John Doe,

                                 File No. 09-05-C-00543

Ed Falk,




                         Taken At

                  Cass County Courthouse

                    Fargo, North Dakota

                    February 28, 2006


                - - - DISTRICT JUDGE - - -


Christopher J. Harristhal       For The Plaintiff
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis, MN 55431-1194

Timothy O'Keeffe
Attorney at Law
P.O. Box 2105
Fargo, ND 58107-2105

Paul F. Wellborn                For The Defendant
Attorney at Law
1175 Peachtree Street NE
100 Colony Square, Suite 300
Atlanta, GA 30361

Michelle Donarski
Attorney at Law
PO Box 10247
Fargo ND   58106-0247





     Cross Examination by Mr. Harristhal        8


     Direct Examination by Mr. Harristhal       70
     Cross Examination by Mr. Wellborn 75
     Redirect Examination by Mr. Harristhal     77


     Cross Examination by Mr. Wellborn 78
     Redirect Examination by Mr. Harristhal     83


     Cross Examination by Mr. Wellborn          84


1                             PROCEEDINGS

2                (The following proceedings were had, commencing at

3    1:30 p.m., on February 28, 2006, as follows:)

4                THE COURT:  05-543, so we have John Doe represented

5    by Christopher Harristhal and Mr. O'Keefe vs. Ed Falk, Michelle

6    Donarski.

7                MS. DONARSKI:  Your Honor.

8                THE COURT:  Yes.

9                MS. DONARSKI:  I'd like to introduce co-counsel, Mr.

10   Pete Wellborn, who has been admitted pro hac vice, he is from

11   Atlanta, Georgia, Your Honor, and he is here to assist in the

12   defense of Ed Falk.

13               THE COURT:  Mr. Wellborn is present.  Welcome.

14               MR. WELLBORN:  Thank you, Your Honor.

15               THE COURT:  So I've read everything that's been

16   submitted and I've read these cases involving the sliding scale

17   and the effects test and today we take up the Defendant's

18   Motion to Dismiss for lack of personal jurisdiction.  And

19   that's all we're dealing with today.  And I take it from what

20   the Defendant submitted, that they're relying on the fact that

21   Mr. Falk here was running a passive website out of California.

22   And I've read all the papers that have been submitted.  The --

23   so what the Plaintiff needs to do is make a prima facie showing

24   of jurisdiction and just tell me succinctly now, Mr.

25   Harristhal, what you're relying on as your basis for personal

                                                                     Page 4

  1      jurisdiction over the Defendant.

  2                MR. HARRISTHAL:  Your Honor, we have a series of

  3     contact by Mr. Falk with the State of North Dakota.  They

  4     include a website that was targeting North Dakota.  They

  5     include internet based exchanges through posting with people in

  6     North Dakota.  They include accessing servers in North Dakota.

  7     They include his conversations with people in North Dakota over

  8     the Internet and on the telephone and his submission of

  9     information for the purpose of litigation in which he was not a

  10    party in North Dakota.

  11               THE COURT:  Okay, now, when you're talking about

  12    accessing servers, is that -- did Mr. Falk do that or was that

  13    the other gentleman in the other case that did that and Mr.

  14    Falk chaired -- put that information on his website?

  15               MR. HARRISTHAL:  Mr. Ritz, the gentleman you're

  16    referring to, and Mr. Ritz did access web servers that were

  17    then -- the data from them was then copied by Mr. Falk and

  18    posted, but I believe the cross examination today of Mr. Falk

  19    will also demonstrate that he has directly accessed servers of

  20    -- found in North Dakota himself.

  21               THE COURT:  So anything I missed on what your

  22    position is, Ms. Donarski?

  23               MS. DONARSKI:  No, Your Honor, I think you have that.

  24    The key is really the contact for the personal jurisdiction

  25    issue.  One thing to pay attention to is the timing of the

                                                                      Page 5

1     contact and the form of the contact, and you are right, this

2    is a passive website.

3         There is one more thing I wanted to bring to the Court's

4    attention, John Levine is present to testify -- to be cross

5    examined, Your Honor, and he is limited to availability.  He is

6    available for the Court until 3:00 p.m. this afternoon, Your

7    Honor, and then he needs to go back to a conference he is

8    speaking at.

9              THE COURT:  Okay.  And that's the Yale PhD?

10             MS. DONARSKI:  That is.

11             THE COURT:  Do you want to begin with him?  Do you

12   have any questions for him?

13             MR. HARRISTHAL:  I do, Your Honor, but for practical

14   purposes, we do not wish to take -- to examine him until after

15   Mr. Falk has been examined.  And furthermore, I wish to

16   sequester Mr. Levine during the examination of Mr. Falk.  Which

17   leads us to some other procedural issues that we have, which I

18   believe were submitted to the Court via letter in the last

19   couple of days.

20             One of them is the fact that we've been precluded

21   from having anyone present in the conference room in which

22   these witnesses are located.  I've requested their addresses of

23   Ms. Donarksi, she's refused, saying that our use of an attorney

24   there would only intimidate them.  I explained that the

25   attorney who would be present would not be asking any

                                                                   Page 6

1     questions, but merely ensure that the witnesses were

2    testifying fairly.  That there are no other monitors that they

3    are reading from, for example, that we can't see through the

4    video screen and just ensuring that this is done in a fair

5    manner.  That request was refused, so we've been unable to have

6    anyone present there, but I do not want them sitting in on each

7    other's testimony and we ask that they not be allowed to

8    testify at all in light of their refusal to provide us with a

9    location so that we could have someone present.

10             THE COURT:  Well, we made the rules -- you know, some

11   of these disagreements -- we made the rules when we made the

12   rules, and I guess if we wanted more rules, we should have

13   asked for it at the time, but this is what we agreed to do.

14   Submit it by affidavit, cross examine by ITV, so, I mean, those

15   are the rules the Court set.  So we'll proceed on that basis

16   today.

17             MR. HARRISTHAL:  Your Honor.

18             THE COURT:  Yeah.

19             MR. HARRISTHAL:  May I at least ask that the witness

20   be sequestered?  That's typically a day of the trial request.

21             THE COURT:  Yeah, that's fine.  It's Mr. Levine, is

22   it?

23             MS. DONARSKI:  Mr. Levine.

24             THE COURT:  Mr. Levine, would you just wait outside

25   the conference room for us.

                                                                Page 7

1              MR. LEVINE:  I can do that.

2              MR. HARRISTHAL:  I do have another housekeeping

3    question, if I may?

4              THE COURT:  Okay.

5              MR. HARRISTHAL:  I recognize that the parties have

6    already filed briefs, but there has obviously been a great deal

7    of evidence that's been submitted to the Court since the briefs

8    were filed, and we are anticipating and hoping that the Court

9    will permit some sort of a final brief to be submitted to the

10   Court after the close of evidence today.

11             THE COURT:  I'll let you know.  Let's just stick to

12   these four points you brought up then.  Get right to the point,

13   okay?  Is this Mr. Falk?

14             MR. FALK:  Yes, Your Honor.

15             THE COURT:  Do you want to stand and raise your right

16   hand?

17                                ED FALK




21             THE COURT:  You can be seated.  Thank you.  Mr.

22   Harristhal, go ahead.

23                           CROSS EXAMINATION


25        Q:  Good afternoon, Mr. Falk, my name is Chris

                                                                   Page 8

1     Harristhal.  I would ask that you turn to some of the exhibits

2    that I believe your attorney has furnished to you for today,

3    specifically the Affidavit of Brad Allison on Motion to

4    Dismiss.

5               MR. HARRISTHAL:  And Your Honor, this is found at Tab

6    9 of our book that we've provided to you.  And another

7    housekeeping matter, Your Honor, Tab 1 is Mr. Falk's affidavit

8    and we mistakenly in the book you have, gave you Mr. Falk's

9    affidavit from another case.  If I may approach, I will provide

10   you with the actual affidavit from John Doe versus Ed Falk

11   matter that should go in at Tab 1.

12              THE COURT:  Okay.

13        Q:  (By Mr. Harristhal) Mr. Falk, do you have the

14   affidavit of Mr. Allison in front of you from February 16,

15   2006?

16        A:  Yes, I do.

17        Q:  Go to Exhibit C behind it, please.

18        A:  Yes, I have it.  The Fargo Forum article.

19        Q:  Right.  That was the article that appeared on the

20   Internet following your interview by Dave Forrester, correct?

21        A:  That's correct.

22        Q:  Alright.  Now you've read this article I presume,

23   have you not?

24        A:  Oh, yes.

25        Q:  And you've seen in there that there are various

                                                                 Page 9

1     statements that are attributed to you by Mr. Forrester.

2         A:  Yes.

3         Q:  And did Mr. Forrester accurately describe whatever

4    you told him in that interview or are there any mistakes that

5    he made?

6         A:  Let me take a quick look.  It looks fundamentally

7    correct.

8         Q:  Looking at the first page of the article in the

9    third paragraph, -- no excuse me, in the bottom paragraph, it

10   reads, "Falk, who is named as the defendant in the lawsuit said

11   he tracked Reynolds."  That's a true statement, isn't it, sir?

12        A:  Yes, along with about 400 other spammers.

13        Q:  You tracked Reynolds?

14        A:  Yes.

15        Q:  Over what period of time did you track the

16   Plaintiff?

17        A:  When his porn spam became a serious problem in 1997

18   until about 1999, when it was no longer such a problem.

19        Q:  So you --

20        A:  Probably kept monitoring him until such time as I

21   shut done my service.

22        Q:  Okay, now you use the word monitoring.  Is

23   monitoring any different from tracking or are those synonymous

24   in your view?

25        A:  Monitoring is a little bit more passive.  I had a

                                                                Page 10

1     computer program that was looking for certain cues that

2    indicated an article was spam.  Once I added a spammer to the

3    computer program, it just kept on automatically collecting spam

4    from that spammer without any intervention on my part.

5         Q:  So track --

6         A:  I gave up doing that around --

7         Q:  I'm sorry.  So track is different from monitor.

8         A:  Track means a little more active.  That's when I

9    analyze the spams in particular and try to figure out who they

10   originally came from.

11        Q:  Okay, so you were tracking the Plaintiff, the more

12   active part, that's what you're referring to here in this

13   article?

14        A:  Yes.

15        Q:  And over what period of time were you tracking the

16   Plaintiff?  This more active part.

17        A:  Really from about 1997 to 1999.

18        Q:  But then you continued to monitor him, is that what

19   you're saying?

20        A:  Well, I left his information in the computer

21   program that was monitoring spam on the Internet, so it

22   continued to collect data.

23        Q:  So you set up a computer program to interact with

24   information that you attributed to the Plaintiff?

25        A:  Yes.  It was a program that scanned the Internet

                                                               Page 11

1     for spam and tried to identify which spammer it came from and

2    collected daily reports.

3         Q:  Over what period of time were you monitoring the

4    Plaintiff?

5         A:  Probably from about 1997 to 2000.

6         Q:  So an additional three years after you stopped

7    tracking him?

8         A:  No, an additional one year.

9         Q:  Okay.  Now would you please go to your affidavit.

10               MR. HARRISTHAL:  Which is Tab 1 in our book, Your

11   Honor.

12        Q:  And this is the affidavit that you signed on

13   November 23, 2005?

14        A:  Yes, I have it -- wait a minute, that's the 16th.

15   I'm sorry, 23 -- November 23 of 2005?

16        Q:  Yes, sir.

17        A:  Didn't know that was going to be submitted to this

18   trial.  See if I can look it up.

19        Q:  You know, if it helps any, I can perhaps come back

20   to this.  What I'm looking for you to have in front of you is

21   the rather large first exhibit to your affidavit.  It's

22   entitled "Spam Tracking Page."

23        A:  Oh, yes.  Yes, I have that in front of me.

24        Q:  Can we just see what you're looking at, please?  Is

25   there anyway to back the camera off to see what the witness

                                                                   Page 12

1     has?  Could you move to your -- there you go.  Okay.  So

2    you're looking at an electronic copy, correct?

3         A:  Yes.

4         Q:  Under "Spam Tracking Page," it reads "Contents?"

5         A:  Yes.

6         Q:  Well, the printed version that was submitted by

7    your attorney, who printed that off.

8         A:  You talking about the 1200 page copy?

9         Q:  That sounds -- it's about three inches thick.  Well

10   no, what I'm looking at is not that thick, it's --

11        A:  Oh, the one we submitted earlier.  Yeah, that's an

12   excerpt from the "Spam Tracking Page."  I sent a PDF file to my

13   attorney and she printed it.

14        Q:  Well, this "Spam Tracking Page" that's been

15   submitted attached to your affidavit, it reflects something

16   from the Internet, is that right?

17        A:  Yes, it's a copy probably as of the start of this

18   lawsuit.

19        Q:  Well, how do you know that that's when it came

20   from?

21        A:  When it came from?

22        Q:  This site has changed over time, correct?

23        A:  Yes.

24        Q:  And for example, there have been times when this

25   page had links to the "Netzilla" page, I'm referring to the

                                                                Page 13

1     first page of this exhibit.

2         A:  Yes, after the start of the lawsuit.

3         Q:  There were --

4         A:  The one that you have does not --

5         Q:  Sir, --

6         A:  I'm sorry.  Go on.

7         Q:  -- there were links to the "Netzilla" page, is that

8    right?

9         A:  Not on the front page of the "Spam Tracking Page,"

10   not until after the lawsuit.

11        Q:  And then you added the link?

12        A:  Yes.

13        Q:  And then you removed the link?

14        A:  Yes.

15        Q:  Why did you remove the link to the "Netzilla" page?

16        A:  My lawyer suggested that I put the page pretty much

17   the way it was at the start of the lawsuit rather than make any

18   more changes.

19        Q:  Well, the reference to the "Netzilla" page appeared

20   at the very beginning of this exhibit to your affidavit when

21   you had the link posted, correct?

22        A:  Right.  I posted the link in response to the Fargo

23   Forum article.

24        Q:  And this was before you had been served with the

25   Complaint in the case, correct?

                                                               Page 14

1         A:  Right, but after I was notified there was a

2    lawsuit.

3         Q:  And you removed the link after you became aware

4    that there was going to be a jurisdiction over battle -- excuse

5    me, battle over jurisdiction, right?

6         A:  I don't remember exactly when.  It was after I

7    obtained counsel in North Dakota.

