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

Filing 231

REPLY to Response re 225 MOTION for Reconsideration re 222 Order on Motion for Summary Judgment, Order on Motion for Order,, filed by Weather Underground, Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Schaefer, Enrico)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
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

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

8/20/2010
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And, then, the next paragraph says:

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"The deponent is asked to

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produce any and all documents that

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concern or reflect the discovery

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responses and production in this

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case, including, but not limited

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to, the extent of searches

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performed."

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So this particular paragraph is asking you

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to bring documents to the deposition today to the

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extent they've not already been produced.

Okay.

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Are you aware of any documents that deal

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with the issue of what searches were performed in

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order to comply with the discovery request by

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Weather Underground?

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MR. DELGADO:

Just so that the record is

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

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our formal response to your request for production

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and the documents that he brought that would be

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nonprivileged and responsive to this request.

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MR. SCHAEFER:

Okay.

So let's just go over

that for a second so that the record is clear.

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So Mr. Delgado just prior to this

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deposition handed me a -- what appears to be a hard

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drive and cover letter which contains, I assume, a
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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?

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MR. SCHAEFER:

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MR. DELGADO:

Yeah.
There's the formal response

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to this request for production, and paper-clipped to

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it are documents.

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MR. SCHAEFER:

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MR. DELGADO:

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

two different sets of things there.
MR. SCHAEFER:

Okay.

There you go.

So let's go ahead and

go off the record.
THE VIDEOGRAPHER:

Going off the record at

10:12 a.m.

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(Pause in proceedings from

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10:12 a.m. to 10:15 a.m.)

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THE VIDEOGRAPHER:

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We're back on the record

at 10:15 a.m.
MR. SCHAEFER:

Okay.

I'm going to hand the

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court reporter a document that is entitled

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"Navigation Catalyst Systems, Inc.'s Objection to

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Second Amended Notice of Deposition of Defendant,"

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which I was just handed this morning.
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tell you what they were because they were with

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counsel" or "There were no conversations -- even

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though we had general conversations with counsel,

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there were no conversations about protecting NCS and

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the related entities from potential liability and

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discovery."

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A

Right.

There were discussions along the

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lines of preventing spam and being able to offer

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that as a general service.

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Should we choose to?

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Other registrars do.

Anything related to trademarks was only
discussed with counsel.
Q

Okay.

Are you aware that Seth Jacoby has

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put in multiple previous affidavits saying that one

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of the reasons why NCS can't be guilty of

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cybersquatting is because they do not proxy their

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domain names?

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MR. DELGADO:

Objection; lacks foundation.

BY MR. SCHAEFER:
Q

Are you aware of Seth Jacoby's prior

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position that when you proxy a domain name to hide

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your identity, that it is essentially an indication

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that you're engaging in bad faith cybersquatting?

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MR. DELGADO:

Object.

I don't --

mischaracterization of the declaration.
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THE WITNESS:

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I'm not aware of anything

along those lines.

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8/20/2010

BY MR. SCHAEFER:

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Q

Are there other -- any other entities that

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we've not discussed and have not been disclosed

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besides DomainNameProxy who are related entities as

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paragraph 3 definition exists on Exhibit No. 87?

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So these would be only related companies
with regard to the registration, use, and
trafficking of NCS domain names.

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A

There are none that I can think of.

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Q

What other documents are going to -- are we

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going to see out there related to DomainNameProxy

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that have not been produced in this case that you've

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seen before besides potentially some e-mails?

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A

The only other thing I might be aware of is

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if I produced, similar to the other documents

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produced today, a sort of scoping document or a --

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an "organization of thoughts prior to development"

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type document.

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Q

Now, I haven't had a chance obviously to

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

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there.

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be at least some sort of portfolio information over

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the last 12 months for NCS domains.

And I believe on that hard drive is going to

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A

Correct.

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Q

And you were involved in actually putting

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that together; correct?

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A

Yes.

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Q

Does that database include all the domain

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names that are also proxied through

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DomainNameProxyLLC?

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A

Yes.

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Q

And will it show on that database which

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domains are proxied?
A

There are num- -- there are several files,

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several portfolio snapshots.

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received from Iron Mountain, one dating about a year

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ago and another about six months ago, will show the

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actual registrant information without any proxy

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services.

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The two that we

The other more recent reports are from

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VeriSign, which we downloaded, which are

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registrar-wide listing of domain names without

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registrant information, these we retrieved from

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VeriSign, and they don't -- VeriSign doesn't keep

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track of registrants.

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Q

So you haven't produced any information

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which would tell us as of any date which domain

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names are proxied, as I understand it?
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A
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How would we get that information?

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A

That -- well, I'm sorry.

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I have not.

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8/20/2010

that.

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Let me qualify

We did produce our entire database in a --

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one large backup file.

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within our production database.

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Q

All that information is

But I mean, can I actually see this domain

was one that was proxied and this domain was not

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proxied?

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A

Right.

If you were to access the table

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containing that information, it is clearly listed,

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yes.

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Q

So it's in there?

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A

It's in the database itself.

The entire

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backup of the SQL production database is within it,

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yes.

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Q

Okay.

And will it also tell me what date

it was proxied?
A

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

table, though likely it would be.
Q

Okay.

Do you believe it also would tell me

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whether or not that proxy occurred as a -- as a

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result of a renewal date?

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A

It would not show that.

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