The Deposition of Derek Zeanah

VolkvZeanahDeposition2009.txt Sunday, January 24, 2010 11:22 AM

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION OLEG VOLK, ) ) Plaintiff, ) CIVIL ACTION NO.: ) vs. ) 6:08-CV-00094-BAE-GRS ) DEREK ZEANAH, ) ) Defendant. ) DEPOSITION OF DEREK ZEANAH 9:10 a.m. October 28, 2009 12 Siebald Street Statesboro, Georgia Mynjuan P. Jones, CCR-B-1422

2 1 APPEARANCES OF COUNSEL 2 On behalf of the Plaintiff: 3 MICHAEL P. BRANSON, Esq. Branson Legal Services, LLC 4 211 1/2 North Holden Street Warrensburg, Missouri 64093 5 6 On behalf of the Defendant: 7 CHARLES E. PEELER, Esq. 8 Flynn Peeler & Phillips, LLC 517 West Broad Avenue 9 Albany, Georgia 31701 10 11 Also Present: Oleg Volk 12 13 14 15 - - - 16 17 18 19 20 21 22 23

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24 25 GILBERT & JONES

3 1 INDEX TO EXHIBITS 2 Defendant's Exhibit Description Page 3 4 1 Website posts dated December 21, 154 2002 5 2 Website posts dated December 24, 159 6 2002 7 3 Website posts dated February 26, 161 February 27, 2008, and July 8, 8 July 11, 2008 9 4 Website posts dated July 25, 2008 164 10 5 Website posts dated August 11 and 168 August 12, 2008 11 6 Website posts dated September 25 and 175 12 September 26, 2008 13 14 (Original Exhibits 1 through 6 have been attached to the original transcript.) 15 16 17 18 19 20 21 22 23 24 25 GILBERT & JONES

4 1 (Reporter disclosure made pursuant to 2 Article 8.B. of the Rules and Regulations of the 3 Board of Court Reporting of the Judicial Council 4 of Georgia.) 5 MR. BRANSON: My name is Michael Branson. 6 I'm here with Oleg Volk, my client, and Charlie 7 Peeler and Derek Zeanah, and this is Derek's 8 deposition. 9 Today is the 28th of October 2009. And 10 without further ado, let's just get started. 11 EXAMINATION 12 BY MR. BRANSON: 13 Q. Derek, please state and spell your name 14 for me and tell me how to say it exactly. I think

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15 it's Zeanah but I may be wrong. 16 A. It is. It's Derek Zeanah. First name 17 Derek, spelled D-e-r-e-k. The last name is Zeanah, 18 spelled Z-e-a-n-a-h. 19 MR. PEELER: Michael, let me put one thing 20 on the record since I'm the person that may be 21 making objections. 22 Do we agree that this is taken pursuant to 23 the Federal Rules of Civil Procedure and that 24 all objections are preserved except for those as 25 to the form of the question or the GILBERT & JONES

5 1 responsiveness of the answer? 2 MR. BRANSON: Yes, we agree to that. 3 Thanks for locking that up for me. 4 MR. PEELER: No problem. 5 DEREK ZEANAH, 6 having been first duly sworn, was examined and 7 testified as follows: 8 Q. (By Mr. Branson) Derek, where do you 9 currently reside? 10 A. Here in Statesboro. 11 Q. What's the address there? 12 A. 470 Country Club Road. 13 Q. How long have you lived here? 14 A. Four years, give or take. 15 Q. Tell me about your educational background. 16 A. I'm currently finishing an MBA. 17 Q. Where are you studying for that MBA? 18 Where do you go to school? 19 A. I'm going to school here at Georgia 20 Southern and I'll finish this December. 21 Q. And what are you going to do with that? 22 A. Actually I'm going to go on and get a PhD 23 hopefully next year. I haven't sent out applications 24 yet. 25 Q. What's your educational background? GILBERT & JONES

6 1 What's your educational history? Before the MBA you 2 got an undergraduate degree or something like that? 3 A. I've got a bachelor's in history with a 4 minor in economics, high school, middle school, 5 elementary school. 6 Q. Where did you get your history degree 7 from? 8 A. Birmingham Southern. 9 Q. I also have a history degree. That's 10 cool. 11 Where are you currently employed? 12 A. I'm not. I'm a full-time student. Well,

