Sierra Corporate Design,
					    File No. 09-05-C-01660

        David Ritz and Ed Falk,





                                 Taken At
                          Cass County Courthouse
                            Fargo, North Dakota
                              March 21, 2006

                     BEFORE THE HONORABLE JOHN C. IRBY
                        - - - DISTRICT JUDGE - - -

                           A P P E A R A N C E S

       Christopher J. Harristhal                  FOR THE PLAINTIFF
       Attorney at Law
       1500 Wells Fargo Plaza
       7900 Xerxes Avenue South
       Minneapolis, MN  55431-1194

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

       Terri R. Hanley
       Attorney at Law
       220 Montgomery Street
       Suite 1920
       San Francisco, CA  94104

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

       Kelly O. Wallace
       Attorney at Law
       1175 Peachtree Street NE
       100 Colony Square, Suite 300
       Atlanta, GA  30361

       Michael D. Huitink
       Attorney at Law
       780 North Water Street
       Suite 1500
       Milwaukee, WI  53202

                                   I N D E X
                               W I T N E S S E S

        ED FALK

             Cross Examination by Mr. Harristhal  . . . . . . . . .  15 
             Redirect Examination by Mr. Wallace  . . . . . . . . .  79
             Recross Examination by Mr. Harristhal  . . . . . . . .  98


             Cross Examination by Mr. Harristhal  . . . . . . . .    104
             Redirect Examination by Mr. Wallace  . . . . . . . .    108
             Recross Examination by Mr. Harristhal  . . . . . . .    110


             Cross Examination by Mr. Wallace . . . . . . . . . .    112

  1                         P R O C E E D I N G S

  2              (The following proceedings were had, commencing at

  3    1:30 p.m., on March 21, 2006, as follows:)

  4              THE COURT:  Alright, court is now in session for the

  5    East Central Judicial District in and for Cass County.  We're

  6    going on record in the matter of Sierra Corporate Design, Inc.,

  7    versus David Ritz and Ed Falk, civil number 09-05-C-01660.

  8    This is the time and place that has been set for the hearing

  9    challenging jurisdiction on this matter and also I suppose the

 10    default judgment if jurisdiction falls away.  Alright, Mr.

 11    Harristhal is here representing the Plaintiff on this matter.

 12    Ms. Donarski representing Defendant Ed Falk and other

 13    appearances should be noted.

 14              MS. DONARSKI:  Your Honor, I would like to introduce

 15    Kelly Wallace.  He's an attorney out of Georgia and he is

 16    admitted to this Court to practice pro hac vice.

 17              THE COURT:  Alright, very well.  Welcome, Mr.

 18    Wallace.

 19              MR. WALLACE:  Thank you, Your Honor.  Your Honor, in

 20    addition --

 21              MR. HUITINK:  Your Honor, it's Mike Huitink, it's H-

 22    u-i-t-i-n-k here in Milwaukee via video conference.  I've been

 23    admitted pro hac vice and have appeared before on behalf of Mr.

 24    Ritz by telephone.  Also with me, as I adjust the camera,

 25    Judge, is my client David Ritz.

                                                                 Page 4

  1              THE COURT:  Alright, very well.  Thank you.

  2              MR. HARRISTHAL:  Your Honor, I have Tim --

  3              MR. HUITINK:  Thank you, Your Honor.

  4              MR. HARRISTHAL:  -- Tim OKeeffe is also with me

  5    today.  And another attorney will probably be joining us

  6    shortly, who has had some nightmarish travel problems, but

  7    Terri Hanley, who has also been admitted pro hac vice, will

  8    probably be joining us during the proceedings.

  9              THE COURT:  Alright.  Very well.  I'm noticing from

 10    the camera angles that if the attorneys stand up, we have a

 11    nice shot of their tie.  So just remain seated and I think that

 12    will work better for all the camera angles as well.  No need to

 13    stand up during your presentations.  I hope your fellow

 14    attorney didn't try to land in Nebraska or something today.

 15              MR. HARRISTHAL:  She was rerouted to Minneapolis and

 16    had to spend last night there, and then they lost her luggage

 17    in route, so she had to go shopping this morning in Fargo.

 18              THE COURT:  Okay.

 19              MS. DONARSKI:  Your Honor, we also have Mr. Ed Falk

 20    by video conference and Mr. John Levine, who is -- this is Mr.

 21    John Levine.  John, can you hear us?

 22              THE COURT:  Alright.

 23              MR. LEVINE:  Good afternoon.  Yes, I can hear you

 24    fine.

 25              MS. DONARSKI:  And Ed.  There is a delay.

                                                                 Page 5

  1              MR. FALK:  I can also hear you fine.

  2              THE COURT:  Alright.  Well, hopefully this will work

  3    well.  Alright, we were -- the procedure was to submit your

  4    direct evidence by way of affidavit and then go for cross

  5    examination.  Before we launch into that, is there any

  6    preliminary remarks that anyone would like to make.

  7              MS. DONARSKI:  Your Honor, I do have -- first of all,

  8    I have a preliminary matter that I'd like to address with the

  9    Court, which is related to my earlier correspondence that I'd

 10    sent a copy of Judge Racek's decision in the John Doe versus Ed

 11    Falk matter.  The reason I sent that to the Court is I think

 12    it's real critical that the Court be aware of that.  The legal

 13    arguments raised by Plaintiff with respect to Ed Falk's

 14    contact, not with respect to the Plaintiff, but with respect to

 15    Ed Falk's contact were identical to what the Plaintiff has

 16    presented in this case.  They were basically cut and paste.

 17    Judge Racek has taken testimony, he's analyzed the legal issues

 18    and he's gone through and issued a determination with respect

 19    to Falk's contact.

 20              THE COURT:  I've read it.

 21              MS. DONARSKI:  Okay.  And I would ask that the Court

 22    accept Judge Racek's determination with respect to those

 23    contacts and allow us to focus on the issues of jurisdiction

 24    based on conspiracy, as well as the waiver argument presented,

 25    which are the two new arguments in this case.

                                                                 Page 6

  1              THE COURT:  Alright.  Mr. Harristhal.

  2              MR. HARRISTHAL:  Your Honor, the rules of civil

  3    procedure and res judicata simply do not allow you to make a

  4    determination on jurisdiction against one party based on a

  5    findings involving a different party in another lawsuit.  I

  6    mean, I'd be happy to discuss the nuances in the facts, which

  7    would also render that inappropriate and explain why the

  8    results that you should find in this case are different than

  9    what were --

 10              THE COURT:  That -- that wont be necessary and I

 11    appreciate the suggestion to try to maybe streamline this a

 12    little bit, but I have to agree with Mr. Harristhal that under

 13    the circumstances here, different causes of action and there

 14    are different -- and the facts will have to be viewed a little

 15    bit differently in light of the different causes of action that

 16    we wont be doing that.  So we're going to have to give it the

 17    full hearing here.

 18              MR. HARRISTHAL:  Another preliminary matter, Your

 19    Honor.  We served upon Ms. Donarski a subpoena duces tecum for

 20    the production of communications that she had -- written

 21    communications that she had with Mr. Falk before he was her

 22    client.  Those communications pertain to materials that he

 23    transmitted to the State of North Dakota in care of Michelle

 24    Donarski concerning Sierra Corporate Design, and we have asked

 25    that those communications be brought here and produced.  Ms.

                                                                 Page 7

  1     Donarski did serve me with a notice of objection and we wish

  2    to compel the production of those materials.  I had indicated

  3    that we suggested that those documents be brought to the

  4    courthouse so that we would not have a delay, and I don't think

  5    there's any dispute that the communications exist, that they

  6    were in writing, but we would like to have those for use in

  7    this hearing.

  8              THE COURT:  Ms. Donarski.

  9              MS. DONARSKI:  Your Honor, yes, I've objected to the

 10    communica -- producing the communications for a number of

 11    reasons.  One of the reasons is that the communications are

 12    unrelated to this litigation, Your Honor.  They're

 13    communications in an entirely separate litigation where Rover's

 14    Playhouse was the plaintiff and they sued a former employee,

 15    Becky Black.  I defended that case.  That case involved breach

 16    of contract, Your Honor.  Breach of an employment contract.

 17    During that case, there was some discussion of whether Rover's

 18    Playhouse, which is owned by Kimberly Reynolds, the Reynolds'

 19    were involved in some type of pornographic spam.  The claim was

 20    never litigated.  It was a claim that they threatened to

 21    litigate.  They dismissed the case, settled, done.

 22              Now after that what happened was Mr. Harristhal

 23    contacted Ed Falk in August of 2004, with a cease-and-desist

 24    letter demanding that he stop or at least shut down his website

 25    with respect to the references of the Plaintiff in this case,

                                                                 Page 8

  1     Sierra Corporate Design.  My correspondence with Ed Falk

  2    occurred after that, in November of 2004.  And so as you can

  3    see, what the Plaintiff is trying to do is take my

  4    communications in an unrelated case, Rover's Playhouse versus

  5    Becky Black, and somehow bootstrap jurisdiction because I

  6    contacted Mr. Falk upon my initiation in a case unrelated to

  7    this case.  Now this is the exact same issue in front of Judge

  8    Racek, and he determined that it does not establish a prima

  9    face case to confer specific jurisdiction because it happened

 10    after this claim arose.  And so for those reasons, we've

 11    objected, Your Honor.

 12              Furthermore, it's investigation on my behalf or

 13    investigation my office did on behalf of my client, Becky

 14    Black.  So if anybody has the authority to release those

 15    documents, that would be my former client, Ms. Black, Your

 16    Honor.

 17              MR. HARRISTHAL:  If I may, Your Honor.  First of all,

 18    Judge Racek never ruled on whether these documents were

 19    discoverable.  Secondly, the cause of action was arising on a

 20    continuous basis.  The cause of action existed prior to when

 21    Ms. Donarksi was sent these materials by Mr. Falk and because

 22    he continued to publish materials and then in this case, even

 23    on the same site, published additional information about

 24    Sierra, the cause of action only continued to accrue with even

 25    additional basis for it.  So it isn't a simple timing matter

                                                                 Page 9

  1     and there is no suggestion in the law that that can be used as

  2    a basis to quash a subpoena.  This is a subpoena for us to see

  3    these documents so that we can see exactly when the

  4    communications took place.  We do have in the record one email

  5    communication between Ms. Donarski and Mr. Falk in which Sierra

  6    Corporate Design is explicitly identified.  It is the subject

  7    of the communications and the fact that Mr. Falk is

  8    communicating with someone in North Dakota who was not his

  9    attorney, makes it something that we should consider and that

 10    you should consider before making a ruling on jurisdiction.

 11    These are not privileged communications.  Mr. Falk has them and

 12    the witness has -- excuse me, Ms. Donarski has them.  She

 13    cannot cloak them in some sort of a privileged form when

 14    someone who is not covered by the privilege, Mr. Falk, who was

 15    made privy to all of those communications.

 16              THE COURT:  Alright, I'll take that under advisement

 17    as we go along here on this.  Doesn't seem to add much to this

 18    particular case, but I'll take that under advisement as we go

 19    on.  Hopefully, sometime during the afternoon, I'll have

 20    arrived at an answer on that.  Okay.  Anything else

 21    preliminarily?

 22              MR. HARRISTHAL:  It's unclear to me, Your Honor,

 23    whether any of the witnesses are in each others company.  We

 24    would ask that the witnesses, nonparty witnesses, be

 25    sequestered except for the time during which they are

                                                                Page 10

  1     testifying.

  2              THE COURT:  Alright.  Whats our line up of witnesses

  3    that we're expecting here today?

  4              MR. HARRISTHAL:  Well, I anticipate that I will cross

  5    examine Mr. Falk and Mr. Levine.

  6              THE COURT:  Okay.  And are Mr. Falk and Mr. Levine

  7    together right now?

  8              MS. DONARSKI:  They are not, Your Honor.  They are at

  9    two separate sites.

 10              THE COURT:  Okay.  And Mr. Levine is the expert on

 11    the Internet.

 12              MS. DONARSKI:  That is correct.  Mr. Levine is in

 13    Dallas, Texas.  Mr. Falk is in California.

 14              THE COURT:  Okay.  Well, Mr. Levine, are you with us?

 15              MR. LEVINE:  Yes, I am.

 16              THE COURT:  Okay.  Alright, what a sequestration

 17    request means, and I have no discretion but to grant that when

 18    it's asked, is that they want to have nonparty witnesses

 19    excluded from the proceedings except when they testify.  So I

 20    don't know how we're going to get a hold of you to bring you

 21    back in the --

 22              MR. LEVINE:  Your Honor, I have a cell phone.  If

 23    someone could simply call me, they can tell me when to come

 24    back into this room.

 25              THE COURT:  Alright.  That would be fine.  That'll

                                                                Page 11

  1     work then.  Have you given the number to Ms. Donarski?

  2              MR. LEVINE:  No.  Let me give it to you now.  It's

  3    area 607-xxx-xxxx.

  4              MS. DONARSKI:  Okay.  I will call you, John, when we

  5    are ready for you.  Thank you.

  6              THE COURT:  Thank you, sir.

  7              MR. LEVINE:  Okay, and I'll step outside now.

  8              THE COURT:  Thank you.  Now does that cover

  9    everybody?

 10              MR. WALLACE:  No, Your Honor, we plan on cross

 11    examining Brad Allison.  He testified for the Plaintiff.

 12              THE COURT:  Okay.

 13              MR. HARRISTHAL:  He's outside the courtroom.

 14              THE COURT:  He's outside the courtroom here.

 15    Alright.  Alright, that covers everybody.  Then we can proceed

 16    with this.  Ms. Donarski, you've submitted your affidavit.  Mr.

 17    Harristhal, who would you like to cross examine first?

 18              MR. HARRISTHAL:  Mr. Falk, Your Honor.

 19              THE COURT:  Alright, we will have Mr. Falk give some

 20    testimony.

 21              MS. DONARSKI:  There's a slight delay.  Ed, can you

 22    speak up so the camera will switch to you.

 23              MR. FALK:  Oh, yes, I'm here.  Can you hear me?

 24              MS. DONARSKI:  We can.  We're waiting for the camera

 25    to switch.  There we go.

                                                                Page 12

  1              THE COURT:  Alright, Mr. Falk, would you please raise

  2    your right hand?

  3              MR. FALK:  I see the Judge.  I don't hear anything

  4    anymore.

  5              THE COURT:  Alright.  Can you hear me now?

  6              MR. FALK:  I'm sorry, the audio was cut out from your

  7    end.  I don't know if you can hear me.

  8              THE COURT:  We hear you just fine.

  9              MR. FALK:  I can see the Judge.  I can't hear

 10    anybody.

 11              [Audio difficulty]

 12              MR. HARRISTHAL:  Your Honor, if I may take advantage

 13    of the delay to introduce you to Terri Hanley, who, as I

 14    mentioned earlier, has been admitted pro hac vice.

 15              MS. HANLEY:  Good morning, Your Honor.  I'm sorry for

 16    being late.  I had traveling difficulties.

 17              THE COURT:  Okay.  It's only morning on the west

 18    coast.

 19              [Audio difficulty continues]

 20              THE COURT:  Alright.  Mr. Falk, you can hear all this

 21    now; is that correct?

 22              MR. FALK:  Yes, I can.

 23              THE COURT:  Alright.  Very good.  Alright, sir, we'll

 24    start up again then.  We're going -- I wish to swear you in, so

 25    could I please have you raise your right hand?

                                                                Page 13

  1                                ED FALK




  5              THE COURT:  Alright.  Very well.  Mr. Harristhal, you

  6    may begin.

  7              MR. HARRISTHAL:  Thank you, Your Honor.

  8                           CROSS EXAMINATION


 10         Q     Good afternoon, Mr. Falk.  It's Chris Harristhal.

 11    You have tracked and monitored communications coming from

 12, correct?

 13         A     Not particularly.  Mostly I monitored and tracked

 14    Netzilla and Sexzilla.  We did observe that was

 15    the feed for those sites, and so we paid attention to them.  I

 16    believe there was, in fact, a tracking site for Newsfeeds.

 17         Q     My question was simply whether you had tracked or

 18    monitored transmissions.  Is the answer to that

 19    yes or no?

 20         A     Yes.

 21         Q     Okay.  Now you also understand that Mr. Jerry

 22    Reynolds is associated with; is that correct?

 23         A     That's correct.

 24         Q     And you understand that Newsfeeds is affiliated with

 25    Sierra Corporate Designs.

                                                                Page 14

  1         A     I know that now.  Yeah.

  2         Q     Now in addition to tracking and monitoring

  3    communications from, you also tracked

  4    communications from Jerry Reynolds -- excuse me, you also

  5    tracked Jerry Reynolds, who you associated with,

  6    correct?

  7         A     Yes, although most of my references to Jerry

  8    Reynolds were on the Netzilla web page.

  9         Q     Do you have Exhibit 5 -- excuse me, --

 10              MR. HARRISTHAL:  By the way, Your Honor, did you get

 11    our large book of --

 12              THE COURT:  I have it right in front of me.

 13              MR. HARRISTHAL:  Okay.  Your Honor, I'm going to turn

 14    to what is tab five, which is the Affidavit of Brad Allison on

 15    Motion to Dismiss.

 16         Q     Mr. Falk, is you could turn to that, please.  And

 17    I'd ask you to turn to Exhibit A of Mr. Allison's affidavit.

 18              MS. DONARSKI:  Is it the first or second affidavit?

 19              MR. HARRISTHAL:  This is his first one.  It's dated

 20    December 6, 2005.

 21         A     I'm sorry, the December 6th affidavit?

 22         Q     Correct.  Are you ready, Mr. Falk?

 23         A     No, I'm sorry.  I had the February 17th one.  I can

 24    look it up here.  Okay, I have it.

 25         Q     Are you at Exhibit A, sir?

                                                                Page 15

  1         A     Sorry.  Exhibit A?

  2         Q     Right.  Across the top of it, it reads, "Overview of

  3    spam from Netzilla".  Page 1 of 9.

  4         A     Excuse me a moment.  I think so.  It's the one

  5    quoting a letter from me?

  6         Q     I beg your pardon.

  7         A     This is a quote of a letter from me.

  8         Q     No.

  9         A     Alright.  Hold on one moment again.  I'm sorry.

 10    There's so many affidavits in so many cases.  Do you by any

 11    chance mean the one dated February 23rd?

 12         Q     This -- the affidavit is dated December 6, 2005.  It

 13    simply -- in the caption on the first page, it merely reads,

 14    Affidavit of Brad Allison on Motion to Dismiss.  Exhibit A is

 15    the Netzilla page, sir.

 16         A     Alright, I'm sorry.  I'll have it in a moment.  I

 17    apologize, I didn't know we'd be using affidavits from a

 18    different case.

 19         Q     No, this is an affidavit from this case.

 20              MS. DONARSKI:  Ed, this is Michelle.  Perhaps I could

 21    be of some assistance.  I did email those to you yesterday.

 22    Extra copies.  PDF form.  First Affidavit of Brad Allison and

 23    second affidavit.

 24              MR. FALK:  Okay, let me check.  No, I'm sorry,

 25    Michelle, I have the criminal cases against David Ritz and your

                                                                Page 16

  1     affidavit.

  2              MS. DONARSKI:  I'm having my office resend it to you

  3    now.  If you can pull up the John Doe one, the first Affidavit

  4    of Brad Allison, it's the same documents.

  5              MR. FALK:  Okay, I do have that.  Hold on.  Okay, I

  6    have it.

  7         Q     (By Mr. Harristhal)  Mr. Falk, I'll ask you a couple

  8    of preliminary questions first.  Of what state are you a

  9    resident, please?

 10         A     California.

 11         Q     Where do you live?

 12         A     Mountain View.

 13         Q     And your address.

 14         A     600 Fairmont Avenue.

 15         Q     And where do you work?

 16         A     Currently I work at Google.

 17         Q     Where is Google located?

 18         A     That's also Mountain View, California.

 19         Q     And the street address of the Google building.

 20         A     I believe it's 1600 Ampa Theater Parkway.

 21         Q     What do you do for Google?

 22         A     I write the vice drivers for disc drives.

 23         Q     I'm sorry, you what?

 24         A     I write the vice drivers for disc drives.

 25         Q     How long have you worked there?

                                                                Page 17

  1         A     Just over two years.

  2         Q     Now if you would please, go to Exhibit A, which

  3    reads across the top of it, Overview of spam from Netzilla.

  4    Do you have that in front of you?

  5         A     I have it.  Yes.

  6         Q     For conveniences, are you comfortable with us

  7    referring to this as the Netzilla -- well, I'll tell you what,

  8    why don't you tell me what this is?

  9         A     The Netzilla page.

 10         Q     Okay.  And it's the page of -- the Netzilla page

 11    from what?

 12         A     Pardon -- from -- say again.

 13         Q     Is this from your website?

 14         A     Yes, it is.

 15         Q     And you're comfortable with us referring to this as

 16    the Netzilla page as we discuss this back and forth?

 17         A     Yes, I am.

 18         Q     Okay.  In the top quarter of the page, it reads,

 19    General information about Netzilla.  When did you put that

 20    there?  When was that -- what year was that first posted on the

 21    Internet?

 22         A     It probably would have been 1997.

 23         Q     Now I also see a reference to see also

 24 about three lines below general information.  Do

 25    you see that there?