8         Q:  Well, the link not only went to the "Netzilla"

9    page, but there was also a link to the article in the Forum

10   about the Plaintiff, correct?

11        A:  Yes.  The Forum had written an article about me and

12   in specific about Plaintiff's lawsuit against me.  When I read

13   the article, I saw that the article didn't point to the actual

14   --

15              MR. HARRISTHAL:  Your Honor, --

16        A:  -- case file in question.

17              MR. HARRISTHAL:  -- excuse me --

18        A:  And the case file had no link from the front page

19   so I thought I'd make life a little early -- excuse me, easier

20   for the readers of the Forum who might come to my page out of

21   curiosity.

22              MR. HARRISTHAL:  Your Honor, I'm trying to make sure

23   we get through this witness in time for Mr. Levine to testify,

24   so I would ask that the witness only answer the questions and

25   the narrative be added under redirect.

                                                                Page 15

1         Q:  The additional link went to the Fargo Forum; is

2    that correct?

3         A:  Yes.

4         Q:  And the Fargo Forum is a North Dakota newspaper?

5         A:  As far as I know.

6         Q:  Now what's a tag?

7         A:  It has a lot of meanings.  I'm not sure which one

8    you're talking about.

9         Q:  Well, how about when we talk about putting up a

10   webpage, what is a tag?

11        A:  I'm not familiar with that term in terms of

12   webpages.

13        Q:  Well, let's go to the actual page.  If you would

14   turn please to the Affidavit of Brad Allison, Exhibit B to it.

15               MR. HARRISTHAL:  Tab 9 of your book, Your Honor.

16        A:  Okay.

17        Q:  Now this version of it still has the links to the

18   Forum article, correct, and the link to the "Netzilla" page?

19        A:  Well, --

20        Q:  The word "new" in that line under the word "spam,"

21   can you see that, sir?

22        A:  Yes.

23        Q:  Now that's in bold face, correct?

24        A:  Yes.

25        Q:  Now when you actually had it on the Internet

                                                                 Page 16

1     though, it was even a different color.  It appeared in red;

2    isn't that right?

3           A:  Yes, I don't often edit information to the front

4    page, so I wanted people to notice it.

5           Q:  You wanted people to notice this information

6    linking to the Forum article, correct?

7           A:  Yes, I expected a lot of curious Forum readers

8    would come to the page and not know what the article was about.

9           Q:  And are you aware that it's called a strong tag,

10   what you did to the word -- I'm sorry, who prepared the website

11   that we're looking at in this page?

12          A:  I did.  Okay, now I know what you mean by the word

13   tag.

14          Q:  Alright, and you used a strong --

15          A:  A tag is a --

16          Q:  I'm sorry.  You used a strong tag for purposes of

17   this line referring to the Forum article, correct?

18          A:  Yes.  That's how you make something bold.

19          Q:  Was there anything else on your website that was in

20   red?

21          A:  Not that I recall.  Oh, yes, all the dates are in

22   red.

23          Q:  Otherwise everything -- excuse me, otherwise

24   nothing in your entire website was red.  Is that your

25   testimony?

                                                               Page 17

1         A:  On the front page, as I'm looking at it, the dates

2    are in red.  That's all.

3         Q:  So only the front page dates and this reference to

4    the article on the Plaintiff.  Those are the only things in red

5    on your entire site.

6         A:  On the entire front page.  I'd have to look at the

7    rest of the site to be sure.

8         Q:  Now the comments in your webpages about the

9    Plaintiff essentially pertain to what you claim that he was

10   doing through a company called Sierra Corporate Design and or

11, correct?

12        A:  I've never mentioned Sierra Corporate Design prior

13   to the lawsuit.  Newsfeeds is the only one I mentioned.

14        Q:  Alright, well, you mentioned -- okay, so you

15   mentioned in it.  Do you recall --

16        A:  Yes, [inaudible].

17        Q:  Do you recall including references in your webpages

18   to, all one word,

19        A:  Not that I recall, but I could search for it.  Oh,

20   that might have been one of the domains I listed as owned by

21   Jerry Reynolds.

22        Q:  Correct.  So you did make references to it even

23   before this lawsuit, right?

24        A:  I listed every domain name I could associate with

25   "Netzilla."

                                                                 Page 18

1         Q:  Would you please go to Exhibit A, to Mr. Allison's

2    affidavit.

3              MR. HARRISTHAL:  And that's the same affidavit we

4    were looking at, so we're still at Tab 9, Exhibit A.

5         Q:  And this page is entitled "Overview of Spam from

6    Netzilla."

7         A:  Yes.

8         Q:  The heading in the middle of the page, "Ownership &

9    Contact Information."  Do you see that, sir?

10        A:  Yes.

11        Q:  It reads, "In late 1996 the whois data for

12" and I'm paraphrasing, "listed Jerry Reynolds as

13   the contact person," do you see that, sir?

14        A:  That's correct.

15        Q:  So you ran a whois lookup?

16        A:  Yes, that's standard procedure when you're trying

17   to track down a spammer.

18        Q:  Who did you run a whois lookup on?

19        A:  Probably, yes.

20        Q:  Would you go to the next page of this document,

21   please?

22        A:  Mmhmm.

23        Q:  About a third of the way down it reads, "As of 2004

24   the domain is no longer owned by Jerry Reynolds."  Do you see

25   that?

                                                               Page 19

1         A:  Yes.

2         Q:  How do you know that?

3         A:  Actually, that paragraph may be inaccurate.  I

4    don't know who owns it.  What I should have written is I no

5    longer can prove that Jerry Reynolds owns the domain.  I

6    believe it's listed anonymously somehow.

7         Q:  Well, we'll set aside the question of the falsity

8    of this information for now.  What I want to know is how did

9    you get information that led you to write down that as of 2004,

10   the domain is no longer owned by him?

11        A:  I ran another whois.

12        Q:  Okay.  Now a little bit lower it says, as of 2005,

13 still lists Jerry Reynolds as the owner of Intel-

14   Telecom.

15        A:  Yes.

16        Q:  So did you run a lookup of some kind on something

17   there?

18        A:  Yes.  You can see in parentheses the command I

19   typed to get the information.

20        Q:  Okay.  And did you know where Intel-Telecom is

21   based?

22        A:  No.  I mean I didn't know when I ran the command.

23        Q:  I'm sorry.  You did or did not.

24        A:  Did not.

25        Q:  Do you know now?

                                                                Page 20

1         A:  I assume it's in North Dakota.

2         Q:  And that's what you were running the lookup on.

3         A:  Yes, I typed Intel-Telecom as the keyword for the

4    search.

5         Q:  Okay, let's go to Page 3, please. In about the top

6    quarter of the page you wrote, "As of 2004, the domain in no

7    longer owned by Jerry Reynolds."

8         A:  That's correct as far as I know.

9         Q:  What did you do to get the information that you

10   wrote there?

11        A:  I ran a whois query on

12        Q:  Now a little bit lower -- I'm sorry, the next

13   paragraph, the second sentence you wrote, "It is known that

14   Corpcomm acted as the network service provider to

15   Netzilla/Sexzilla and that Jerry Reynolds maintained an email

16   address there."  How did you determine who the network service

17   provider was?

18        A:  I don't remember.  The other spam providers probab

19   -- excuse me, the other spam fighters probably provided me with

20   that information.  There are various ways you can find out.

21        Q:  What are those ways?

22        A:  Well, the main way is a program called Traceroute,

23   which does what it sounds like it does, it traces the route

24   from one computer to another.  So you might typically type

25   Traceroute and it would list all the computers that

                                                              Page 21

1     the message passed through on the way and if --

2         Q:  Well, is it possible --

3         A:  -- all the traces --

4         Q:  I'm sorry.  Is it possible that you ran a

5    traceroute and that's where that information came from?

6         A:  It's possible.  More likely someone else did it and

7    provided me with the result.  Most likely it was posted on the

8    used net news groups.

9         Q:  This traceroute thing, does that involve the

10   transfer of packets from -- excuse me, does that involve the

11   tracing of packets as they pass from computer to computer or

12   server to server?

13        A:  That's a reasonable description of it.

14        Q:  And the packets would go to -- withdrawn.  Let's go

15   to two paragraphs below that, please, where you wrote,

16   "Netzilla was owned by Jerry Reynolds."

17        A:  Yes.

18        Q:  When did you write that on here?  When did you

19   first post that?

20        A:  I originally would have written, "Netzilla is owned

21   by Jerry Reynolds," and I would have written that in 1997.

22   After I began receiving lawsuit threats from you, I double

23   checked my information and since I could no longer connect

24   Netzilla to Reynolds, I would have changed it to was owned by

25   Jerry Reynolds shortly after you got --

                                                               Page 22

1         Q:  What year did you change --

2         A:  That would have been -- I'm sorry.

3         Q:  What year did you change the statement, "Netzilla

4    is owned by" to "Netzilla was owned by?"

5         A:  That would have been 2004 after your first letter.

6         Q:  Did you ever do anything to personally verify

7    whether Jerry Reynolds owned Netzilla?

8         A:  No, I thought the whois results were pretty

9    conclusive.

10        Q:  Well, let's go to the next point.  The bullet

11   point, where you have Jerry Reynold's name and an address and a

12   phone number.  Where did that information come from?

13        A:  I don't remember, probably whois data.

14        Q:  Do you realize that that phone number is an

15   unlisted phone number?

16        A:  Well, the it must have come from the whois data or

17   something he posted to the Internet.  I don't have access to

18   unlisted phone numbers.

19        Q:  Well, how would you come up with an unlisted phone

20   number that you posted here about Mr. Reynoldds?

21             MS. DONARSKI:  Objection.  Asked and answered.

22        A:  I don't know.

23             THE COURT:  Overruled.

24        A:  I don't know how I came up --

25        Q:  Let's go to the -- sir, let's go to the next bullet

                                                                   Page 23

1     point.

2                MR. WELLBORN:  Was he trying to say something, Your

3    Honor?  If we could let him finish, please.

4                THE COURT:  Do you have an answer for that?

5         A:  What I -- yes, I don't remember how I got that

6    number.  The only way I could have had it is if Reynolds had

7    published it somehow.

8         Q:  And you must have been doing some sort of research

9    to come up with it, correct?

10        A:  Yes, he either would have used it in one of his

11   spams or it would have been in the whois records.

12        Q:  So you -- your research was targeted on Mr.

13   Reynolds?

14        A:  No, it was targeted on spam.

15        Q:  Well, a moment ago you told us that you must have

16   found this in some of your research, correct?

17        A:  Yes, I research most of the spammers, some whom I

18   write case files.

19        Q:  You were researching Mr. Reynolds, correct?

20        A:  Yes.

21        Q:  You were targeting Mr. Reynolds, correct?

22        A:  No.

23        Q:  You research people without targeting them?

24        A:  Yes.  The word target implies to me that I had one

25   specific spammer in mind.  I had over 400 case files.

                                                                 Page 24

1         Q:  Oh, so you targeted 400 spammers?

2         A:  Yes.

3         Q:  So you would agree that you targeted Mr. Reynolds,

4    you're just saying that you targeted a lot of people.

5         A:  Yes.

6         Q:  Let's go to the next bullet point where there's an

7    address on Morrison Street in West Fargo that appears.  Where

8    did that information come from?

9         A:  I don't remember.

10        Q:  But again, it came from your targeted research on

11   Mr. Reynolds?

12        A:  It must have been something he published somewhere,

13   either in a spam or a whois record.

14        Q:  It came from your research of Mr. Reynolds?

15        A:  Yes, or someone on the Internet researched him and

16   published the information to Usenet.

17        Q:  But if they published it on Usenet, it doesn't make

18   it show up on your page, does it?

19        A:  Yes, a lot of the information on my page is results

20   of someone else's research.

21        Q:  It doesn't happen automatically unless you put it

22   there, is that right?

23        A:  That's correct.  I would have seen it on Usenet, I

24   would have trusted the person who published it and I would have

25   put it on the webpage.

                                                               Page 25

1           Q:  There's a next entry -- on the next bullet point it

2    says, unconfirmed, Kimberly Reynolds.  Where did that

3    information come from?

4           A:  I don't remember.  Although I do know that her name

5    appears in a pyramid scheme spam that was sent out some years

6    ago.

7           Q:  What is unconfirmed mean?

8           A:  I don't remember.  I wrote that about eight years

9    ago.  Probably what happened was somebody noticed her name on a

10   spam, noticed that it was the same name as the spammers and

11   pointed this information out as significant.

12          Q:  And then you posted it?

13          A:  Yes.

14          Q:  And you posted it along with the other information

15   about Jerry Reynolds, right?

16          A:  Correct.

17          Q:  If we drop down a few more bullets, there's a

18   reference to Doug Kirk.  This is the third to the last bullet.

19          A:  Yes.

20          Q:  Where did that information come from?

21          A:  I don't remember.  Probably someone else on Usenet

22   saw it in a whois record or as a contact point on one of the

23   service providers for Netzilla and published it.  But I'm only

24   speculating.  I don't remember.

25          Q:  Well, how do you know that Doug Kirk had anything

                                                                Page 26

1     to -- withdrawn.  You wrote here that Doug Kirk is in Fargo,

2    North Dakota, correct?

3         A:  Yes.

4         Q:  And this information again came out of the research

5    you were doing on Jerry Reynolds, right?

6         A:  Well, the research I've -- on Netzilla.

7         Q:  You told us earlier that you did research on Jerry

8    Reynolds.  Do you still stand by that testimony?

9         A:  It would be more accurate to say I did research on

10   Netzilla.  There are a lot of names in this webpage and I

11   didn't really attach any particular significance to any of

12   them.

13        Q:  So you're saying you did not research Jerry

14   Reynolds.

15        A:  I researched Netzilla and his name came up in that

16   research.

17        Q:  And then did you ever run queries or Internet

18   searches on the name Jerry Reynolds?

19        A:  No, I ran them on Netzilla and Sexzilla.

20        Q:  You never ran any queries on the name Jerry

21   Reynolds.  That's your testimony?

22        A:  I don't recall ever naming Jerry Reynolds as a

23   query term.

24        Q:  Do you deny having done it?

25        A:  I deny remembering I've done it.

                                                                 Page 27

1         Q:  We drop down to the first line below the last

2    bullet on this page.  It reads, "Netzilla also owned the

3    domains and  Where did that information

4    come from?

5         A:  I don't remember where I got the information about

6    the ownership.  Probably from whois queries or from someone

7    else's research on Usenet.

