UNITED STATES DISTRICT COURT ALEXANDRIA DIVISION

123 Pages·2007·0.15 MB·German

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
OMEGA WORLD TRAVEL, INC., . Civil Action No. 1:05cv122
et al., .
.
Plaintiffs, .
.
vs. . Alexandria, Virginia
. April 26, 2007
MUMMAGRAPHICS, INC., et al., . 9:30 a.m.
.
Defendants. .
.
. . . . . . . . . . .
TRANSCRIPT OF JURY TRIAL
BEFORE THE HONORABLE LEONIE M. BRINKEMA
UNITED STATES DISTRICT JUDGE
VOLUME II
APPEARANCES:
FOR THE PLAINTIFFS: JAMES P. HODGES, ESQ.
Hodges & Associates, PC
1861 Wiehle Avenue, Suite 320
Reston, VA 20190
and
THOMAS J. POWELL, ESQ.
The Law Offices of Thomas J. Powell
10565 Lee Highway, Suite 102
Fairfax, VA 22030
FOR THE DEFENDANTS: RICHARD S. TOIKKA, ESQ.
Metropolitan Legal Services, LLC
11016 Wickshire Way
Rockville, MD 20852
ALSO PRESENT: GLORIA S. BOHAN
JOHN J. LAWLESS, ESQ.
MARK W. MUMMA
(Page 187 - 409)
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
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1 OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR
U.S. District Court, Fifth Floor
2 401 Courthouse Square
Alexandria, VA 22314
3 [phone]
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1 I N D E X
2 DIRECT CROSS REDIRECT RECROSS
3 WITNESSES ON BEHALF OF
THE PLAINTIFFS:
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John Joseph Lawless 190 217 223
5 (Resumed)
6 Damien Zell 227 243 250 252
7 Gloria Spinelli Bohan 253 267
8 Mark Wayne Mumma 273
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WITNESS ON BEHALF OF
10 THE DEFENDANTS:
11 Mark Wayne Mumma 310 370 390
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13 EXHIBITS
14 MARKED RECEIVED
15 PLAINTIFFS':
16 No. 58 228
85 373
17 108 384
112 223
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19 DEFENDANTS':
20 No. 1 344
2 192
21 3 195
11 (Excerpt) 216
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1 P R O C E E D I N G S
2 (Jury present.)
3 THE CLERK: Civil Action No. 05-122, Omega World Travel,
4 et al. v. Mummagraphics, Inc. Will counsel please note their
5 appearances for the record.
6 MR. POWELL: Thomas Powell and James Hodges for
7 plaintiffs, Gloria Bohan, Omega World Travel, and Cruise.com.
8 THE COURT: Good morning.
9 MR. POWELL: Good morning, Your Honor.
10 MR. TOIKKA: Richard Toikka for the defendants, Mark
11 Mumma and Mummagraphics.
12 THE COURT: Good morning.
13 All right, counsel, are you ready to proceed? All
14 right, Mr. Powell, call your next witness, or Mr. Hodges, whoever
15 is doing it.
16 I’m sorry, it’s the cross-examination of Mr. Lawless.
17 Mr. Lawless, back up to the stand. You’re still under oath from
18 yesterday’s testimony.
19 THE WITNESS: Yes, Your Honor.
20 JOHN JOSEPH LAWLESS, PLAINTIFFS’ WITNESS,
21 PREVIOUSLY AFFIRMED, RESUMED
22 CROSS-EXAMINATION (Cont’d.)
23 BY MR. TOIKKA:
24 Q. Good morning, Mr. Lawless.
25 A. Good morning, Mr. Toikka.
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1 Q. I think when we concluded yesterday, I had asked you a
2 question about closed loop confirmation. I’m going to slightly
3 rephrase it to make it less technical.
4 A. Okay.
5 Q. I believe you testified that you contend that the initial
6 sign-up for the e-mails in question that are alleged to be spam
7 e-mails was signed up through your Web site?
8 A. In most instances, yes.
9 Q. No, I’m talking about the initial sign-up for Mr. Mumma’s —
10 A. Yes, yes.
11 Q. — his, what is it, in box at WebGuy.com.
12 A. Correct.
13 Q. Now, how do you know that?
14 A. How do I know that it came through our Web site?
15 Q. Yes, sir.
16 A. Well, I gathered that information from our TravTech people
17 had a record of it in the database that they maintain.
18 Q. Okay. Let me show you what has been marked as Defendants’
19 Exhibit 2.
20 A. Okay.
21 Q. Do you recognize this?
22 A. I’ve seen this before, yes.
23 Q. Is it an excerpt from the Cruise.com e-mail database?
24 A. I believe it is.
25 Q. Well, you say you believe it is. It has the, the e-mail that
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1 we’re speaking about, [email protected]?
2 A. Correct.
3 Q. It has the date in; is that right?
4 A. Correct. Yeah, it does. It has the data — the original
5 snapshot that I relied on was the one that’s already been
6 presented as an exhibit. It’s the picture of the database. I
7 can’t remember what exhibit it is, but this is the same data, and
8 I’m sure it’s just another way to record the events. So yes, this
9 is, this is it.
10 MR. TOIKKA: Okay. I would like to move this into
11 evidence based on Mr. Lawless’s recognition of this data that
12 comes from Cruise.com.