                                                                Page 18

  1         A     Yes.  Mmhmm.

  2         Q     Now I see that is underlined.  Does

  3    that mean that it is a hyperlink?

  4         A     Yes, it does.

  5         Q     Tell us what a hyperlink is?

  6         A     It's a cross reference basically.  Somebody reading

  7    the Netzilla page could click on that and see the Newsfeeds

  8    page.

  9         Q     So if someone clicks on this, they will jump to

 10    another location on the web, correct?

 11         A     Another page within the same website, yes.

 12         Q     In this instance, it's within the same website, but

 13    that is not always the case, is it?

 14         A     That's correct.

 15         Q     Why does appear on this page about

 16    Netzilla?

 17         A     They were identified as the primary Internet

 18    connection for Netzilla.

 19         Q     Who chose to put on this page?

 20         A     I did.

 21         Q     Did anyone help you make that decision?

 22         A     No.

 23         Q     When did you put on this page?

 24         A     I'm not sure.  About the time we realized that they

 25    were the primary news feed for Netzilla.  Probably 1998, 1999;

                                                                Page 19

  1     I didn't keep records.

  2         Q     Who is we?

  3         A     The spam fighting community on the Internet.

  4         Q     Who is we?  Names.

  5         A     Anybody who contributes to the Net-Abuse Newsgroup

  6    on Newsnet.  That would include David Ritz, it would also

  7    include Robert Braver, Howard Knight and hundreds of other

  8    people whose names I don't recall right now.

  9         Q     Well, then we'll focus right now on Mr. Braver and

 10    Mr. Ritz and you whenever I'm asking you about this.  Were they

 11    involved in the decision to list on this page?

 12         A     No, that would have been my decision.

 13         Q     And I'm sorry, you said you believed that happened

 14    in 1997?

 15         A     It could have been anywhere between 1997 and 1999.

 16    I don't keep records of when I make changes to the web pages.

 17         Q     Now on this same page, you also have information

 18    listed about Jerry Reynolds, correct?

 19         A     Yes, he was identified as the owner of Netzilla.

 20         Q     Well, you have him listed under -- on your page, you

 21    have him listed under ownership and contact information,

 22    correct?

 23         A     That's correct.

 24         Q     And you also have a Fargo address listed there,

 25    correct?

                                                                Page 20

  1         A     Yes.  That's the address he published when he

  2    registered the site name.

  3         Q     Well you certainly saw that there when you were

  4    posting this information back in 1997, 1998 or 1999, right?

  5         A     Certainly.  It's a direct copy from the public

  6    registry.

  7         Q     How much time -- excuse me, over what period of time

  8    have you tracked communications coming out of

  9         A     I would have to look at the Newsfeeds website, which

 10    I can do in a moment and I probably wrote there when it was I

 11    started tracking them.

 12         Q     I'd settle for an estimate at this point.

 13         A     Probably -- I don't even have it -- probably 1999.

 14         Q     And --

 15         A     Yes, I have it, 29th October, 1999.

 16         Q     That's when you started the tracking and it ended

 17    when?

 18         A     No, wait a minute, I'm sorry, 14th of July.

 19         Q     Of 19 what?

 20         A     99.

 21         Q     So July 14th, 1999, is when you started tracking

 22    communications coming out of, correct?

 23         A     That's correct.

 24         Q     And you -- have you ever stopped?

 25         A     I stopped all tracking in May of 2000.

                                                                Page 21

  1         Q     Did you ever start it again?

  2         A     No, not yet.

  3         Q     Did you continue to publish this information that

  4    we're looking at even after May of 2000?

  5         A     Yes, I still publish it today.

  6         Q     And in addition to tracking information on

  7, have you also tracked Mr. Reynolds who you

  8    associated with

  9         A     I'm sorry, ask that question -- did I track -- I'm

 10    looking at the record now.  No, I did not particularly mention

 11    Reynolds in this page.  At the time, Newsfeeds was fraudulently

 12    listed with a Las Vegas address.

 13         Q     Well, I'm not asking you necessarily about this

 14    page.  My question is more general in nature.  In addition to

 15    whatever tracking you were doing of, you were

 16    also tracking activities of Jerry Reynolds who you associated

 17    with, correct?

 18         A     That's part of the Netzilla case file.  That's true.

 19         Q     And over what period of time did you do that?

 20         A     I believe I stopped updating that website -- that

 21    web page rather, in March of 1999 or somewhere in 1999.  I take

 22    that -- it wouldn't have been March, but it was in late 1999 I

 23    stopped updating that page.

 24         Q     Going back to Exhibit A, on the second page of

 25    Exhibit A, you again list -- a couple of times you list some

                                                                Page 22

  1     Fargo addresses there, correct?

  2         A     Hold on one moment.  Yes.

  3         Q     And you also list some 701 area code phone numbers

  4    in the top half of the document.

  5         A     Yes, I do.

  6         Q     If we go to the third page of this exhibit, you're

  7    discussing what you claim is a connection between

  8    and Netzilla, correct?

  9         A     Yes.  Hold on one moment.

 10         Q     I'm on Page 3 of this exhibit.

 11         A     Okay, go on.

 12         Q     You were writing on this page about what you claim

 13    was a connection between and Netzilla, correct?

 14         A     Yes.

 15         Q     And then you go on to list several Fargo addresses

 16    on Roberts Street and on Morrison Street, etcetera, on this

 17    page, correct?

 18         A     That's correct.

 19         Q     And  you allege on here that Netzilla, which you

 20    associate with Newsfeeds, is owned by Jerry Reynolds, correct?

 21         A     That's correct.

 22         Q     Did you do anything to personally verify that?

 23         A     Some of these cases I would have done the Whois

 24    look-up myself, that is to look up the public record on the

 25    domain name.  Other cases, the information would have been sent

                                                                Page 23

  1     to me by people I trusted or it would have been written by

  2    people I trusted on Usenet where I would have seen it.

  3         Q     Is the answer to the question then that you don't

  4    know?

  5         A     The answer is in some cases, yes and in some cases,

  6    no.

  7         Q     Well, I'm not asking you about some cases.  I'm

  8    asking you about this case.  Did you personally verify --

  9         A     Which case?

 10         Q     -- that Jerry Reynolds owned Netzilla?

 11         A     Oh, yes.

 12         Q     You personally verified it?

 13         A     Yes.  The Whois information was public back in those

 14    days.  I mean, it's still public, but it listed him as the

 15    contact in those days.

 16         Q     So my point though is that you did this yourself,

 17    not someone else.

 18         A     Yes.

 19         Q     Now you also list someone on here named Doug Kirk,

 20    the third to the last bullet point and you say that person is

 21    also of Fargo, North Dakota.  How do you know he's from North

 22    Dakota?

 23         A     Yes.  I don't remember.

 24         Q     But did you personally verify that?

 25         A     No, I think that's something I would have read from

                                                                Page 24

  1     a Usenet post provided by someone else.

  2         Q     But you included it on your page about

  3, correct?

  4         A     Yes.  Whoever it came from, it would have been

  5    someone I trusted.

  6         Q     You also wrote on here, and I'm now just below the

  7    bullet points, that Netzilla owns the domain name

  8, correct?

  9         A     Yes.

 10         Q     Did you personally verify that?

 11         A     I don't remember.

 12         Q     A little bit lower on the page it says, See also:

 13    and you wrote, all one word,; why

 14    did you write that there?

 15         A     I don't remember.  Somehow someone would have told

 16    me that there was a connection between the two or I would have

 17    found out about it.  Actually, I may have added that in

 18    response to the letters that you sent me.

 19         Q     So the answer is you don't know?

 20         A     Yes.

 21         Q     Now I see that at the end of that sentence, there's

 22    a reference to  Why did you write that on

 23    there?

 24         A     That was in response to a Usenet discussion that

 25    happened in April of 2005.  Jerry Reynolds had a new domain

                                                                Page 25

  1    name called Spamkiller, which he was trying to get

  2    connectivity to and someone on the Internet had asked questions

  3    about whether or not they should provide connectivity to

  4    Spamkiller.  At the time, I didn't know or didn't remember that

  5    Spamkiller was connected with Jerry Reynolds, but the

  6    discussion turned out very interesting. [Inaudible -- sharing

  7    same mic and talking at the same time.]

  8         Q     My question is why did you write that on this page?

  9    Spamkiller. --

 10         A     It was information about Netzilla.

 11         Q     And therefore, you believed that there was a

 12    connection between and

 13         A     Absolutely.

 14         Q     And also that Sierra Corporate Design has a

 15    relationship to those entities, correct?

 16         A     Absolutely.

 17         Q     We go to the next line, just above the horizontal

 18    line going across the page, you wrote, See Usenet thread Re:

 19    What is  Is that also one of those hypertext

 20    links?

 21         A     Correct.

 22         Q     Now does that take someone to a place outside your

 23    web page or does it stay within the web page?

 24         A     I believe it stays with the web page, but if you

 25    give me a moment, I can check.  No, it's a link to a thread on

                                                                Page 26

  1     the -- that was archived on Google groups.

  2         Q     So it takes -- if someone interacts with this site

  3    by clicking on that What is they go to

  4    someplace outside of your web site, correct?

  5         A     That's correct.

  6         Q     Would you advance please to Page 6 of 9 of this

  7    Exhibit A?

  8         A     Alright.

  9         Q     You reference a chronology of events on this page,

 10    correct?

 11         A     The site history.  Yes.

 12         Q     Okay.  And at the 25th of August, 2004, entry refers

 13    to a letter from a lawyer, a cease-and-desist letter; is that

 14    correct?

 15         A     That's correct.

 16         Q     And now did that also -- that was from my office,

 17    that letter?

 18         A     Yes, it was.

 19         Q     Now it looks like cease-and-desist is underlined.

 20    Does that mean it's a hypertext link?

 21         A     Yes, it's a link to a copy of the letter.

 22         Q     And you posted that letter on your website.

 23         A     That's correct.

 24         Q     And that was something that you did when?

 25         A     When I received it or shortly -- well, shortly

                                                                Page 27

  1     after.

  2         Q     So it would have been around August or September of

  3    2004.

  4         A     Correct.

  5         Q     Now the next entry pertains to February 20, 2005,

  6    and that pertains to a lawsuit filed in Fargo, North Dakota,

  7    correct?

  8         A     Correct.

  9         Q     But that's not this lawsuit, is it?

 10         A     No, it's a defamation case against me.

 11         Q     Down at the bottom of the page, you're referring how

 12    to locate a letter by running a Yahoo search using the words

 13    Reynolds and Fargo; is that right?

 14         A     That's correct.  Someone else discovered it, but I

 15    added this information when I saw it.

 16         Q     So you posted this information about Fargo being

 17    used as a search term on your website, correct?

 18         A     That's correct.

 19         Q     And on the next page --

 20         A     Well, in this case the word Reynolds was the

 21    important one.

 22         Q     On the next page, you identified a couple of Fargo

 23    addresses again, correct?  I'm now on Page 7 of 9.

 24         A     Correct.  They were used in a pyramid scheme.

 25         Q     I mean Fargo street addresses, not Internet

                                                                Page 28

  1     addresses, are what you've listed here, correct?

  2         A     Correct.

  3         Q     Now would you go to Exhibit B to Mr. Allison's

  4    affidavit, please?

  5         A     Hold on.  I have it.

  6         Q     It's entitled Spam Tracking Page.

  7         A     Correct.

  8         Q     Now how does this exhibit relate to the last

  9    exhibit, Exhibit A?  Is there a relationship between them?

 10         A     The Spam Tracking Page is the front page of a web

 11    site I maintain to track spam.  And the previous exhibit was one

 12    of the case files of over 400.

 13         Q     So Exhibit A and Exhibit B are found on the same

 14    website, correct?

 15         A     That's correct.

 16         Q     And they're both your website, right?

 17         A     That's correct.

 18         Q     Now focusing on Exhibit B, the -- what's called the

 19    Spam Tracking Page, the word New appears on the first line

 20    under the title, right?

 21         A     That's correct.

 22         Q     It says, If you were referred here by the Forum

 23    article, the web page in question can be found here.  The

 24    Forum article, you're referring to the Fargo Forum newspaper,

 25    right?

                                                                Page 29

  1         A     That's correct.  They'd written an article about the

  2    lawsuit, but they failed to link to the relevant case file.  So

  3    I was afraid their readers would be curious and come to my

  4    website and not know what was going on, so I added that link.

  5         Q     Where do you suppose their readers are located?

  6         A     In Fargo.

  7         Q     So this was for their consumption?

  8         A     Yes, I knew that the article would bring people to

  9    the web page who were curious and would want to find the case

 10    file.

 11         Q     And so you put this on here to enable people from

 12    Fargo to find that particular case file, correct?

 13         A     Right, in response to the article, which was in

 14    response to the lawsuit.

 15         Q     And that was not in response to this lawsuit though,

 16    was it?

 17         A     No, it was in response to a different lawsuit by the

 18    same person.

 19         Q     You're being sued in this case by Sierra Corporate

 20    Design, correct?

 21         A     That's what it says in the lawsuit, yes.

 22         Q     Okay.  When did you put this reference to the Forum

 23    article on this page of your website?

 24         A     That would have been shortly after the article came

 25    out, which would have been late February of 2005.

                                                                Page 30

  1         Q     So again, this is something that you put up months

  2    before this lawsuit was started, correct?

  3         A     That's correct.

  4         Q     This lawsuit didn't start until May 31 or June 1,

  5    2005, right?

  6         A     That sounds about right.

  7         Q     Now the word New is what's called in Internet

  8    parlance a strong tag, correct?

  9         A     Right.  That makes it bold.

 10         Q     And it was even a different color, it was the color

 11    red when one looked at it on the Internet, correct?

 12         A     That's correct.

 13         Q     So it really stood out on the page.

 14         A     Yes.

 15         Q     The link to the Forum article, that's one of these

 16    hypertext links, correct?

 17         A     That's correct.

 18         Q     And so if someone interacted with your page by

 19    clicking on that, would they then go outside your page or would

 20    they go to another -- I'm sorry, would they go outside your

 21    website or would they go to another page within your website?

 22         A     They would go outside.  They would go to the Forum.

 23         Q     And if we go to the second link that appears on the

 24    top of this page, this front page of Exhibit B, where it says

 25    the word here, that was also a hyperlink, correct?

                                                                Page 31

  1         A     Right.  This time to the case file in question.

  2         Q     Well, if somebody clicked on that from -- if

  3    somebody who came here from the Forum article, for example from

  4    Fargo, and they clicked on this, they would be kicked over to

  5    the Netzilla page, correct?

  6         A     That's correct.

  7         Q     Did you ever remove those hypertext links?

  8         A     Yes.

  9         Q     When did you do that?

 10         A     I don't remember.  I think it might have been in

 11    November or maybe a little earlier.

 12         Q     Why did you take them down?

 13         A     Partly because it was no longer new information and

 14    partly because my lawyer suggested I put things back the way

 15    they were before the lawsuit.

 16         Q     Well now, you've got information up here that goes

 17    back to 1997, right?

 18         A     Yes.

 19         Q     So simply because information is more than six

 20    months old doesn't lead you to take it away from the web page,

 21    does it?

 22         A     No, but it means it's not new anymore.

 23         Q     But you removed these links shortly after you

 24    secured legal counsel in North Dakota, correct?

 25         A     Correct.

                                                                Page 32

  1         Q     Now, sir, I'm going to ask you to go to Mr.

  2    Allison's second affidavit.  Are you with us, sir?

  3         A     I'm not sure which one.  What would the date on that

  4    be?

  5         Q     I believe it was in March, 2006.

  6         A     Oh, the recent one.

  7         Q     Yes.  Have you found it?

  8         A     Yes.

  9         Q     Now I'm going to ask you to go to Exhibit E of that

 10    affidavit, which across the --

 11         A     I'm sorry, Exhibit E?

 12         Q     Exhibit E, yes.

 13         A     I don't think I have a complete copy.  This one

 14    seems to start at Exhibit J.  Could you describe it to me?

 15    Maybe I have a copy somewhere else.

 16         Q     Are you looking at an affidavit from the Sierra

 17    Corporate Design versus David Ritz and Ed Falk lawsuit?

 18         A     Right.  Second Affidavit of Brad Allison on Motion

 19    to Dismiss and it's dated the 7th day of March.  Looks like I

 20    have an incomplete copy.

 21              MS. DONARSKI:  Ed, the Exhibit E is the same copy in

 22    the John Doe case.  Look at the John Doe one.

 23         A     It's the one entitled Slapp Lawsuit by Jerry

 24    Reynolds.?

 25         Q     No, this says, Overview of spam from

Page 33

  1     23 July, 2000.

  2              MR. HARRISTHAL:  Your Honor, in your book, this is

  3    Tab 8.

  4         A     Oh, I'm sorry, I thought you said E.  Yes, I have

  5    it.

  6         Q     In the lower right corner, it should be coded DRD-

  7    0317.

  8         A     No, it's encoded Ritz Exhibit 6.

  9         Q     I did mean Exhibit E of Mr. Allison's second

 10    affidavit.

 11         A     I'm sorry, it must have been labeled differently on

 12    the two affidavits.  Maybe you could describe it to me.

 13         Q     Well, it's -- I believe it's a listing of reports

 14    that you posted on tracks -- tracking and monitoring you were

 15    doing of  And there's a variety of dates on here

 16    from October 29, 1999, where you list the number of posts and

 17    then you go forward for 14 reports through May 5, 2000, all

 18    about  You list the --

 19         A     I think I know the one you're talking about.

 20         Q     You list the overview of the last 14 reports, the

 21    overview of the history.  Specifically, I'm now on Page DRD-

 22    0328 of Exhibit E.  And then you listed general information

 23    about  You claim that it's an alias of Netzilla.

 24    You discuss advertising.  And then there's a

 25    series of hyperlinks.  You're not able to find it?

                                                                Page 34

  1         A     Sir, it was labeled complete history of

  2 or overview?

  3         Q     Overview.

  4         A     Overview of spam from

  5         Q     Right.

  6         A     Okay, you know what, I think I know what exhibit

  7    you're talking about.  You said 23 July, 2000?

  8         Q     Yes.  There should be code numbers in the lower

  9    right corner.  They all start --

 10         A     Yes, I have it now.

 11         Q     -- with DRD.  Can you go to the one that reads DRD-

 12    0328?

 13         A     Yes, I have it.

 14         Q     Okay.  I wont try to go through all of these, but

 15    let's at least examine this one.  Under Overview of last 14

 16    reports, -- withdrawn.  First, what is the date July 23, 2000,

 17    signify, at the top of the page?

 18         A     There were two programs --

 19         Q     What happened on that day?

 20         A     -- that were involved in --

 21         Q     I'm sorry, what happened on July 23, 2000?

 22         A     There were two computer programs.  I'm sorry, go

 23    ahead.

 24         Q     What happened on July 23, 2000?

 25         A     That would have been the last time I copied the

                                                                Page 35

  1     information from my computer at home to the website.

  2         Q     Okay.  And if we go a little lower to where the font

  3    is smaller and it says, 05 May, 2000, what happened on that

  4    day?

  5         A     That would have been the last time I ran the program

  6    that collected spam statistics.

  7         Q     Okay, specifically you ran what you regarded as spam

  8    statistics on on May 5, 2000, correct?

  9         A     Right.  The program was monitoring over 400 sources

 10    of spam and this is one of them.

 11         Q     On the far right, it says full headers and it's

 12    underlined.  Why is it underlined?

 13         A     It's a hyperlink.

 14         Q     And where does that take one?

 15         A     To another page of information in this case file.

 16    It's a complete set of headers from the spam.  It's what we use

 17    to track the spam to its source.

 18         Q     These are headers that you maintain went through

 19    Newsfeeds?

 20         A     Yes.

 21         Q     I mean

 22         A     Correct.

 23         Q     And we'll just drop way down to the bottom of this

 24    section.  October 29, 1999, what happened on that day?

 25         A     Just before then there was a disk crash at Rahul and

                                                                Page 36

  1     we lost all of our records.  So that's the first date we

  2    collected statistics after we lost the records.

  3         Q     Oh, so you had been collecting records on

  4 prior to that, but that data was lost; is that

  5    it?

  6         A     Right.  I started on the 14th of July.

  7         Q     Now at the bottom of the page, in bold, oversized

  8    letters, you wrote, General information about,

  9    correct?

 10         A     That's correct.

 11         Q     And you discussed advertising,

 12    correct?

 13         A     Yes.

 14         Q     And you suggested it may be an alias of Netzilla?

 15         A     That's correct.  There's been so much spam coming

 16    from Netzilla and the Newsfeeds has refused to do anything

 17    about it.  We finally realized they were in fact the same

 18    entity.

 19         Q     I'm sorry, you concluded what was an exact same

 20    entity?

 21         A     We began to suspect, and by we I mean the people who

 22    are the regulars on the Usenet Net-Abuse Newsgroups, we began

 23    to suspect that Newsfeeds and Netzilla were the same entity.

 24         Q     So that means you and Mr. Ritz, right?

 25         A     That means myself and probably 100 other people.

                                                                Page 37

  1         Q     Does that mean -- does that include --

  2         A     I don't remember if Mr. Ritz specifically discussed

  3    that.

  4         Q     Well, the only other guys you can remember are Mr.

  5    Braver and Mr. Ritz, right?

  6         A     And Mr. Knight and Mr. Grecko and if I were to go

  7    look at the archives for Usenet Newsgroups in those days, I

  8    could probably come up with a lot more.