8         Q:  Well, in fact, it came from research that you were

9    running on Jerry Reynolds, didn't it?

10        A:  No, it came from research I was running on

11   Netzilla.  The paragraph says, "Netzilla owns"  It

12   doesn't say Jerry Reynolds owns

13        Q:  Under the next paragraph, it reads, "See also

14, do you see that?

15        A:  Oh, yes, it's a list of other domain names we

16   associated with Netzilla.

17        Q:  First, I'm just asking if you see it.  Now tell me

18   where you got the information

19        A:  I don't remember.  Probably somebody posted the

20   information on Usenet.

21        Q:  Well, sierracorporatedesign is affiliated with

22   Jerry Reynolds, isn't it?

23        A:  I know that now.  I didn't know it when I wrote

24   this.

25        Q:  Well, isn't that -- isn't that how you came up with

                                                                 Page 28

1 was in your research on Jerry

  2     Reynolds?

  3          A:  No.

  4          Q:  But you don't remember how you got it.

  5          A:  No.

  6          Q:  Now about nuthinbutnews, which is on the same line.

  7  Do you know where you got that?

  8          A:  No.

  9          Q:  We go a little lower, it says, "See Usenet thread

  10    Re:  what is"  Do you see that, sir?

  11         A:  Yes.

  12         Q:  When did you put that --

  13         A:  That would be new, that's --

  14         Q:  -- when did you put that link there?

  15         A:  After the lawsuit was filed.

  16         Q:  After what lawsuit was filed?

  17         A:  This lawsuit.

  18         Q:  When did you put the link there?

  19         A:  I'm guessing April or May of 2005.

  20         Q:  Did you then post to the what is

  21    string?

  22         A:  Yes.  I mentioned that was

  23    registered anonymously and that honest businesses do not

  24    register themselves anonymously.

  25         Q:  And when --

                                                                 Page 29

1          A:  Later I found out that that domain name was in fact

2    associated with Jerry Reynolds, so I added it to this webpage.

3          Q:  When did you post -- so you posted to what is

4 before you attached this link?

5          A:  Yes.

6          Q:  And when did you post to what is

7          A:  I believe it would have been in April of 2005.

8          Q:  Would you go to Page 6 of this exhibit, please?

9          A:  Okay.

10         Q:  About halfway down the page there is a reference to

11   the date 25 August, 2004.  Do you see that?

12         A:  Yes.

13         Q:  It reads, "Has lawyer send a cease-and-desist

14   letter demanding that I remove this information."  Now I assume

15   that's a hyperlink where it reads cease-and-desist letter?

16         A:  Yes, it leads to a photocopy of the letter you sent

17   me.

18         Q:  About Jerry Reynolds?

19         A:  Yes.

20         Q:  And that was before this suit was started, correct?

21         A:  Obviously.

22         Q:  And you posted that letter concerning Jerry

23   Reynolds before this lawsuit was started.

24         A:  Yes.

25         Q:  And you included a link to it in this website of

                                                               Page 30

1        yours, correct?

  2            A:  Correct.

  3            Q:  So did you remove the references to Jerry Reynolds

  4       that the cease-and-desist letter demanded that you remove?

  5            A:  No, I asked the other spam fighters to facts check

  6       for me --

  7                   MR. HARRISTHAL:  Objection.

  8            A:  -- and I made a few changes.

  9                   MR. HARRISTHAL:  Your Honor, I move to strike.

  10                  THE COURT:  He was trying to answer.  Let him finish.

  11      Go ahead and finish, sir.

  12           A:  In response to the letter, I asked the other spam

  13      fighters to facts check my webpage.  They sent me some

  14      corrections, which I made, but otherwise I left the page alone.

  15      And I added the letter to the webpage.

  16           Q:  So you were aware at the time that you got the

  17      cease-and-desist letter that you might be sued by someone in

  18      North Dakota, correct?

  19           A:  I knew I was getting threats from a spammer, but I

  20      get those all the time.

  21           Q:  Can you answer my question?

  22           A:  Yes.

  23           Q:  The answer to my question is yes, correct?

  24           A:  No, actually not.  I knew I was getting threats.  I

  25      didn't know if the threats would be carried out or not.

                                                                        Page 31

1         Q:  Well, you certainly knew that the threats would be

2    carried out before you were actually sued, right?

3         A:  No.

4         Q:  Do you recall posting an article that said it

5    looked to you like you were going to be dragged into court on

6    this one?

7         A:  Yes, I may have posted that after the second

8    lawsuit threat.

9         Q:  Well, you wrote, it looks like I'm going to get

10   dragged into court.  So you wrote it before you were dragged

11   into court, correct?

12        A:  Yes.  Of course, I didn't know where I was going to

13   get dragged into court.

14        Q:  Well, you were writing about someone in North

15   Dakota, correct?

16        A:  Yes, but I didn't live in North Dakota.

17        Q:  I know --

18        A:  I would have assumed he would have come to me to

19   sue me or sued me in Federal Court.

20        Q:  You knew that he was in North Dakota.

21        A:  Yes, but I didn't care.

22        Q:  And in fact, you continued to post information

23   about him after he demanded that you remove it, correct?

24        A:  Correct, I don't take well to threats.

25        Q:  Would you look at the bottom of Page 6, please?

                                                              Page 32

1         A:  Yes.

2         Q:  Under "Make.Money.Fast scam, the second sentence

3    reads, The letter was discovered by a Yahoo search on

4    "Reynolds" and "Fargo."  Who did that search?

5         A:  I don't remember.  Someone on Usenet did it and

6    pointed it out the results for the rest of us to see.

7         Q:  Oh, so you claim that you didn't actually do the

8    search.

9         A:  Correct.

10        Q:  You just used someone else doing the search on Mr.

11   Reynolds and published that information.

12        A:  That's correct.

13        Q:  Let's go to the next page -- well, no, I'm sorry,

14   let's back up.  Did you do anything to verify that this was

15   accurate?

16        A:  I don't remember.  I may have repeated the same

17   search myself after someone else had done it.

18        Q:  Well, now earlier you told me that you never did a

19   search on Reynolds.  Now you're telling me that you may have

20   done one; isn't that right?

21        A:  Yes.  I don't remember doing the search, but I may

22   have done it to verify this.

23        Q:  Well, let's go the next page, Page 7.  Second line,

24   you wrote, "Jerry would hire college students," do you see

25   that?

                                                               Page 33

1         A:  Yes, that was something someone posted on Usenet.

2    I don't remember where it came from.

3         Q:  What did you do to verify it?

4         A:  I don't remember.  I think the post came from

5    someone I trusted.

6         Q:  Who?

7         A:  I don't remember.

8         Q:  Well, after you got the cease-and-desist letter,

9    did you remove the information that you had not verified

10   yourself?

11        A:  No.

12        Q:  About an inch below the portion I just had you look

13   at, it reads, "Addresses of interest in the letter are as

14   follows," do you see that?

15        A:  Yes.

16        Q:  What letter are you referring to?

17        A:  The pyramid scheme.

18        Q:  So where did this address in Fargo, North Dakota,

19   where did you get that?

20        A:  That was published by Reynolds when he published

21   the pyramid scheme letter.

22        Q:  Well, did you see the pyramid scheme letter?

23        A:  Yes, there's a copy of it on my website.

24        Q:  And does it have Mr. Reynold's name on it?

25        A:  It has his account name at AOL.

                                                              Page 34

1         Q:  What account name is that?

2         A:  It's Borrg, with two "r"'s at

3         Q:  So it doesn't have Mr. Reynold's name on it?

4         A:  No.

5         Q:  And this address on 27th Avenue, that appears in

6    this letter?

7         A:  Yes.

8         Q:  Now did you also post a link to an order of this

9    court under chilling effects?

10        A:  Yes.  That was after the lawsuit was filed.

11        Q:  Would you please go to the second Affidavit of Mr.

12   Allison.

13              MR. HARRISTHAL:  This is Tab 11, Your Honor.

14        A:  I have it.

15        Q:  Exhibit E to that affidavit, can you find that,

16   please?  In the lower right corner, it is coded "DRD-00317."

17        A:  I'm sorry, you said Exhibit D?

18        Q:  No, E as in elephant.

19        A:  I have it.

20        Q:  Under general information about, it

21   reads, "Added 14 July, 1999."  What does that mean?  What

22   happened on July 14, 1999?

23        A:  In -- I'm sorry.  Around about then we discovered

24   that there was a site called that was responsible

25   for a lot of spam, in particular it was acting as conduit for

                                                                 Page 35

1     Netzilla.

2         Q:  When you say, "Added 14 July, 1999," what does that

3    mean?

4         A:  That's when I added it -- I'm sorry, that's when I

5    added it to the computer program that monitors spam.

6         Q:  And you know that was based out of

7    Fargo, North Dakota, correct?

8         A:  I do know now.  At the time, it was listed as being

9    in Las Vegas, Nevada, although that was bogus information.  We

10   -- at the time I added this, I didn't know where they were

11   based.  In fact, you can see on the next page I list a Las

12   Vegas address.

13        Q:  The dates that appear on here, under "Overview of

14   last 14 reports."

15        A:  Yes, those are the computer generated reports.

16        Q:  So this -- the computer would regularly post this

17   information about

18        A:  Yes, it regularly posted that information about all

19   the case files.

20        Q:  Well, specifically though it did it about


22        A:  Yes.

23        Q:  And you're the one who created the program to have

24   this posting occur, correct?

25        A:  Yes, I created the program in 1996 to monitor spam

                                                               Page 36

1     on Usenet.

2         Q:  The program that you created interacts with

3    articles emanating from Newsfeeds in North Dakota, correct?

4         A:  It interacts with any articles that arrived at my

5    server in California.

6         Q:  Including articles coming out of North Dakota,

7    specifically from

8         A:  Yes -- well, not specifically.  It accepts articles

9    worldwide.

10        Q:  And within those, were those that -- you set it up

11   to monitor articles coming from Newsfeeds in North Dakota.

12        A:  No, I set it up to monitor articles coming from

13   Newsfeeds.  I didn't know or care where Newsfeeds was located.

14        Q:  But the reality is that Newsfeeds was located in

15   Fargo.

16               MS. DONARSKI:  No question.

17        A:  I know that now.

18               MS. DONARSKI:  Objection

19        A:  I didn't know it when I wrote this.

20        Q:  Staying with Exhibit E, would you please move up to

21   Page 328.  I'm sorry, if you look in the lower right-hand

22   corner, DRD-00328.

23        A:  Yes, I have it.

24        Q:  Now this is the results of more of your monitoring

25   of Newsfeeds articles out of North Dakota, correct?

                                                                 Page 37

1         A:  Actually, it's another copy of the one you just

2    showed me.  The only change is the date.

3         Q:  So -- but it continues --

4         A:  Oh, I'm sorry -- yes, if you check, except for the

5    date, nothing has changed.

6         Q:  How does the date change?

7         A:  Every time I ran the program to issue the updates,

8    it printed the date on the top of every page.  But you can see

9    that the first report on the list is still May 5th.

10        Q:  So you ran this program again on July 23, 2000, is

11   that right?

12        A:  Right.  I probably ran it once every week or so.

13   These are articles that you collected from and they

14   don't copy every single copy of every single web page.

15        Q:  You ran it --

16        A:  So I probably ran this --

17        Q:  You ran it every week or so during what years?

18        A:  From 1996 to it looks like July of 2000, maybe a

19   little later.  I ran it sporadically after that.

20        Q:  And again, we're talking about just running the

21   program on, right?

22        A:  No.

23        Q:  Well, --

24        A:  I ran this program on all the case files.

25        Q:  But the time period that you just gave me pertains

                                                               Page 38

1     to when you were running it on

2          A:  No, it pertains to when I was running it on all the

3    case files.

4          Q:  Okay, then I need to -- I'm glad we cleared that

5    up.  I want to know during what period of time you were running

6    this program on

7          A: was added to the list in I believe I

8    said 1999 on that other page you showed me.  And it's still on

9    the list.  I just haven't run the program in a long time.

10         Q:  Okay.  When is the last time you ran the program?

11         A:  The last date that there was an update on the spam

12   information, there -- I'm been a little confused and I

13   apologize.  There's the program that collects data from Usenet

14   and then there's a program that updates the web pages.  The

15   program that updates the web pages, I still run periodically.

16   The program that collects the data I stopped running in May of

17   2000.  That's why the information on this page never changes.

18         Q:  So what's the answer to my question?  During what

19   period of time were you --

20         A:  Sorry, I --

21         Q:  -- what period of time --

22         A:  -- I was --

23         Q:  Sir, wait for the question if you would, please.  I

24   know it's hard with the monitor system, but bear with me.

25   During what period of years were you running on a weekly basis

                                                                Page 39

1     this program on

2         A:  From 1999 to May of 2000.

3         Q:  If we look at Page DRD-00334, this says that it's

4    an overview of Newsfeeds from September 25, 2001, correct?

5         A:  2001 is when I ran the program that updates the web

6    pages, but you can see that the last piece of data is still May

7    of 2000.

8         Q:  So you updated your web page on on

9    September 25, 2001?

10        A:  No, I republished it then.  Nothing on the page

11   changed except the date.

12        Q:  Okay, so you republished your information on

13 September 25, 2001; is that right?

14        A:  Right.

15        Q:  And if we advance to Page DRD-00337, you again

16   published this information November 29, 2001?

17        A:  Right.  And you can see the date still hasn't

18   changed on the last data.

19        Q:  So you -- and I won't make you go through all of

20   the pages that we've got collected here, but you continue to

21   republish this information periodically long after 2000 and

22   2001, correct?

23        A:  Yes.  The program that updated the web pages was

24   poorly written.  If I made any change anywhere on the website,

25   they all got updated or republished rather.

                                                               Page 40

1         Q:  So for example, --

2         A:  So if you were to go through archive. -- I'm sorry.

3         Q:  It was still happening in 2003, right?

4         A:  It's still happening today.  Actually that's not

5    true.  I haven't done it since January.

6         Q:  Would you go to Exhibit I to this affidavit,

7    please?  Way at the end if that helps.

8         A:  I have it.

9         Q:  Was this also found on the Internet?

10        A:  Yes, I published it in response to the lawsuit.

11        Q:  You published it on the Internet yourself?

12        A:  Yes.

13        Q:  And it refers to Jerry Reynolds, correct?

14        A:  Correct.

15        Q:  If you go to Page 354 --

16        A:  Yes.

17        Q:  -- you acknowledged on here that you had reposted

18   information Mr. Ritz obtained from servers in North Dakota,

19   correct?

