant to Daubert filed by Weather Underground, Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Schaefer, Enrico)

30(b)(6) Deposition of Donnie J. Misino
Confidential

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

8/20/2010

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THE WEATHER UNDERGROUND, INC., )
a Michigan Corporation,
)
)
Plaintiff,
)
)
vs.
) Case No. 2:09-CV-10756
)
NAVIGATION CATALYST SYSTEMS,
) Volume I
INC., a Delaware corporation; )
BASIC FUSION, INC., a Delaware )
corporation; CONNEXUS CORP., a )
Delaware corporation; and
)
FIRSTLOOK, INC., a Delaware
)
corporation,
)
)
Defendants.
)
_______________________________)
- CONFIDENTIAL - UNDER SEALVIDEOTAPED DEPOSITION OF DONNIE J. MISINO
Los Angeles, California
Friday, August 20, 2010

Reported by:

Judy Samson
CSR No. 6916

Westlaw Deposition Services 800.548.3668 Ext. 1

30(b)(6) Deposition of Donnie J. Misino 8/20/2010
Confidential

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Q

And, then, the next paragraph says:

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"The deponent is asked to

produce any and all documents that
concern or reflect the discovery
responses and production in this
case, including, but not limited
to, the extent of searches
performed."

So this particular paragraph is asking you

to bring documents to the deposition today to the
extent they've not already been produced.

Okay.

Are you aware of any documents that deal

with the issue of what searches were performed in
order to comply with the discovery request by
Weather Underground?

MR. DELGADO:

Just so that the record is

clear, part of what I gave you today, Enrico, is

our formal response to your request for production
and the documents that he brought that would be
nonprivileged and responsive to this request.
MR. SCHAEFER:

Okay.

So let's just go over

that for a second so that the record is clear.
So Mr. Delgado just prior to this

deposition handed me a -- what appears to be a hard
drive and cover letter which contains, I assume, a

Westlaw Deposition Services 800.548.3668 Ext. 1

30(b)(6) Deposition of Donnie J. Misino 8/20/2010
Confidential

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substantial number of documents -MR. DELGADO:

No.

The -- the letter and

the hard drive are separate and apart.

Underneath the letter, there's a -- you see

the pink paper clip there?
MR. SCHAEFER:
MR. DELGADO:

Yeah.

There's the formal response

to this request for production, and paper-clipped to
it are documents.

MR. SCHAEFER:
MR. DELGADO:

Okay.

So it's kind of two -- it's

two different sets of things there.
MR. SCHAEFER:

go off the record.

Okay.

THE VIDEOGRAPHER:

10:12 a.m.

There you go.

So let's go ahead and

Going off the record at

(Pause in proceedings from
10:12 a.m. to 10:15 a.m.)
THE VIDEOGRAPHER:

at 10:15 a.m.

MR. SCHAEFER:

We're back on the record

Okay.

I'm going to hand the

court reporter a document that is entitled

"Navigation Catalyst Systems, Inc.'s Objection to

Second Amended Notice of Deposition of Defendant,"
which I was just handed this morning.

Westlaw Deposition Services 800.548.3668 Ext. 1

30(b)(6) Deposition of Donnie J. Misino 8/20/2010
Confidential

And let's mark that as Exhibit No. 82.

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(Plaintiff's Exhibit 82 was marked

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for identification by the deposition

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reporter and is attached hereto.)

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BY MR. SCHAEFER:
Q

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Okay.

I've handed you what has been marked

as Exhibit No. 82, which are NCS -- NCS's response
to the deposition notice for today.

Have you seen this document before or

parts -- any parts of this document before?
A

I'm sorry.

What I have here is e-mails

between myself and Iron Mountain.
Q

Is that what you're referring to?
Yeah.

There's the -- there's the

first two -- the first three pages, which are the
pleadings part, and then behind that starting at

NCS 058792 and going through 798, there appear to be
a number of e-mails.
A
Q

I see.
Okay.

Yes.

Have you ever seen the first three

pages of this document before, the pleading part?
(Document reviewed by the witness.)
THE WITNESS:

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BY MR. SCHAEFER:
Q

Okay.

I believe so.

With regards to the Bates-stamped

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30(b)(6) Deposition of Donnie J. Misino 8/20/2010
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THE WITNESS:

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along those lines.

I'm not aware of anything

131

BY MR. SCHAEFER:
Q

Are there other -- any other entities that

we've not discussed and have not been disclosed

besides DomainNameProxy who are related entities as
paragraph 3 definition exists on Exhibit No. 87?

So these would be only related companies

with regard to the registration, use, and
trafficking of NCS domain names.
A
Q

There are none that I can think of.

What other documents are going to -- are we

going to see out there related to DomainNameProxy

that have not been produced in this case that you've
seen before besides potentially some e-mails?
A

The only other thing I might be aware of is

if I produced, similar to the other documents

produced today, a sort of scoping document or a -an "organization of thoughts prior to development"
type document.
Q

Now, I haven't had a chance obviously to

take a look, but I'm seeing a big hard drive over
there.

And I believe on that hard drive is going to

be at least some sort of portfolio information over
the last 12 months for NCS domains.

Westlaw Deposition Services 800.548.3668 Ext. 1

30(b)(6) Deposition of Donnie J. Misino 8/20/2010
Confidential

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A

132

Q

Correct.

And you were involved in actually putting

that together; correct?
A
Q

Yes.

Does that database include all the domain

names that are also proxied through
DomainNameProxyLLC?
A
Q

Yes.

And will it show on that database which

domains are proxied?
A

There are num- -- there are several files,

several portfolio snapshots.

The two that we

received from Iron Mountain, one dating about a year
ago and another about six months ago, will show the
actual registrant information without any proxy
services.

The other more recent reports are from

VeriSign, which we downloaded, which are

registrar-wide listing of domain names without

registrant information, these we retrieved from

VeriSign, and they don't -- VeriSign doesn't keep
track of registrants.
Q

So you haven't produced any information

which would tell us as of any date which domain
names are proxied, as I understand it?

Westlaw Deposition Services 800.548.3668 Ext. 1

30(b)(6) Deposition of Donnie J. Misino 8/20/2010
Confidential

A

I have not.

A

That -- well, I'm sorry.

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Q

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that.

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How would we get that information?

Let me qualify

We did produce our entire database in a --

one large backup file.

All that information is

within our production database.
Q

But I mean, can I actually see this domain

was one that was proxied and this domain was not
proxied?
A

Right.

If you were to access the table

containing that information, it is clearly listed,
yes.

Q
A

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133

So it's in there?

It's in the database itself.

The entire

backup of the SQL production database is within it,
yes.

Q

Okay.

A

I don't recall if that's a column in the

Q

Okay.

it was proxied?

And will it also tell me what date

table, though likely it would be.

Do you believe it also would tell me

whether or not that proxy occurred as a -- as a
result of a renewal date?
A

It would not show that.

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