  9         Q     Would you please advance to Page 331?  DRD-00331.

 10         A     I have it.

 11         Q     Now this one is entitled September 11, 2000 as

 12    opposed to July 23, 2000, like the prior page.  Why?  Why is

 13    this dated September 11, 2000?

 14         A     That's the time I copied data from my computer at

 15    home to the website again.  You'll notice none of the content

 16    of the page has changed.

 17         Q     So on September 11, 2000, you copied data about

 18    Newsfeeds from your computer onto the web page; is that

 19    correct?

 20         A     Right.  I would have updated all 400 case files on

 21    that day.

 22         Q     And if we look at DRD-00334, you again copied this

 23    data on on September 25, 2001.

 24         A     Yes.

 25         Q     And we wont go through it page by page, but let's

                                                                Page 38

  1     at least advance to DRD-00349.

  2         A     Yes.

  3         Q     Now that indicates that you again copied data on

  4 off of your computer onto the web page on August

  5    9, 2003; is that right?

  6         A     That's correct.  And again, you can see the content

  7    of the page hasn't changed.

  8         Q     Now I'm going to ask you to turn to what is Exhibit

  9    I to this affidavit and I think you had come across this

 10    exhibit before.  You had entitled it SLAPP Lawsuits.

 11         A     Yes, I have it.

 12         Q     Now Netzilla is discussed on here, correct?

 13         A     I assume so, yes.

 14         Q     And Spamkiller, the article that you had linked to

 15    earlier is also linked here.

 16         A     Yes.

 17         Q     And the letters from my firm are also linked here,

 18    at the bottom of that first page.

 19         A     That's correct.

 20         Q     When did you put this page on the Internet?

 21         A     I don't remember.  It would have been not too long

 22    after the lawsuit was filed.

 23         Q     After which lawsuit was filed?

 24         A     And I probably updated it as more news came along.

 25         Q     You put this on after what lawsuit was filed?

                                                                Page 39

  1         A     The defamation case probably.

  2         Q     But this -- you posted this --

  3         A     Although it does say "SLAPP Lawsuits" plural.

  4         Q     You posted this on the Internet before this lawsuit

  5    was started; is that right?

  6         A     I may have.  I don't remember.

  7         Q     Alright, if we go to the second page of this

  8    exhibit, which is coded DRD-00353, you again referenced Mr.

  9    Forsters article in the Fargo Forum and have a link to it,

 10    correct?

 11         A     Yes.

 12         Q     And you specifically speak about North Dakota on

 13    this page, right?

 14         A     I mention that the reporter who contacted me was in

 15    North Dakota.

 16         Q     Well, you also --

 17         A     Or at least his newspaper was.

 18         Q     And you said that Dave Forster was in North Dakota,

 19    right?

 20         A     Correct.

 21         Q     And you -- under Rogue Cancels February 23, 2005,

 22    you again reference Fargo, North Dakota on that page, correct?

 23         A     That's correct.

 24         Q     Now is this page still posted on the Internet?

 25         A     No, I took it down at the request of my lawyer.

                                                                Page 40

  1         Q     When was that?

  2         A     I don't remember.  It would have been probably in

  3    November or so after I contacted her -- I'm sorry, after I

  4    retained her, but I'm not sure.  I don't remember.

  5         Q     Would you please go to Exhibit D of this affidavit.

  6    Let me know when you're there, sir.

  7         A     I will.

  8              MS. DONARSKI:  Chris, what's the Bates stamp number

  9    on there?

 10              MR. HARRISTHAL:  I'm going to look to DRD-00356 on

 11    Exhibit D to Mr. Allison's second affidavit, Tab 8.

 12         A     I have it.

 13         Q     Are you at Page 356?

 14         A     Yes.

 15         Q     This is an email from you to Mr. Ritz, correct?

 16         A     It's an email from myself to Robert Braver and David

 17    Ritz.

 18         Q     And again, you're discussing Netzilla on this page,

 19    correct?

 20         A     That's correct.  I was looking for information to

 21    back up what was on my web page.  Basically, I wanted them to

 22    do some facts checking for me.

 23         Q          And this was before any of these lawsuits were

 24    started, right?  Well, specifically, it was before this lawsuit

 25    that were in now was started.

                                                                Page 41

  1         A     That's correct.

  2         Q     If you go to the next page, it's another email from

  3    August of 2004, from you this time just to Mr. Ritz on the same

  4    subject, correct?

  5         A     Yes, he sent me a correction on my web page and I

  6    thanked him.

  7         Q     Now would you advance a couple of -- would you

  8    advance to DRD-00358?

  9         A     Yes.

 10         Q     This is another email from you to Mr. Ritz August of

 11    2004, before this litigation began, right?

 12         A     Correct.

 13         Q     And you were thanking Mr. Ritz for some data files,

 14    correct?

 15         A     Yes.  He'd given me some old Whois lookups to help

 16    me verify the contents of my website.

 17         Q     You asked him how to interpret the chart.

 18         A     I think that's what he gave me.

 19         Q     On this email you asked how to --

 20         A     He gave me some sort of --

 21         Q     On this email you asked him how to interpret the

 22    chart, correct?

 23         A     That's correct.

 24         Q     What was it a chart of?

 25         A     To be honest, I never did figure out how to

                                                                Page 42

  1    interpret it.  It was some sort of connectivity chart that

  2    showed which web server was connected to what other server.

  3    Not necessarily web servers.

  4         Q     Would you advance to page 00361, please?  This is an

  5    email --

  6         A     I have it.

  7         Q     This is an email from you to Mr. Ritz of October 9,

  8    2004, correct?

  9         A     Correct.

 10         Q     And you were thanking Mr. Ritz for information he

 11    had provided to you on these subjects; is that right?

 12         A     That's what it looks like.

 13         Q     Do you remember what the data was or the info?

 14         A     No, I don't.

 15         Q     Did you say no?

 16         A     No, I'm sorry, I have no idea what it was.  Probably

 17    old Whois records or something like that.

 18         Q     Can you please find Page 363?

 19         A     Yes, I have it.

 20         Q     This is an email from Ms. Donarski to you from

 21    November of 2004; is that right?

 22         A     Yes, that's correct.

 23         Q     And among other things, it's referring to companies

 24    that you allege -- that she alleges Jerry owns such as Sierra

 25    Corp, correct?

                                                                Page 43

  1         A     Correct.

  2         Q     Now you responded to her, didn't you?

  3         A     Yes, it's a natural thing to do when someone asks

  4    you for information.

  5         Q     And this was an exchange that you had before this

  6    lawsuit started, correct?

  7         A     That's correct.

  8         Q     Did you provide her with any information about

  9    Sierra, Mr. Reynolds or anything like that?

 10         A     I don't remember what exactly I sent her, but

 11    basically I sent her reassurances that everything on my web

 12    page was correct and some samples of the information I had used

 13    to verify that.  Again, this would have been old Whois lookups.

 14    Those are the most significant.

 15         Q     And you were sending her emails or U.S. Mail

 16    correspondence; how were you doing that?

 17         A     It was by email.

 18         Q     And you sent her at least three enclosures of

 19    information, correct?

 20         A     I don't remember how many enclosures I sent.

 21    Probably I put all the information I had into one zip file and

 22    I would have sent that to her.

 23         Q     Well, you sent her at least three emails, correct?

 24         A     Yes.  I believe the first one was one assuring her

 25    that I had faith in my website and that I would get back to her

                                                                Page 44

  1    with some more details.  And then I know I sent her the zip

  2    file full of the old Whois lookups and whatever else I had.

  3    And then I know some months later, I wrote to her and asked her

  4    how the lawsuit had gone.

  5         Q     Oh, so you initiated that one?

  6         A     Those are the three I remember.

  7         Q     So you initiated that one asking her about the

  8    litigation in North Dakota.

  9         A     I think it was me.

 10              MR. HARRISTHAL:  Your Honor, we renew our request

 11    that the materials that we've attempted to subpoena from Ms.

 12    Donarski be produced.  The witness has just explained that he

 13    initiated contact with Mr. Donarski after he had furnished her

 14    with information before.  This was entirely at his initiation.

 15    There was no compulsion that he do so.  It's a communication

 16    that he initiated with the forum state.  And we feel that we

 17    should at least get to see these materials so that you can

 18    consider how they weigh in the jurisdiction analysis.

 19              THE COURT:  Alright.  I was wondering how those fit

 20    within Rule 502, Privileges.

 21              MS. DONARSKI:  This is the same issue that we just

 22    had on February 28 in front of Judge Racek.  The testimony is

 23    the same, the websites the same, the contacts are the same.

 24    Although Racek's decision may not be mandated on this Court, it

 25    clearly is persuasive, Your Honor.  And in Racek's decision, he

                                                                Page 45

  1    addressed this and his view of this evidence was that Donarski

  2    contacted Falk through email in an unrelated matter to this

  3    lawsuit.  Donarski indicated in her email to Falk that she

  4    revealed the Falk website, specifically the information

  5    contained therein.  Not only did Falk fail to initiate the

  6    correspondence with Donarski, Doe's cause of action against

  7    Falk does not stem from any contact that Falk had with Donarski

  8    prior to the litigation.  Instead, Doe's allegation, which is

  9    Jerry Reynolds, -- Doe's allegation against Falk are the result

 10    of the information on Falk's website.  The website is identical

 11    in the John Doe case, Jerry Reynolds case, as it is in this

 12    case.  The website has not changed at all, Your Honor.  It is

 13    identical in both cases.

 14              THE COURT:  Mr. Harristhal.

 15              MR. HARRISTHAL:  Your Honor, with all due respect to

 16    Judge Racek, he never got to see the materials either.  Without

 17    having seen the materials, there's no way to determine whether

 18    it should confer jurisdiction and there is no ruling in his

 19    Order on whether those materials needed to be produced.  It

 20    doesn't matter whether the materials are related to that

 21    litigation for purposes of your analysis.  In other words,

 22    Judge Racek formed an opinion that whatever these materials

 23    were that he never got to see, that they did not relate to John

 24    Doe's defamation suit against Mr. Falk.  Now we know from this

 25    witness that these materials were sent to Ms. Donarksi, but

                                                                Page 46

  1    without you having a chance to see them, we don't know how

  2    they could relate to the facts which give rise to this

  3    litigation.  All we know is that they are communications from

  4    this witness to this forum.  And to answer your actual

  5    question, Your Honor, these arent privileged.  This is a

  6    communication that Mr. Falk initiated.  He sent it to her.

  7    Because, as he put it, he wanted to know what was going on with

  8    the lawsuit.  He is continuing to monitor my client, Your

  9    Honor.  And he's doing it by corresponding with an attorney in

 10    North Dakota in an unprivileged communication.  There's just no

 11    way you can fully make a determination on jurisdiction without

 12    having the benefit of those communications.

 13              MS. DONARSKI:  May I respond, Your Honor?

 14              THE COURT:  Yes.

 15              MR. DONARSKI:  He's really arguing that these emails

 16    could prove general jurisdiction and specifically a follow-up

 17    email to me saying, how did that litigation go?  Rover's

 18    Playhouse versus Becky Black.  It did not arise -- this action

 19    does not arise out of that contact, Your Honor.  It does not

 20    establish jurisdiction and it specifically does not establish

 21    general jurisdiction.  That's impossible and that's what he's

 22    trying to argue here.  This was something that Judge Racek

 23    determined.  This was something that was brought to Judge

 24    Racek's attention before we began the hearing, Your Honor.

 25    This was something Judge Racek decided did not need to be

                                                                Page 47

  1    produced.

  2              THE COURT:  Okay.  It's time for our afternoon break

  3    anyway.  I'll take a look at what you have there because you do

  4    have [inaudible] in camera review of them.  And we'll be back

  5    in about 20 minutes and hopefully I'll have some ruling on that

  6    at that time.  So we're going to take about a 20 minute break,

  7    so everyone can relax.  We're in recess.

  8              (Recess)

  9              THE COURT:  Alright, we're back in session.  Sierra

 10    Corporate Design case.  I've had the opportunity to look at

 11    these submissions by Ms. Donarski in response to the subpoena.

 12    Her objection to the subpoena is noted.  However, these

 13    documents appear to be discoverable for what they're worth and

 14    they will be turned over to Mr. Harristhal in response to the

 15    subpoena.  Alright, you may continue with your questioning Mr.

 16    Falk.

 17         Q     (By Mr. Harristhal) Mr. Falk, I'm still on Tab 8,

 18    Exhibit D and in particular I'm going to focus you on DRD-

 19    0364.  Let me know when you're there.

 20         A     You said 364?

 21         Q     Yes, sir.

 22         A     Okay, I have it.

 23         Q     Okay, this is a November 11, 2004 email from you to

 24    Mr. Ritz, correct?

 25         A     That's correct.

                                                                Page 48

  1         Q     And you were forwarding to him a copy of Ms.

  2    Donarski's email which was about Netzilla/

  3    Reynolds, correct?

  4         A     That's correct.

  5         Q     And you were asking -- you had asked Mr. Ritz to

  6    furnish you with additional information that could help out Ms.

  7    Donarski in North Dakota, correct?

  8         A     That's correct.

  9         Q     And did Mr. Ritz provide you with anything?

 10         A     He probably sent me some old Whois lookups.  The

 11    usual kind of documentation you use in a case like this.  I

 12    don't remember if I found anything that was worth forwarding to

 13    Michelle directly or not.  It basically confirmed that my web

 14    page was correct, so I sent what I already had to her.  I may

 15    have sent some of the Ritz information to her, but I'd have to

 16    go through my computer to find out.

 17         Q     Well, Mr. Ritz wrote to you on August 30, 2004, --

 18    excuse me, Mr. Ritz wrote to you at some point in time that he

 19    still had virtually all of his Zilla notes, correct?

 20         A     Yes.  He keeps a lot of data.

 21         Q     And then in the next paragraph --

 22         A     He's very thorough.

 23         Q     In the next paragraph you wrote, -- I mean, correct

 24    me if I'm mistaken, but it looks like you wrote, It looks like

 25    I'm going to need the whole lot.  Is that -- was that what you

                                                                Page 49

  1    wrote?

  2         A     Yes.  I was asking him to send me everything he had.

  3         Q     If we go to the next page, which is 00365, just

  4    above your name in the middle of the page, you wrote that it

  5    looked like you were going to be dragged into court, correct?

  6         A     Yes.

  7         Q     And you wrote that you anticipated you would wind up

  8    having to testify on behalf of Ms. Donarski's client, right?

  9         A     That's correct.

 10         Q     And when did you --

 11         A     It wasnt necessarily likely, but I thought --

 12         Q     -- write that?

 13         A     -- there was a good chance.

 14         Q     And when did you write that part?  All I want to

 15    know is did you write that part --

 16         A     Looks like the middle of November.

 17         Q     -- before this lawsuit started?

 18         A     That's correct.

 19         Q     Did you have any telephone conversations with Ms.

 20    Donarski?

 21         A     No.

 22         Q     Other than Mr. Ritz, did you ask anybody else for

 23    information on

 24         A     Excuse me.  I certainly asked Robert Braver,

 25    [inaudible], I also asked Howard Knight and Joe Grecko.

                                                                Page 50

  1    Basically what I did was I looked through the Usenet archives

  2    to see who had been -- who the other antispammers who had been

  3    tracking Netzilla and I contacted all of them.

  4         Q     Now when you sent those materials to Ms. Donarski,

  5    you certainly knew that they were going to be used in North

  6    Dakota, right?

  7         A     I thought they could be.  Yes.

  8         Q     And you sent them to her knowing that she intended

  9    to use them in a case in North Dakota, correct?

 10         A     I sent them knowing they might be helpful.  I had no

 11    idea if she would use them or not.  I still don't know if she

 12    used them or not.

 13         Q     Well, you anticipated that you would be testifying,

 14    correct?

 15         A     I testified there was a good chance -- I knew there

 16    was a good chance of it.

 17         Q     Would you go to Exhibit D, please, document number

 18    369, --

 19         A     I'm sorry, you said Exhibit D?

 20         Q     Right.  Are you there?

 21              THE COURT:  Mr. Falk, it looks like we --

 22         A     Yes, I'm here.

 23              THE COURT:  -- don't have you on our video screen.

 24    The camera is someplace else right now.  Do you have --

 25              MR. FALK:  I see myself just fine.  I think somebody

                                                                Page 51

  1    in another conference room made a noise and changed the

  2    camera.  Is it looking at me now?

  3              MS. DONARSKI:  We are.

  4              THE COURT:  We have you back, sir.

  5              MR. FALK:  Yes, I saw the other view too for a

  6    moment.

  7         Q     Would you go to Page 00369?

  8         A     Yes, I have it.

  9         Q     Now this is an email from Mr. Ritz to you, correct?

 10         A     That's correct.

 11         Q     And the email concerns, right?

 12         A     Hold on a moment.  Yes, I don't remember exactly

 13    which posts he's referring to unless this had something to do

 14    with the Spamkiller issue.

 15         Q     Well, he wrote to you that this was bringing some

 16    attention from the Fargo area, correct?

 17         A     Yes.

 18         Q     And I see a series of http addresses on this page;

 19    do you see those?

 20         A     Yes.  Something he posted to Usenet obviously

 21    mentioning the file containing the Netzilla lookups had drawn

 22    the attention to somebody in Fargo and what we're looking at is

 23    the logs of a large number of requests for that file.  That's

 24    followed up by his looking up who it was -- who had done those

 25    lookups or you know, requests from his server.  And he found

                                                                Page 52

  1    out that they were coming from Cable One Internet in Fargo and

  2    that they were coming from you.

  3         Q     And this was before this lawsuit was started,

  4    correct?

  5         A     That's correct.  It's in response to a post that

  6    David Ritz posted.

  7         Q     Now I see a site here to this zilla_queries.txt

  8    location.  Do you see all those references?

  9         A     Yes.

 10         Q     What is that?

 11         A     David Ritz had done some Whois lookups and some DNS

 12    lookups on Netzilla and posted his results on the web server,

 13    which he operates and then posted a link to those results.

 14         Q     I'm sorry, he had posted some what?  You said Whois

 15    lookups and something else.

 16         A     And DNS lookups.

 17         Q     Well, in fact, he actually ran some commands against

 18    Sierra's servers and that's what was -- the results of that is

 19    what was posted here, correct?

 20              MR. HUITINK:  Your Honor, I'm going to object to the

 21    question on behalf of Mr. Ritz.  There's no foundation for it

 22    and it assumes facts that arent in evidence.

 23              THE COURT:  Sustained.

 24         Q     What do you understand to have been the information

 25    that appeared at those addresses on this page?

                                                                Page 53

  1         A     I'm sorry, on this exhibit I'm looking it?

  2         Q     Right.  The zilla_queries.txt location.  You went to

  3    that site, didn't you?

  4         A     Yes, I did.

  5         Q     Okay.  And what did you find there?

  6         A     As I said, a bunch of DNS lookups and a bunch of

  7    Whois lookups.

  8         Q     And what's your understanding of how those DNS

  9    lookups were done?

 10         A     I believe it was a zone transfer.

 11         Q     A zone transfer done by whom?

 12         A     I believe by David.

 13              MR. HUITINK:  Your Honor, I'm going to object again

 14    to the lack of foundation for the question.

 15              THE COURT:  Sustained.

 16              MR. HARRISTHAL:  Well, Your Honor, for purposes of

 17    this case -- this motion, all this is about is jurisdiction.

 18    It isn't about whether these things are -- even actually

 19    happened.  That isn't an issue for purposes of jurisdiction.

 20    Whats at issue is what this witness understood he was getting

 21    into and his understanding was that this was stuff that came

 22    off of a Sierra server, which is why his understanding is all

 23    that's really important and there's no question about

 24    foundation whether he's right or not, is irrelevant.

 25              THE COURT:  Backup and lay your foundation, counsel.

                                                                Page 54

  1         Q     (By Mr. Harristhal) How did you come to understand

  2    that the information containing -- the information on these

  3    locations was a result of a zone transfer?

  4         A     I learned about it later.  At the time that this

  5    came out, I was not very familiar with how DNS worked.  They

  6    looked like pretty standard DNS transfers to me even today.

  7         Q     Well, when you looked at the site, what did you

  8    find?  These Zilla_queries. --

  9         A     A long list of server names in it -- I'm sorry, go

 10    ahead.

 11         Q     When you looked at these Zilla_queries.txt

 12    addresses, what did you find?

 13         A     A long list of machine names and addresses.  The

 14    standard DNS information.

 15         Q     When you say machine names, you mean computer names

 16    and computer addresses, correct?

 17         A     That's correct.

 18         Q     And that was information that you previously did not

 19    have about Sierra, correct?

 20         A     I probably had some of the DNS information -- DNS

 21    addresses.  It's published information, but I didn't have --

 22         Q     Can you answer my question?

 23         A     I'm sorry what was the question again?

 24         Q     There was a lot of information on those addresses

 25    that you had never before seen.

                                                                Page 55

  1         A     That's correct.

  2         Q     Did you copy that information?

  3         A     No.

  4         Q     Did you ever do any of the same DNS lookups?

  5         A     No.

  6         Q     But you understood from this email from Mr. Ritz

  7    that this pertained to the Fargo area, correct?

  8         A     To be honest, I don't know where Netzilla servers

  9    are.  The DNS lookups were for Netzilla.  There's nothing on

 10    this page that says Fargo on it.