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13 I do consulting on the side but I do not have an 14 employer. 15 Q. Do you work for yourself? 16 A. I work for an entity that I own. 17 Q. What is that entity? 18 A. wellbuiltnetworks. 19 Q. Is that a corporation -- 20 A. It's a limited liability company here in 21 Georgia. 22 Q. How long has wellbuiltnetworks been in 23 existence? 24 A. I don't know. Do you mean as an LLC? 25 Q. Yes, officially. GILBERT & JONES

7 1 A. I couldn't answer that but you can find it 2 on the Secretary of State's website. 3 Q. I'm not asking for an exact date or 4 anything. I'm asking you for a ballpark figure. Has 5 it been months, years? Has it been -- 6 A. It's been years. 7 Q. Since before 2005 or after? 8 A. Again you'd have to check online to be 9 sure. 10 Q. So wellbuiltnetworks is an LLC. Is it a 11 sole membership LLC? 12 A. It is. 13 Q. And you do consulting through them? 14 A. I do. 15 Q. And what kind of consulting do you do? 16 A. A variety of tasks. I think I explained 17 the business model as being an IT staff for companies 18 who are too small to have their own IT staff. 19 My largest customer probably has 50 20 employees and for him I mostly do networking, EDI, 21 VPN work, a variety of things, but if a hard drive 22 fails, I'll come in and do a backup, recovery. 23 Q. What systems do you like to work in? 24 A. It doesn't matter. 25 Q. Are you fluent in all the different -- do GILBERT & JONES

8 1 you like Linux or do you like UNIX or is there 2 something that you specialize in with them? 3 A. For the most part small businesses have a 4 heavy dependence on Windows so most of the work I do 5 is Windows. 6 I like Linux for servers. It's got a bit 7 of stability in it. It's fairly easy to configure so 8 it works well there. 9 Q. Do you do any hosting right now? 10 A. I do.

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11 Q. And wellbuiltnetworks, are they the ones 12 that -- well, is the LLC doing the hosting and you 13 work for them? 14 Is that how you would describe that 15 relationship? How would you put that relationship? 16 A. I don't think I'd use the term work for 17 because that implies payroll. That doesn't happen. 18 So I would say wellbuiltnetworks does the hosting. 19 Q. Where do they do the hosting out of? 20 A. Servers in Atlanta. 21 Q. So you don't have any business partners 22 that you work with with wellbuilt? You said it was a 23 sole membership LLC but are there any business 24 partners that you work with on that? 25 A. What do you mean by business partner? GILBERT & JONES

9 1 Q. Is there anyone you're in business with to 2 do your consultancy? Do you have anybody that you 3 would describe as a business partner doing the 4 consulting and the Web hosting and all that stuff? 5 A. No. 6 Q. Is it a one-man show then basically? 7 A. For the most part. 8 Q. Would that be right? 9 Let's see. Let's do some previous 10 employment history. You're now a current student 11 with wellbuiltnetworks, LLC, on the side. Is that a 12 fair thing to say? 13 A. (Nodded head affirmatively). 14 Q. I need a verbal -- 15 MR. PEELER: You have to answer because 16 she takes it down. 17 THE WITNESS: That's fine. 18 Q. (By Mr. Branson) That's something that 19 takes some getting used to, that everything has to be 20 verbalized. Don't worry about it. It's not a big 21 deal. 22 Previous to being the full-time student 23 and having wellbuiltnetworks, what's the last job 24 that you've had where you worked for someone else? 25 A. I worked as a computer consultant for GILBERT & JONES

10 1 Entree Computer, Entree Technologies, something like 2 that, in Savannah, Georgia, and that ended in 2002. 3 That was when I started doing that independently. 4 Q. So how did that end at that time? 5 A. They were downsizing and my billings 6 weren't as high as some others were and there were 7 some -- yeah, that's pretty much it. That's how it 8 was described to me.

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9 Q. And so at that point you decided to go and 10 sort of do the same thing that you had been doing on 11 your own? 12 A. That's correct. 13 Q. wellbuiltnetworks, is that a source of 14 revenue for you? 15 A. I mean, a penny is revenue, so sure. 16 Q. If it's pennies, it's pennies, but just 17 out of curiosity, how much revenue would you estimate 18 it takes in, say, on a monthly basis? 19 A. I'd have to get a calculator for that. 20 I'd probably say it does twenty-five to thirty-five 21 thousand in revenue annually, just depending on the 22 year. So divide by 12 -- 23 Q. That's fine. Like I said, this isn't a 24 situation where I need an exact number -- 25 A. And I don't have any documents to refer to GILBERT & JONES