20        A:  I'm sorry, where are you looking?

21        Q:  Right in the middle of the page, under second

22   lawsuit.  You reposted information David Ritz obtained,

23   correct?

24        A:  Yeah, he provided some of the whois data and other

25   information that's on my website.

                                                                Page 41

1         Q:  Well, specifically you reposted information that he

2    took from servers located in North Dakota.

3         A:  Not that I know of.

4         Q:  Well, he's told you that, hasn't he?

5         A:  No.

6         Q:  Mr. Ritz has not told you that he secured

7    information from servers in North Dakota by issuing commands to

8    those servers.

9         A:  Oh wait, yes, some years ago he did some DNS look-

10   ps and some send-mail look-ups.

11        Q:  And he ran those against servers in North Dakota,

12   didn't he?

13        A:  I assume that's where they're located.

14        Q:  And then you reposted that information.

15        A:  Yes.  It's public information.

16        Q:  Would you go to -- back to Exhibit D and

17   specifically I'm going to focus you on Page DRD-0356.  I

18   believe it's the second page of Tab D.

19        A:  I have it.

20        Q:  What is this?

21        A:  That's a letter from me to some of the other spam

22   fighters telling them that I'd gotten a cease-and-desist letter

23   and asking them to fact check my web page.

24        Q:  And you issued this before you were sued, correct?

25        A:  That's correct.

                                                               Page 42

1          Q:  It was before any litigation had been commenced in

2    North Dakota against you.

3          A:  It was in response to the lawsuit threat you sent

4    me.

5          Q:  Can you answer my question?

6          A:  Yes, before the lawsuit.

7          Q:  And you wrote that you had no intention of removing

8    anything from this website even after being asked to remove it,

9    correct?

10         A:  I don't respond well to threats.

11         Q:  Can you answer my question?

12         A:  I said, I don't have any intention of removing

13   anything I don't have to, which means that I was willing to

14   remove the information that I couldn't verify, but the

15   information that I believed was true, was going to stay in

16   place.

17         Q:  Well, in fact, based on the sheets we've already

18   looked at, you left information up that you did not even

19   attempt to verify.  You just trusted this unnamed source that

20   you can't remember.

21              MR. DONARSKI:  Objection.

22         A:  That's not --

23              THE COURT:  Overruled.

24         Q:  So you asked --

25         A:  I asked the other spam --

                                                              Page 43

1         Q:  You asked in this email -- is this an email

2    message?  Is that what this is, this 00356?

3         A:  Yes.

4         Q:  Okay.  And in this email message you were asking

5    people for information about Jerry Reynolds, right?

6         A:  Yes, I wanted to fact-check my web page.  And also

7    possibly defend myself against a lawsuit.

8         Q:  You were expecting a lawsuit at this time, correct?

9         A:  I had received threats of a lawsuit.  I knew there

10   was one possible.

11        Q:  Now would you advance to Page 0361?  This is

12   another email from you, is that right?  Or -- yeah, another

13   email.

14        A:  That's correct.

15        Q:  And when did you send this email?

16        A:  October of 2004.

17        Q:  This is also before any litigation was commenced

18   against you, correct?

19        A:  Correct.  This would have been after the second

20   lawsuit threat.

21        Q:  My question was, this was before any litigation had

22   been commenced against you, correct?

23        A:  Yes.

24        Q:  And you were asking for information on Jerry

25   Reynolds, right?

                                                                Page 44

1         A:  Yes.

2         Q:  At least that's the subject of the email?

3         A:  That's who was threatening to sue me, yes.

4         Q:  Now you -- is the subject of the email information

5    that you needed on Jerry Reynolds?

6         A:  Yes.

7         Q:  And you wrote, "Howdy, thanks for the updated

8    info," correct?

9         A:  Correct.

10        Q:  Who were you thanking?

11        A:  David Ritz.

12        Q:  And then you kept that information around?

13        A:  Anything relevant to the proving that Jerry

14   Reynolds was connected to Netzilla, I would have added to the

15   web page.

16        Q:  Well, in fact, after getting a letter from my law

17   firm, you continued to add information to your web page about

18   Mr. Reynolds, correct?

19        A:  Of course.

20        Q:  You even wrote that you were going to add

21   information in that email found at 00356, right?

22        A:  Correct.  I had been leaving the web page alone

23   since 1999 and all of a sudden I found that I was involved with

24   this spammer again, so I started adding information that I felt

25   would be relevant to the case.

                                                               Page 45

1         Q:  And at this point, relevant to the case that had

2    not yet been started against you, but which you knew was

3    coming, right?

4         A:  Which I suspected might come.

5         Q:  Well, you said "the" case, you're talking about the

6    lawsuit you expected would come, correct?

7         A:  No, I was expecting -- I was -- at the time I was

8    referring to a potential lawsuit.

9         Q:  That you expected would come.

10        A:  That I expected might come.  Usually spammers don't

11   carry out their threats to sue you.

12        Q:  I'm sure the spammers don't.  Now this information

13   concerned -- at the time you wrote the emails saying that you

14   were intending to post additional information if you could, you

15   knew that that information concerned a resident of North

16   Dakota.

17        A:  I didn't care where he lived, but yes, I knew he

18   lived in North Dakota.

19        Q:  And you continued to post additional information

20   about him.

21        A:  Yes.  The other antispammers gave me some updated

22   information.  Plus I did some more whois look-ups on my own.

23        Q:  Whois look-ups of what or who?

24        A: and or maybe I have those

25   backwards.

                                                                Page 46

1         Q:  Would you go to Page 00362 on Exhibit D, please?

2         A:  I have it.

3         Q:  This again is an email from you to a couple of

4    people, right?

5         A:  Yes.

6         Q:  And it was before any litigation in North Dakota

7    had been commenced against you, correct?

8         A:  That's correct.

9         Q:  And you wrote that there was a certified letter

10   waiting for you that you were not going to pick up.

11        A:  I did pick it up, but I was thinking of leaving it

12   there.

13        Q:  And you were thinking that it was probably a

14   lawsuit threat or an actual lawsuit from the Plaintiff,

15   correct?

16        A:  That's correct.

17        Q:  And you still continued to leave information about

18   the Plaintiff up on your website, right?

19        A:  Yes.

20        Q:  Now would you go to Page 363, please?  Again, we're

21   still on Exhibit D to Mr. Allison's second affidavit.

22        A:  Yes, I have it.

23        Q:  This was an email sent to you by Ms. Donarski,

24   correct?

25        A:  Correct.

                                                               Page 47

1         Q:  She sent this to you in November of 2004?

2         A:  Yes.

3         Q:  Had any litigation --

4         A:  I think so.

5         Q:  I beg your pardon.  Had any litigation been

6    commenced against you in North Dakota at that time?

7         A:  No, not at that time.

8         Q:  And Ms. Donarski was not your attorney, was she?

9         A:  No.

10        Q:  But she wrote to you about Mr. Reynolds, correct?

11        A:  Yes, she did.

12        Q:  And she asked for information about Mr. Reynolds,

13   right?

14        A:  Yes, I think she was asking me if I could backup

15   the statements on my website.  I'd have to reread the letter to

16   be sure, it's been awhile.

17        Q:  Well, if you need to do that, please feel free to

18   do so.  I'd like to know what you did in response to this

19   email.

20        A:  I don't think I did very much.  I wrote back to her

21   and said that I was fairly certain that everything on the web

22   page was correct.  I sent her a few records that might have

23   been useful in backing up the claims that I didn't think were

24   worth putting on the website because they're frankly boring.

25        Q:  How did you send them to her?

                                                                  Page 48

1         A:  Email.

2         Q:  So you emailed them to someone in North Dakota.

3         A:  Yes.

4         Q:  And they were about Mr. Reynolds.

5         A:  They were about Netzilla.

6         Q:  Well, they were about Mr. Reynolds, weren't they?

7         A:  The records were not specific to Mr. Reynolds, they

8    were specific to Netzilla.

9         Q:  You believed --

10        A:  His name was one of the names -- I'm sorry.

11        Q:  His name was one of the names on the information?

12        A:  Correct.

13        Q:  And you sent that to North Dakota to Ms. Donarski.

14        A:  Yes, at her request.  She contacted me.

15        Q:  How many emails did you send her?

16        A:  I don't remember.  Probably one assuring her that

17   the website was accurate and promising to send the data since I

18   collected it, and then probably another containing the data and

19   then probably a few months later asking how the case went, but

20   I would have to go through my email to be sure.

21             MR. HARRISTHAL:  Your Honor, we served a subpoena

22   upon Ms. Donarski to have those documents produced.  She, as I

23   understand it, has refused to produce them, but this is

24   obviously part of the heart of the case that shows direct

25   communications between the Defendant and North Dakota.  We

                                                               Page 49

1     can't -- have no way of determining how many contacts he had

2    via email with people in North Dakota about the Plaintiff

3    without those records, but we have not been provided with them

4    despite our subpoena.  We have asked that Ms. Donarski bring

5    them here today subject to your ruling on whether they need to

6    be produced.  We can visit this later on, but this was a --

7                THE COURT:  Okay.

8           Q:  (By Mr. Harristhal) Would you -- now you did more

9    than just respond to Ms. Donarski's request yourself, didn't

10   you?

11          A:  Yeah, I believe I asked the other antispammers if

12   they had anything they could add.

13          Q:  Let's go to Page 364, the next one under Tab D.

14   You forwarded Ms. Donarski's email from North Dakota to other

15   people, such as Mr. Ritz, correct?

16          A:  Yes.

17          Q:  And you were asking for information about the

18   Plaintiff, correct?  Of Mr. Ritz.

19          A:  Yes, that's correct.

20          Q:  And you knew that this had to do with a lawyer in

21   Fargo, North Dakota, when you forwarded this email.

22          A:  I knew it had to do with a case in Fargo, North

23   Dakota.  I didn't know where the lawyer was.

24          Q:  Well, look at your third paragraph, it says, "I

25   received an interesting email from a lawyer in Fargo."

                                                               Page 50

  1          A:  Oh, you're right.

  2          Q:  In the paragraph above it, you wrote, "It looks

  3    like I'm going to need the whole lot."  What are you referring

  4    to?

  5          A:  Just above that, David Ritz had said he still had

  6    virtually all of his notes.  He has a great deal of information

  7    about Netzilla and I consult with him often along with some

  8    other antispammers.

  9          Q:  And you wanted his notes that pertain to Mr.

  10   Reynolds, correct?

  11         A:  It looks that way, yes.

  12         Q:  And you were gathering them for the purpose of

  13   sending them to North Dakota where Ms. Donarski was waiting,

  14   right?

  15         A:  Yes.

  16         Q:  And then you sent them to Ms. Donarksi.

  17         A:  David didn't actually send me very much that was

  18   useful.  He basically reassured me that the information on my

  19   web page was accurate, so I simply sent her what I already had.

  20         Q:  Let's go to the next page of this November 11, 2004

  21   email.  Just above your sign off line, in about the middle of

  22   the page, this is where you wrote that you believed you were

  23   going to be dragged into court, correct?

  24         A:  Yes, at this time I thought it was likely.

  25         Q:  And this was before any of the lawsuits had begun.

                                                                   Page 51

1         A:  This was after the two lawsuits threats had been

2    received by me.

3         Q:  Can you answer my question?

4         A:  And again, I didn't know which court he was talking

5    about.

6         Q:  Can you answer my question?

7         A:  Yes, it was before the lawsuits were formally

8    filed.

9         Q:  And you knew that you were participating through

10   this email with litigation in North Dakota.

11        A:  I was answering a question sent to me by someone

12   who had a question about my web page.  I didn't care what it

13   was for or where it was.

14        Q:  Yeah, I'm sure you didn't care, but that wasn't my

15   question.  My question was what you knew and you knew that it

16   pertained to litigation in North Dakota.

17        A:  Yes.

18        Q:  And then you wrote, "It looks like I'm going to be

19   dragged into court on this one," right?

20        A:  That's correct.

21        Q:  And this one was in North Dakota.

22        A:  I didn't know where the lawsuit was going to be

23   filed or even if for sure there was going to be one filed.  So

24   yes, I did anticipate I'd be dragged into court, but I didn't

25   know I was going to be dragged into court in North Dakota.

                                                             Page 52

1         Q:  Well, you anticipated that you would testify in

2    North Dakota, correct?

3         A:  I thought it was likely that I would.  Although it

4    turned out I didn't.

5         Q:  But you did after anticipating you would be in

6    court in North Dakota, then provide Ms. Donarski with this

7    information.

8         A:  That's correct.

9         Q:  Would you please go to Exhibit C of Mr. Allison's

10   second affidavit?

11              MR. HARRISTHAL:  We're still at Tab 11, Your Honor.

12        A:  Yes, I see it.

13        Q:  The document coded in the lower right corner DRD-

14   0308, that's the first page.  Would you turn to that, please?

15        A:  Yes, I have.

16        Q:  Is this something you wrote?

17        A:  Yes, it is.

18        Q:  Did you write it before this litigation?

19        A:  Yes, I think I wrote it in 1999.

20        Q:  Okay.  It reads, and I'm about the third to the

21   last paragraph -- well, it's hard to say.  Do you see where the

22   word traceroute is the first word in the paragraph?

23        A:  Yes.

24        Q:  You wrote, "Traceroute says that

25   gets its Internet connectivity from"  Do you see

                                                               Page 53

1     that?

2         A:  Yes, I do.

3         Q:  Where did you get that information?

4         A:  The traceroute program.

5         Q:  So you ran a traceroute on

6         A:  No, I read a traceroute -- I ran a traceroute on

7    the kiddy porn site Sexylolitas and the result came up listing

8    Newsfeeds.

9         Q:  So you ran a traceroute that --

10        A:  Until I ran that --

11        Q:  -- ended up -- your testimony is that you believe

12   you ran a traceroute that ended up with servers in North Dakota

13   or routers in North Dakota.

14        A:  At the time I ran the tracer, I had no idea where

15   Sexylolitas was.  I simply typed her name into the tracer

16   program and it told me that their server was Newsfeeds.  But

17   bear in mind, I thought Newsfeeds was in Las Vegas.

18        Q:  But you believed -- well, as you sit here today you

19   believe you actually ran a traceroute which ended up bouncing

20   off the server in North Dakota.