 11         Q     Well, actually there is.  If you look at 00369, you

 12    wrote, This generated some attention from the Fargo area.

 13         A     Oh, yes, you're correct.  I thought you were asking

 14    about the Zilla_queries.

 15         Q     No, you understood that the purpose of his email was

 16    to inform you of the attention that was being generated from

 17    Fargo, correct?

 18              MR. HUITINK:  Your Honor, I object to the question

 19    again.  Lack of foundation.  Is he testifying to what Mr.

 20    Ritz's intent was in sending the email?

 21              MR. HARRISTHAL:  I'm asking the witness for his

 22    understanding, Your Honor.

 23              THE COURT:  Yeah, he's only asking for the witness

 24    understanding.  So we will overrule the objection.  Mr. Falk,

 25    you can answer that question.

                                                                Page 56

  1         A     Okay, I'm sorry, could you repeat the question?

  2         Q     Yes, you understood that Mr. -- you understood Mr.

  3    Ritz to be informing you of attention being garnered in the

  4    Fargo area, correct?

  5         A     Yes.

  6         Q     Any of these addresses that appear on 00369 --

  7    excuse me, the Zilla_queries addresses that appear on 00369,

  8    did you ever forward those addresses to anyone else?

  9         A     No, not that I recall.

 10         Q     Now you have had communications with,

 11    correct?  Before this litigation began.

 12         A     Not particularly.  What do you mean?

 13         Q     Well, I mean that you've had written communications

 14    with the Abuse Department, haven't you?

 15         A     No.

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

 17    second affidavit?

 18         A     I have it.

 19              MR. HARRISTHAL:  Your Honor, this is Tab 8 again,

 20    Exhibit C.

 21         Q     And advance to Page 00320.

 22         A     Okay, I have it.

 23         Q     This is a string of communications that appeared

 24    where?

 25         A     On the public newsgroup.

                                                                Page 57

  1         Q     Through what medium?  Was it on the Internet, was it

  2    on --

  3         A     On Usenet News.

  4         Q     I beg your pardon?

  5         A     On the Internet.

  6         Q     Okay.  And the subject is Time to De-Peer

  7    NEWSFEEDS.COM, is that right?

  8         A     That's correct?

  9         Q     Now I see a few entries in about the top half of the

 10    article where it reads, > Newsfeeds >  Forgive me if I am

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

 12    reporting abuse to  It appears that you are only

 13    interested in harassing our company.  Do you see that there?

 14         A     Yes, I do.

 15         Q     And who did you understand to have written that?

 16         A     I believe it was abuse@newsfeeds or admin@newsfeeds.

 17    I don't remember.

 18         Q     Okay, so it was someone from

 19         A     That's correct.  They made a public post to this

 20    newsgroup --

 21         Q     And you responded to it.

 22         A     -- in reference to this discussion.

 23         Q     And you responded to it.

 24         A     No, I responded to I think it was Andrew Gierth.

 25         Q     Well, who wrote, Well, you do have a long history

                                                                Page 58

  1    to live down.?

  2         A     It wasnt me.  I think that was Andrew Gierth.

  3         Q     What part did you write?

  4         A     I wrote the part after that, defending Newsfeeds.  I

  5    said, He has a point though.  And then I went on to explain

  6    that Newsfeeds at least should be notified of their abuse

  7    before we take action against them.

  8         Q     Well actually, before you attack it, is what you

  9    wrote, right?

 10         A     Yes.

 11         Q     And who is the we that you're talking about there?

 12         A     The community in general.  The antispam community in

 13    general.

 14         Q     And go to the next page, if you would please, 00321.

 15         A     I have it.

 16         Q     Did you author any part of that exchange?

 17         A     Let me take a look.  Yes, I wrote the last comment.

 18         Q     Which was what?

 19         A     Let me take another look.  The print here is very

 20    small.  Give me a moment.  Oh, yes, -- I'm having a little

 21    trouble reading the print of the things I'm responding to, but

 22    basically they were discussing how drastic actions a service

 23    provider should take to stop it's clients from spamming.

 24         Q     I'm sorry, who wrote --

 25         A     And --

                                                                Page 59

  1         Q     -- who said that?

  2         A     -- my response was, "If it works, don't knock it."

  3    And then I also, you know -- and then I said, it doesn't -- "I

  4    don't care how they stop the spam as long as they do".  And

  5    then I followed that up with, "My only problem is, they

  6    haven't".

  7         Q     What were you responding to?

  8         A     It looks like I was responding to Howard Knight

  9    suggesting a way that service providers could discourage their

 10    customers from spamming, which is to bill them for their -- for

 11    the clean up costs of their spam or to somehow keep billing

 12    them.  I'm having trouble reading this.

 13         Q     But the subject of this is still, Time to De-Peer

 14    NEWSFEEDS.COM, correct?

 15         A     Yes, it's a bit out of context so I don't know what

 16    the discussion is talking about at this point.

 17         Q     Okay, let's go to the next page, 00322.

 18         A     Yes, I have it.

 19         Q     This indicates in the top of the message that it is

 20    from you, correct?

 21         A     That's correct.

 22         Q     And it's still on the same subject, Time to De-Peer

 23    NEWSFEEDS.COM, right?

 24         A     That's correct.

 25         Q     And which parts of this did you write?

                                                                Page 60

  1         A     I wrote a response to their ques -- they said, Any

  2    questions? and I added a question, which is "What is your

  3    connection to Jerry Reynolds and Netzilla?"

  4         Q     Okay, who wrote, "Any questions?"

  5         A     Somebody at Newsfeeds.

  6         Q          And then you responded, correct?

  7         A     Yes.

  8         Q     So you did have written communications with someone

  9    at Newsfeeds.

 10         A     Well, this is a public post.  More like an open

 11    letter.

 12         Q     Can you answer my question?

 13         A     You said written.  I thought you meant by paper.

 14    Yes, this is written on the Internet.  But as I said, it's a

 15    public post for everybody to read.

 16         Q     Sir, I'm going to look for my affidavit, my second

 17    affidavit.

 18              MR. HARRISTHAL:  Tab 7, Your Honor.

 19         Q     And I'm actually going to focus on Exhibit 4 to Mr.

 20    Ritz's deposition, which is about halfway between -- a little

 21    over halfway between Tabs A and B.  Are you with me, sir?

 22         A     Yes, I am.

 23         Q     Oh, okay.  Have you found Exhibit 3 and 4.

 24         A     I'm sorry, I didn't know which exhibits you were

 25    looking for.

                                                                Page 61

  1         Q     It's --

  2         A     I have the affidavit.

  3         Q     -- if you find Mr. Ritz's deposition, at the end of

  4    that --

  5         A     I have that.

  6         Q     -- transcript -- have you got his deposition

  7    transcript?

  8         A     Yes, I do.

  9         Q     Okay, at the end of it there are a series of

 10    exhibits that were attached and they have little, what were

 11    stickers, that say Rits Exhibit 1, 2, 3, 4 and in particular,

 12    I'm going to ask you to look for Exhibit 4.

 13         A     I have them

 14         Q     Tell me what Exhibit 4 is, please.

 15         A     Excerpt from the discussion, What is


 17         Q     Is it something you posted?

 18         A     Yes.  Someone had argued UDP, which is a collective

 19    action taken against a spammer, is ineffective and that they

 20    are effective and I regretted we don't use them often.

 21         Q     Okay, so this says this posting is from you,

 22    correct?

 23         A     That's correct.

 24         Q     And when did you do it?

 25         A     April of 2005.

                                                                Page 62

  1         Q     That was before this lawsuit started, right?

  2         A     Yes, I believe so.

  3         Q     And if we go to the second page of the exhibit --

  4         A     That's when the first lawsuit started.

  5         Q     -- if we go to the second page of the exhibit, you

  6    wrote, UDPs, meaning Usenet Death Penalties, have proven

  7    very effective in the past, I only regret we don't use them

  8    more often, correct?

  9         A     That's correct.

 10         Q     And if we go to the preceding exhibit, Exhibit #3,

 11    is this in someway related to what you were referring to in

 12    your post?

 13         A     Yes, this is more from the same online discussion.

 14         Q     And it's a discussion you were apart of?

 15         A     It was.

 16         Q     And it concerns and what are alleged

 17    in here to be its aliases, correct?

 18         A     That's correct.

 19         Q     Have you ever accessed any information on Mr. Ritz's

 20    computer?

 21         A     He gave a link to that Zilla_queries file we

 22    discussed earlier and I'm certain I looked at it.  He does

 23    occasionally give links to information on his computer to save

 24    the trouble of mailing it to everyone.

 25         Q     How many times --

                                                                Page 63

  1         A     The only one I recall --

  2         Q     I'm sorry.  How many times --

  3         A     Sorry.  Go on.

  4         Q     How many times did you access that Zilla information

  5    on his computer?

  6         A     I have no idea.

  7         Q     More than ten?

  8         A     No. Probably once was enough.  I would have taken a

  9    look at it, it would have confirmed what I already knew and

 10    then I would have dismissed it.  I didn't even make a copy of

 11    it.

 12         Q     Did you visit the Fargo Forum website?

 13         A     Yes, they wrote an article.  They quoted me.

 14         Q     So the answer is yes, you visited it?

 15         A     Yes.

 16         Q     What is a traceroute?

 17         A     It's a standard network diagnostic tool.  You send a

 18    packet with no data in it to a destination computer and you get

 19    reports back from all the other computers it passed through on

 20    the way.  We use it to determine who's providing service to

 21    who.

 22         Q     Now you ran traceroutes that ran into Sierra's

 23    servers in Fargo, correct?

 24         A     No.  I sent a tracer to a child pornography site

 25    that was registered in Italy and it went through the Newsfeeds

                                                                Page 64

  1    server, but I did not know they were in Fargo.  At the time,

  2    Newsfeeds was registered in Las Vegas.

  3         Q     Did you make a NCMEC report?

  4         A     I'm sorry, what report?

  5         Q     National Center for Missing and Exploited Children.

  6    Did  you make a NCMEC report?

  7         A     No.

  8         Q     So you came across what you claim was a child

  9    pornography site and you didn't report it to the National

 10    Center for Missing and Exploited Children.

 11         A     I didn't visit the site myself.  They were

 12    advertising I believe it was the youngest teens on the Internet

 13    and that was offensive enough to me to find out where they were

 14    coming from and then I reported what I found publicly.

 15         Q     Okay.  Well, let's --

 16         A     Since they were registered in Italy, it didn't even

 17    occur to me that U.S. laws -- enforcement authorities would

 18    have anything to do with it.

 19         Q     Lets focus on the things that you actually did,

 20    instead of what you assume Sierra did.  Did you run a tracer

 21    out that went through their servers?

 22         A     I went on a traceroute that went through Newsfeeds

 23    servers.  I didn't know that was Sierra at the time.

 24         Q     Okay. servers, correct?

 25         A     Yes.

                                                                Page 65

  1         Q     How many times did you run traceroutes that ran

  2    through servers?

  3         A     Probably not very many.  One tracer is pretty

  4    authoritative once you get the answer.  I would occasionally --

  5    it was standard procedure to run a traceroute to any spammer

  6    and any spammer hosted by Newsfeeds, those tracers would have

  7    gone through there.  But it was certainly not more than a

  8    handful.  And almost certainly never more than once for any

  9    particular spammer.

 10         Q     And when you ran these --

 11         A     Unless I reason to think they --

 12         Q     -- when you ran these traceroutes that went through

 13    Sierra's servers, that involved sending a packet of information

 14    to Sierra's servers, correct?

 15         A     It involved sending an empty packet through Sierra's

 16    server to the spammer.

 17         Q     Do you know who Sierra's bandwidth or

 18    Newsfeeds.coms bandwidth providers are?

 19         A     No, I don't.  I knew that they were transferring

 20    Usenet news through UUNet and I think I listed another site

 21    here as well.  But I don't know where they get their bandwidth.

 22         Q     Did you ever write that UUNet was one of

 23    Newsfeeds.coms bandwidth providers?

 24         A     Yes.

 25         Q     And where did you get that information?

                                                                Page 66

  1         A     That would appear to be a traceroute and/or in the

  2    header line of the spam coming from Newsfeeds.

  3         Q     I'm sorry, could you say that again, please?

  4         A     That information would have either come through

  5    traceroutes or in the header information on spam coming through

  6    Newsfeeds.

  7         Q     Have you ever pinged any of Sierra's servers

  8    yourself?

  9         A     Not that I recall.  No.

 10         Q     Well, do you deny doing it?

 11         A     I deny remembering having done it.  I don't know why

 12    I would do it.  I rarely use ping.  I usually use traceroute.

 13         Q     Do you ever run an automated traceroute?

 14         A     No.

 15         Q     What is a CGI?

 16         A     That's a script that runs on a web page.  Any

 17    interactive web page would use them.

 18         Q     Do you have a CGI-bin directory as part of your

 19    website?

 20         A     Yes, I do.  I think so.

 21         Q     And that's interactive with the user, correct?

 22         A     No, not particularly.

 23         Q     Well, I didn't ask you if it was particularly so.

 24    It is interactive with the user, correct?

 25         A     The best I can recall, the only CGI script I have is

                                                                Page 67

  1    one that picks out one header from a large file and returns

  2    it.  It's the same as if I'd taken the large file and broken it

  3    into lots of small files.  There's no real interaction

  4    involved.

  5         Q     Well, it -- is it something that someone who

  6    accesses your site, other than you, can use?

  7         A     Yes.

  8         Q     And it's a program that someone, other than you, who

  9    accesses your site, can use remotely, correct?

 10         A     Yes, but that doesn't really mean anything.  The

 11    server itself is programmed.  There's nothing --

 12         Q     An Internet --

 13         A     -- interactive about it.

 14         Q     -- an Internet user can access this program and

 15    execute it on your host server from a remote location, correct?

 16         A     Yes.  The server itself is a program.  Any time you

 17    do any kind of network -- I'm sorry, any time you look at any

 18    web page ever, you're accessing a program on a remote server.

 19         Q     Well, in fact, your one header CGI file has been

 20    accessed thousands of times by other people, correct?

 21         A     That's correct.  As has the web server.

 22         Q     Have you ever heard of

 23         A     No, not offhand.  I know that is one of

 24    Jerry Reynolds domains or at least associated with him

 25    somehow.

                                                                Page 68

  1         Q     Have you ever accessed that server?

  2         A     Not that I recall.

  3         Q     You claimed in the affidavit that you filed in this

  4    motion, that Sierra had falsely represented to the court that

  5    you were involved with some type of Internet inner-circle,

  6    correct?

  7         A     Yes.  I'd forgotten about the mailing list I was on.

  8    I'm sorry about that.

  9         Q     Well, we'll get to that in a moment.  The fact is

 10    that that -- I've accurately characterized the representation

 11    you made to the court, correct?

 12         A     I'm sorry, say again.

 13         Q     I have accurately characterized the representation

 14    that you made to the court.

 15         A     That's correct.

 16         Q     And you also claimed there is no inner-circle as

 17    such, correct?

 18         A     That's correct.

 19         Q     Have you ever corresponded with this inner-circle

 20    about a UDP?

 21         A     The inner-circle was a name given to a mailing list

 22    of anti-spammers who would occasionally use it to coordinate

 23    UDPs with each other.  I joined the list not because I

 24    participated in the UDPs, but I reported on them.  I documented

 25    them and occasionally I helped draft the announcement that

                                                                Page 69

  1    there was going to be a UDP.

  2         Q     Can you answer my question?

  3         A     And we also used it to exchange information.

  4              MR. HARRISTHAL:  Your Honor, I would move to strike

  5    the answers to the last two questions and ask that the witness

  6    answer my question, which was simply whether he'd corresponded

  7    with the inner-circle about a Usenet death penalty.

  8              THE COURT:  I will strike the information, but Mr.

  9    Falk, please try to contain your answers as responsively as you

 10    can to the questions that are asked.  Alright?

 11         Q     Mr. Falk, --

 12         A     Yes, that's what the mailing lists are used for.

 13         Q     -- have you corresponded with the inner-circle about

 14    a Usenet death penalty?

 15         A     I'm certain I did.  Yes.

 16         Q     Would you go back to Mr. Allison's second affidavit.

 17              MR. HARRISTHAL:  This is Tab 8, Your Honor. Exhibit

 18    G.

 19         Q     Let me know when you're there, Mr. Falk.

 20         A     I have it.

 21         Q     Would you please go to Page 00389?

 22         A     Yes, I have it.

 23         Q     Now this isn't just an email from somebody on the

 24    inner-circle corresponding with you, this is an email from you

 25    to a group you refer to as the inner-circle as the recipient,

                                                                Page 70

  1    correct?

  2         A     Yes, that was the name of the mailing list.

  3         Q     And this is a reference to the Netzilla page.

  4         A     That's correct.  I was asking people to do some

  5    facts checking to make sure it was accurate.

  6         Q     So you directed the people on the -- in the inner-

  7    circle to your page, which dealt with Netzilla and

  8, correct?

  9         A     In 1997, there probably wasnt any mention of

 10    Newsfeeds on that web page, but yes, it did direct them to

 11    Netzilla.

 12         Q     Alright.  Lets go to Page 382.  Are you there?

 13         A     I have it.  Yes.

 14         Q     Now this was also an email from you to the members

 15    of the inner-circle, correct?

 16         A     To the mailing list.  Yes.

 17         Q     Well, you wrote in here that you wanted to make sure

 18    nobody used inner-circle as the name to anybody out-- to any

 19    outsiders; is that right?

 20         A     That's correct.  I was afraid that it would be

 21    inflammatory and that it would bring in trolls and spammers to

 22    cause trouble.

 23         Q     It would be inflammatory because people would know

 24    that you were the inner-circle?

 25         A     There were a lot of -- youd say paranoids on the

                                                                Page 71

  1    net, it was a poorly chosen name for a mailing list in

  2    retrospect.  And if that name got out then it would bring in a

  3    lot of people, especially the paranoids and the kooks who would

  4    really stir things up.

  5         Q     You thought that the phrase inner-circle would stir

  6    things up?

  7         A     Yes.

  8         Q     Who are the outsiders?

  9         A     Just the general populace reading the Usenet

 10    Newsgroups.

 11         Q     People who are not --

 12         A      A lot of what we call kooks and -- I'm sorry, go

 13    ahead.

 14         Q     -- people who are not in the inner-circle are

 15    outsiders, correct?

 16         A     People who are not on the mailing list.  That's

 17    correct.

 18         Q     People who are not in the inner-circle are the

 19    outsiders you're referring to in this message.

 20         A     That's correct.

 21         Q     So you weren't limiting outsiders to the people you

 22    believed were spammers, it was everybody outside the inner-

 23    circle, right?

 24         A     I was concerned about the spammers and the network

 25    kooks.

                                                                Page 72

  1         Q     But you didn't write in here that you didn't want

  2    information going to the spammers or to the network kooks, you

  3    said you didn't want it going to any outsiders, right?

  4         A     It's hard to discriminate.  Once the mailing list

  5    name gets used in a public place, everybody can read it.

  6         Q     Can you answer my question?

  7         A     Yes, you're basically right.

  8         Q     Lets go to Page 412 -- 0412.  Are you there?

  9         A     I'm sorry, this deposition stops at 355.  I'm sorry,

 10    wait a minute, the numbers are out of order.  Hold on a moment.

 11         Q     This is a code number, DRD-00412, attached to --

 12         A     I have it now.

 13         Q     Okay.  This is another email from you to the inner-

 14    ircle, correct?

 15         A     That's correct.  I'm saying the public policy should

 16    not be discussed in private.

 17         Q     Well, I didn't ask you what it was about, sir.

 18    Could you wait for a question, please?

 19         A     Okay.

 20         Q     You wrote, As I recall, this list was created to

 21    coordinate ongoing UDPs.  Now what list are you referring to?

 22         A     Correct.  Again, that's the inner-circle mailing

 23    list.

 24         Q     So the inner-circle was created to coordinate

 25    ongoing Usenet death penalties, correct?

                                                                Page 73

  1         A     Right, and not to decide if there should be one.

  2         Q     Now in the subject line it reads, New cabal udp

  3    po, what does that mean?

  4         A     I don't know.

  5         Q     Oh come on, you know what a cabal is, don't you?

  6         A     Yes.

  7         Q     Whats a cabal?

  8         A     I thought you meant the entire subject line.

  9         Q     Whats a cabal?

 10         A     There were a number of --

 11         Q     Sir, what's a cabal?

 12         A     -- weird claims on the Internet that there was a

 13    secret cabal, that there was a lumber cartel, that there was an

 14    inner-circle, I believe we also used the word netscum to

 15    refer to ourselves and I think the phrase knitting circle was

 16    used once.

 17         Q     What is a cabal?

 18         A     Basically, it's the same as a secret organization.

 19         Q     Conspiracy, right?

 20         A     I don't know if I'd call it a conspiracy.  Anyway,

 21    the word was a badge of honor we took up after the spammers and

 22    the net kooks started using it to describe us anti-spammers.

 23         Q     So you would refer to yourselves as the cabal?

 24         A     In an ironic way, yes.

 25         Q     Would you go to Page 0383?

                                                                Page 74

  1         A     Yes, I have it.

  2         Q     Is this a list of the members in the inner-circle?

  3         A     Excuse me.  It looks like one.  I have no idea when

  4    it was current or how long it was current.  Though I know it

  5    was current in July of 1997.  I assume it's complete, but I

  6    don't know.