11 1 so that's a guesstimate. 2 Q. That's fine. 3 I want to ask you about some of your 4 previous business ventures. For a while you were 5 involved with a photo studio business with a woman 6 named Karen Simmons. 7 A. Yes. 8 Q. She was a business partner of yours; is 9 that right? 10 A. She was. We had 50/50 ownership in that 11 venture. 12 Q. And what kind of venture was that? 13 A. Again I don't have anything to refer to 14 but I want to say we were actually a C corp. because 15 she didn't do the Sub S corp. filing in time. But 16 that's best recollection. That was years ago. 17 Q. What kind of business was it? What did 18 you guys do together? 19 A. We did portrait wedding photography. 20 Q. How long did that last? 21 A. Not very long. I'd say a year, give or 22 take. 23 Q. Do you remember what year that was? 24 A. I'd have to look. Not off the top of my 25 head. GILBERT & JONES

12 1 Q. How did that business end up? 2 A. I ended up spending more on legal fees to 3 separate myself from Karen Simmons than I ever made 4 from the business venture. 5 Q. Why do you think that is? What happened 6 to turn it into that situation?

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7 A. There were some ethical issues on the 8 other side of the partnership that were bringing us 9 to some real problems down the road if I didn't sever 10 myself. 11 Q. I guess I should tell you just to ease 12 your mind a little bit that I'm not representing 13 Karen at all and have really no interest in helping 14 her or doing anything with her and we're not going to 15 call her as a witness or anything like that. I'm 16 just curious as to your business history. 17 So I know when you say things like ethical 18 problems, you can be more explicit than that and it's 19 not going to hurt you or her or anybody. 20 So let me rephrase. What were the ethical 21 problems that came up that caused you to have to 22 terminate that business relationship? 23 A. The primary problem leading into it was 24 that we had an understanding that until we were 25 making enough revenue to pay expenses and salary we GILBERT & JONES

13 1 would each contribute half of our fixed costs. 2 So every month, you know, I would write 3 the business a check for my share of things like rent 4 and it turned out she didn't and she wasn't making 5 the rent payments on time and the landlord would come 6 by and I'd have to bail out and get a phone call on a 7 Sunday saying we're going to shut the doors on Monday 8 unless you can come up with a check. And that got 9 old. 10 Beyond that, we got to the point where we 11 were starting to do some good business and people 12 would pay whatever it cost for their wedding album, I 13 don't know, 4,000, $6,000 for it, and when it was 14 time to spend a fraction of that to actually buy the 15 album, print the images, deliver it, and Karen 16 wouldn't. The money would disappear some way or it 17 would be spent on advertising. 18 So clients would start to contact me and 19 would send me long e-mails of communications with 20 Karen where it was excuse after excuse after excuse, 21 my lab burned down, it was terrible, this happened 22 and I shipped it, are you sure you haven't received 23 it. 24 And all this time she told me everything 25 was running just fine. And when you start to get GILBERT & JONES

14 1 clients who are angry that paid for a service and 2 they paid for a product that simply had not been 3 delivered and you can't make that happen, it's time 4 to sever yourself.

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5 Q. So it sounds to me like there was a 6 problem with lack of physical accountability on her 7 end? 8 A. She -- as we got into it, she expressed to 9 me, and I believed her, that she was good at managing 10 accounting and had done this for photo studios in the 11 past and her job was to sit in the studio during the 12 day and answer calls and actually make the payments. 13 I was actually working and was 14 contributing money until such time as the thing would 15 be a self-supporting venture. 16 Q. Did you ever get an accounting of where 17 all of that client money went and what the monies 18 were coming in and out? Did you ever get an 19 accounting of that? 20 A. I don't know. I don't know if I got that 21 or not. 22 Q. Was that frustrating to you? 23 A. Excuse me? 24 Q. That was a frustrating situation to you, 25 wouldn't it be? GILBERT & JONES

15 1 A. Yes, there were a number of emotions 2 involved in that situation. 3 Q. That's fair enough. 4 Did that business venture end in 5 litigation? You said that there were some legal fees 6 involved? 7 A. Yes. It did end up in litigation. 8 Q. Who sued who on that deal? 9 A. I want to say I sued her but I'm not, 10 again I don't -- this was over a decade ago. 11 Q. Over ten years ago? 12 A. May have been ten years ago. It may have 13 been nine years ago. 14 Q. Somewhere around there? 15 A. Yeah. 16 Q. How long did the litigation take? 17 A. I couldn't tell you, too long and too much 18 money. 19 Q. How did it end up? 20 A. I ended up with an award from the court 21 for eight or ten thousand dollars plus interest and 22 to date she's still never paid. 23 There were some follow-up issues. 24 Apparently she never took my name and social security 25 number off the credit card processing account as she GILBERT & JONES