21        A:  Assuming that's where Newsfeeds is located, yes,

22   that's true.

23        Q:  Okay, so the packet that you sent with your

24   traceroutes ended up in North Dakota.

25        A:  Yes -- well, passing through Newsfeeds, yes.

                                                                Page 54

1         Q:  How many time did you do that?

2         A:  I don't know, probably only once.  The answer was

3    pretty definitive when it came back.

4         Q:  Well, we'll get back to that.  Tell me who this

5    exchange is with that we see here, Page 308?

6         A:  That's a public post to the antispam newsgroup.  I

7    was asking anybody in the newsgroup if they had information

8    that would help.

9         Q:  Okay.  Would you advance to Page 320, please?

10   Still on Exhibit C.

11        A:  Excuse me just one moment.  Okay, I have it.

12        Q:  Now you wrote this email -- excuse me, what is this

13   document?

14        A:  It's a public post to the antispam newsgroup.

15        Q:  And it's an exchange between you and someone

16   else, correct?

17        A:  Andrew Gierth, yes.

18        Q:  Well, I see references to Newsfeeds in the top

19   third with carrots on each side.  It reads, "Forgive me if I'm

20   wrong here, but it appears to me that you are not interested in

21   reporting abuse to  It appears that you are only

22   interested in harassing our company."  Who wrote that?

23        A:  Yes, -- I don't know.  I believe they signed

24   themselves admin@newsfeeds -- wait a minute, they signed

25   themselves abuse@newsfeeds and it was a public post for the

                                                                Page 55

1     antispam newsgroup.

2         Q:  Well, you believed it was written by Newsfeeds,

3    correct?

4         A:  That's what it says in the headings, yes.

5         Q:  You believed it was written by someone at

6    Newsfeeds, correct?

7         A:  Yes.

8         Q:  And so you were having this exchange with someone

9    at Newsfeeds in 1999 -- July 21, 1999?

10        A:  No, my comments are directed at Andrew Gire.

11        Q:  What were your comments about?

12        A:  Andrew Gire was critizing Newsfeeds with a long

13   history of spamming and I wrote in defense of Newsfeeds.  I

14   said if there's abuse coming from a site, we should notify that

15   site properly before attacking it.

16        Q:  So you've been involved in attacking news sites?

17        A:  No.

18        Q:  Oh, so this would be --

19        A:  I'm involved in --

20        Q:  -- hypothetical --

21        A:  -- spam.

22        Q:  -- this was just hypothetical?  Do you ever attack

23   any entity through the Internet?

24        A:  No.

25        Q:  This is just hypothetical then.

                                                               Page 56

1         A:  I discuss it great detail.  I suggest that websites

2    be disconnected for excessive spamming, but I've never

3    coordinated or participated in any kind of attack.

4         Q:  So this is just a hypothetical statement about the

5    possibility of attacking?

6         A:  Yes.  This discussion seems to have been a

7    discussion about disconnecting Newsfeeds from the Internet

8    because of all the spam coming from them.

9         Q:  Let's go to the next page, 321.

10        A:  Yes, I see it.

11        Q:  Now this is also a posting that you responded to,

12   correct?

13        A:  Sir, it's a little difficult to read.  Hold on a

14   moment.  Okay, yes, I see it.

15        Q:  This is a posting that you responded --

16        A:  I can't --

17        Q:  -- this is a posting that you responded to,

18   correct?

19        A:  Yes.  In this case I'm responding to Howard Knight.

20        Q:  Well, the original threat is from,

21   correct?

22        A: was one of the participants in Net

23   Thread, but they did not originate it as far as I can tell.

24        Q:  Okay, but you participated in it after Newsfeeds

25   participated in it, correct?

                                                                Page 57

1         A:  Yes, and probably before.  It was probably a long

2    discussion.

3         Q:  And it was about Newsfeeds.

4         A:  Yes, that was a long discussion.

5         Q:  And it was about --

6         A:  Yes, it was about Newsfeeds.

7         Q:  Let's go to the next page, 322.  This was another

8    posting to which you responded.

9         A:  Yes.

10        Q:  Which parts did you write?

11        A:  I wrote the third question.

12        Q:  What was the question that you wrote in this

13   posting?

14        A:  "What is your connection to Jerry Reynolds and

15   Netzilla."  That was in response to --

16        Q:  Who did you pose --

17        A:  -- someone at Newsfeeds asking -- I'm sorry, go on.

18        Q:  -- who did you pose that question to?

19        A:  Someone calling themselves abuse at Newsfeeds.

20        Q:  So again, you believed you were corresponding with

21   someone at Newsfeeds, correct?  At

22        A:  Someone at Newsfeeds had said, "Any questions?" and

23   so I asked the question.

24        Q:  Can you answer my question?

25        A:  Yes.

                                                                Page 58

1         Q:  And when did you ask the question about Mr.

2    Reynolds of someone at

3         A:  Looks like July of 1999.

4         Q:  Earlier, you had looked at Exhibit I to this

5    affidavit and testified that these pages about lawsuits by

6    Jerry Reynolds is something that you had posted.  Is it -- tell

7    me if it's -- are they still posted?  This information.

8         A:  No, my lawyer suggested I remove it and put things

9    back the way they were before the lawsuit.

10        Q:  Did your lawyer tell you why you should do that?

11        A:  No.

12        Q:  Well, your lawyer told you that it would be bad for

13   the jurisdiction battle, didn't she?

14               MS. DONARSKI:  Objection.

15        A:  I don't remember.

16        Q:  Well, she told you what the risks were of

17   jurisdiction, correct?

18               MR. WELLBORN:  Objection.  Attorney/client privilege,

19   Your Honor.

20               MR. HARRISTHAL:  It's been waived, Your Honor.  This

21   witness has testified at length about his discussions with his

22   attorney.

23               MR. WELLBORN:  He has not testified at length, Your

24   Honor.  Our position would be that he has not waived that

25   privilege at all.

                                                                    Page 59

1                THE COURT:  Sustained.

2           Q:  (By Mr. Harristhal) Did you ever visit the Fargo

3    Forum website?

4           A:  Yes, after I heard they'd written an article about

5    me.

6           Q:  Did you register with it?

7           A:  No.

8           Q:  Well, that was the only way you could get to see

9    the article, wasn't it?

10          A:  No, that's not true.

11          Q:  Would you go to Exhibit C to Mr. Allison's second

12   affidavit.

13          A:  Okay.

14          Q:  I'm going to ask you to look at Pages 0309 through

15   311.  This is a posting from you, is that right?

16          A:  Oh, yes.

17          Q:  Okay.  Let's go to the third page.

18          A:  Do you mean 30 -- I'm sorry 0311?

19          Q:  That's the one.  In about the last quarter of the

20   page, there's an asterisks in the left margin where it reads,

21   "Newsfeeds."  Do you see that?

22          A:  Yes.

23          Q:  It says --

24          A:  Yes.

25          Q:  -- " receives its network connection

                                                               Page 60

1     from guess who, UUNet."  How did you know that?

2         A:  Correct.

3         Q:  How did you know that?

4         A:  In this form of spam that information is published

5    in the path line of the article.  There was some child porn

6    that was being sent through newsgroups including a sexual

7    recovery

8     -- sexual [inaudible] newsgroup and in that kind of spam the

9    trace that the message -- the path that the message takes is

10   included in the headers.  And the headers on this particular

11   spam indicated that the spam came from Newsfeeds and was then

12   sent to UUNet and then to the rest of the world.

13        Q:  Did you run a tracer out on this occasion?

14        A:  It's not necessary for usenet spam.

15        Q:  I'm not asking you if it's necessary, I'm asking

16   you if you did.

17        A:  I don't remember.  I might have.

18        Q:  And again that --

19        A:  Actually, --

20        Q:  -- if you did though, that traceroute would have

21   ended up with packets going to Newsfeeds' server.

22        A:  They would have gone through Newsfeeds' server on

23   the way to  Actually, I take it back.  I did

24   run a traceroute.

25        Q:  You did?  I'm sorry, sir, I --

                                                               Page 61

1           A:  Yes.

2           Q:  -- couldn't tell if you said you did or you did

3    not.

4           A:  I did.

5           Q:  And on this occasion, the packet would have passed

6    through Newsfeeds' servers twice?

7           A:  Yes.  It would have gone through UUNet and then

8    through Newsfeeds and then to Sexylolitas and then back to me.

9           Q:  Now would you advance a few pages to 00313, please?

10          A:  I have it.

11          Q:  Tell me what this is.

12          A:  Yes, this is an article from David Ritz, published

13   probably to the antispam newsgroup.  He had made a typo.  He

14   sent a traceroute to and it didn't go through

15   Newsfeeds or UUNet and he was correcting me.  Later on in his

16   threat, I point out that he sent the traceroute to the wrong

17   site.

18          Q:  I'm looking at the top third of the page, it looks

19   like DR and then there's a carrot, it says, "I'd like to see

20   your traceroute."

21          A:  That's correct.

22          Q:  So is that a note from Mr. Ritz to you?

23          A:  Right.  He made a typo and got a different result

24   than I got, so he was curious to see my results and how I got

25   them.

                                                              Page 62

1         Q:  In other words, he ran a traceroute and it did not

2    go to Sierra, correct?

3         A:  Right.  It went to  He sent it to

4    the wrong place.

5         Q:  But you provided him with your traceroute.

6         A:  I think later on he realized that he'd made a typo

7    on his own.

8         Q:  Did you provide --

9         A:  I don't think that article is included.

10        Q:  -- did you provide him with your traceroute?

11        A:  I don't think so.  Anybody on the Internet is

12   capable of doing the same thing.

13        Q:  Now you wrote in your affidavit that there is no

14   inner circle as such, correct?

15        A:  Yes.  At the time I wrote that, I forgot there had

16   been a mailing list called inner circle.

17        Q:  Well, the affidavit wrote -- the affidavit that you

18   signed reads, "The Plaintiff has also falsely represented to

19   the court that I am involved with some type of Internet `inner

20   circle.'"  That's what you wrote, correct?

21        A:  Yes.

22        Q:  And you swore that was the truth?

23        A:  Yes.  I'd forgotten about the mailing list.

24        Q:  Well, we'll talk about what it was in a moment, but

25   the reality is that you were a member of the inner circle,

                                                                  Page 63

1     right?

2               MS. DONARSKI:  Objection, Your Honor, what's the --

3         A:  I was subscribing --

4               MS. DONARSKI:  -- relevance of this to the question

5    of context with the State of North Dakota?  We could be here

6    all day.

7               THE COURT:  Overruled.  Well, I won't be, but I

8    suppose you folks could, but I ain't gonna be.  Go ahead.

9    Overruled.

10        Q:  You were a member of the inner circle, right?

11        A:  I would subscribe to the mailing list.  Yes.

12        Q:  Now your attorney wrote at Page 18 of the

13   memorandum in support of this motion, "Falk suspects he was

14   added to the inner circle mailing list so that he would have

15   up-to-date information to include on his antispam website."

16   Now that doesn't appear in your affidavit.  Is it the truth

17   that you suspect --

18        A:  Yes.

19        Q:  -- you were just added to the inner circle mailing

20   list so you would have up-to-date information?

21        A:  Yes.  My main role in fighting spam was providing

22   information to the world at large.  Whenever there was going to

23   be an action taken --

24        Q:  Well, in fact, you --

25        A:  I'm sorry.  Whenever there was --

                                                                Page 64

1         Q:  You sent email yourself to the inner circle

2    yourself, didn't you?

3         A:  Yes, requests for information and sometimes answers

4    to other people's requests.

5         Q:  Well, we'll get to that too, but my point is you

6    wrote to members of this inner circle -- this Internet inner

7    circle, correct?

8         A:  Yes.

9         Q:  Your attorney also wrote, "We suspect this is the

10   only information that the Plaintiff has to assert Falk was

11   somehow involved with the inner circle."  But in fact there was

12   a lot more than that one email, wasn't there?

13        A:  There were a number of emails, yes.

14        Q:  Let's go back to the second Allison affidavit,

15   which is at Tab 11, Exhibit C, and I'd like you to turn to --

16   I'm sorry, go to Exhibit G of that affidavit.

17        A:  I think I have it.  What page?

18        Q:  00382.

19        A:  Yes, I have it.

20        Q:  And this was from September 3 of 1998?

21        A:  Yes.

22        Q:  And it's an email from you to other members of the

23   inner circle, correct?

24        A:  Yes.

25        Q:  And you wrote, "Nobody is using the inner circle

                                                               Page 65

1     name in the cc or reply lines to outsiders, are they?"  Those

2    were your words, correct?

3         A:  Yes.

4         Q:  You wanted to conceal the fact that there was an

5    inner circle and that's your purpose in sending this email,

6    right?

7         A:  I wanted to conceal the existence of the mailing

8    list otherwise it would be invaded by spammers.

9         Q:  Well, if they simply use the word inner circle,

10   that's not going to change whether someone else has access to

11   those addresses is it?

12        A:  They would have had to use the entire email

13   address, which is what I meant in that message.

14        Q:  What was the response you got?

15        A:  I don't remember.

16        Q:  Well, in fact, you suggested that people also

17   encode their emails among the inner circle, didn't you?

18        A:  I don't remember that, but I might have.

19        Q:  Because you wanted to keep the --

20        A:  Is that in here?

21        Q:  -- of the inner circle secret, right?

22        A:  Yes, I didn't want it invaded by spammers.

23        Q:  And Mr. Ritz was also a member of this inner

24   circle, right?

25        A:  He was on the mailing list I believe.

                                                               Page 66

1         Q:  This is the same Mr. Ritz who gave you information

2    about Mr. Reynolds that you passed on to Ms. Donarski --

3    withdrawn.  This is the same Mr. --

4         A:  He gave me information --

5         Q:  I'm sorry.  I'll withdraw that question.  Mr. Ritz

6    provided you with information about Sierra -- excuse me, about

7, correct?

8         A:  Yes, I think so.

9         Q:  Let's go to the next page, 00383.  What's the

10   subject of this email?

11        A:  It looks like somebody was asking who's on the

12   list.

13        Q:  Well, it's about membership, correct?

14        A:  Yes, it's a mailing list.

15        Q:  And it's membership in the inner circle.

16              MS. DONARSKI:  Objection.  Relevance.

17        A:  Membership --

18              MS. DONARSKI:  This is an email that's not even from

19   Mr. Falk nor to Mr. Falk, Your Honor.

20              THE COURT:  Overruled.

21        Q:  It's an email about membership in the inner circle,

22   correct?

