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)

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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 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73 30(b)(6) Deposition of Donnie J. Misino Confidential 1 Q 8/20/2010 13 And, then, the next paragraph says: 2 "The deponent is asked to 3 produce any and all documents that 4 concern or reflect the discovery 5 responses and production in this 6 case, including, but not limited 7 to, the extent of searches 8 performed." 9 So this particular paragraph is asking you 10 to bring documents to the deposition today to the 11 extent they've not already been produced. Okay. 12 Are you aware of any documents that deal 13 with the issue of what searches were performed in 14 order to comply with the discovery request by 15 Weather Underground? 16 MR. DELGADO: Just so that the record is 17 clear, part of what I gave you today, Enrico, is 18 our formal response to your request for production 19 and the documents that he brought that would be 20 nonprivileged and responsive to this request. 21 22 MR. SCHAEFER: Okay. So let's just go over that for a second so that the record is clear. 23 So Mr. Delgado just prior to this 24 deposition handed me a -- what appears to be a hard 25 drive and cover letter which contains, I assume, a Westlaw Deposition Services 800.548.3668 Ext. 1 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73 30(b)(6) Deposition of Donnie J. Misino Confidential 1 2 3 4 5 8/20/2010 14 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? 6 MR. SCHAEFER: 7 MR. DELGADO: Yeah. There's the formal response 8 to this request for production, and paper-clipped to 9 it are documents. 10 MR. SCHAEFER: 11 MR. DELGADO: 12 13 14 15 16 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. 17 (Pause in proceedings from 18 10:12 a.m. to 10:15 a.m.) 19 THE VIDEOGRAPHER: 20 21 We're back on the record at 10:15 a.m. MR. SCHAEFER: Okay. I'm going to hand the 22 court reporter a document that is entitled 23 "Navigation Catalyst Systems, Inc.'s Objection to 24 Second Amended Notice of Deposition of Defendant," 25 which I was just handed this morning. Westlaw Deposition Services 800.548.3668 Ext. 1 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73 30(b)(6) Deposition of Donnie J. Misino Confidential 8/20/2010 130 1 tell you what they were because they were with 2 counsel" or "There were no conversations -- even 3 though we had general conversations with counsel, 4 there were no conversations about protecting NCS and 5 the related entities from potential liability and 6 discovery." 7 A Right. There were discussions along the 8 lines of preventing spam and being able to offer 9 that as a general service. 10 Should we choose to? 11 12 13 Other registrars do. Anything related to trademarks was only discussed with counsel. Q Okay. Are you aware that Seth Jacoby has 14 put in multiple previous affidavits saying that one 15 of the reasons why NCS can't be guilty of 16 cybersquatting is because they do not proxy their 17 domain names? 18 19 20 MR. DELGADO: Objection; lacks foundation. BY MR. SCHAEFER: Q Are you aware of Seth Jacoby's prior 21 position that when you proxy a domain name to hide 22 your identity, that it is essentially an indication 23 that you're engaging in bad faith cybersquatting? 24 25 MR. DELGADO: Object. I don't -- mischaracterization of the declaration. Westlaw Deposition Services 800.548.3668 Ext. 1 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73 30(b)(6) Deposition of Donnie J. Misino Confidential 1 THE WITNESS: 2 131 I'm not aware of anything along those lines. 3 8/20/2010 BY MR. SCHAEFER: 4 Q Are there other -- any other entities that 5 we've not discussed and have not been disclosed 6 besides DomainNameProxy who are related entities as 7 paragraph 3 definition exists on Exhibit No. 87? 8 9 10 So these would be only related companies with regard to the registration, use, and trafficking of NCS domain names. 11 A There are none that I can think of. 12 Q What other documents are going to -- are we 13 going to see out there related to DomainNameProxy 14 that have not been produced in this case that you've 15 seen before besides potentially some e-mails? 16 A The only other thing I might be aware of is 17 if I produced, similar to the other documents 18 produced today, a sort of scoping document or a -- 19 an "organization of thoughts prior to development" 20 type document. 21 Q Now, I haven't had a chance obviously to 22 take a look, but I'm seeing a big hard drive over 23 there. 24 be at least some sort of portfolio information over 25 the last 12 months for NCS domains. And I believe on that hard drive is going to Westlaw Deposition Services 800.548.3668 Ext. 1 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73 30(b)(6) Deposition of Donnie J. Misino Confidential 8/20/2010 132 1 A Correct. 2 Q And you were involved in actually putting 3 that together; correct? 4 A Yes. 5 Q Does that database include all the domain 6 names that are also proxied through 7 DomainNameProxyLLC? 8 A Yes. 9 Q And will it show on that database which 10 11 domains are proxied? A There are num- -- there are several files, 12 several portfolio snapshots. 13 received from Iron Mountain, one dating about a year 14 ago and another about six months ago, will show the 15 actual registrant information without any proxy 16 services. 17 The two that we The other more recent reports are from 18 VeriSign, which we downloaded, which are 19 registrar-wide listing of domain names without 20 registrant information, these we retrieved from 21 VeriSign, and they don't -- VeriSign doesn't keep 22 track of registrants. 23 Q So you haven't produced any information 24 which would tell us as of any date which domain 25 names are proxied, as I understand it? Westlaw Deposition Services 800.548.3668 Ext. 1 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73 30(b)(6) Deposition of Donnie J. Misino Confidential 1 A Q How would we get that information? 3 A That -- well, I'm sorry. 4 133 I have not. 2 8/20/2010 that. 5 Let me qualify We did produce our entire database in a -- 6 one large backup file. 7 within our production database. 8 9 Q All that information is But I mean, can I actually see this domain was one that was proxied and this domain was not 10 proxied? 11 A Right. If you were to access the table 12 containing that information, it is clearly listed, 13 yes. 14 Q So it's in there? 15 A It's in the database itself. The entire 16 backup of the SQL production database is within it, 17 yes. 18 19 20 21 22 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 23 whether or not that proxy occurred as a -- as a 24 result of a renewal date? 25 A It would not show that. Westlaw Deposition Services 800.548.3668 Ext. 1 f4975271-2f8d-4f3d-9f0d-d4b1564f3e73

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