16 1 promised to do in writing so I got some calls about 2 something more recent than that where she had not

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3 delivered and the State was looking for some back 4 payments for sales tax which apparently she never 5 turned off and stopped paying and that, you know -- 6 the court paperwork was enough to settle that 7 problem. Some of those problems just go on and on 8 and on. 9 Q. Did that business file bankruptcy when it 10 terminated? 11 A. I do not know. I separated myself from 12 the business and left her with it. I do not know 13 what she did with it. 14 Q. So when you left it, it was still an 15 operating, running business as far as you knew? 16 A. It still had revenue, yeah. 17 Q. Has any business you've ever worked for or 18 owned had to declare bankruptcy? 19 A. No. 20 Q. Have you ever had to declare personal 21 bankruptcy at all? 22 A. No. 23 Q. That's enough about that. Let's move on. 24 And by the way, if you ever want to take a break, 25 just give me a holler and say, hey, I want to get up GILBERT & JONES

17 1 and stretch my legs for five minutes. That's no 2 problem at all. I'm probably going to do the same 3 thing. I get antsy after a while. 4 A. It's the caffeine that gets to me. 5 Q. I'm a diet Coke fiend too. Trying to cut 6 down on it. 7 Let's talk about The Firing Line. When 8 did you first become involved with thefiringline.com? 9 A. I don't know. 10 Q. Do you remember when you discovered it and 11 how you discovered it, how you found out that it 12 existed? 13 A. My earliest memory of The Firing Line, 14 again this is from memory. 15 Q. Sure. That's all I'm asking for. 16 A. You can check The Firing Line for when I 17 actually joined as a member, but I believe I was 18 browsing it on break when I worked for Alston & Bird 19 which would have been around the year 2000, just 20 prior, just after, somewhere in there. 21 Q. What were the things that attracted you to 22 The Firing Line, that made you want to visit there 23 regularly and become a part of that community? 24 A. I don't remember. I think in hindsight 25 the fact that I visited it suggests that I thought it GILBERT & JONES

18

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1 was a place that had valuable discussions but I can't 2 tell what it was that I saw about it. 3 Q. Did you ever wind up having any kind of 4 official duties there? 5 A. No. 6 Q. You were never a moderator there, an 7 administrator, anything like that? 8 A. No. 9 Q. Did you wind up hosting for them or doing 10 any kind of IT work for them? 11 A. No. 12 Q. So would you -- and correct me if I'm 13 wrong about this but would you have described your 14 participation there as just a regular member as if 15 Charlie or I decided to register and just start 16 making posts on the forums? 17 Is that about as deep into it as you got? 18 Would that be a fair assessment? 19 A. I would say that's a fair assessment. 20 Q. Did you ever know or talk to Rich 21 Lucibella when you were hanging out on 22 thefiringline.com? Did you two know each other 23 through that Web page? 24 A. I have spoken with Rich Lucibella in the 25 past. I don't know whether I was still participating GILBERT & JONES

19 1 in The Firing Line during that time so I think I'll 2 ask you to rephrase the question. 3 Q. And if you can't answer this -- all I'm 4 asking you to do is to go from your memory. Let's 5 quantify it in terms of timeline. 6 After you discovered tfl.com but before 7 the creation of The High Road or the Web page that 8 would eventually became The High Road after it was 9 named, before that thing got started did you know 10 Rich during that chunk of time period? 11 A. I know who was. I can't recall any 12 telephone conversations we had during that time. I 13 don't know whether we spoke as a function of 14 participating in the forum or not. 15 Q. Well, since we're talking about the Web, 16 let me expand that a little bit. Besides phone 17 conversations did you e-mail with the guy? 18 A. I do not know. 19 Q. If you had, you would be likely to recall 20 that you think? 21 A. Again I don't know. When I check e-mail 22 today, I'm probably going to have 3,000 messages 23 downloaded plus online forum and stuff and we're 24 talking back ten years did I ever have -- I don't 25 know. GILBERT & JONES