  7         Q     Well, if you go to page -- will you advance to Page

  8    0385?

  9         A     Yes, I have it.

 10         Q     Now this is a vote tally taken of a vote by members

 11    of the inner-circle, correct?

 12         A     Right.  They were considering disbanding, at least

 13    temporarily.

 14         Q     How do you --

 15         A     I wanted us to keep fighting spam.

 16         Q     So now you're going to tell me that this was to

 17    disband a mailing list?  This was an organization, wasnt it?

 18         A     No, actually I was being imprecise.  It was -- they

 19    were going to have a moratorium and not cancel spam for a week

 20    to see what would happen.  So it was a temporary -- well, as I

 21    said, a moratorium.  They wanted to see how bad the spam

 22    problem would get if they stopped operations and this is a vote

 23    on whether or not to stop operations.

 24         Q     There was nothing false about Sierra's

 25    representation to the court that you were involved with the

                                                                Page 75

  1    inner-circle, now was there?

  2         A     I still maintain that it wasnt a secret

  3    organization.  Everybody on this list was a very vocal and

  4    public participate in the Usenet discussions.  There was a

  5    mailing list called inner-circle and yes, that was a dumb name

  6    for a mailing list.  In fact, I objected to it as you've seen

  7    yourself, but it's not like there was any kind of secret

  8    membership, you didn't hold any power.  No one on this list had

  9    any power other than to coordinate the UDPs and those were

 10    discussed in public and voted on in public.

 11         Q     Do you maintain that Sierra falsely represented to

 12    the court that you were involved with some type of Internet

 13    inner-circle?

 14         A     Yes.

 15         Q     Have you ever referred to yourself as a hacker on

 16    your web page?

 17         A     Not that I recall.

 18         Q     You don't remember recently removing that reference

 19    to yourself as a hacker on the Internet?

 20         A     No, I don't.

 21         Q     Do you publish photography on the Internet?

 22         A     Oh, that website.  Yes, a friend of mine runs an art

 23    -- she maintains an art site called and that

 24    nomenclature hackers anybody who's a good computer programmer.

 25    She divided up her art categories into --

                                                                Page 76

  1              MR. HARRISTHAL:  This is all nonresponsive.

  2         A     -- visual artists, sculptors and hacker artists.

  3              MR. HARRISTHAL:  Your Honor, I'm going to --

  4              THE COURT:  Hang on a second, Mr. Falk.  Hang on.

  5              MR. HARRISTHAL:  I mean, we're running late into the

  6    day, I'm trying to press through the examination and the

  7    witness keeps giving narrative answers beyond what's called for

  8    by the question.

  9              THE COURT:  Alright, Mr. Falk, just please contain

 10    your answers as closely to the question as you can.

 11              MR. FALK:  Okay.  I'm sorry.

 12         Q     Have you ever referred to yourself as a hacker on

 13    the Internet?

 14         A     No.  I was -- well, not that I recall.  I was

 15    referred to as a hacker artist by the woman who runs the art

 16    website.

 17         Q     Did you ask her to remove it?

 18         A     No.

 19              MR. HARRISTHAL:  Your Honor, we haven't had much of

 20    an opportunity to look at these materials, but I do have one

 21    question that I'd like to inquire about.  And I'm referring to

 22    the materials that you reviewed in-camera.

 23         Q     Do you know a Dustin Rogne?

 24         A     I don't know him.  I received an email from him.

 25         Q     Well, he's someone you told Ms. Donarski was in

                                                                Page 77

  1    Fargo or in North Dak -- no, excuse me, you told him --

  2    withdrawn.  You told Ms. Donarski that Mr. Rogne works in Fargo

  3    and she could use him in the case, correct?

  4         A     Yes.  I'd received an email from someone who'd been

  5    sued by Reynolds before and I thought he should contact

  6    Michelle.  I later found out that he's in fact related to Becky

  7    Black and that she probably had already been in contact with

  8    him.

  9              MR. HARRISTHAL:  Your Honor, we would like to leave

 10    the record open to offer in the materials introduced by Ms.

 11    Donarski, but I just don't have an opportunity to look through

 12    them at this point.  So that concludes my examination with that

 13    reservation.

 14              THE COURT:  Alright.

 15              MR. HARRISTHAL:  I mean, we can make a copy of the

 16    materials and submit them to the Court and I then I could

 17    review them later.  I certainly don't want to leave the record

 18    open, but I would like to at least make them part of the record

 19    before we adjourn.

 20              THE COURT:  Okay.  Ms. Donarski.

 21              MS. DONARSKI:  Mr. Wallace.

 22              THE COURT:  Okay, Mr. Wallace.

 23                         REDIRECT EXAMINATION

 24    BY MR. WALLACE:

 25         Q     Ed, you still with us?

                                                                Page 78

  1         A     Yes, I'm right here.

  2         Q     Alright.  I'm going to go as quickly as I can, but

  3    as you are aware, there is a lot of ground to cover.  You

  4    previously testified that you tracked and monitored Netzilla

  5    and spam related to Netzilla and Sexzilla.

  6         A     That's correct.

  7         Q     And when you testified that you tracked spam that

  8    was related to Netzilla and Sexzilla, how were Netzilla and/or

  9    Sexzilla related to the individual messages you were tracking?

 10         A     Well, the Internet was being flooded with an awful

 11    lot of spam.  Most of it was porn spam.  And the other spam

 12    fighters were able to identify sort of a signature you might

 13    find in a spam.  Usually you find that in the header line, in

 14    particularly the from line in the header.  So I programmed a

 15    computer that was already monitoring several hundred other

 16    sites for spam, to add that signature into the search pattern,

 17    so any spam that was identified as coming from Netzilla or

 18    Sexzilla was then counted and then once every day or few days,

 19    I would then post the report to my website.

 20         Q     So Netzilla or Sexzilla was somehow identified as

 21    the sender.  Would that be -- was it identified in the from

 22    line?

 23         A      Sometimes -- rarely in the from line.  The from

 24    line is usually forged.  Usually what you do is you look in the

 25    body of the message and find an advertisement for Netzilla or

                                                                Page 79

  1    Sexzilla URL.

  2         Q     So Netzilla and Sexzilla -- Netzilla and Sexzilla

  3    were websites being advertised by the Usenet spam.

  4         A     That's right.  They were the porn sites.

  5         Q     And how did Jerry Reynolds become associated with

  6    Netzilla and Sexzilla?

  7         A     He was the registered owner in 1996 and early 1997.

  8         Q     So when you searched mail for Netzilla or Sexzilla,

  9    you were searching on the basis of those terms, not for Jerry

 10    Reynolds.

 11         A     That's correct.

 12         Q     Where did the -- where did the pool of Usenet mail

 13    that you searched for Netzilla and Sexzilla and the other 400

 14    plus case files -- spammer case files, where did that news --

 15    where did you get it?  Where did the computer program look to

 16    for that -- the largest pool?

 17         A     The computer program was looking through the message

 18    spool in a server in California.

 19         Q     So it was looking at the Usenet spool on a server in

 20    California.  Who owned that server?

 21         A     Actually it was my employer at the time.

 22         Q     Who was your employer?

 23         A     Sun Microsystems.

 24         Q     And where did -- how did spam -- Usenet spam from

 25    Netzilla or Sexzilla end up on the server at Sun Microsystems?

                                                                Page 80

  1         A     Usenet messages are passed from server to server

  2    until they eventually reach theoretically every server on the

  3    Internet that handles Usenet.  So the messages originated at

  4    Netzilla and Sexzilla and were then distributed across the

  5    Internet.

  6         Q     So Plaintiffs counsel asked you if you were

  7    tracking communications coming out of  Would it

  8    be more correct to characterize that you were actually tracking

  9    Usenet posts on Sun Microsystems news server?

 10         A     That's correct.

 11         Q     Some of those --

 12         A     I didn't have to go to North Dakota to get them,

 13    they were sent to me.

 14         Q     And some of those posts originated from


 16         A     That's correct.

 17         Q     Plaintiffs counsel had you look at exhibits from

 18    your website from the Rahul. -- is it or .net?  .Net

 19    website.  Are these the same exhibits you looked at that

 20    Plaintiffs counsel showed you in the other case here in Fargo,

 21    the Doe case?

 22         A     Yes, in fact these affidavits are from the Doe case.

 23         Q     Plaintiffs counsel also had you look at the spam

 24    tracking page, which that's -- I think you testified that was

 25    the home page for your website.

                                                                Page 81

  1         A     That's correct.

  2         Q     It was Exhibit B.  And he had you look at a copy of

  3    it that had a link to the Forum -- Fargo Forum article.

  4         A     That's correct.

  5         Q     When did you put that link on the website?

  6         A     A few days after the article came out.  I forget how

  7    I became aware that the article had come out, but that's when I

  8    put the link up.

  9         Q     And were you interviewed -- what was the reason that

 10    Dave Forster told you that he was contacting you for the

 11    interview that resulted in that article?

 12         A     He told me he had gone to the courthouse and asked

 13    the people there if any interesting lawsuits had come through

 14    lately and they sent him that one.  And he contacted me.

 15         Q     And that was the Doe v. Falk file.

 16         A     That's the Doe case, yes.

 17         Q     So you were contacted by Dave Forster directly as a

 18    result of the Doe v. Falk lawsuit being filed.

 19         A     That's right.  He called me.

 20         Q     Plaintiffs counsel also showed you Bates No. 328,

 21    an Overview of spam from was the title of the

 22    web page.

 23         A     That sounds right.

 24         Q     And the links to the various dates, there's a blank,

 25    for example, the first one 05 May 2000 and there's also a link

                                                                Page 82

  1     --

  2         A     That's right.  That's the last day I --

  3         Q     -- on the same line --

  4         A     -- collected the data.

  5         Q     There's also -- so that's the date you collected the

  6    data.  And there's also a line that says full headers.

  7         A     That's correct.

  8         Q     And I'll ask -- and again, at that time, were you

  9    monitored spam on the Sun Microsystems news server still at

 10    that time?

 11         A     That's correct.

 12         Q     How many people read the Usenet Newsgroup that we've

 13    looked at several posts from, it's the abuse --

 14         A     It's impossible to know how many people read it

 15    because there's no subscription.  It could be in the tens of

 16    thousands or more.  Probably much more.

 17         Q     When you post a message on a Usenet Newsgroup,

 18    whether it's the spam group that we've looked at some posts

 19    from, or any of the others, are those posts -- where are those

 20    posts directed?

 21         A     They're not directed anywhere.  They're posted to

 22    the server in California to which I post them and then they

 23    propagate from machine to machine until they reach the entire

 24    world.  They're not directed anywhere, they just flow

 25    everywhere.

                                                                Page 83

  1         Q     So did you -- when you responded, for example, we

  2    looked at a couple Usenet posts where you participated in a

  3    conversation that someone from Newsfeeds. --

  4 was participating in, were those messages

  5    directed to

  6         A     No, they were closer to an open letter.  If I wanted

  7    to direct them, I would have mailed them instead.

  8         Q     And when you hit the final button or push the final

  9    key after typing out your additions to those messages, where

 10    did that post go?

 11         A     It went to the server.  I believe I was posting from

 12    Rahul in those days, so it would have gone to the Rahul Usenet

 13    spool server and then from there it would have gone to other

 14    machines until eventually it reached everywhere.

 15         Q     And when you say -- can you be a little more

 16    specific when you say it reaches everywhere?

 17         A     It reaches every machine on the Internet that

 18    accesses that Usenet Newsgroup and I think most Usenet servers

 19    follow those groups.

 20         Q     We've also looked at a series of emails.  I think

 21    they began in August of 2004, from Bates Number 356, 358, 361,

 22    362, those are Ritz emails.  Do you know where David Ritz

 23    lives?

 24         A     I think he lives in Wisconsin, but I didn't know

 25    that then.

                                                                Page 84

  1         Q     Do you know where he lives now?

  2         A     I think he lives in Wisconsin, but I'm not sure.

  3         Q     So when you're corresponding with David Ritz in

  4    August of 2004, you thought he either lived in Wisconsin or you

  5    did not know where he lived?

  6         A     At that time I didn't know where he lived.

  7         Q     Lets look at Page 356, Bates 356, which is a August

  8    30, 2004, email, you looked at this previously, that you sent

  9    to Robert Braver and David Ritz.

 10         A     I'm sorry, these pages arent quite in order, 356?

 11         Q     Yes.

 12         A     Okay, I think I have it.

 13         Q     Do you recall why you sent that email to Robert

 14    Braver and David Ritz?

 15         A     Yes, I'd gotten a cease-and-desist letter from

 16    Reynolds and I wanted them to go over my web page and check it

 17    for accuracy.

 18         Q     And in August of 2004, what was -- by August of

 19    2004, what was the most recent content on your web page that

 20    you would be checking for inaccuracies?

 21         A     I think it was 1999.

 22         Q     So in August, 2004, you asked Robert Braver and

 23    David Ritz to help you check the facts on your website -- the

 24    facts dating from 1999 and prior.

 25         A     That's correct.

                                                                Page 85

  1         Q     And let's look at Page 363.

  2              THE COURT:  Mr. Wallace, can you give me an exhibit

  3    number and --

  4              MR. WALLACE:  I'm sorry.  This is Exhibit D to the

  5    Second Affidavit of Brad Allison on Motion to Dismiss.

  6              THE COURT:  Thank you.

  7              MR. WALLACE:  I'm sorry, the page number is DRD-363.

  8         A     Yes, I have it.

  9         Q     And that's an email from my co-counsel Michelle

 10    Donarski?

 11         A     That's correct.

 12         Q     Okay.  And had you made any contact with her, the

 13    client she represented -- I don't know if the client -- I'm

 14    looking here, I don't see that the clients identified in this

 15    email.  Had you had any contact with Michelle or her client

 16    that resulted in that email?

 17         A     No.

 18         Q     Okay, let's look at I believe it's the next page,

 19    364, in the same exhibit.

 20         A     I have it.

 21         Q     Is the -- what's the date on this email?

 22         A     11th of November.

 23         Q     In what year?  What year?

 24         A     2004.

 25         Q     When you say that -- when you wrote to David Ritz,

                                                                Page 86

  1    It looks like I'm going to need the whole lot, is that --

  2    that's referring back to his -- what he describes as his Zilla

  3    notes.

  4         A     Right.  His documentation on Netzilla from that time

  5    period.

  6         Q     And are the -- is the information that Plaintiff

  7    alleges in the Complaint -- you've reviewed the Complaint; is

  8    that correct?

  9         A     Yes, I have.

 10         Q     Is the information that Plaintiff alleges in the

 11    Complaint, was that information in existence in November of

 12    2004?

 13         A     Yes, it would have been five years old by that time.

 14         Q     Well, let me ask the question again.  The

 15    information that David Ritz says he's going to send you in

 16    November of 2004 exists; is the information that the Plaintiff

 17    alleges was obtained by Mr. Ritz in February of 2005, was that

 18    in existence in November of 2004?

 19         A     No.

 20         Q     So is it at all possible that you were asking him

 21    for information from like three months in the future?

 22         A     No, I was asking him to help me facts check

 23    information that was five years old.

 24         Q     Okay.  Lets look at the next email, Page 3 -- I'm

 25    sorry, it's the same email, it's the next page.  When you say

                                                                Page 87

  1    in that last paragraph of the email, "It's starting to look

  2    likely that I'm going to be dragged into court on this one",

  3    what is this one?

  4         A     I'm not entirely sure.  I was probably referring to

  5    the defamation case against me, but it's also possible that I

  6    thought I was going to be called in to testify on behalf of

  7    Michelle Donarski's client.

  8         Q     Had the defamation case that was filed against you

  9    been filed in November of 2004?

 10         A     No, not yet, but I had received threatening letters

 11    from his lawyer.

 12         Q     Lets go to same exhibit, Page 369.  You testified

 13    that these IP addresses that are listed, the left most

 14    addresses on each of these lines, these -- you testified that

 15    David Ritz stated that those IP addresses indicated some

 16    attention in the Fargo area; is that correct?

 17         A     Right.  They indicated that people were attempting

 18    to read files from his system from his server.  And then he

 19    looked up the addresses in Whois database and found that some

 20    of them were in Fargo and some of them belonged to Harristhal's

 21    law firm.

 22         Q     I'd like to look at -- let's go ahead and move onto

 23    Exhibit C of the Second Affidavit of Brad, which should be the

 24    Newsfeeds.  Here we go.  It's Exhibit C to the same affidavit.

 25    Specifically I'm looking at Page # -- Bates Number 320.  Did

                                                                Page 88

  1    you start --

  2         A     I have it.

  3         Q     You have it?  Did you start the post titled Time to

  4    De-Peer NEWSFEEDS.COM?

  5         A     No, I didn't.  I don't remember who did.

  6         Q     You added comments to that post to a running dialog

  7    amongst the readers and posters of that news group.

  8         A     Yes.  I think that dialog was probably hundreds of

  9    posts long.  It was a big issue.

 10         Q     And let's go to the next page, 321, and this is the

 11    same subject, Thread on Usenet.

 12         A     That's correct.

 13         Q     And let's go to the next one, Bates 322.  This is

 14    also the same subject thread?

 15         A     That's correct.

 16         Q     And who did you understand that -- the portion of

 17    the post that is preceded -- the parts text is preceded by two

 18    carets, is that the text posted by

 19         A     That's correct.

 20         Q     And who do you understand that they directed that

 21    text to?

 22         A     It seemed to me that it was an open letter basically

 23    inviting anybody on the discussion thread to submit any

 24    questions they might have.

 25         Q     And is it directed to you specifically?

                                                                Page 89

  1         A     No, I don't think so.

  2         Q     I'm going to move now to the Second Affidavit of Mr.

  3    Harristhal at Exhibit 4.  This is Exhibit 4 to the David Ritz

  4    deposition.

  5              MR. HUITINK:  Mr. Wallace, can I ask to which

  6    affidavit you're referring?  You said the affidavit of Mr.

  7    Harristhal.

  8              MR. WALLACE:   Yes, the Second Affidavit of Mr.

  9    Harristhal.

 10              THE COURT:  Tab number?

 11              MR. HUITINK:  Thank you.

 12              MR. WALLACE:  Thank you.

 13              MR. HARRISTHAL:  It's Number 7, Your Honor.

 14         Q     Give me just a moment, Mr. Falk.  This is the -- I

 15    want to make sure we're on the right page.  Are you looking at

 16    a Usenet post subject, Re: What is

 17         A     Yes, I am.

 18         Q     And what's the date on this Usenet post?

 19         A     The 9th of April, 2005.

 20         Q     And is this post directed to David Ritz?

 21         A     No, I'm not exactly sure who it's directed to, but

 22    it was intended to be read by everybody.

 23         Q     And let's go back one exhibit to Exhibit 3 to that

 24    same deposition, so I believe it's just back one page.  And I

 25    believe you testified that this is an excerpt from a post from

                                                                Page 90

  1    the abuse.usenet group; is that correct?

  2         A     That's correct.

  3         Q     And is any portion of this exhibit something that

  4    you wrote?

  5         A     No, I don't think so.

  6         Q     Now Mr. Harristhal asked you about a traceroute --

  7    traceroute.  When you issue a command to send a traceroute,

  8    what computer do you issue the command from?

  9         A     Sometimes the computer at my house.  Back then it

 10    would have been logged into the server at Rahul.

 11         Q     I guess maybe to generalize, but youd issue it from

 12    your computer.

 13         A     Yes.

 14         Q     You don't log into someone -- to a different

 15    computer to issue the traceroute command.

 16         A     No.

 17         Q     And what do you specify in addition to the actual

 18    traceroute command, what's the other piece of information that

 19    you specify?

 20         A     The name or IP address of the machine I want to

 21    trace the route to.

 22         Q     So if your computer is the origin, you specify the

 23    destination?

 24         A     Exactly.

 25         Q     And at that time are you aware of the intermediate

                                                                Page 91

  1    steps that the traceroute is going to take?

  2         A     Oh, that's why we do the traceroute.  To find out.

  3         Q     So you're not aware of the intermediate steps that

  4    the traceroute command is going to route the empty data packet

  5    in order to return the result?

  6         A     That's correct.

  7         Q     Is there any way of knowing that information simply

  8    based on knowing the traceroute command and the destination?

  9         A     I'm sorry, say that again.

 10         Q     Is there any way for you to know the route that the

 11    packet is going to take at the time that you give a traceroute

 12    command?

 13         A     No.  No.  There's no way to know in advance.

 14         Q     That is, in fact, -- that is the reason you send a

 15    traceroute command.

 16         A     Exactly.

 17         Q     Is it possible for any of the intermediate stops

 18    along the way for that packet, is it possible for the owners of

 19    those computers to reject traceroute requests?

 20         A     I honestly don't know.

 21         Q     When a user visits your website, and I'm referring

 22    to the website we've looked at in several exhibits, it was at

 23    the domain, when a user visits that site, does the

 24    user see the same website -- let me withdraw that question.

 25    Does the contents of the website vary depending on who is

                                                                Page 92

  1    viewing the website?

  2         A     No, not at all.

  3         Q     Does the -- does a visitor to the website, someone

  4    who is reading the website, do they have the ability to change

  5    the contents of the website?

  6         A     No, they do not.

  7         Q     Do they have the ability to order a product or a

  8    service from you through the website?

