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

Filing 269

STATEMENT of Pretrial Conference Bench Book by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated, Weather Underground, Incorporated (Attachments: # 1 Administrative Section, # 2 Exhibit Theory of the Case, # 3 Exhibit Plaintiff's Proposed Voir Dire, # 4 Exhibit Defendants' Proposed Voir Dire, # 5 Exhibit Witness List, # 6 Exhibit Exhibit List, # 7 Exhibit agreed Upon Jury Instructions, # 8 Exhibit Plaintiff's Additional Proposed Instructions, # 9 Exhibit Defendants' Additional Proposed Instructions, # 10 Exhibit Plaintiff's Proposed Verdict Form, # 11 Exhibit Defendants' Proposed Verdict Form, # 12 Exhibit Evidentiary Issues) (Delgado, William)

Joint Witness List

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________
JOINT WITNESS LIST

For its witnesses in this matter, Plaintiff The Weather Underground, Inc. identifies the
following witnesses:
Witness Name

Anticipated Time

Mr. Ferguson is expected to testify

Anticipated

for Direct
Jeff Ferguson

Area of Testimony

Time for Cross

4 hours

2 hours

5 hours

4 hours

1 hour

30 minutes

consistent with those matters
included in his deposition and
discovery responses provided in
this case.
Chris Schwerzler

Mr. Schwerzler is expected to
testify consistent with those
matters included in his depositions
and discovery responses and
production provided in this case.
Mr. Schwerzler is also expected to
testify consistent with the Court’s
December 16, 2011, Order,
concerning the information
contained in the TerraByte drive
and related documents produced
by Defendants in this case.

Jeff Masters

Mr. Masters is expected to testify

1

consistent with those matters
included his deposition and
discovery responses provided in
this case.
John Di Giacomo

Mr. Di Giacomo is an associate

1 hour

30 minutes

2 hours

30 minute re-

attorney with Traverse Legal and
is expected to testify concerning
certain foundational information
concerning screenshots which he
participated in creating of various
websites at issue in this case, as
well as comment, to the extent
necessary, regarding third party
registrations with the USPTO.
Lily Stevenson

Ms. Stevenson is expected to

(adverse)

testify consistent with those

direct

matters included her deposition
and discovery responses provided
in this case.
John Berryhill

Mr. Berryhill is expected to testify

(Defendant’s

consistent with those matters

expert witness,

included his deposition and

2

3 hours

1 hour redirect.

assuming

discovery responses provided in

Defendant elects

this case.

not to put Mr.
Berryhill on the
stand during their
defense)
David Graff

Mr. Graff is expected to testify

2 hours

consistent with those matters

30 minutes
redirect

included his deposition and
discovery responses provided in
this case.
Seth Jacoby (via

Mr. Jacoby is expected to testify

deposition as Mr.

consistent with those matters

Jacoby allegedly

included his deposition and

no longer works

discovery responses provided in

for Defendant or

3 hours

30 minutes

this case.

redirect

any related
company)
Mavi Llamas

Ms. Llamas is expected to testify

(possibly via

consistent with those matters

deposition as Ms.

included her deposition and

Lamas allegedly

discovery responses provided in

3

2 hours

30 minutes
redirect

no longer works

this case.

for Defendant or
any related
company)
Donald Misino

Mr. Misino is expected to testify

(via deposition as

consistent with those matters

Mr. Misino

included his deposition and

allegedly no

discovery responses provided in

longer works for

5 hours

1-2 hours

this case.

redirect

Defendant or any
related company)
Chris Pirrone (via

Mr. Pirrone is expected to testify

deposition as Mr.

consistent with those matters

Pirrone allegedly

included his deposition and

no longer works

discovery responses provided in

for Defendant or

3 hours

1 hour redirect.

this case.

2 hours

30 minutes

any related
company)
Dennis Rhee (via

Mr. Rhee is expected to testify

deposition as Mr.

consistent with those matters

Rhee allegedly no

included his deposition and

longer works for

discovery responses provided in

4

redirect.

Defendant or any

this case.

related company)
Arthur Shaw (via

Mr. Shaw is expected to testify

deposition as Mr.

1 hour

consistent with those matters

30 minutes
redirect

Shaw allegedly no included his deposition and
longer works for

discovery responses provided in

Defendant or any

this case.

related company)
Quantcast

Records custodian and foundation

Corporation

1 hour

15 minutes

witness, to the extent Defendants

1 hour

15 minutes

1 hour

15 minutes

do not stipulate to authenticity or
admissibility, in order to admit
records.
Hitwise Pty Ltd.