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20 1 Q. Sure. I know there's a lot of volume on 2 this stuff. 3 Well, let's see. Let me ask you -- it's 4 going to be a similar question and maybe we'll get a 5 similar answer but I want to ask anyway. Do you 6 remember when you first encountered Oleg? 7 A. That was probably on The Firing Line. 8 Q. Did you two work together at all on The 9 Firing Line? Did you have any projects that you took 10 on together or anything like that? 11 A. I don't recall any off the top of my head. 12 Q. But you sort of knew who he was and -- 13 well, let me break that down. You knew who he was 14 though on TFL? You would have recognized his user 15 name and you would have known who he was? 16 A. If I recall correctly, his user name was 17 in bold so he stood out as somebody who was I guess 18 on staff there. 19 Q. This is a little preliminary but do you 20 claim that you ever had any kind of ownership 21 interest in The Firing Line? 22 A. No. 23 Q. Why not? 24 A. Well, I don't claim any ownership interest 25 in the Potomac River. It's difficult to say why I'm GILBERT & JONES

21 1 not entitled to some form of ownership there. I 2 don't know. 3 Q. Well, I mean, I'm sure you're aware that 4 the issue in this case is obviously regarding 5 ownership and so the reason I'm asking that is 6 because I want to establish and to try to figure out 7 your rationale -- and we're probably going to spend a 8 lot of time on this today but I want to figure out 9 your rationale for why something is considered to be 10 owned or not owned by you and so that's something 11 that you're going to hear a lot today. 12 And so it may seem a little bit odd to 13 start there, but when I ask you why or why not would 14 you consider having an ownership interest in, for 15 example, that diet Coke can, there's a reason for 16 that and so I would ask you to answer that if you 17 could. 18 A. Well, I understand but -- 19 MR. PEELER: Hold on. I'm going to object 20 to the form. If you know the question that's 21 being asked, you can try to answer. 22 THE WITNESS: You know, it's like asking 23 me why don't I have an ownership interest in 24 your car.

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25 There's probably a better way to phrase GILBERT & JONES

22 1 this because I'm just not seeing where you're 2 trying to go. I'll be happy to answer it but 3 I'm -- 4 Q. (By Mr. Branson) Let's move on and then 5 maybe I can contrast it later because I don't think 6 we have enough context yet. But later on in the 7 conversation we may come back and revisit it. 8 At some point TFL was going to be -- and 9 just for the record, when I say TFL, I mean The 10 Firing Line. And The Firing Line was a dot com, was 11 it, or was it a dot org or a dot net? 12 A. I don't know. 13 MR. VOLK: Com. 14 Q. (By Mr. Branson) For the record when I 15 say TFL, it's an acronym for thefiringline.com. When 16 I say THR, which I'm probably going to wind up 17 slipping into later, that would refer to 18 thehighroad.org. 19 Now, at some point The Firing Line was 20 going to be shut down. Do you remember that 21 happening? 22 A. Yes. 23 Q. Do you know why it was going to be shut 24 down? 25 A. My recollection -- and I would do better GILBERT & JONES

23 1 if I reviewed the original discussions but my 2 understanding is that all of those discussions have 3 been hidden so they're not available now, is that 4 Rich Lucibella was tired of the tone of the board. 5 It may have been leading up to an election 6 or something, but he'd just had enough and it wasn't 7 worth his time and he was going to just close it 8 down. That's how I remember it. 9 Q. And about that same time there were 10 discussions about creating a new forum. Do you 11 remember those discussions? 12 A. I don't believe I was in on those 13 discussions. I believe most of those discussions 14 happened within staff space, which I never had access 15 to. 16 Q. So Rich never asked you for your 17 assistance in creating a new Web forum? 18 A. No. 19 Q. Did Oleg ask you for assistance in 20 creating a new forum? 21 A. I believe I volunteered. 22 Q. Do you remember under what circumstances

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23 you volunteered and who you talked to about doing 24 that? 25 A. No. GILBERT & JONES