  9         A     No, they don't.

 10         Q     Does the website have a bulletin board or some other

 11    method by which they can post public comments on the website?

 12         A     Doesn't.

 13         Q     How does the website at, how does it

 14    change and when does it change?

 15         A     I make changes on my computer at home and then I

 16    copy them to the server at Rahul.  It happens whenever I have

 17    something significant to put there.  But it doesn't happen

 18    automatically.

 19         Q     We've looked at several emails with the inner-circle

 20    mailing list.  Was Sierra Corporate Design ever discussed on

 21    the inner-circle mailing list?

 22         A     I don't remember.  Probably not.  I left that list

 23    after only a year or so and I don't think the Sierra Corporate

 24    connection was made later than that, but I couldnt be sure.

 25         Q     And what was the date of the -- of your activity or

                                                                Page 93

  1    any activity that you know of on the inner-circle mailing

  2    list?  What was the range of dates?

  3         A     I think I was on it in 1997 and possibly 1998.

  4         Q     So were you receiving -- sending or receiving emails

  5    to the inner-circle mailing list in 2004?

  6         A     No.

  7         Q     2000 --

  8         A     I don't even think it still exists.

  9         Q     How about 2005?

 10         A     No.

 11         Q     You testified, and just for the sake of clarifying,

 12    that in one email you wrote that you didn't want the inner-

 13    circle mailing list email address or name to get out to

 14    outsiders you said because of trolls and spammers.  What are

 15    trolls?

 16         A     Trolls are people who post inflammatory things on

 17    the bulletin -- on the message boards basically to start fights

 18    or to prolong arguments that are -- if you were to go to the

 19    Usenet NetAbuse Newsgroups and read them, they would be just

 20    full of trolls and useless communicating and not much gets done

 21    nowadays.

 22         Q     And why was it a concern that spammers not learn of

 23    the name of the inner-circle mailing list?

 24         A     Well, in particular it was important they not learn

 25    about the email address to it because then they would have

                                                                Page 94

  1    started to send messages to it to disrupt it.

  2         Q     Do you know the origin of the name lumber cartel?

  3         A     It might have been Sanford Wallace, but I forget.

  4    There was some spammer who alleged that the spam fighters were

  5    secretly funded by the lumber cartel who wanted to make sure

  6    that all advertising was done on paper and not electronically.

  7         Q     So to your knowledge does -- is there any lumber

  8    cartel or does -- is there anyone out there funding anti-spam

  9    efforts in order to keep advertising on paper?

 10         A     Not that I know of.

 11         Q     We've also heard the Plaintiffs attorney use the

 12    term UDP or Usenet death penalty.  Who controls whether a UDP

 13    is going to happen?

 14         A     Well, no one individual or even organization

 15    controls it.  The discussion happens in public on the Usenet

 16    Newsgroups.  In fact, that Time to De-Peer NEWSFEEDS

 17    discussion was one such discussion.  If there's a consensus on

 18    the newsgroup that there's a site that just wont stop

 19    spamming, then a UDP [inaudible].  And then the people who have

 20    the technological capability to implement it, which means the

 21    ability to cancel a lot of spam, they cohort each other and

 22    that's what the inner-circle was about.

 23         Q     So you testified previously that you were looking at

 24    spam, Usenet spam on Sun Microsystems news server.  When you

 25    say someone would be De-Peered that's part of a UDP, who, for

                                                                Page 95

  1    example, would make the decision to De-Peer Sun Microsystems

  2    news server?

  3         A     That would be Sun Microsystems Peers.  De-Peering is

  4    a different kind of UDP.  That's where you have a lot of people

  5    complain to the service providers at the spam site and ask them

  6    to stop serving that site.  And that's what De-Peer means.  So

  7    the decision is made by the Peers of the site.

  8         Q     It's a decision by recipients from a particular

  9    location to reject future traffic from that location.

 10         A     Yes, that's correct.

 11         Q     What is the difference -- in Internet speak among

 12    people who are familiar with the terms, what is a hacker and

 13    how is it different from a cracker?

 14         A     Well, the best source on the subject is a book

 15    called Hackers by Steven Levy.  The term dates back to the

 16    1970's and it means just any very clever computer programmer or

 17    engineer.  A cracker is somebody who uses that cleverness to

 18    break into sites they don't have any business breaking into.

 19         Q     So among people who are knowledgeable on the

 20    Internet, your professional peers, hacker has a good

 21    connotation.  A positive connotation.

 22              MR. HARRISTHAL:  Objection.  Leading.

 23         A     Yes, especially in the old days.

 24              THE COURT:  Overruled.

 25         A     It's not used positively anymore.

                                                                Page 96

  1              MR. WALLACE:  Well, that concludes my redirect, Your

  2    Honor.

  3              THE COURT:  Alright.  Very good.  Anything else, Mr.

  4    Harristhal?

  5              MR. HARRISTHAL:  Very briefly, Your Honor.

  6                           RECROSS EXAMINATION


  8         Q     Mr. Falk, so when Ms. Donarski asked you for

  9    information on people in North Dakota and then you went to

 10    other people, such as Mr. Ritz, from the inner-circle to get

 11    it, that information -- excuse me, Mr. Ritz had not yet copied

 12    information off of Sierra's servers; is that correct?

 13         A     That's correct.

 14         Q     So it was only after you told Mr. Ritz that you

 15    needed all the information he had that he then went out and got

 16    that information off of Sierra's server.

 17              MR. HUITINK:  Your Honor, I object to the question.

 18    It lacks foundation as to when Mr. Ritz did this or that.

 19              MR. HARRISTHAL:  Well, Your Honor, it's actually not

 20    without foundation.  It's all been submitted via Mr. Ritz's

 21    deposition transcripts, which I furnished with our responsive

 22    papers on the Motion to Dismiss.  It's in the record that he

 23    went into those servers.  It's in the record that he executed

 24    the commands.  It's in the record that he downloaded

 25    information from DNSs -- from DNS queries off of Sierra's

                                                                Page 97

  1    servers.  There's no foundation issue here.  It's in --

  2              MR. HUITINK:  There is a found --

  3              THE COURT:  Well, I can't recall all the --

  4              MR. HUITINK:  The issue, Your Honor, --

  5              THE COURT:  Hang on a second.  I can't recall all of

  6    the deposition testimony that I read, but I believe Mr. Ritz

  7    talked about sending his DNS query to a local server that got

  8    information possibly from the Plaintiffs servers, but they

  9    didn't actually go to that server for the information that he

 10    got.

 11              MR. HARRISTHAL:  Your Honor, what he testified to in

 12    Volume II of his deposition was that he executed commands on a

 13    server which was then drawing data off of Sierra's servers

 14    directly.  I mean, he obviously didn't walk into Fargo

 15    physically and sit down at Sierra's keyboard, he transmitted it

 16    from his computer through his server to Sierra's server, which

 17    is -- and actually he went through a proxy to hide what he was

 18    doing, he went through as a way of masking his

 19    trail.  But he is the one who executed the command knowing that

 20    it was drawing information down from Sierra's servers and

 21    that's admitted to in his second transcript -- second

 22    deposition, which is part of this record.

 23              MR. HUITINK:  Your Honor, the issue here is what the

 24    witness being questioned knows.  He's asking the witness what

 25    Mr. Ritz did at specific times.  We can have a debate another

                                                                Page 98

  1    time about what Mr. Ritz said or didn't say in his deposition

  2    transcript.  The question as I heard it was a question to this

  3    witness about after you did x, Mr. Ritz went out and did y,

  4    didn't he?  There's been no testimony that I've heard that

  5    establishes that this witness knows when Mr. Ritz did what

  6    other than what the allegations in the Complaint are, which is

  7    different than saying, I know Mr. Ritz did x, y, and z.  So I

  8    guess I'm not here to argue what Mr. Ritz said or didn't say in

  9    his transcript, my objection is simply this witness ought to be

 10    testifying to what he knows about Mr. Ritz.  And I didn't hear

 11    the question that way.

 12              THE COURT:  Alright, sustained.

 13              MR. HARRISTHAL:  I'll rephrase the question, Your

 14    Honor.

 15         Q     (By Mr. Harristhal)  Mr. Falk, prior to February of

 16    2005 is when you asked Mr. Ritz to give you as much information

 17    as he had about; isn't that right?

 18         A     Actually I think it was Netzilla, but yes, I asked

 19    him for everything he had on Netzilla.

 20         Q     And Netzilla is the entity that you believe is

 21    associated and your website describes as being associated with


 23         A     That's true, but the web page in question was a

 24    Netzilla web page.

 25         Q     And  you reposted information that Mr. Ritz secured

                                                                Page 99

  1    from North Dakota by doing DNS lookups and some send-mail

  2    lookups, correct?

  3         A     Yes, I believe so.

  4              MR. HARRISTHAL:  That's all I have, Your Honor.

  5              THE COURT:  Okay.  Anything left?  Okay.  Very good.

  6    Thank you, Mr. Falk.  Alright.

  7              MR. WALLACE:  Your Honor, while she's making that

  8    call, I'd like to ask perhaps that we may need to take

  9    testimony from Mr. Harristhal as he has initiated or his law

 10    firms has initiated many of the contacts with Mr. Falk with

 11    which they're trying to establish jurisdiction in North Dakota.

 12    He sent several letters to Mr. Falk which resulted in

 13    communications.  And his law firm or their Internet resources

 14    were used to contact Mr. Falk's website in April of 2005.  So

 15    to the extent that they're trying to portray Mr. Falk as

 16    somehow reaching out to touch the State of North Dakota, they

 17    have, on the other hand, been actually reaching out to Mr. Falk

 18    and causing him to have these interactions with North Dakota.

 19              THE COURT:  Not today.  We're not going to do that

 20    today.  And my preliminary thought on that is I can separate

 21    out what happened in the course of the litigation from the

 22    jurisdictional issue at question here.

 23              MR. WALLACE:  I understand that, Your Honor, but in

 24    addition, these contacts happened prior to any litigation.  Mr.

 25    Harristhal's made a strong point that Mr. Falk's correspondence

                                                               Page 100

  1    in March and April of 2005, which were prior to him being

  2    named as a Defendant in this lawsuit, are somehow relevant to

  3    jurisdiction in North Dakota.  At the same time, we had

  4    contacts from Mr. Harristhal in August of 2004 and April of

  5    2005, prior to commencing this lawsuit.  So those are

  6    definitely prelitigation contacts by Plaintiffs counsel with

  7    our client.

  8              THE COURT:  Alright, Mr. Harristhal, you wanted to

  9    respond to that.

 10              MR. HARRISTHAL:  Well, I don't understand what I'm

 11    responding to.  It's a tempest in a teapot.  The question isn't

 12    whether California courts have jurisdiction over me, the

 13    question is -- or my firm the question is whether this Court

 14    has jurisdiction over Mr. Falk and whether he's got notice of a

 15    potential claim against him is critical to determining whether

 16    he then proceeded to target communications to the forum state

 17    by maintaining them.  And if you look at these emails, you see

 18    that he then takes those communications from my firm and posts

 19    them as well.  There's nothing inappropriate about sending him

 20    a cease and demand letter and there's nothing that would limit

 21    the jurisdiction of this Court over him as a result of that.

 22    So I don't understand the issue.

 23              THE COURT:  Yeah, Mr. Wallace, what are we going to

 24    show by taking Mr. Harristhal's deposition?

 25              MR. WALLACE:  Well, Mr. Harristhal's whole point in

                                                               Page 101

  1    looking at this one particular email showing contacts from his

  2    law firm was that somehow Ed Falk should have been aware that

  3    he was going to be subject to a lawsuit in North Dakota in

  4    April of 2005.  In fact, the only reason that North Dakota --

  5    Fargo is mentioned in this email is a result of Mr.

  6    Harristhal's law firm's contacts.  It's an email from David

  7    Ritz saying, there's been activity -- hey Ed, there's been

  8    activity that relates to you coming from Mr. Harristhal's

  9    office.  Not any intentional act by Mr. Falk to do anything in

 10    North Dakota.

 11              THE COURT:  So you argue it.

 12              MR. WALLACE:  Okay.

 13              THE COURT:  Alright.  Do we have our next witness.

 14              MS. DONARSKI:  John, are you there?  John.

 15              MR. HARRISTHAL:  Your Honor, how late do you hold

 16    court?

 17              THE COURT:  Normally 4:30, but we have people here

 18    from out of town and I'm thinking of going until about 5:30 if

 19    we can.

 20              MS. HANLEY:  Thank you, Your Honor.

 21              THE COURT:  Nobody has to catch a plane, do they?

 22              (ITV Delay)

 23              MS. DONARSKI:  Welcome back, John.

 24              MR. LEVINE:  Okay.  Hi, can you all hear me.

 25              MS. DONARSKI:  Yes.

                                                               Page 102

  1              MR. WALLACE:  Yes.

  2              MR. LEVINE:  Okay, great.

  3              THE COURT:  Okay, sir, you'll be our next witness --

  4    maybe.

  5              MR. LEVINE:  I'm just closing the door.  I'm still

  6    here.  Alright, I'm ready.

  7              THE COURT:  Alright, please raise your right hand.

  8                              JOHN LEVINE




 12                            CROSS EXAMINATION

 13              THE COURT:  Alright, you may do your cross.


 15         Q     Good afternoon, Mr. Levine.  It's Chris Harristhal.

 16         A     Good afternoon.

 17         Q     Mr. Levine, one of the books that you wrote about

 18    the Internet you wrote, and I quote, Don't assume that every

 19    visitor will start at your home page.  People may arrive at

 20    your website by following a link from Google or other searches

 21    and may jump directly to a page that contains the word or

 22    phrase they were searching for.  So consider every page as a

 23    potential front door.  Does that sound like something you

 24    wrote in your boook?

 25         A     I don't have all the books I've written here, but

                                                               Page 103

  1    yes, that sounds like something that would have been in one of

  2    my Dummies books.

  3         Q     And it's something --

  4         A     But yes.  Yeah.  Yes.

  5         Q     So for example, on Mr. Falk's website every page is

  6    a potential front door, correct?

  7         A     That's true.

  8         Q     Including the page entitled

  9         A     If somebody had the URL to identify that page, yes,

 10    they could go directly to that page.

 11         Q     Now tell me, do you ever refer in any of your works

 12    as -- do you ever refer to hypertext links as hooks?

 13         A     I believe so, although -- well, yes.  I can go -- I

 14    can suggest what I might have meant by hooks or you can ask me.

 15         Q     I'll take it one step at a time.  The hypertext link

 16    usually appears in a web page as some underscored or underlined

 17    text, correct?

 18         A     That's usually true.

 19         Q     And the underlined text in the middle, the link if

 20    you will, is what you refer to in your book as a hook, correct?

 21         A     Again, I don't have the text in front of me, but

 22    yes, that sounds like what I would have written.

 23         Q     And this is a book that is written by nontechnical

 24    users, correct?

 25         A     Yes.

                                                               Page 104

  1         Q     Now if a person clicks on this hyperlink, it

  2    generally takes them to the page that the link refers to,

  3    correct?

  4         A     That's true.

  5         Q     And so there's an interaction there between the user

  6    and the web browser when they click on that link, correct?

  7         A     That's true.  By clicking on the link, the user

  8    instructs the web browser to fetch the page the link refers to.

  9         Q     But the method or the route that that takes is

 10    designed by the person who created the link; am I correct?

 11         A     Yes, that's true.  It's very much like in a book if

 12    there's a footnote that says see Page 17 and the computer being

 13    automated, will automatically turn the page to Page 17 for you.

 14         Q     Only in this case we're talking about to someplace

 15    on the worldwide web, right?

 16         A     That's true.  It could say see Page 17 in some other

 17    reference work, but it's simply -- it's referring to a fixed

 18    place in some -- in either that work or some other work.

 19         Q     And included within that could be a link, for

 20    example, to a newspaper in Fargo.

 21         A     Assuming the newspaper has a website, which I

 22    presume it does, yes, you could link to it.

 23         Q     And specifically you're aware that Mr. Falk's

 24    website had a link to the Fargo newspaper, correct?

 25         A     Yes, I am.

                                                               Page 105

  1         Q     And you're aware that that existed before this

  2    lawsuit or are you not aware of the timing?

  3         A     I didn't examine the website until after his

  4    attorneys asked me to look at it.  So, no, I don't know the

  5    history of that particular web page.

  6         Q     But in any event, the links on Mr. Falk's website,

  7    for example to the Fargo Forum, were designed by Mr. Falk.

  8         A     Yes.

  9         Q     What is a CGI?

 10         A     It stands for -- what's it stand for?  Computer

 11    Graphics Interface.  It's a program that runs on a web server

 12    to produce contents specific to a particular request.

 13         Q     So it's a way that a user interacts with the

 14    computer by making certain requests, correct?

 15         A     That would be a fair description, yes.

 16         Q     Now are you aware that Mr. Falk had a CGI bin on his

 17    web page?

 18         A     No, I didn't -- when I looked -- the copy of his

 19    website that was provided to me, I did not see any -- I did not

 20    see any CGIs.

 21         Q     So that was information you did not have when you

 22    prepared the affidavit that you have filed in this lawsuit,

 23    correct?

 24         A     Assuming -- you're asserting this is true without

 25    actually looking at an actual -- without actually looking at

                                                               Page 106

  1    the website in question, I can't really tell you what's there.

  2         Q     Okay.  Well, earlier today, Mr. Falk testified that

  3    all interactive websites have a CGI file.  Would you agree with

  4    him?

  5         A     If he changed all to many, I would agree.  It's

  6    common.  It's not the only way, but it certainly is a very

  7    popular way of making an interactive website.

  8              MR. HARRISTHAL:  Thank you.  That's all I have.

  9              THE COURT:  Alright.  Mr. Wallace.

 10              MR. WALLACE:  Alright.

 11                           REDIRECT EXAMINATION

 12    BY MR. WALLACE:

 13         Q     Good afternoon, Mr. Levine.  Plaintiffs counsel

 14    just asked you if -- about interactive websites and CGI files

 15    and you said -- you testified that many interactive websites

 16    have a CGI file, is that correct?

 17         A     That's true.  Yes.

 18         Q     Is a CGI file indicative of an interactive website?

 19         A     Typically it is.  Typically the CGI is a program

 20    that will take some parameters for -- in a request sent in by

 21    the user and generate a web page that is specifically

 22    responsive to those parameters.

 23         Q     You reviewed Mr. Falk's website; is that correct?

 24    You've reviewed both --

 25         A     I --

                                                               Page 107

  1         Q     -- you've reviewed an electronic copy of his

  2    website.

  3         A     I did and I reviewed the -- I reviewed a copy to

  4    which he directed me, which I believe is the copy with which

  5    all the counsel here are familiar with.

  6         Q     And in what ways was the website interactive?

  7         A     I didn't see any interactivity on that website at

  8    all.  All I saw were the fixed links, which as I've said were

  9    analogies to cross references or footnotes.

 10         Q     Is one possible application of a CGI file to conform

 11    the website to the dimensions of the users screen or monitor?

 12              MR. HARRISTHAL:  Objection.  Leading.

 13              THE COURT:  Overruled.

 14         A     Yes, in fact that's a very common use of CGIs.

 15         Q     So a CGI could be used just in the display -- to

 16    make sure the text displays properly on a particular user

 17    screen.

 18         A     That's right.  When the request comes in, it can

 19    look at various parameters.  The size of the screen, the

 20    preferred language, you know English or French, things like

 21    that.  But parameters that are -- are provided automatically by

 22    the browser, in fact, not by the user.

 23         Q     So a CGI can be something that the user provides

 24    some input to.  Can it also be something that is automatically

 25    provided by the browser without any user intervention?

                                                               Page 108

  1         A     Sure.  Yes.

  2         Q     So it's possible for interactive websites that the

  3    CGI is actually interacting automatically with the browser.

  4         A     Oh, yes.

  5         Q     Would you say that's common?

  6         A     CGIs are used in so many ways.  That's one common

  7    use.  Again, without looking at a particular website, I can't

  8    tell you what that particular website does.  But having looked

  9    at, you know -- but that's certainly as common of one as any.

 10         Q     Is there -- when you reviewed Mr. Falk's website,

 11    was there any way for you to customize the manner in which the

 12    information was presented to you?

 13         A     Not that I saw and I looked around fairly

 14    thoroughly.

 15         Q     Did you see -- did you identify any means by which

 16    the user could add content to the website?

 17         A     No, not at all.

 18              MR. WALLACE:  Alright.  That's all I have, Your

 19    Honor.

 20              THE COURT:  Anything else, Mr. Harristhal?

 21                           RECROSS EXAMINATION


 23         Q     Mr. Levine, you arent going to tell us that Mr.

 24    Falk's CGI file that he testified to is used thousands of times

 25    by other people was simply for the purpose of language

                                                               Page 109

  1    selection or changing the size of the screen, are you?

  2         A     Not having looked at the code, I can't tell you what

  3    it does.  I'm saying that's -- that is a possible application

  4    that many CGIs do.  If you want to provide me with the code, I

  5    can express an opinion on it.

  6         Q     But you weren't provided with any information about

  7    those CGI files when they hired you to work on this case, were

  8    you?

  9         A     No.

 10              MR. HARRISTHAL:  Thank you.  That's all I have.

 11              THE COURT:  Anything else, Mr. Wallace?  Alright, Mr.

 12    Levine, we have no further questions for you.  Anyone object to

 13    this witness being excused?

