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

Filing 246

DECLARATION by William A. Delgado re 243 MOTION in Limine No. 4 filed by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Delgado, William)

EXHIBIT A

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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WEATHER UNDERGROUND,
INCORPORATED,

Case No. 09-CV-10756
U.S. Magistrate Judge
Virginia M. Morgan
Detroit, Michigan
May 19, 2010
2:29 p.m.

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Plaintiff,
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v
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NAVIGATION CATALYST SYSTEMS,
INCORPORATED,
Defendant.
___________________________/

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Ordered By:

ENRICO SCHAEFER, ESQ.

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MOTION HEARING
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APPEARANCES:
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For the Plaintiff:

ENRICO SCHAEFER, ESQ. (P43506)
Traverse Legal
810 Cottageview Drive
Suite G-20
Traverse City, MI 49684
231-932-0411

For the Defendants:
(By Phone):

WILLIAM DELGADO, ESQ.
Willeken, Wilson, Loh & Lieb
707 Wilshire Boulevard
Suite 3850
Los Angeles, CA 90017
213-955-9240

Court Recorder:

N/A

Transcriber:

Deborah Kremlick

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Proceedings recorded by electronic sound recording, transcript
produced by transcription service.

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production number 40, Your Honor.

And I didn’t do a print out

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separately on this, but it’s all documents or communications

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where they either --

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THE COURT:

I thought we just ruled on request for

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production 40.

That was produce the emails or in box history

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to or from the email for purchasing domain names --

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MR. SCHAEFER:

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THE COURT:

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MR. SCHAEFER:

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–- shown on the web site.

THE COURT:

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MR. SCHAEFER:
Honor.

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What request for production is that?
I’m getting it.

Okay, it’s 45, Your

And here it is.
THE COURT:

Forty-five.

Do we –- do we have a color

–- a red and green

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MR. SCHAEFER:

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THE COURT:

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MR. SCHAEFER:

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This is the one where we’ve ask for

the threat letters by and between NCS and third parties.

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You are correct, Your Honor.

reason.

We don’t, Your Honor.

Okay.
That one didn’t print for some

I wish they did, but –-

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THE COURT:

Okay.

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MR. SCHAEFER:

So our position is, Your Honor, we’re

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–- their position is they –- the automated software registers

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the domain so they don’t have any notice of trademarks.

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if they ever receive a threat letter, then they’re on notice

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and they never register another infringing mark again.

And

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Well, these threat letters by and between them and these

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third parties then become critical evidence of notice.

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produced a spreadsheet that had a log of what they say they

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received in terms of notice, but no detail as to what –- not

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the underlying correspondence, not the underlying emails, not

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the responses.

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under the ACPA especially since they put in a motion for

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protective order saying we should get that from third parties

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because we should be required to get it from them.

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They

We think we’re absolutely entitled to that

And now

they’re saying no, we can’t have it.

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THE COURT:

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MR. DELGADO:

Mr. Delgado.
Well, Your Honor, candidly I’m not

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sure why we’re disputing this.

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Mr. Schaefer.

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these threat letters they would basically incorporate the

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information from the letter into these logs and we produced

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all the logs that we had going back to the very first day the

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very first thing in the log.

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I’ve already explained this to

It was the company’s policy that once they got

So they would capture things like who it came from, what

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the domain name was at issue, and what most of what really

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happened, well was it transferred, was there a UDRP, was there

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a lawsuit, whatever the disposition was.

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information was captured in the log.

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not retain the threat letter.

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And all that

And then the company did

So, you know, I’ve already explained it to him that I

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can’t produce something I no longer have.

I’ve given you the

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logs which –- which is a business record.

It’s nothing, you

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know, we generated for this lawsuit, it was this is how the

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company kind of keeps track of these things.

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I think it was for 2008, for 2009, we’ll –- we’ll

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supplement our production for 2010 and I’ll tell my client

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hey, going forward if you get these letters, don’t throw them

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away, they’re responses to this litigation and we’ll produce

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them.

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I -– I don’t have a –- you know, I’m sorry, I don’t

want to be flippant about this, but I can’t do anything else.
THE COURT:

Okay.

He’s given you the logs and if

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after review of the logs you determine that there is something

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you really have to have and you want to contact the sender of

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the letter or whatever, then you can ask for relief from the

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protective order.

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MR. SCHAEFER:

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THE COURT:

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Okay.

So the 45 is going to be deemed

satisfied at this time by production of the log.
MR. SCHAEFER:

Okay.

And that would be obviously I

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think also and we’ve agreed in the stipulation Your Honor, no

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more destruction of information moving forward.

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would ask only Mr. Delgado, if you will -– you will see if

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there’s anything more recent because you did produce the one

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that we sent in 2008.

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MR. DELGADO:

So -- and I

I’m sorry Mr. Schaefer, I can’t hear

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you.
THE COURT:

You -– you had the one –- you produced

his letter from 2008.
MR. DELGADO:

Right.

Because there was a lawsuit

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attached to it.

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that was retained is because it was –- and I’m not even sure

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if it was a cease and desist letter.

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cover letter coming with a UCRP proceeding.

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I mean I think that’s the only reason that

THE COURT:

I think it was just a

Okay.

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MR. SCHAEFER:

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MR. DELGADO:

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THE COURT:

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MR. DELGADO:

Okay.
And I don’t know if that pertains --

Okay.

It’s --

But –- but if the question is, can I

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go back and make sure that there aren’t some letters?

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absolutely.

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Yeah,

extent that something wasn’t destroyed, we’ll produce.

I will -- I will go back and I will state to the

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THE COURT:

Okay.

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MR. SCHAEFER:

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THE COURT:

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MR. SCHAEFER:

The last one, Your Honor.

Okay.
It is 50 which asks for any reports

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or analysis of domain name registration, trafficking, or

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monetization.

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believe that they wouldn’t know which are their highest profit

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domain names for them to analyze things and develop reports on

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how they’re making money.

And so if they actually -– it’s hard for us to

And we have asked for those reports

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I certify that the foregoing is a correct transcript from the

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electronic sound recording of the proceedings in the

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above-entitled matter.

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/s/Deborah L. Kremlick, CER-4872

Dated: 6-14-10