23        A:  The message here is the current list is, I take

24   that to be an email list.  Membership is a nebulas term.  It's

25   not like you have to sign in or pay a fee or be initiated.  It

                                                                  Page 67

1     was just a mailing list.

2          Q:  Well, it's membership in the inner circle, isn't

3    it?

4          A:  Yes, inner circle mailing list.

5          Q:  And yours is the first name on it, right?

6          A:  Yes.  I was not the first member of this list, so I

7    have no idea how they sorted the thing.  Oh, yes, I do.

8    They're in alphabetical order and capital E comes first.

9          Q:  Tell me, did this inner circle ever vote on things?

10         A:  Not that I recall.

11         Q:  Well, let's advance --

12         A:  I was pretty adamant that --

13         Q:  -- let's advance a few pages to DRD-00 --

14              MR. WELLBORN:  Your Honor, could he finish his

15   answer, please?

16              THE COURT:  If you have more, sir, go ahead.

17              MR. WELLBORN:  Thank you, Your Honor.

18         A:  I was pretty adamant that discussions on policy and

19   whether or not sites should be -- have actions taken against

20   them -- I was pretty adamant that these things were to be

21   discussed in public.  It's possible that other members of the

22   circle mailing list voted on things, but I don't recall.  Oh

23   yes, I do recall.

24         Q:  If you're going to have them in public, what's the

25   point of encoding or encrypting the information?

                                                                  Page 68

1         A:  Policy discussions are carried out in public, but

2    sometimes the actions have to be carried out by people who

3    don't want to be interfered with.

4         Q:  Well, you wanted to encrypt the information, right?

5         A:  I don't remember that discussion.

6         Q:  Okay, Page 00385 is actually a vote being taken by

7    the inner circle.

8         A:  Oh, I remember that vote, yes.  They were

9    considering suspending operations.

10        Q:  And you were one of the people who voted, right?

11        A:  Yes, I said we should keep fighting spam.

12        Q:  And you think that mailing lists vote on things?

13        A:  The members of this mailing list did, yes.

14        Q:  Because they were the inner circle, right?

15        A:  The inner circle mailing list, yes.

16             MR. HARRISTHAL:  Your Honor, that's all I have.

17             MR. WELLBORN:  Your Honor, given Mr. Levine's

18   availability, with Mr. Harristhal's permission, if we could go

19   straight to his cross of Mr. Levine, I would then redirect Mr.

20   Levine, allow him to recross, get Mr. Levine out of here and

21   then we can take back up with Mr. Falk.

22             THE COURT:  That's fine.

23             MR. WELLBORN:  Thank you, Your Honor.

24             MS. DONARSKI:  Ed, could you see if John Levine is

25   still available?

                                                                  Page 69

  1              MR. FALK:  Okay.

  2              THE COURT:  You want to raise your right hand,

  3    please, sir?

  4              MR. LEVINE:  Okay.

  5                                    JOHN LEVINE




  9                                 DIRECT EXAMINATION


  11        Q:  Mr. Levine, my name is Chris Harristhal.  I'll be

  12   asking you some questions this afternoon.  Tell me how long

  13   you've known Mr. Falk?

  14        A:  Today is the first time I've ever actually met him.

  15   We're personal acquaintances, we've swapped e-mail over the

  16   years, I don't know going how far back.

  17        Q:  Ten years?

  18        A:  It's possible.  I mean, I realize that this case

  19   refers to matters that happened about ten years ago.  I don't

  20   remember exactly whether my acquaintance with him goes back

  21   that far or doesn't.

  22        Q:  Well, how about Mr. Ritz.  How long have you known

  23   David Ritz?

  24        A:  Well, again, I've never met him either.  I mean,

  25   again, I'm sure I would exchange occasional e-mails over the

                                                                   Page 70

1     years, but I couldn't tell you how far back.

2         Q:  Are you being paid for your services in this case?

3         A:  Yes.

4         Q:  How much?

5         A:  $250 an hour is the typical rate for this kind of

6    expert service.

7         Q:  How many hours have you put in on this case so far?

8         A:  Two or three.  I mean, reviewing these documents

9    didn't take very long.

10        Q:  And who is paying you?

11        A:  Ed.  Mr. Falk.

12        Q:  You wrote the book, Internet for Dummies, is that

13   right?

14        A:  I'm the main author of it, yes.

15        Q:  And one of the things that you wrote was, and I

16   quote, "Don't assume that every visitor will start at your home

17   page.  People may arrive at your website by following a link

18   from Google or other searches, and may jump directly to a page

19   that contains the word or phrase they were searching for.  So

20   consider EVERY page as a potential front door."  That's from

21   your book, correct?

22        A:  We've gone through ten editions, that sounds like

23   something that has been in at least one of them.

24        Q:  Well, and it's something that you believe to be

25   true, correct?

                                                                 Page 71

1         A:  Yes.

2         Q:  That, due to search engines like Google, every page

3    of Mr. Falk's website, for example, is a potential front door?

4         A:  To the extent that a front door would be the first

5    page that someone would happen to see, sure.

6         Q:  And have you ever done searches to find out whether

7    the Plaintiff's name in this case leads to Mr. Falk's website?

8         A:  No, I don't think so.

9         Q:  So are you aware that a search in Google, prior to

10   this lawsuit being started, a search in Google for the name of

11   the Plaintiff and the City of Fargo put somebody square in the

12   middle of Mr. Falk's website dealing with this Plaintiff?

13             MR. WELLBORN:  Objection, Your Honor.  There is no

14   evidence in the record to the assertion that's contained in

15   this question.  And I don't think there will be.

16             THE COURT:  Overruled.

17        Q:  Can you answer the question, Sir?

18        A:  Yeah.  Am I aware that if someone put in Fargo and

19   the Plaintiff's name, that it would be linked to that webpage?

20   It's not surprising.  Google has a very thorough index.  Any

21   webpage that happens to contain a set of words tends to show up

22   in Google's index, unless it's specifically excluded.

23        Q:  Did you ever refer to hyperlinks in your book as a

24   hook?

25        A:  I don't have a copy of my book with me.  Again, it

                                                                 Page 72

1     sounds like something that would be in my book.

2         Q:  Well, your book concerns the subject of hyperlinks,

3    right?  Among other things?

4         A:  That's one of the topics, yes.

5         Q:  And do you recall writing that, "that underlying

6    text in the middle (link) is the hook!"?

7         A:  I've gone through ten editions of this book.  I

8    don't remember every word that was in every edition, but that

9    sounds like something that would be in the book.

10        Q:  Now, a hook is generally something that one

11   interacts with, correct?

12        A:  Not necessarily.

13        Q:  Do you --

14        A:  In that case, I'm using --

15        Q:  Do you fish?

16        A:  The short answer is no, not necessarily.

17        Q:  Do you fish?

18        A:  Nope.

19        Q:  Ever gone fishing?

20        A:  Maybe once.

21        Q:  Did you catch anything?

22        A:  I mean, hook is the word that appears in many

23   contexts.

24        Q:  Did you catch anything?

25        A:  I don't think so.

                                                                 Page 73

1         Q:  Okay.  Well, would you agree that in the fishing

2    context, a hook involves the manner with which you interact

3    with a fish?

4         A:  Keeping in mind that there is no reference to

5    fishing in that book, I suppose I would agree.

6         Q:  Well, this is a book that is written for dummies,

7    right?

8         A:  It's a book that's written for non-technical users.

9         Q:  Okay.  And in non-technical jargon, what that

10   hyperlink does, is it provides a hook through which the person

11   can interact, doesn't it?

12        A:  No, it provides a way that the user can identify or

13   find the other -- I mean, if I were writing this for a more

14   technical audience, I probably would have called it a cross-

15   eference.

16        Q:  If a person clicks on the hyperlink, does anything

17   happen?

18        A:  Typically, it shows them the page that the link

19   refers to, unless there is something broken.

20        Q:  And you don't think that's interaction?

21        A:  We're really cutting fine hairs here.  The user is

22   definitely interacting with the web browser.  I mean, as to

23   whether the particular document, I mean, the entire nature of

24   the web is to have links from one place to another.  I mean,

25   the same way if this were a technical book that had a cross-

                                                              Page 74

1    reference saying see page 42, I suppose see page 42 in your

2    metaphor would also be a hook.

3          Q:  In this instance, though, something automatically

4    happens when the user interacts with the webpage, right?

5          A:  When the user interacts with the browser, and I

6    think that's a meaningful difference.

7          Q:  Who sets up this interaction result?  Who designs

8    it?

9          A:  The author of the webpage certainly puts in the

10   links.

11         Q:  So, in Mr. Falk's instance, the webpage that is at

12   issue in this case, he set it up, didn't he?

13         A:  I would presume so, yes.  It's his webpage.

14              MR. HARRISTHAL:  Thank you, that's all I have.

15                           CROSS EXAMINATION


17         Q:  Dr. Levine, I hope you can see me.  This is Pete

18   Welborn.  I have just a couple questions for you.

19         A:  Yes, I can see you fine.

20         Q:  Great.  Have you ever seen a billboard that had a

21   great hooky slogan on it?

22         A:  A grey cookie slogan?  I don't -- my part of New

23   York --

24         Q:  No, I'm sorry.  I think we lost something in the

25   transmission here.  Have you ever seen a billboard that had a

                                                                 Page 75

1     slogan on it with a great hook?

2         A:  Not that I can immediately recall, no.

3         Q:  Could there be such a thing?

4         A:  Oh, sure.  I mean, my part of New York doesn't have

5    a whole lot of billboards, so.

6         Q:  Have you ever heard a song that had a great hook in

7    the chorus?

8         A:  Oh, absolutely.  I'm an amateur musician.  That's a

9    term we use all the time.

10        Q:  Did this hook just mean something that grabs your

11   attention?

12             MR. HARRISTHAL:  Objection, leading.

13        A:  Absolutely.

14             THE COURT:  Overruled.

15        Q:  I'll withdraw and ask it again.  What does hook

16   mean?

17        A:  In the context of a song, it's the most memorable

18   part of the song.  It's the part that grabs you.

19        Q:  You were talking a few minutes ago about a

20   hyperlink, and I want to make sure we're all clear, what is a

21   hyperlink?

22        A:  On the world wide web, it's simply, it's a place in

23   one webpage that refers to another webpage.  And the web

24   browser allows you to click on that link and see the page that

25   it's referring to.  It's very much the on-line version of a

                                                                Page 76

1     cross-reference or a citation.

2         Q:  Instead of using a hyperlink, could a visitor to a

3    website type in the complete address for the next webpage he

4    wanted to see in the browser address bar?

5         A:  Oh, sure.  It's less convenient, but it works just

6    as well.

7         Q:  So the hyperlink is just a short cut, basically, to

8    another part of the website?

9         A:  Yeah, that's a good summary of it.

10               MR. WELLBORN:  That's all I've got, Your Honor.  Thank

11   you, Dr. Levine.

12               THE COURT:  Anything else?

13                             REDIRECT EXAMINATION


15        Q:  Hyperlinks aren't limited to a particular website,

16   are they?

17        A:  No.  A hyperlink can go anywhere on the web, just

18   as a cross-reference in a book can say see page 42 or see page

19   42 of some other book.

20        Q:  Are you aware that Mr. Falk's website had a link to

21   the newspaper based in Fargo, North Dakota?

22        A:  I believe -- it had hundreds of links.  I believe I

23   noticed that was one of them.

24               MR. HARRISTHAL:  Thank you.  That's all I have.

25               THE COURT:  Anything else?

                                                                Page 77

1                MR. WELLBORN:  Nothing here, Your Honor.  Thank you,

2    Dr. Levine.

3                THE COURT:  You're excused, Sir.

4                DR. LEVINE:  Thank you.  Are you done with Ed, too?

5    Can we turn it off?

6                THE COURT:  No, we need Mr. Falk back now.

7                DR. LEVINE:  Okay.

8                MR. WELLBORN:  May I proceed, Your Honor?

9                THE COURT:  Yes.

10                          CROSS EXAMINATION


12        Q:  This is Pete Wellborn.  I hope you can hear me and

13   see me, and I'll remind you that you're still under oath, of

14   course.

15        A:  Okay.

16        Q:  What is a whois search?

17        A:  The whois search checks public records for

18   ownership of internet sites.  The whois servers are a public

19   registry.  They're similar to a county courthouse or wherever

20   it is you keep the property records.

21        Q:  What kind of membership or code do you have to have

22   or use to run a whois search?

23        A:  None at all.  It's a public record.

24        Q:  Are there different types of whois searches?

25        A:  Not that I know of.  There are a large number of

                                                                 Page 78

1     whois servers.  Every country has its own, for instance.

2         Q:  What is Arin?

3         A:  That's one of the whois servers.  They can give you

4    slightly different information.  I've never really been very

5    good at using them.

6         Q:  And you faded out for a second.  Could you repeat

7    your answer?

8         A:  Sure.  Arin is one of the public whois servers, it

9    gives more advanced searches.

10        Q:  What type of input does a searcher give to the Arin

11   site to get answers?

12        A:  Well, the simplest search is, you give the name of

13   a website, such as or whatever.  You can also give

14   a string to search, so you could use it to find the ownership.

15   I believe in one of these Affidavits, somebody found a place

16   where I used it to look up Intel Telecom.

17        Q:  Can whois searches be used to trace the ownership

18   of IP addresses as well as domains?

19        A:  Yes.  I'm not exactly sure what server does that,

20   but you can type an IP address into whois, and it will tell you

21   some of the ownership information about that IP address.

22        Q:  Is that public information as well?

23        A:  Oh yes.

24        Q:  What about a trace route?  Tell me what a trace

25   route is?

                                                                Page 79

1           A:  It's almost akin to a sonar ping.  You send an

2    inquiry, it doesn't even contain any data, you just send the

3    ping out over the internet to your site you're trying to trace

4    the root to, and you get echoes back from every site along the

5    way.  And so, by looking at the list of sites reported by the

6    trace route program, you get an idea of what computer is

7    connected to who.

8           Q:  Is this a common query on the internet?

9           A:  Extremely.

10          Q:  Let's talk about these spammers that you were

11   tracking or stalking or whatever.  I know you all talked a lot

12   about Jerry Reynolds.  How many spam people or entities at any

13   one time were you looking at?