 14              MR. HARRISTHAL:  No, sir, I don't.

 15              MS. DONARSKI:  No.

 16              THE COURT:  Alright, thank you, sir, you are excused.

 17              MR. HUITINK:  No objection.

 18              MR. LEVINE:  Okay, thank you.

 19              THE COURT:  Alright.  Other affiants that we need.

 20              MR. WALLACE:  Mr. Allison.

 21              THE COURT:  Alright.

 22              MR. HARRISTHAL:  Your Honor, I have a -- made a copy

 23    for the Court of the material produced by Ms. Donarski if youd

 24    like to make it part of the record --

 25              THE COURT:  Alright.  Very well.  Alright, Mr.

                                                               Page 110

  1    Allison, would you stand before the recorder, raise your right

  2    hand and take the oath?

  3                               BRAD ALLISON




  7              THE COURT:  Alright, somebody replace the microphone.

  8    Thank you.

  9                           CROSS EXAMINATION

 10    BY MR. WALLACE:

 11         Q     Good afternoon, Mr. Allison.

 12         A     Good afternoon.

 13         Q     My name is Kelly Wallace, I'm counsel for Ed Falk

 14    and David Ritz.  Who is your employer?

 15         A     Sierra Corporate Design.

 16         Q     And you're testifying on behalf as a representative

 17    of Sierra Corporate Design today?

 18         A     Yes.

 19         Q     And what is your job title?

 20         A     Network Administrator.

 21         Q     And what are your duties as network administrator?

 22         A     I maintain servers, I maintain the network,

 23    responsible for some level of security, customer relations,

 24    some various things.

 25         Q     Who do you report to at Sierra Corporate Design?

                                                               Page 111

  1         A     Lisa Kraft.

  2         Q     Okay, and what is her title?

  3         A     President, Vice President, I believe.

  4         Q     Okay.  And do you have subordinate employees there?

  5         A     Yes.

  6         Q     Do they carry out all the implementation of your

  7    decisions or do you do some of that as well?

  8         A     I do some of it.

  9         Q     And do you hold any degrees or certifications that

 10    are relevant to your job?

 11         A     Not officially, no.

 12         Q     And how familiar and experienced are you with Sierra

 13    Corporate Designs computer network, hardware, software, all

 14    the various components?

 15         A     As familiar as anyone else in the company.

 16         Q     Are you the person that, for example, would issue

 17    the purchase orders to purchase a new server?

 18         A     Yes.

 19         Q     And you would select a server and the software?

 20         A     Yes.

 21         Q     And would you make a decision about how it was

 22    configured or installed?

 23         A     Many of the decisions.

 24         Q     And are you the person responsible for contracting

 25    with bandwidth providers to provide Internet connectivity for

                                                               Page 112

  1    Sierra's computer network?

  2         A     No.

  3         Q     Who is that?

  4         A     Lisa.

  5         Q     Who are the shareholders of Sierra Corporate Design?

  6              MR. HARRISTHAL:  Objection.

  7         A     I don't know.

  8              MR. HARRISTHAL:  Foundation and relevance.

  9              THE COURT:  Overruled.  He's already answered he

 10    doesn't know.

 11         Q     Who are the officers of Sierra Corporate Design?

 12         A     I don't know.

 13         Q     Are you an officer of Sierra Corporate Design?

 14         A     No.

 15         Q     Are there -- is there a Board of Directors for

 16    Sierra Corporate Design?

 17         A     Not that I'm aware of.

 18         Q     Okay.  Does Sierra Corporate Design have any trade

 19    names or lawyers call them DBAs in Georgia?  I don't know if

 20    they call them that in North Dakota or not.

 21         A     Yes.

 22         Q     What are those?

 23         A     I know of a few.,, we have

 24    some websites -- let's see, (phonetic) -- let's

 25    see, those are the ones that are coming to mind right now.

                                                               Page 113

  1         Q     Are those name -- are those trade names registered

  2    anywhere?

  3         A     I don't know that they're registered.  I know we run

  4    websites under those names.

  5         Q     And how many domains belong to Sierra Corp Design?

  6         A     I don't know an exact number.  Many.

  7         Q     Okay.  More than 20?

  8         A     Possibly.

  9         Q     More than 50?

 10         A     I can't say.

 11         Q     Is Sierra Corporate Design a separate entity from

 12    Jerry Reynolds?

 13              MR. HARRISTHAL:  Objection.  Vague.

 14              THE COURT:  Overruled.

 15         A     You're asking me if Jerry --

 16         Q     Is Sierra Corporate Designs an alias of Jerry

 17    Reynolds?

 18         A     No, not that --

 19         Q     Does he hold himself out to be Sierra Corporate

 20    Design?

 21         A     No.

 22         Q     How about -- does Jerry Reynolds hold himself out to

 23    be

 24         A     No.

 25         Q     Jerry Reynolds is -- is Sierra Corporate Design a

                                                               Page 114

  1    corporation?

  2         A     Yes.

  3         Q     Is it a Nevada corporation?

  4         A     Yes.

  5         Q     And where does it maintain offices?

  6         A     Fargo, North Dakota.

  7         Q     What is located at 101 Convention Center Drive,

  8    Suite 700, Las Vegas, Nevada?

  9         A     I believe that's a corporate headquarters address,

 10    but I'm not sure.

 11         Q     That's a corporate headquarters address for --

 12         A     Sierra Corporate Design, I believe.  I don't know --

 13    I know it's a Nevada corporation.

 14         Q     Whats located at 26 Roberts in Fargo, North Dakota?

 15         A     That's a former office we had in Fargo.

 16         Q     And what's located at 3799 Las Vegas Boulevard in

 17    Las Vegas, Nevada?

 18         A     I -- once again, I don't know specifically.

 19         Q     Whats located at PO Box -- who owns PO Box 6504 in

 20    Fargo, North Dakota?

 21         A     I don't know.

 22         Q     Okay.  What is located at 4614 Amber Valley Parkway

 23    in Fargo, North Dakota?

 24         A     That's our main office in Fargo.

 25         Q     Who uses or maintains PO Box 954 in Moorhead,

                                                               Page 115

  1    Minnesota?

  2         A     Don't know.

  3         Q     Sierra Corporate Design owned the domain name


  5         A     Yes.

  6         Q     And who was responsible for registering that domain

  7    name?

  8         A     I may have done it.  I'm not certain.

  9         Q     How about does Sierra Corporate Design own the

 10    domain name

 11         A     Yes.

 12         Q     Did you register that one?

 13         A     Possibly.

 14         Q     Okay.  Does Sierra Corporate Design own the domain

 15    name

 16         A     Yes, I believe so.

 17         Q     And did you register that one?

 18         A     Possibly.

 19         Q     Does Sierra Corporate Design own the domain name


 21         A     Yes.

 22         Q     And did you register that one?

 23         A     Possibly.

 24         Q     How about

 25         A     Yes.

                                                               Page 116

  1         Q     Sierra Corporate Design owns that one?

  2         A     Yes.

  3         Q     Okay, and did you register it?

  4         A     Possibly so.

  5         Q     Do you register domain names for Sierra Corporate

  6    Design?

  7         A     Yes.

  8         Q     But there are so many you don't remember which ones

  9    you register and which ones someone else registered.

 10         A     Exactly.  Yes.

 11         Q     And there are other people that are authorized to

 12    register domain names on behalf of Sierra Corporate Design?

 13         A     Yes.

 14         Q     So yourself and who else would be registering domain

 15    names?

 16         A     Lisa could do it.  Shes be one person.  I have a

 17    few other employees that could do it.  I would be the primary

 18    person though.

 19         Q     Could Jerry Reynolds do it?

 20         A     I don't know.  I don't know what his capacity is.

 21         Q     Okay.  Does Sierra Corporate Design own the domain

 22    name

 23         A     Yes.

 24         Q     And does Sierra Corporate Design own the domain name


                                                               Page 117

  1         A     I believe so.

  2         Q     Does Sierra Corporate Design own the domain name


  4         A     I believe so.

  5         Q     Does Sierra Corporate Design own the domain name


  7         A     I believe so.

  8         Q     Does Sierra Corporate Design own the domain name


 10         A     No.

 11         Q     Do you know who does own that?

 12         A     No.

 13         Q     Does Sierra Corporate Design own the domain name


 15         A     No.

 16         Q     And do you know who does own that?

 17         A     No.

 18         Q     Does Sierra Corporate Design own the domain name


 20         A     I believe so.

 21         Q     And did you register that domain name?

 22         A     Possibly.

 23         Q     Have you ever sent Usenet spam?

 24         A     No.

 25         Q     Has Sierra Corporate Design ever sent Usenet spam?

                                                               Page 118

  1         A     Not to my knowledge.

  2         Q     Have you ever sent advertisement via Usenet for any

  3    website located at

  4         A     No.

  5         Q     Has any Sierra Corporate Design employee ever sent?

  6         A     Not to my knowledge.

  7         Q     What is Intel Telecom Corp?

  8         A     I've heard the name.  I don't know what it is.

  9         Q     You're not employed by Intel Telecom Corp?

 10         A     No.

 11         Q     Are you employed by Rover's Playhouse, LLC?

 12         A     No.

 13         Q     Are you employed by Courtcom?

 14         A     No.

 15         Q     Is Sierra Corporate Design under domain name that

 16    has the words corp and com in it?

 17         A     I don't believe so.

 18         Q     That long list of domain names that I went through

 19    one at a time with you, are all of those registered

 20    anonymously?

 21         A     I don't know for sure.  Some of them I believe are.

 22         Q     And when they're registered anonymously, what does

 23    the domain name record show as the registrant?

 24         A     I'm not positive off the top of my head.  I just

 25    know that it doesn't display all of the information it would if

                                                               Page 119

  1    you didn't have that service.

  2         Q     When you've registered domain names, have you

  3    registered them primarily with Network Solutions?

  4         A     Yes.

  5         Q     They're located in Virginia?

  6         A     I believe so.

  7         Q     And have you seen the registration information for

  8    an anonymously registered website with Network Solutions?

  9         A     I have, I believe.

 10         Q     And does it state that Network Solutions is listed

 11    as the registrant?

 12         A     As the domain provider I believe.

 13         Q     And who -- what's the reason for registering these

 14    domain names anonymously?

 15         A     I'm told to do it that way.  I don't -- I don't

 16    really --

 17         Q     Told by who?

 18         A     It would be my supervisors.  Lisa, probably.

 19         Q     Is there more than just Lisa as a supervisor?

 20         A     Shes my primary supervisor.

 21         Q     Do you -- do you use the domain -- the email address


 23         A     Yes, I do.

 24         Q     In what context do you use that email address?

 25         A     Mostly for personal email.

                                                               Page 120

  1              MR. HARRISTHAL:  Counsel, I don't mean to interrupt,

  2    and I apologize because I know I am, but Your Honor, to the

  3    extent that these domain names that are owned by the Plaintiff

  4    that have been identified, we regard that as confidential

  5    information and the revelation of that information is part of

  6    the genesis of the litigation.  There is a protective order in

  7    the case, we would just ask that the domain names and their

  8    ownership be identified as confidential information pursuant to

  9    the protective order.  So while it remains information that can

 10    be used in this case, it can't be used for purposes outside of

 11    the litigation.

 12              MR. WALLACE:  Your Honor, there's no privilege

 13    protecting that information in any way.  The service that

 14    Network Solutions provides to anonymize those domain names does

 15    not confer any sort of legal protection or confidentiality to

 16    the actual registrant of those domain names.  And that provides

 17    a contractual relationship between Sierra Corporate Design and

 18    Network Solutions and Sierra Corporate Designs representative

 19    has identified them as the owner of those domain names.

 20              THE COURT:  I'm not sure where you're coming from,

 21    Mr. Harristhal, on those.

 22              MR. HARRISTHAL:  Your Honor, it's confidential

 23    business information.  There's no privilege that applies to the

 24    financial information at Sierra either, and yet we all know

 25    that that information is confidential.  And information about

                                                               Page 121

  1    the domains that it owns can be used among other things as a

  2    way of trying to hack at servers.  And that is why this lawsuit

  3    was brought because that information is being published by the

  4    Defendants in the case and one of the things we're trying to

  5    accomplish through the case is to maintain the confidentiality

  6    of that information.

  7              And now if it's discussed in open court without a

  8    designation that the parties and witnesses are to maintain it

  9    as confidential, we could suffer additional harm.  It doesn't

 10    have to be a codified privilege that exists in order for the

 11    information to be protected, it simply has to be confidential

 12    business information that the organization has maintained

 13    confidentiality as to and that's all -- the only threshold we

 14    have to make.

 15              I don't want to hold everything up with this issue,

 16    Your Honor.  It might be something better addressed later on.

 17    I think the protective order allows any party to designate

 18    information confidential and it could be lifted at a later time

 19    if you deemed it appropriate.

 20              MR. WALLACE:  Your Honor, I think that what may come

 21    out of my questioning of Mr. Allison today is that many of

 22    those domain names host websites that identify Sierra or one of

 23    its aliases as the operator of the website at the very least.

 24    So to that extent, Sierra has already held itself out to the

 25    world as at least the user of those websites and has definitely

                                                               Page 122

  1    entered into other agreements with other folks, Internet

  2    service providers, bandwidth providers, etcetera, that

  3    specifically relate to those websites.

  4              They have gone out and identified themselves with

  5    those websites everywhere but in the domain registration

  6    information.  And to argue that that sort of information rises

  7    to the level of a trade secret or some sort of confidential

  8    information or makes them somehow exposed to hacking or

  9    malicious Internet activity, just -- the lines don't cross.

 10    The ownership of the website has nothing to do with whether the

 11    website is vulnerable, not vulnerable, or anything else, simply

 12    that it exists and who the register -- who the legal owner of

 13    it is.

 14              In fact, they have to -- they're going to be required

 15    to show that they do own those websites in order for any sort

 16    of trespass to chattels claim to proceed.  In effect they're

 17    attempting to argue that they don't have to prove they own some

 18    portion of this property they're claiming as damage.

 19              THE COURT:  Well, that would certainly make their

 20    case a little tougher, wouldn't it?

 21              MR. WALLACE:  Yup.

 22              MR. HARRISTHAL:  Your Honor, we're not trying to do

 23    that at all.  The witness has already testified that they own

 24    those domain names.  We arent suggesting that that isn't

 25    information that's relevant to the adjudication on the merits

                                                               Page 123

  1    of the case.  What we are suggesting is that it's

  2    confidential.  Rule 507 of the Rules of Evidence allow you to

  3    make trade secret information and hold it in a privileged

  4    status for purposes of the litigation.  We are asking this

  5    information to be kept confidential.  We are not asking that

  6    you exclude it from any adjudication on the merits.  We simply

  7    want it kept confidential.  I'm not suggesting that the

  8    relationship is irrelevant.  Although actual ownership may be

  9    irrelevant to the issue of jurisdiction, it is probably

 10    relevant to the issue of damage.  So we arent trying to keep

 11    it from being used in the case, we just don't want it publicly

 12    bandied about.

 13              MR. WALLACE:  Your Honor, in order for something to

 14    qualify for trade secret protection, it has to have some value

 15    to a third party that necessitates its confidentiality.  Some

 16    monetary value.  And what they're arguing for is that the

 17    ownership information in effect, the name on the title for

 18    those domain names, and only the name on the title on those

 19    domain names, somehow has some monetary value not only to

 20    Sierra Corporate Design, but to its competitors and that its

 21    competitors learning that Sierra owned a particular domain name

 22    would somehow disadvantage Sierra in the business setting.

 23              MR. HARRISTHAL:  It does, Your Honor.

 24              THE COURT:  Well, I'm looking at 507 here, it's

 25    already been disclosed and I guess I didn't hear anybody

                                                               Page 124

  1    claiming a privilege before it was disclosed here.

  2              MR. HARRISTHAL:  Well, Your Honor, we have a

  3    protective order in place that allows the parties to designate

  4    it even after disclosure.

  5              THE COURT:  Where's that in the order?

  6              MR. HARRISTHAL:  I don't have my pleading spindle,

  7    but it's the standard -- it's the way I always draft protective

  8    orders, Your Honor, which I believe you signed.  And it

  9    indicates that either party may designate information

 10    confidential even after disclosure.  And I know Mr. Ritz, for

 11    example, has done that very thing in this case.

 12              THE COURT:  Alright.  I'm not sure other than we have

 13    the testimony here today, I don't know where it's going to go

 14    from here as far as this information.  If it's covered by the

 15    order, then that's fine, we can keep it confidential, but it

 16    will be used in this lawsuit and to the extent that there is

 17    anything that can be done to keep it confidential as possible,

 18    I guess I would ask counsel to be aware of that.

 19              MR. WALLACE:  Your Honor, may I approach the witness?

 20              THE COURT:  Yes, you may.

 21              MR. WALLACE:  I am presenting the witness with

 22    Plaintiffs previous exhibit.  This was Exhibit 8 to Mr. Ritz's

 23    deposition.  It's the Fargo Forum article.  Mr. Allison

 24    submitted it as Exhibit C in his affidavit for this hearing.

 25    He submitted the entire deposition.  As you can see, this is

                                                               Page 125

  1    Exhibit 8 to Exhibit C.

  2              MR. HARRISTHAL:  It's Tab 7, Your Honor.  Almost all

  3    the way to Exhibit -- to Tab B, but not quite.

  4              THE COURT:  Alright.

  5         Q     (By Mr. Wallace)  Mr. Allison, do you recognize that

  6    document?

  7         A     Yes.

  8         Q     Can you state for the record what that document is?

  9         A     It's an article in the Fargo Forum -- from the Fargo

 10    Forum discussing this lawsuit.

 11         Q     And what's the date of the article?

 12         A     February 23, 2005.

 13         Q     Is Sierra Corporate Design mentioned in that

 14    article?

 15         A     Does not appear so.

 16              MR. WALLACE:  That's all the questions I have on that

 17    exhibit.

 18         Q     Mr. Allison, did you review Mr. Falk's website, the

 19    website that was at, as part of your preparation to

 20    testify today?

 21         A     Yes.

 22         Q     And do you recall what dates you reviewed that

 23    website?

 24         A     Not specifically right now.

 25         Q     Did you review the website in its original form at

                                                               Page 126

  1    the domain?

  2         A     I've been to the website various times.

  3         Q     So let me ask that again.  You've seen the website

  4    live on the Internet.

  5         A     Yes.

  6         Q     You haven't just seen a paper copy of the website.

  7         A     No.

  8         Q     And was there anyway for you to change the content

  9    of the website when you --

 10         A     No.

 11         Q     -- viewed it?  And do you know if anyone else at

 12    Sierra Corporate Design reviewed the web site?

 13         A     Not actually, but I'm sure that they have.

 14         Q     Did you -- were you ever present with another Sierra

 15    Corporate Design employee when they reviewed the website?

 16         A     Not that I recall.

 17         Q     Was there anything on the website that indicated

 18    that your viewing of it at the same time as another person, a

 19    Sierra Corporate Design person or someone in Georgia or someone

 20    in Korea that their experience of that website would be

 21    different based on who they were or where they were located?

 22         A     Not to my knowledge.

 23         Q     Were you able to post any comments on the website?

 24         A     I didn't try, but I don't think so.

 25         Q     Were you able to purchase any products or services

                                                               Page 127

  1    through the website?

  2         A     I don't think so.

  3         Q     Were you able to sign up for an account with the

  4    website?

  5         A     No, I don't think so.

  6         Q     Did the website have a survey on it that you were

  7    asked for your input on?

  8         A     Not that I recall.

  9         Q     You've submitted as part of your affidavit excerpts

 10    from David Ritz's hard drive.

 11         A     Yes.

 12         Q     The contents of David Ritz's hard drive.  And among

 13    those there are quite a few emails with Ed Falk and Ed (sic)

 14    Braver from August through the end of 2004; is that correct?

 15         A     Yes.

 16         Q     And there are some emails after -- some of those

 17    emails are after February 27th, but what I'm specifically

 18    asking you about right now are emails prior to February 27th.

 19    In your review of those emails, does Ed Falk ever ask David

 20    Ritz to perform an NS lookup on Sierra Corporate Designs name

 21    servers?

 22         A     I don't recall so.

 23         Q     Does Ed Falk ever ask David Ritz to go out and do

 24    anything with relation to Sierra Corporate Design?

 25         A     I don't recall.

                                                               Page 128

  1         Q     Does Ed Falk ever consent to David Ritz's proposal

  2    to go out and do anything relating to Sierra Corporate Design?

  3         A     Not that I recall.

  4         Q     Does -- did Ed Falk ask for any current information

  5    about Sierra Corporate Design?

  6         A     No, I don't recall so.

  7         Q     Did you assist Plaintiffs counsel and/or your

  8    employer in the preparation of the Complaint?

  9         A     The police report or --

 10         Q     No, the civil Complaint in this lawsuit.

 11         A     Aside from filing affidavits.

 12         Q     Are you familiar with the Internet abbreviation or I

 13    guess it's an acronym, DNS?

 14         A     Yes.

 15         Q     And what does DNS stand for?

 16         A     Domain Name System, I believe.

 17         Q     Okay.  And what is the Domain Name System?

 18         A     It's a system that allows you to translate between

 19    friendly Internet names such as to an IP address, a

 20    physical address on the Internet.