13 THE COURT: Any objection?
14 MR. POWELL: No, Your Honor.
15 THE COURT: All right, it’s in.
16 (Defendants’ Exhibit No. 2 was received in evidence.)
17 MR. TOIKKA: I’d also like to publish this to the jury.
18 THE COURT: Not that way, Mr. Toikka.
19 BY MR. TOIKKA:
20 Q. Mr. Lawless, how can you tell that this e-mail was signed up
21 through your Web site?
22 A. How can I tell?
23 Q. Yes, from this data.
24 A. Well, from the data?
25 Q. Or from this, from this exhibit.
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1 A. Because I’ve been told that that’s a record of that log-in.
2 I don’t know from personal knowledge if, if, if — I know this is
3 a record from our database, so that’s how I can tell.
4 Q. Okay. Do you know enough about this record to tell us what
5 these fields are?
6 A. Some of them.
7 Q. Would you do that, please?
8 A. Yes. Okay. The column that says DateTimeIn is the date and
9 time that the log was made. The ClientIPIn, I believe, is the IP
10 address of where the e-mail address originated from. That’s the
11 column next to the DateTimeIn, the second column to the right.
12 I’m going from the middle column to the right.
13 Q. Just continue across.
14 A. Okay. And then the, the date that it was timed out, the date
15 that it was removed from the database, the IP address from where
16 the, the name was removed, and then, of course, the actual e-mail
17 address in the third column to the right. And that — of course,
18 on the left, you have the same e-mail address, and then on the
19 very first column to the left, I have no idea what that means.
20 Q. Okay. Can you tell from this database who signed up
21 Mr. Mumma?
22 A. What person signed him up? No.
23 Q. Can you tell the IP address that was used to sign him up?
24 A. I think — it’s my understanding that at some point in time,
25 you may be able to, to determine from an IP address who the IP
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1 address belongs to, but, but I couldn’t — we couldn’t tell for
2 sure who, who signed this up.
3 Q. But are we talking — we’re talking about the IP address that
4 is in one of the columns next to that, that e-mail address —
5 A. Um-hum.
6 Q. — has an address that is 67.173.24.187?
7 A. Right.
8 Q. Okay. That — and explain, please, if you know, that is the
9 e-mail address?
10 A. From what I understand, for a period from the time that IP is
11 assigned, for a period, you can determine who that was assigned
12 to, but they change so rapidly, if you don’t find out right away,
13 then the only information you can obtain from the IP address is
14 where it was registered.
15 Q. Are you familiar with the Whois Source on the Internet?
16 A. Yes.
17 Q. Okay. Let me show you what has been marked as Defendants’
18 Exhibit 3.
19 A. All righty.
20 MR. POWELL: Objection, Your Honor.
21 THE COURT: All right. Wait, hold on a second. I want
22 to see the exhibit. Let me see Defense Exhibit 3.
23 All right, what’s the nature of the objection,
24 Mr. Powell?
25 MR. POWELL: Both as to relevance and it’s outside of
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1 the scope of the direct examination.
2 THE COURT: Well, do we have a date on this?
3 MR. POWELL: Your Honor, I apologize. I apologize. I
4 withdrew my objections to this. I don’t have an objection.
5 THE COURT: All right, Defense Exhibit 3, this Domain
6 Roundtable Whois Source document, is in.
7 MR. POWELL: We don’t have any objection to this.
8 THE COURT: All right, it’s in.
9 (Defendants’ Exhibit No. 3 was received in evidence.)
10 THE WITNESS: Okay.
11 MR. TOIKKA: Well, I can’t publish it until it’s been
12 admitted.
13 THE COURT: It’s in.
14 MR. TOIKKA: Oh, it’s in?
15 THE COURT: I admitted it.
16 MR. TOIKKA: Oh, it is in? It’s one of those that’s in?
17 THE COURT: Yes.
18 MR. TOIKKA: Okay. Let me just show it.
19 Q. Mr. Lawless, can you explain what this Whois exhibit is?
20 A. Yes, this is —
21 MR. POWELL: Your Honor, objection. Now, I object
22 because it’s outside of the scope of direct examination, and it’s
23 irrelevant.
24 THE COURT: It is outside the scope of the direct exam.
25 However, because I want the case to go in in an efficient manner,
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1 you can get into it on redirect.
2 MR. POWELL: Very well.
3 THE COURT: Because Mr. Toikka could call Mr. Lawless
4 again in his case. Let’s just get it all out at one time.
5 MR. POWELL: Very well.
6 THE COURT: Go ahead.
7 THE WITNESS: Could you repeat the question, please?
8 BY MR. TOIKKA:
9 Q. The question is can you tell us what you learned from this
10 exhibit?
11 A. If you review this exhibit, what you see is a Whois lookup
12 for the IP address 67.173.24.187, and it tells you that on this
13 date, the owner of that IP address was Comcast Cable
14 Communications, the IP was registered in Illinois, and that’s
15 about all I can tell from this. I’m trying to figure out what
16 date this was, the lookup was, but I’m not sure. I guess 4/6/2005
17 maybe. I’m not sure if that’s the date that it was looked up, but
18 that’s what this tells you.
19 Q. Do you know whether or not Cruise.com made an effort to find
20 out if there was any more information from Comcast about this IP
21 address?
22 A. Do I know if we tried to find out any more?
23 Q. Yes.
24 A. Yes, we did.
25 Q. And what, if anything, did you find out?