Records custodian and foundation
witness, to the extent Defendants
do not stipulate to authenticity or
admissibility, in order to admit
records.

Alexa Internet,

Records custodian and foundation

Inc.

witness, to the extent Defendants
do not stipulate to authenticity or
admissibility, in order to admit

5

records.

For its witnesses in this matter, Defendants Connexus Corporation, Navigation Catalyst
Systems, Inc, and Firstlook, Inc. identify the following witnesses:
Witness Name

Anticipated Time

Mr. Misino may be called to

Anticipated

for Direct
Donald Misino

Area of Testimony

Time for Cross

4 hours

See above.

testify regarding the domain

Adverse witness.

related software operated by NCS,

Re-cross.

including its architecture and
operation and the elements which
comprise the software including
the data sources, the fuzzy match
system, the n-gram match system,
the PTO database, the blacklist,
the “flagged as trademarks” list,
and NCS’s efforts, generally, to
avoid certain domain name
registrations through an automated
registration process.
Lily Stevenson

Ms. Stevenson may be called to
testify regarding the NCS domain

6

3 hours

See above.
Adverse witness.

name purchasing process, legal

Re-cross.

compliance related to NCS domain
names, including human screening
of domain names, trademark
review of domain names,
responses to cease-and-desist
letters and UDRP arbitrations.
Chris Pirrone (by

Mr. Pirrone may be called to

2 hours

See above.

deposition

testify regarding the NCS domain

Adverse witness.

testimony)

name purchasing process, legal

Re-cross.

compliance related to NCS domain
names, including human screening
of domain names, trademark
review of domain names,
responses to cease-and-desist
letters and UDRP arbitrations.
Mavi Llamas

Ms. Llamas may be called to

3 hours

See above.

testify regarding the NCS domain

Adverse witness.

name purchasing process as it

Re-cross.

existed in 2004-2005, and the
process for NCS keyword
optimization.

7

Dennis Rhee

Mr. Rhee may be called to testify

2.5 hours

See above.

regarding the operation of NCS,

Adverse witness.

including the purchase of domain

Re-cross.

names as well as human screening
of domain names.
Richard E. Korf

Dr. Korf may be called to testify

(Expert Witness)

3 hours

3 Hours

regarding his education and

2.5 hours

3 Hours

experience in the field of computer
science, the substance of his expert
report which includes an analysis
of the domain name registration
software utilized by NCS, the
challenges faced by NCS in
creating its software, and to rebut
any expert witnesses called by
Plaintiff with respect to these
issues.
John Berryhill,

Mr. Berryhill may be called to

Ph.D., Esq.

testify regarding his education and

(Expert Witness

experience in the field of domain
names, the substance of his expert
report, which includes the history

8

of the Anti-Cybersquatting
Consumer Protection Act and the
history and purpose of domain
name monetization.
Alan Steremberg

Mr. Steremberg may be called to

(Adverse

testify regarding information and

Witness)

.5 hour

1 Hour

evidence concerning the

1 hour

1 Hour

allegations made in Plaintiff’s
Complaint, specifically including
without limitation Plaintiff,
Plaintiff’s business, Plaintiff’s
trademarks, and Plaintiff’s
marketing and advertising.
Chris Schwerzler

Mr. Schwerzler may be called to

(Adverse

testify regarding information and

Witness)

evidence concerning the
allegations made in Plaintiff’s
Complaint, specifically including
without limitation Plaintiff,
Plaintiff’s business, Plaintiff’s
trademarks, and Plaintiff’s website
advertisement traffic.

9

Jeff Ferguson

Mr. Ferguson may be called to

(Adverse

testify regarding information and

Witness)

.5 hour

1 Hour

evidence concerning the

.5 hour

30 minutes

allegations made in Plaintiff’s
Complaint, specifically including
without limitation, Plaintiff,
Plaintiff’s business, Plaintiff’s
trademarks, Plaintiff’s marketing
and advertising, Plaintiff’s
finances, and Plaintiff’s efforts at
protecting its trademarks.
Jeffrey Masters,

Dr. Masters may be called to

Ph.D.

testify regarding information and

(Adverse

evidence concerning the

Witness)

allegations made in Plaintiff’s
Complaint, specifically including
without limitation Plaintiff,
Plaintiff’s business, Plaintiff’s
trademarks, and Plaintiff’s blog
and related online offerings.

Defendants also reserve the right to call any witness called by Plaintiff.

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RESPECTFULLY SUBMITTED this 28th day of February 2012.
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants
/s/Enrico Schaefer___________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
Lead Counsel for Plaintiff
Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

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