14          A:  I was actively monitoring a little over 400

15   spammers and spam service providers.  I also contained

16   information about probably 700 people involved in spam, most of

17   them spammers.  People and entities.

18          Q:  Is there a portion of your website that corresponds

19   to automatically generated web reports?

20          A:  Every case file has some automatically generated

21   web reports included with them.  I believe I included those on

22   the CD I gave you.

23          Q:  And exactly what type of reports are these?

24          A:  Excuse me.  With every case file, there is a list

25   of the last two weeks' worth of fourteen reports that are just

                                                                Page 80

1     very brief summaries.  It will be a list of subject lines of

2    the spam, and how many spams with that subject line were sent

3    out.  In addition, I have a little bit more detailed

4    information about the last five reports, including the full

5    headers of the spam.

6                The spams themselves are usually too large, and I

7    never had enough disk space to save them, so I never saved the

8    entire spams.  And on top of that, I kept a full history of all

9    the websites from the day I started tracking them.

10   Unfortunately, that was lost in a disk crash in 1999.

11          Q:  In real rough numbers, including the automatically

12   generated reports, if you were to print your website out on a

13   printer on paper, how long would it be?

14          A:  Approximately 13,500 pages.  It would have been a

15   ten volume encyclopedia.

16          Q:  And if immediately prior to the filing of this

17   lawsuit, you had printed your website out, how many of those

18   thirteen-plus thousand pages would have mentioned Jerry

19   Reynolds?

20          A:  The Netzilla case file was eleven pages, and I

21   think he was mentioned several times in it.  There was a one-

22   ine mention of him in the cross-reference to spammers.  There

23   was a one paragraph mention of him in the what you can do

24   website.  And there was a very brief mention of him in a news

25   article from the 1990s.

                                                               Page 81

1         Q:  As you were investigating Netzilla and Jerry

2    Reynolds, did it matter to you where he lived?

3         A:  No, I don't care where any spammer is.

4         Q:  How many states do the spam people and spam

5    entities that you've investigated or looked at spam?

6         A:  Well, I don't keep a cross-reference.  There is no

7    way to be sure, but I counted at least 30 states, plus a number

8    of foreign countries.

9         Q:  Is North Dakota top on your list?

10        A:  No.  They are not anywhere near the top.  I think

11   California is the top.

12        Q:  In relation to the Jerry Reynolds and the Netzilla

13   postings on your website, in what context does the phrase North

14   Dakota appear?

15        A:  In the published whois records, where the

16   information originated with Jerry Reynolds himself, it was used

17   in some of the pyramid schemes that he posted.  I think that

18   about covers it.  There may have been cases where I quoted some

19   other spam fighter who mentioned where Netzilla was.

20        Q:  Was there a call to action to North Dakotans in

21   your website?

22        A:  No, not at all.

23        Q:  Was there any mention of North Dakota at all, other

24   than the incidental listing of that as the address that

25   corresponded to Reynolds or Netzilla or their cronies?

                                                                Page 82

  1           A:  There was a brief mention in the case file for

  2, which was a service provider used by Netzilla.  I

  3    gave their address, again, from the whois data.

  4                MR. WELLBORN:  Thanks.  That's all I have right now.

  5                THE COURT:  Is there anything else?

  6                                  REDIRECT EXAMINATION


  8           Q:  Between your first examination and this latter

  9    examination by your attorney, did you talk to anyone while you

  10   were outside?

  11          A:  I asked for a glass of water.

  12          Q:  That was it?

  13          A:  Other than that, no.  Yes.

  14               MR. HARRISTHAL:  Okay.  Thank you.  That's all I have,

  15   Your Honor.

  16               THE COURT:  We can excuse them, then?

  17               MS. DONARSKI:  Well, he's going to attend the hearing.

  18   Excuse him as a witness, yes, but he'll attend the hearing by

  19   video.

  20               THE COURT:  Okay.  That's it for your testimony then,

  21   Sir.  I'm going to take a recess for about ten minutes here.

  22   The Court is in recess.

  23               *       *     *       RECESS            *       *     *

  24               THE COURT:  So did you have any other direct

  25   testimony, Ms. Donarski?

                                                                         Page 83

1              MS. DONARSKI:  We do not, Your Honor.

2              THE COURT:  Okay.  So then we have the Plaintiff's

3    Affidavits.  Do you wish to cross examine anybody?

4              MR. WELLBORN:  We do, Your Honor.  We call Brad

5    Allison for cross examination purposes.

6                             BRAD ALLISON




10                          CROSS EXAMINATION


12        Q:  Mr. Allison, my name is Pete Wellborn from Atlanta,

13   Georgia, representing Ed Falk in this case, and as you heard,

14   Your Honor, I'm going to try to be brief.  The first thing I

15   want to do is make sure we're on the same page about what a

16   website is.  Your Honor, if I may approach and get the

17   Plaintiff's Exhibits and show him number nine and number

18   eleven?

19             THE COURT:  That's fine.

20        Q:  Does the Court have the originals?

21             THE COURT:  No, I'm working out of --

22        Q:  I'll represent to you that, that is a true and

23   correct copy of your Affidavit in this case, your first

24   Affidavit filed in support of this Motion to Dismiss?

25             MR. HARRISTHAL:  Objection as to form, Your Honor.  It

                                                               Page 84

  1        was not filed in support of the Motion to Dismiss.

  2                THE COURT:  I got it.

  3           Q:  I'm sorry.  In opposition to the Motion to Dismiss.

  4    I'm going to direct your attention to paragraph four, please.

  5    You state that you attached a printout of the website found at

  6, is that right?

  7           A:  Yes.

  8           Q:  But that is not, in fact, the entire Falk website,

  9    is it?

  10               MR. HARRISTHAL:  Objection.  Vague as to the Falk

  11   website, Your Honor.

  12          Q:  Is that a website?  Or does that URL correspond in

  13   fact to a subdirectory of a website?

  14          A:  It is a subdirectory.

  15          Q:  So it is not the entire website?

  16          A:  No.

  17          Q:  It's a portion of a website.  Same thing as you

  18   also testified previously, that Exhibit B is the printout of

  19   the website found at  In fact that printout

  20   is of that particular page, the homepage for that website?

  21          A:  It is of just that page, yes.

  22          Q:  And the entire website is, in fact, thousands of

  23   pages long, is that correct?

  24          A:  Possibly so.  I can't swear to that.

  25          Q:  Have you looked at the entire website?

                                                                   Page 85

1         A:  I have only looked at the pages pertaining to this

2    case.

3         Q:  Do you know what percentage of the entire website

4    the pertinent pages correspond to?

5         A:  I do not.

6         Q:  How did you know which pages were pertinent to this

7    lawsuit?

8         A:  Certain key words that involved the case.

9         Q:  In your opinion, is Mr. Falk's website interactive?

10        A:  It was interactive, I believe, at one point.  When

11   updates were being made on a continuous basis when Mr. Falk was

12   adding information as he found it regarding Newsfeeds.

13        Q:  All right. Interactive, in fact though, means does

14   it not, that the user can contribute to or change the website?

15        A:  No.  The user can't.

16        Q:  To customize the experience?

17        A:  No, I don't believe so.

18        Q:  Tell me, if you will then, what you think

19   interactive means?

20        A:  I believe it was interactive, in that, it was not a

21   static website, it was a continually updating website.  Where

22   it was not simply static content.

23        Q:  So, if you have testified, or if you testify to

24   your belief this website is interactive, your testimony is on

25   the basis of the fact that the stuff at the website changed?

                                                              Page 86

1         A:  Yes.

2         Q:  You will agree that there are certain websites, e-

3    ommerce websites, that allow for the purchase of goods over the

4    website?

5         A:  Yes.

6         Q:  There are sites like eBay that allow for searches

7    and for customizable user experiences?

8         A:  Yes.

9         Q:  This website did none of those, did it?

10        A:  Not as far as I know.

11        Q:  I want to direct your attention now, if I could

12   please, to paragraph 17 of your testimony.  Still talking about

13   the website, you state that Mr. Falk's website pointedly

14   targets Newsfeeds of North Dakota.  You'll agree that that

15   website, Mr. Falk's website, was not directed only to North

16   Dakotans?

17        A:  No, not only.

18        Q:  It was in fact universally accessible?

19        A:  Accessible to anybody on the internet, yes.

20        Q:  Right.  In the world.

21        A:  Yes.

22        Q:  The website contained information about other spam

23   investigations, didn't it?

24        A:  I believe so.

25        Q:  The website contained information about hundreds

                                                               Page 87

1     and hundreds of other spammers, didn't it?

2         A:  I can't testify to a number, but I know there was

3    others.

4         Q:  The website contained information about spam

5    friendly ISPs, didn't it?

6         A:  There was mention of spamming on there.

7         Q:  The website contained anti-spam resources, didn't

8    it, for other spam fighters to use?

9         A:  Yes, I guess you could say that.

10        Q:  Do you know how many hyperlinks were contained in

11   the website, in total?

12        A:  The number of hyperlinks?

13        Q:  Yes.

14        A:  No, I don't.

15        Q:  Would it surprise you to know that number is over

16   3,000?

17        A:  I'm not that familiar with the website aside from

18   what was regarding this trial, so I guess I'm not -- one way or

19   the other.

20        Q:  Do you know how many links on the website linked to

21   the Netzilla page?

22        A:  I don't know the exact number off the top of my

23   head.

24        Q:  Would it surprise you to know that nine out of

25   3,000 plus links are pertained to the Netzilla page?

                                                              Page 88

1           A:  Am I surprised?  No.

2           Q:  From what period of time to what period of time did

3    you use the e-mail address

4           A:  I don't recall ever using that address.

5           Q:  So your sworn testimony today, is that you never

6    used that address?

7           A:  I don't recall ever using that address.

8           Q:  Do you recall ever using any addresses

9    yourself?

10          A:  No.

11          Q:  Were you ever affiliated with in any

12   way?

13          A:  Not to my knowledge.

14          Q:  Had you ever heard of Netzilla before this lawsuit?

15          A:  Yes, I had heard the name.

16          Q:  How so?

17          A:  I don't recall any specific examples.  I know the

18   name had come up, but I don't recall any specifics.

19          Q:  So you never used the address or

20 or

21          A:  Not personally and not that I recall.

22          Q:  What was your affiliation with

23          A: is a domain that my company uses to

24   do PR-ing.

25          Q:  Let me back up for a second.  I want to make sure

                                                              Page 89

1     I'm clear on your testimony.  Is your testimony that you did

2    not use those Netzilla addresses or that you cannot remember

3    whether or not you did?

4         A:  I cannot remember whether I did.

5         Q:  So it's possible, but you just can't remember?

6         A:  Certainly.

7         Q:  In your review of the Falk website, did you see any

8    reproduced whois records?

9         A:  I believe there were.

10        Q:  Did you see any reproduced whois records that

11   included reference to Netzilla or to Jerry Reynolds?

12        A:  I believe so.

13        Q:  Did you do any kind of research or check to

14   determine whether or not that was an accurate replication of

15   information from the whois search?

16        A:  I did not.

17        Q:  So, you don't know whether or not that was just

18   made up or whether or not it was in fact a true copy of the

19   publicly available resources regarding the ownership of those

20   domains?

21        A:  All I know is what I saw on that page.

22        Q:  But you did no additional research?

23        A:  No.

24        Q:  Have you ever been involved in the sending of

25   unsolicited commercial e-mail?

                                                               Page 90

1         A:  No.

2         Q:  Have you ever been involved in the postings of spam

3    net groups, spam post its?

4              MR. HARRISTHAL:  Your Honor, objection, relevance.

5    Your Honor, this is apparently an exploratory deposition on the

6    issue of liability.  It has nothing to do with the Defendant's

7    contacts with the State of North Dakota.

8              MR. WELLBORN:  Your Honor, in fact, the voracity of

9    the Plaintiff's case has everything to do with the issue of

10   jurisdiction, insofar as they've alleged Calder jurisdiction.

11   Indeed, it is a required prima facie portion of Calder

12   jurisdiction for the Plaintiff to allege the commission of an

13   intentional tort and at least allege a prima facie case.

14             THE COURT:  Overruled.

15             MR. WELLBORN:  So, we're certainly entitled to find

16   out whether or not they were -- if they were spamming, there is

17   no jurisdiction because there was no intentional tort

18   committed.  And in fact, there should be no consideration

19   whatsoever of any Calder related claims because there is no

20   competent evidence before this Court denying the truth of the

21   allegations set forth in the Falk website.  Mr. Reynolds did

22   not appear today, he did not offer direct testimony in support

23   of this hearing, so there is no competent evidence at all

24   asserting the prima facie elements of their case, which is a

25   required part of Calder jurisdiction.

                                                              Page 91

1              THE COURT:  Objection is overruled.  Go ahead.

2                        CONTINUED CROSS EXAMINATION


4         Q:  Mr. Allison, if we could, just looking in general

5    at the exhibits to your first Affidavit, and I want to make

6    sure I state the dates correctly, Exhibit A was portions of the

7    Falk website from November of 2005, is that right?

8         A:  Yes.

9         Q:  So that's after the lawsuit was filed, right?

10        A:  I believe so.

11        Q:  Exhibit B is portions of the Falk website from

12   sometime prior to November of 2005, but after the lawsuit was

13   filed, is that right?

14        A:  I'm trying to find Exhibit B right now.

15        Q:  Okay.

16        A:  Could you repeat that question?

17        Q:  Yes.  Exhibit B contains portions of the Falk

18   website from prior to November of 2005 but sometime after the

19   lawsuit was filed, is that right?

20        A:  I believe it is.

21        Q:  Exhibit C is the link to Fargo Forum audio.  That's

22   post-lawsuit, right?  Obviously since it talks about the

23   lawsuit itself?

24        A:  Yes.

25        Q:  Exhibit D, is a printout of a portion of the Falk

                                                                   Page 92

1     website from November 10, 2005.  Again, many months after the

2    lawsuit was filed.  Is that right?

3         A:  I know it was after the lawsuit was filed.

4         Q:  Let's take a look at Exhibit F if we could please.

5    Can you show me where in this news group posting that North

6    Dakota is mentioned?

7         A:  Let's see here.  I don't see North Dakota specified

8    at all.

9         Q:  So it's not mentioned at all.

10        A:  Not directly, no.

11        Q:  Let's take a look at Exhibit G if we could please.

12   Can you show me where in this Exhibit Jerry Reynolds is

13   mentioned?