 21         Q     When you say a friendly Internet name, you mean a

 22    name that's easy for a human being to remember.

 23         A     Right.

 24         Q     Why -- so computers on the Internet they're not

 25    particularly concerned with the word names that people may give

                                                               Page 129

  1    websites or computers themselves; is that correct?  They're --

  2    they operate based on IP addresses.

  3         A     Right.  They're more -- yeah, there's a separate

  4    service for the domain resolution part of it.

  5         Q     And an IP address -- is it correct that an IP

  6    address is a series of four integers from 0 to 255?

  7         A     That's right.

  8         Q     And those integers basically form a unique address

  9    for a particular resource or computer or system on the

 10    Internet.

 11         A     Yes.

 12         Q     Whats the difference between a public IP address

 13    and a private IP address?

 14         A     A public address is something that you could hit

 15    from outside that actual network.  A private address you have

 16    to be within the actual network itself to reach it.

 17         Q     And the means by which computers can translate

 18    between the word names and the IP addresses is the domain name

 19    system.

 20         A     Yes.

 21         Q     And is the computer that does that translation a

 22    Domain Name System server?

 23         A     Yes.

 24         Q     A DNS server?

 25         A     Yes.

                                                               Page 130

  1         Q     Okay.  And who owns -- does Sierra Corporate Design

  2    own a DNS server?

  3         A     Yes.

  4         Q     You testified that Sierra Corporate Design owns the

  5    domain name

  6         A     Yes.

  7         Q     Who owns -- what's the difference between the Sierra

  8    Corporate Design portion of the domain name and the .com

  9    portion of the domain name?

 10         A     The .com is called a top-level domain, it indicates

 11    what type of domain it is.  Com means commercial.  Sierra

 12    Corporate of course is the actual registered name, basically

 13    saying what the service is.

 14         Q     And is there a domain name server for the .com

 15    domain -- top-level domain?

 16         A     I believe so.

 17         Q     There are actually several of them, arent there?

 18         A     Yes.

 19         Q     Whats contained on those servers?

 20         A     Information that translates the friendly addresses

 21    to the IP addresses.

 22         Q     So on these top-level domains, the .com servers,

 23    there's a record on that server somewhere that says Sierra

 24    Corporate Design is -- what does it say?  Does it say what your

 25    IP address is?

                                                               Page 131

  1         A     The top-level server would not.

  2         Q     What would it say?

  3         A     It would just -- it's -- I guess I'm a little

  4    confused here.  The top-level domain is something that is

  5    maintained by some public entity and it just routes you to the

  6    appropriate domain server, I believe.  I'm not an expert in

  7    this field, by the way.

  8         Q     So -- but I believe you just testified that the top-

  9    level domain, the .com domain name server would have a record

 10    saying where to look for domain name IP translation information

 11    for Sierra Corporate Design.

 12         A     I believe it has a table, yes.

 13         Q     And you've testified previously Sierra Corporate

 14    Design has its own domain name server.

 15         A     It -- yes.

 16         Q     Okay.  And so someone who is looking to translate

 17    the domain name, into an IP address,

 18    would be directed to Sierra Corporate Designs domain name

 19    server?

 20         A     Yes, that would have been true when that was the

 21    case.  Yes.

 22         Q     And is that server information published anywhere

 23    other than on these top-level domain servers?

 24         A     I don't believe so.

 25         Q     Is it -- is it part of the domain name record for

                                                               Page 132

  1    Sierra Corporate Design?

  2         A     No.

  3         Q     The name servers are not listed as part of the

  4    domain name registration?

  5         A     The name servers are, not the records themselves.

  6         Q     Okay, so the domain name records, the record that

  7    Network Solutions has for Sierra Corporate Design, lists the

  8    domain name servers for that domain.

  9         A     Yes.

 10         Q     So in order for any person who in the world who

 11    wanted to know where Sierra Corporate Designs domain name

 12    servers were, they could pull that record from Network

 13    Solutions and see the domain name servers and their IP

 14    addresses.

 15              MR. HARRISTHAL:  Objection.  Foundation.  There's

 16    nothing in the record to suggest that they could pull it from

 17    that service.

 18              THE COURT:  Sustained.

 19         Q     Are you familiar with -- you've registered domain

 20    names --

 21         A     Yes.

 22         Q     -- on behalf of Sierra Corporate Design?

 23         A     Yes.

 24         Q     Is part of that process that you have to specify the

 25    domain name server for that domain?

                                                               Page 133

  1         A     You can either do it that way or you can have them

  2    handle it for you.

  3         Q     And when you've registered them for Sierra Corporate

  4    Design, what do you do?

  5         A     I've done it both ways.

  6         Q     Okay.  And when you specify it, you specify -- when

  7    you've specified a domain name server for a web -- for a domain

  8    name you've registered for Sierra Corporate Design, you've

  9    specified Sierra Corporate Designs domain name servers.

 10         A     Yes.

 11         Q     And those records that Network Solutions maintains,

 12    those are called Whois records; is that correct?

 13         A     The Whois record is something a little different,

 14    but they maintain a list of what domain names they operate,

 15    point to what the domain name servers.

 16         Q     But the domain name servers are listed in the

 17    particular Whois records for specific domains; is that correct?

 18         A     Yes.

 19         Q     And for those domains that you've registered on

 20    behalf of Sierra Corporate Design, those Whois records contain,

 21    not only the names, but the IP addresses of Sierra Corporate

 22    Designs domain name servers.

 23         A     Yes, it would.

 24         Q     Who determines what information is stored on Sierra

 25    Corporate Designs domain name server?

                                                               Page 134

  1         A     The administrator of that domain.

  2         Q     On Sierra Corporate Designs domain name server, on

  3    the actual domain server operated by Sierra Corporate -- by

  4    your employer, who determines what information is stored on

  5    there?

  6              MR. HARRISTHAL:  I'm sorry, I have an objection on

  7    the grounds of relevancy.  This has nothing to do with the

  8    issue of jurisdiction and it's 5:30.

  9              THE COURT:  Well, the second part of your objection

 10    is maybe more relevant, but I'm going to overrule that.  Mr.

 11    Wallace, keep going.  I think we can go for a little while

 12    longer here.

 13         Q     Who determines the contents of that server?

 14         A     It would be myself or another administrator.

 15         Q     Okay, and by contents, what I'm referring to when I

 16    say contents so we're on the same page, I'm talking about the

 17    DNS lookup table.  Are you familiar with that phrase?

 18         A     Yes.

 19         Q     That's -- is that the table that the computer

 20    automatically looks to to correlate a specific word domain with

 21    a specific IP address?

 22         A     Yes.

 23         Q     Okay.  So the system administrator for Sierra

 24    Corporate Design determines what goes on to that lookup table?

 25         A     Yes.

                                                               Page 135

  1         Q     Okay.  So that would be you.

  2         A     In some cases, yes.

  3         Q     Okay.  And who determines -- is it possible to

  4    configure a domain name server to reject certain commands

  5    coming in from -- on any basis?  Command either by -- command

  6    entirely -- let me ask it in separate questions.  Is it

  7    possible to configure a domain name server to reject specific

  8    commands coming from the Internet?

  9         A     Yes.

 10         Q     So for example, it is possible to have a domain name

 11    server that will refuse to answer an NS lookup command?

 12         A     Yes.

 13         Q     And is it possible to configure that so that it

 14    rejects commands coming from particular IP addresses?

 15         A     Yes.

 16         Q     Is it possible to configure the server so it only

 17    accepts commands coming from specific IP addresses?

 18         A     Yes.

 19         Q     So you -- so it's possible for the server to be

 20    configured so that, for example, only a Sierra Corporate Design

 21    computer could issue a certain command to the server.

 22         A     Yes.

 23         Q     Have you ever issued an NS lookup command?

 24         A     Yes.

 25         Q     And did you use a Sierra Corporate Designs computer

                                                               Page 136

  1    to issue that command?

  2         A     Yes, probably so.

  3         Q     And did you issue that command relating to a domain

  4    name that was not owned by Sierra Corporate Designs?

  5         A     Not that I recall ever specifically.

  6         Q     Have you ever issued a start of authority command?

  7         A     I don't think so.

  8         Q     Have you ever issued a zone transfer command?

  9         A     Only on our own internal domains.

 10         Q     But you're familiar with what a zone transfer

 11    command is?

 12         A     Yes.

 13         Q     And you know what it does?

 14         A     Yes.

 15         Q     And are Sierra Corporate Designs domain name

 16    servers connected to the Internet?

 17         A     Yes.

 18         Q     And do they receive NS lookup commands routinely?

 19         A     Yes.

 20         Q     How many per day would you estimate they receive?

 21         A     Thousands, but I don't know a number.

 22         Q     Okay.  Tens of thousands?

 23         A     It's possible.

 24         Q     Is it true that every time someone uses the domain,

 25    for example, Sierra Corporate Designs, an NS lookup is required

                                                               Page 137

  1    to occur in order to get the corresponding IP address?

  2         A     Unless their domain name server has it cached, then

  3    yes.

  4         Q     But in order for their domain name server to have it

  5    cached, it would have had to have done that in the past.

  6         A     Yes.

  7         Q     And also if the domain name and the IP address

  8    relationship had changed, it would need to do it again.

  9         A     Yes.

 10         Q     And that happens occasionally, doesn't it?

 11         A     Yes.

 12         Q     And is NS lookup a standard command that domain name

 13    servers are configured to respond to?

 14         A     Yes.

 15         Q     What about zone transfers, is that a standard

 16    command?

 17         A     Not as common.

 18         Q     Well, I didn't ask if it was a common command, I

 19    said, is it a standard command?  Is it something that's built

 20    in the software that operates on a domain name server?

 21         A     Into some I'm familiar with.

 22         Q     Okay.  It is a standard command built into the

 23    domain name server as operated by Sierra Corporate Designs?

 24         A     Yes.

 25         Q     Whats Port 25 on Sierra Corporate Designs mail

                                                               Page 138

  1    server used for?

  2         A     I'm not sure.

  3         Q     Is it possible to telnet to Port 25 on Sierra

  4    Corporate Designs mail server?

  5         A     I don't know as -- I don't know.

  6         Q     Is it possible to telnet to Sierra Corporate

  7    Designs mail server?

  8         A     I don't know.

  9              MR. WALLACE:  Alright, I'd like to approach the

 10    witness and hand him another document, Your Honor.

 11              THE COURT:  Yes, you may.

 12              MR. WALLACE:  Your Honor, this is Exhibit 2, it's

 13    attached to the affidavit of Michelle Donarski on rebuttal.

 14              THE COURT:  What tab and letter number?  The last

 15    document in the --

 16              MS. DONARSKI:  Is it in the exhibit book, Chris?

 17              MR. HARRISTHAL:  I'm sorry, which --

 18              MR. WALLACE:  This is the most recent on rebuttal.

 19              MS. DONARSKI:  Did you put it in his exhibit book?

 20              MR. HARRISTHAL:  Whose is it?

 21              THE COURT:  It's there.

 22              MS. DONARSKI:  Okay.

 23              THE COURT:  It's Exhibit 2 to --

 24              MS. DONARSKI:  My affidavit.

 25              THE COURT:  Alright.

                                                               Page 139

  1         Q     (By Mr. Wallace) And do you recognize this document?

  2         A     Yes, I do.

  3         Q     Have you seen -- you've seen this -- where did you

  4    see this document?

  5         A     I believe I've seen it at our office.

  6         Q     Is this a police report that you saw a copy of or

  7    received?

  8         A     Yes, I believe I've seen a copy of it.

  9         Q     And I'd like you to go ahead and turn to the second

 10    page of that, in the section that says, Recorded Synopsis

 11    Text.

 12              THE COURT:  That's the fresh page I got today that

 13    didn't have the --

 14              MR. WALLACE:  Yeah, my copy still has the post-it--

 15         Q     Did you explain to the responding officer, Daniel

 16    Hansen, that Mr. Ritz exploited a vulnerability in Sierra

 17    Corporate Designs security system?

 18         A     Yes.

 19         Q     And what vulnerability was that that Mr. Ritz

 20    allegedly exploited?

 21         A     The DNS server was configured to allow zone

 22    transfers when it should not have been.

 23         Q     So the DNS server was improperly configured.

 24         A     Improperly may be an opinion, but it was configured

 25    with looser security than it possibly should have.

                                                               Page 140

  1         Q     And whose responsibility for configuring that --

  2    whose responsibility was it for configuring that server?

  3              MR. HARRISTHAL:  Objection.  Relevance.  Your Honor,

  4    I'm sorry to keep interrupting, and I'll grant you it's

  5    motivated because I have a 6:30 flight to catch, but this has

  6    nothing to do with the issue of jurisdiction over Mr. Falk.

  7              THE COURT:  Hows it related?

  8              MR. WALLACE:  It absolutely does.  They've alleged

  9    jurisdiction based on conspiracy and specifically involving

 10    this criminal computer fraud and computer abuse.  The fact is

 11    that we can show that Mr. Ritz did nothing that qualifies as

 12    computer abuse or fraud or crime.  So there can be so

 13    conspiracy jurisdiction in the absence of a criminal or

 14    tortuous act and there was no criminal or tortuous act by Mr.

 15    Ritz, therefore, there could not be a conspiracy with Mr. Falk.

 16              MR. HARRISTHAL:  Your Honor, this issue has never

 17    been raised.  We've briefed the heck out of this thing.  We've

 18    had months to prepare for it.  They've waived the issue of

 19    conspirator jurisdiction.  They never touched it in their

 20    brief.  They have never suggested that there wasnt an

 21    underlying cause of action.  They've never alleged that we

 22    failed to lay out a prima facie case.  This is entirely new.

 23    There's no way it can be sprung on us at the last minute at

 24    5:35 when the hearing is virtually closed and now we're suppose

 25    to respond to it.  They had every opportunity to give us notice

                                                               Page 141

  1    that they took issue with the existence of a conspiracy.  They

  2    didn't.  Your Honor, I've read their brief multiple times.

  3    It's never alleged in there.  This is a brand new issue.  They

  4    didn't raise it.  They didn't use it as a basis for moving to

  5    dismiss for a lack of jurisdiction and it's too late to do it

  6    now.

  7              THE COURT:  You raised it as a -- as one of the

  8    reasons though.  He's got a right to dig around in there.

  9              MR. HARRISTHAL:  I did, Your Honor, but their brief

 10    didn't respond to it.  They filed a brief after I pointed it

 11    out both in the Complaint and in our responsive brief that we

 12    had coconspirator jurisdiction.  Read their brief in response.

 13    It never mentions it.  It's never addressed.  They didn't

 14    contest it.

 15              MR. WALLACE:  Your Honor, it absolutely is relevant

 16    for that reason.  And it is also relevant for the reason that

 17    Mr. Allison has given conflicting testimony both to law

 18    enforcement and in the course of this case and his statements

 19     -- his statement, especially his subsequent fact statement to

 20    the Fargo Police Department, is specifically the reason for Mr.

 21    Ritz's -- the issuance of the information from Mr. Ritz again.

 22    Without the existence of a civil or criminal cause of action,

 23    there's not even a need for jurisdiction and there's certainly

 24    no way that Mr. Falk can be dragged into North Carolina --

 25    excuse me, North Dakota, my southerness coming out -- on the

                                                               Page 142

  1    basis of Mr. Ritz doing activities that are not only not

  2    illegal, they're not tortuous.

  3              THE COURT:  It's something that you're going to have

  4    to show to get coconspirator jurisdiction.

  5              MR. HARRISTHAL:  It is if it's challenged, Your

  6    Honor, but they never challenged it.  And it's certainly

  7    something that I can't finish up today.

  8              THE COURT:  Okay.  Well, we're going to have to

  9    continue this hearing anyway, so --

 10              MR. HARRISTHAL:  And if that's the case, Your Honor,

 11    then everyone of these witnesses has to make themselves

 12    available again.  If they're going to challenge the existence

 13    of a conspiracy, then I also want an opportunity to conduct

 14    depositions and examinations prior to having this hearing.

 15    We're talking about a summary judgment motion essentially and

 16    they expect us to do this without the opportunity to depose Mr.

 17    Falk?  No, this is -- if we're really going to open it up that

 18    broadly, Your Honor, then there needs to be an opportunity for

 19    us to conduct discovery.

 20              MR. WALLACE:  Your Honor, Mr. Harristhal has today

 21    and in the previous hearing, cross examined Mr. Falk quite

 22    extensively on his communications with David Ritz and

 23    specifically about what he thought David Ritz was doing, what

 24    he knew David Ritz was doing, the propriety of what he knew or

 25    should have known what David Ritz was doing.  He has already

                                                               Page 143

  1    examined Mr. Falk thoroughly on this basis.  The fact is is

  2    that they're attempting to use jargon and Internet terminology

  3    to play up what Mr. Ritz did as some sort of bad act, when what

  4    he did is so completely ordinary.  It happens with such

  5    frequency that their own witness cannot testify to the extent

  6    that it occurs on their own servers everyday.

  7              MR. HARRISTHAL:  This will require additional expert

  8    testimony, Your Honor.  It cannot possibly be determined by

  9    surprise when everything was suppose to go in in advance, by

 10    affidavit, and there was never a suggestion that this was even

 11    going to be a basis for the motion and so I have no expert

 12    testimony lined up.  This is completely unfair.  It's trial by

 13    ambush.

 14              THE COURT:  It was one of the basis that you said

 15    that you could get jurisdiction on.

 16              MR. HARRISTHAL:  Absolutely, Your Honor, and it went

 17    unchallenged.  If they had challenged --

 18              THE COURT:  He's challenging it right now.  He's

 19    challenging it.

 20              MR. HARRISTHAL:  But, Your Honor, we had to turn in

 21    our evidence prior.  I mean, we had to submit affidavits and

 22    then rebuttal affidavits.  This wasnt made into an issue.

 23    This is my witness.  They're trying to put their case in

 24    through him to challenge jurisdiction.  They've never given us

 25    any indication that this was coming.

                                                               Page 144

  1              MS. DONARSKI:  Your Honor.

  2              MR. WALLACE:  Your Honor, Mr. Falk raised this

  3    specifically in his own testimony in the most recent affidavit.

  4    In addition, Mr. Levine provided expert testimony on the

  5    propriety of the Internet activity that Mr. Ritz is accused of

  6    doing.  I mean, I can direct the Court to the specific

  7    paragraphs in Mr. Falk and Mr. Levines affidavit, but he

  8    absolutely stated -- it's near the end -- I'm just going to

  9    read from Mr. Falk's affidavit.  "The information provided to

 10    me by Ritz was described as and appears to be information

 11    obtained by submitting ordinary domain name system queries.

 12    I'm familiar with the results of DNS queries or lookups and the

 13    results obtained thereby, and this information appears to be

 14    precisely of that sort or nature."  So he didn't ask for

 15    criminal -- the fruits of any sort of criminal computer crime

 16    and he didn't receive that.  And Mr. Harristhal has gone into

 17    ornate detail in trying to paint Mr. Falk as having not only

 18    asked for it, but asked for Mr. Ritz to go out and commit a

 19    crime on his behalf.

 20              THE COURT:  There was considerable questioning of Mr.

 21    Falk on that topic and it was apparent to me what was being

 22    asked and the purposes for asking that and now the Defendant

 23    wishes to explore that a little bit, so we're going to continue

 24    this hearing to a later date.  And that is going to be a topic

 25    that will be subject to further questioning.  Anything else?

                                                               Page 145

  1              MR. HARRISTHAL:  Will we be allowed to add additional

  2    witnesses?  I need an expert, Your Honor.

  3              THE COURT:  To what extent?  I mean, you've already

  4    questioned Mr. Falk.

  5              MR. HARRISTHAL:  What we need an expert witness on,

  6    Your Honor, is to explain what types of DNS queries are fair

  7    and what are not.  We need to explain the difference between

  8    private domains and public domains.  We need to explain who

  9    does a zone transfer properly and when you're doing it

 10    masquerading as another server as opposed to an individual

 11    who's hacking in.  We need expert testimony on what a hacker is

 12    because both of these guys are hackers and we need that

 13    testimony in order to establish that there was a lack of

 14    authorization for the access that they undertook.

 15              THE COURT:  Alright, why don't we do this.  We'll

 16    continue the hearing far enough down the road if you want to

 17    brief that, that's fine.

 18              MR. HARRISTHAL:  I'm sorry, brief what, Your Honor?

 19              THE COURT:  The issue on whether or not you need an

 20    expert and to have further witnesses to this testimony.

 21    Alright?

 22              MR. HARRISTHAL:  Thank you.

 23              THE COURT:  I know people have planes to catch and

 24    whatever, so we will continue this matter.  Well be adjourned.

 25              MR. HUITINK:  Thank you, Your Honor.

                                                               Page 146

  1              THE COURT:  Alright.  Thank you.  Alright, thank you

  2    everyone and I'll leave it to the counsel to contact the court

  3    scheduler to arrange another date.

  4              MS. DONARSKI:  Well do.  Thank you.

  5              MR. WALLACE:  Thank you, Your Honor.

  6              (Whereupon, the above proceedings were

  7    adjourned.)



















                                                               Page 147

                            C E R T I F I C A T E

       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 147 typewritten pages contain an accurate copy of the

       transcription of said mechanical recording then and there


            Dated at Fargo, North Dakota, this 5th day of April, 2006.

                                      Vicky Matthys
                                      Electronic Court Recorder
                                      East Central Judicial District