14        A:  I do not see Jerry Reynolds mentioned.

15        Q:  Can you show me then where North Dakota appears in

16   this posting?

17        A:  I don't see the word North Dakota, however, I

18   believe he was corresponding with one of our employees in North

19   Dakota.

20        Q:  NewsfeedS is a Nevada corporation, right?

21        A: is a d/b/a of a Nevada corporation

22   operating in North Dakota.

23        Q:  Right.  But it is incorporated in Nevada?

24        A:  I believe so.

25             MR. WELLBORN:  That's all I've got right now, Your

                                                               Page 93

1     Honor.  Thank you, Mr. Allison.

2              THE COURT:  Any redirect?

3              MR. HARRISTHAL:  No, Your Honor.

4              THE COURT:  You may step down, Sir.  Anyone else?

5              MR. WELLBORN:  That's the first time I've said I'd be

6    brief and actually did it.

7              THE COURT:  Do you have any other direct testimony,

8    Mr. Harristhal?

9              MR. HARRISTHAL:  No, Your Honor.  Nothing beyond the

10   Affidavits, Exhibits and deposition testimony we've already

11   submitted.

12             THE COURT:  Is there anybody else to cross examine,

13   then?

14             MR. WELLBORN:  No other witnesses, Your Honor.

15             THE COURT:  Any final words on the matter then for the

16   moving party?

17             MS. DONARSKI:  Yes, Your Honor.  In reviewing the

18   information, you have asked the Plaintiff to identify what

19   evidence the Plaintiff has to show that there is jurisdiction

20   in this case.  The Plaintiff claimed there were a series of

21   contacts, the Plaintiff claimed the website targeted North

22   Dakota, the Plaintiff claimed there was internet-based

23   exchange, and the Plaintiff claimed that there was

24   conversations with North Dakota residents, specifically me,

25   involving the Black litigation.

                                                               Page 94

  1                  Timing is key.  In each of those cases, Your Honor,

  2       everything happened after the litigation was commenced, or

  3       after Mr. Harristhal himself sent a cease and desist letter to

  4       Mr. Falk in August of 2004.  To take Mr. Harristhal's argument

  5       to the logical extension, jurisdiction in essence could be

  6       given and granted in any state by simply sending a letter to a

  7       resident of another state demanding that they do something.

  8       That flies in the face of the long-arm statute and the due

  9       process requirements.  Mr. Harristhal contacted Mr. Falk in

  10      August of 2004.  That does not satisfy a contact for this case.

  11                 The contact must arise out of the litigation.  The

  12      Plaintiff has failed to put forth any evidence to show conduct

  13      that was between Mr. Falk and the State of North Dakota or a

  14      North Dakota resident, that arises out of this litigation, Your

  15      Honor.  That's key.  When you look at the jurisdictional

  16      issues, we have the Calder effects test.  There has been

  17      absolutely no information, no evidence submitted to go to the

  18      requirement of an intentional tort committed by Mr. Falk in

  19      this state.  Calder, thus, does not apply.

  20                 The Zippo analysis.  The Zippo analysis is the

  21      sliding scale analysis.  We all agree, this is a passive

  22      website, Your Honor.  The website does not target North Dakota.

  23      The website targets spam.  There is many cases out there that

  24      all follow the general rule which we've cited in our brief and

  25      we can certainly provide additional case cites for you, that

                                                                      Page 95

  1        all say, the mere fact that defamatory or alleged defamatory

  2       statements are posted on an internet site is not cause for

  3       jurisdiction.  They need to be directed at that state.  There

  4       has been no evidence to show that Mr. Falk's website is

  5       directed at the State of North Dakota, Your Honor.  For those

  6       reasons, we request that this Court respectfully grant our

  7       Motion to Dismiss for lack of personal jurisdiction.

  8                  THE COURT:  For the Plaintiff.

  9                  MR. HARRISTHAL:  With all due respect to my colleague,

  10      Your Honor, we've shown considerable contact between Mr. Falk

  11      and the State of North Dakota.  Based on what Mr. Falk told the

  12      press himself, he was tracking my client.  This was then

  13      published in the State.  He admitted to it.  He tracked him for

  14      years.  Now, he can't hide behind the internet and say, just

  15      because I was doing it electronically, it means that you can't

  16      get jurisdiction over me.  Similarly, if he tracked 50 people,

  17      that doesn't mean that every one of them can't get jurisdiction

  18      over him, if he was tracking them in their home states.  That's

  19      what he admitted to doing as to my client.

  20                 He also ran multiple trace routes, he admitted this

  21      today, he ran multiple trace routes to servers in North Dakota.

  22      Your Honor, when you initially asked me about this contact, how

  23      I was going to show the contact, I told you that I thought the

  24      examinations would reveal additional contact between Mr. Falk

  25      and servers in North Dakota.  It came through.  He admitted

                                                                     Page 96

1     that he sent packets of information when he was running trace

2    routes to servers located in North Dakota, and he did it

3    multiple times.  I think his word for it was pings.  He sent

4    pings to them.

5              Your Honor, this is an unusual context.  I recognize

6    that.  The internet is a new creature.  But, he made contact

7    electronically with servers and routers located in the State of

8    North Dakota.  He had multiple e-mails to Ms. Donarski about

9    this Plaintiff, Your Honor.  Mr. Falk communicated with Ms.

10   Donarski here in North Dakota about this Plaintiff.  We're not

11   talking about some unrelated litigation, we're not talking

12   about other parties.

13             I mean, there is a case that has been submitted where

14   there was an attorney who represented an attorney in Colorado,

15   and whether he could be sued in North Dakota for representing a

16   North Dakota party.  Those aren't our facts, Your Honor.  Mr.

17   Falk is not a lawyer, and he wasn't representing anybody.  He

18   gets sent an e-mail from somebody in North Dakota, and he

19   responds to it.  In spades.

20             Keep in mind we don't even have the benefit of any

21   discovery, Your Honor.  Ms. Donarski has refused to give us the

22   communications that she got from Mr. Falk months before she

23   came to represent him.  But he admitted sending her several.

24   This is the same guy who couldn't even remember being a member

25   of the inner circle.  And he admits to remembering several e-

                                                                Page 97

1    mails to her.  Just think how much information he actually

2    provided to her about the Plaintiff in this case.  He provided

3    it to her about my client and he provided it to her knowing she

4    was in North Dakota, and knowing there was litigation in North

5    Dakota.  He was deliberately availing himself of North Dakota.

6              He not only did it with information that he had

7    himself, but he gathered it from other people, and then he

8    furnishes it to her.  In addition to sending these trace

9    routes, Your Honor, he directly poses questions to people at

10   Newsfeeds in Fargo.  As Mr. Allison testified, the abuse

11   department of is located in Fargo, the Defendant

12   was corresponding directly with someone and even asks the

13   question, what is your affiliation with Jerry Reynolds?  Again,

14   it is specific to Mr. Reynolds.  And it is being sent to North

15   Dakota.  He is looking for information in North Dakota.

16             Just to go back to this question, this defense that

17   he's using, that he goes after so many people.  We haven't seen

18   any evidence, that despite what's on his website, he actually

19   goes out and searches for information on these other persons

20   the way he did about my client.  Or about the entities that he

21   associated my client with, such as Sierra and

22   But we have him corresponding with people at Newsfeeds, we have

23   him running trace routes to Newsfeeds, there is no indication

24   that he did any of those things with any of these other

25   supposed 400 entities that he was monitoring.

                                                                Page 98

1              He also admitted to tracking my client.  He didn't

2    say that he ever tracked anybody else.  Only that he monitored

3    them.  This is uniquely different from anything that he did

4    with anyone else. But he admitted to tracking my client's

5    activity from North Dakota for years.  He admitted to

6    monitoring his activity for years.  And he admitted to running

7    queries on my client.  Your Honor, this was targeted on my

8    client.  It wasn't just a shotgun approach, he focused on my

9    client.  And then he further targets North Dakota by

10   hyperlinking to the Fargo newspaper.

11             With regard to this issue of the timing, Your Honor,

12   that hyperlink did occur only after litigation was commenced.

13   However, it was before he was served.  He found out about it,

14   excuse me, he communicated with the Fargo reporter before there

15   was any assertion of jurisdiction over him.  He had not yet

16   been served with the Complaint.  So it's different in that

17   regard.  But more importantly, he continued his tortious

18   conduct through that hyperlink.  This was therefore, not like

19   those cases in which there is an assertion that the timing

20   destroys jurisdiction.

21             His contacts with Fargo Forum, Your Honor, are part

22   of his tortious conduct.  He is making defamatory remarks about

23   my client, he is making them to a reporter, and then he is

24   connecting to that site on his site.  So he is continuing his

25   tortious conduct.  He is continuing his publication of

                                                               Page 99

1     defamatory remarks about my client, after the litigation had

2    begun.  We are not in any way limited in what we sue him for by

3    virtue of whether it occurred before or after the lawsuit was

4    commenced.  This on-going defamation of my client is fair game

5    for the defamation claim, and it's fair game for the

6    jurisdiction analysis.  It did not stop.  His defamation of my

7    client did not stop when the lawsuit was commenced.

8                Your Honor, the case law that we have briefed talks

9    extensively about how what is critical is whether the

10   Defendant's conduct continues after he anticipates being hailed

11   into court.  He knew it.  He knew he was going to get sued.  He

12   kept trying to distance himself saying, well, I didn't know for

13   sure, or I didn't know really.  Well, Your Honor, he wrote it

14   in his e-mails.  He was expecting getting hailed into Court.

15   He was going shopping for a lawyer, according to his e-mails.

16   He knew that he was going to be sued here, Your Honor, and he

17   continued his tortious conduct.  And this is not a commercial

18   case.  This is a tort case.  We don't have to satisfy the zippo

19   sliding scale standard.  He was committing tortious acts, after

20   he knew about the likelihood of being sued in this state, and

21   he continued to target North Dakota.

22               All of his activities, Your Honor, pertained to my

23   client.  Now, I have provided, in a summary fashion, I had

24   hoped to include this if we were allowed to do any post-hearing

25   briefing, Your Honor, but I put together a timeline purely as

                                                               Page 100

1     an illustrative exhibit of his conduct that demonstrates,

2    summarizes all the things and provides you with citations for

3    the record that we've submitted into evidence.  All of the

4    activities that he did which brought him into contact with

5    North Dakota and all the things that he did that focused on my

6    client, targeted my client, and brought him into contact with

7    North Dakota.

8              It goes back to 1997 and extends through to 2005.

9    And you can see, as you thumb through there, Your Honor, that

10   there were numerous repeated efforts to communicate, either

11   with people in North Dakota, with servers located in North

12   Dakota, and focusing his attacks on the Plaintiff located in

13   North Dakota.  He more than satisfies the minimum contact

14   standard for purposes of jurisdiction, Your Honor.

15             MR. WELLBORN:  Your Honor, may I have one minute to

16   rebut?

17             THE COURT:  Go ahead.

18             MR. HARRISTHAL:  If I may, Your Honor.  This seems

19   rather unusual.  I thought that closing remarks were being

20   handled by one attorney and now we're switching?  It would seem

21   to me, that if we're going to have a lawyer assigned to

22   delivering an argument, that they are pretty much stuck with

23   one lawyer delivering the argument.

24             THE COURT:  We're a little less formal here when we're

25   not in a jury trial.  You can go ahead.

                                                               Page 101

1               MR. WELLBORN:  Thank you, Your Honor.  Very quickly,

2    first off, there is no competent allegation in the record of

3    any tortious conduct.  And that is key, as I explained, to a

4    Calder analysis.  If there is no intentional tort, or not even

5    an allegation of an intentional tort, there can be no Calder

6    jurisdiction.  So, any Plaintiff that pleads Calder

7    jurisdiction has to at least, with competent evidence, plead

8    the prima facie elements of whatever tort they are alleging.

9               Secondly, and even more importantly, there is an

10   entire body of law, there is progeny of Calder, that stands

11   solidly for the proposition that it is not enough for

12   jurisdiction to claim an intentional tort, plus the fact that

13   the Defendant knew where I lived.  Knew where the Plaintiff

14   lived.  The case is made real clear, that is not enough.  There

15   has to be the commission of an intentional tort that is

16   purposefully focused and directed for a particular reason at a

17   given forum.

18              Even if one wants to play the semantic game and put

19   the word target or research or whatever the other verbs were,

20   even if one wants to say, heck yeah, Ed Falk was doing that to

21   Jerry Reynolds, there was still no targeting of North Dakota.

22   If Jerry Reynolds had lived in Alaska, Ed Falk's actions would

23   have been exactly the same as they were.  There was absolutely,

24   positively nothing that he did any differently than he would

25   any other time because coincidentally, Jerry Reynolds lived in

                                                               Page 102

1     North Dakota.  Thank you, Your Honor.

2               THE COURT:  Anything else, Mr. Harristhal?

3               MR. HARRISTHAL:  Well, Your Honor, the Complaint does

4    allege the elements of the tort that's involved.  And this

5    argument was never raised in any of the briefs, we're hearing

6    it for the first time today.  So, as to any suggestion that

7    there is a problem with the statement of the claim, that's

8    simply not been properly brought as an argument.

9               MR. WELLBORN:  Your Honor, I was quite frankly shocked

10   that we had to see Jerry Reynolds' direct testimony when we

11   came in.  There was no opportunity to raise this argument until

12   we saw who they were putting up for direct.  So, it was not

13   something we could raise until we figured out they were not

14   putting up competent testimony at this hearing.

15              THE COURT:  We'll deem the matter submitted, then.

16   I'll take it under advisement and give you a decision in

17   writing.  Anything further?

18              MR. HARRISTHAL:  No, Your Honor.

19              THE COURT:  The Court is in recess.

20                    *     *       *      *     *     *

21              (WHEREUPON, the above proceedings concluded.)





                                                                Page 103


State of North Dakota   )

                        ) ss.

County of Cass          )

     I, Vicky Matthys, do hereby certify that the foregoing

proceedings were mechanically recorded and a record made

thereof at the time and place indicated.

     I do hereby further certify that the foregoing and

attached 103 typewritten pages contain an accurate copy of the

transcription of said mechanical recording then and there


     Dated at Fargo, North Dakota, this 6th day of March, 2006.

                                Vicky Matthys
                                Court Recorder
                                East Central Judicial District