24 1 Q. How many people were going to be involved 2 in setting up the new website? 3 A. My understanding was that essentially all 4 of the existing staff were ready to continue TFL 5 under a new name on a new site and so that was what 6 we set up. 7 Q. And I'm not going to hold this against you 8 but how many staff members are we talking about? Is 9 it ten people or 50 people or what -- 10 A. I don't know. Again that can very easily 11 be quantified but I don't have access to those -- 12 Q. And you wouldn't have a ballpark figure 13 for me this morning? You wouldn't have a figure in 14 your mind of how many people you can think of that 15 would have been involved in the creation of what 16 would become later thehighroad.org? 17 A. Two dozen, give or take, eight, probably 18 would be -- I'd say that with 85 percent certainty. 19 Q. That's fine. 20 What was your role going to be in setting 21 up this new website? 22 A. I already had sufficient bandwidth and a 23 computer that could be tasked with the purpose so... 24 Q. And was that computer with that 25 bandwidth -- when you say you had a computer and you GILBERT & JONES

25 1 had bandwidth, your role was going to be to host the 2 new Web page or what were you actually going to do 3 with that computer and that bandwidth? 4 A. I believe at the time the computer was 5 actually my desktop machine and we just tasked it to 6 provide TFL's home pretty much, yeah. 7 If you want to phrase that as hosting, 8 that's fine. We haven't defined hosting, and it can 9 have half a dozen definitions. 10 Q. Let's go there. That's fine. How do you 11 define hosting? I'm not an IT guy, so how would you 12 define hosting? What is hosting? 13 A. Well, I suppose it depends. I think in 14 general you could say that hosting is providing the 15 resources required to give a website, in this case 16 that's what we're talking about, a home on the 17 Internet. 18 Q. And that's what you wound up doing with 19 the new forum? 20 A. Uh-huh.

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21 Q. So you consider yourself the Web host of 22 what would become THR? 23 A. I was the Web host of what became THR. I 24 don't know that I identify myself as such. 25 Q. Why the distinction there? GILBERT & JONES

26 1 A. Well, I don't believe my role in what 2 became THR was limited to Web host. 3 Q. Okay. That's fair. 4 Well, if it wasn't limited to Web host, 5 then the next obvious question would be what other 6 roles were there that would expand -- what else did 7 you do for THR besides be the Web host that it would 8 expand what you did for them? 9 A. The biggest thing is finance it. The 10 majority of what it's taken to keep THR running has 11 been paid for by me. 12 Q. Just to kind of circle back to something 13 we talked about a little while ago, the computer, the 14 box I guess in colloquialism, but the computer that 15 THR was hosted on, your desktop machine, had you 16 created wellbuiltnetworks by that time? 17 A. No. 18 Q. Was that a business computer that you were 19 running a business off of or is that a personal 20 computer? How would you describe the duties of that 21 computer? 22 A. It was a server class machine that I got 23 on special. I think Gateway, in order to meet their 24 quarterly projections one month, was willing to sell 25 some hardware below cost. GILBERT & JONES

27 1 So it was a good deal and I bought it and 2 I used it as a desktop machine and then we re-tasked 3 it for THR. 4 Q. After you re-tasked it for THR, did you 5 continue to use it as a desktop machine or did you 6 have to buy another machine? 7 A. No. It had to work on its own there. 8 Q. So it became the dedicated server then? 9 Would that be fair to say? 10 A. Yes. 11 Q. Okay. I'll make a note of that real 12 quick. 13 So to do all this for the new website, who 14 were you coordinating with to make that happen? I 15 mean, it seems like there would be -- that's a pretty 16 big undertaking. Who were you working with to make 17 that a reality? 18 A. Well, there were the people I worked with

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19 that were required to do the technical aspects of it. 20 I mean, there's the service provider who was 21 providing the bandwidth and people who do D and S 22 registration. 23 At the very beginning it was initially set 24 up by Rich Lucibella's technical adman. He came in 25 and tweaked things and we ended up reinstalling from GILBERT & JONES

28 1 scratch after the version of Linux had been running 2 was not up to the task, it was not customizable 3 enough, but for that first year he was probably the 4 main tech guy. 5 Q. Do you remember that guy's name? 6 A. He goes by the online name Tyme, T-y-m-e, 7 and I want to say his name was Justin Guyette but 8 I've never heard it pronounced and I couldn't spell 9 it for you. 10 Q. His first name is Justin though; isn't 11 that right? Tyme's first name is Justin? 12 A. I believe so. 13 Q. When you say he tweaked things, did he do 14 that remotely or did he actually just come to your 15 house and lay hands on the box? 16 A. It was done remotely. I've never met the 17 man. 18 Q. So you've never actually met him? And you 19 say that lasted for about a year? 20 A. I don't know. I'm not sure what you mean 21 by that lasted for and I'm not -- 22 Q. You said for the first year that he had a 23 role in the technical aspects somehow of the creation 24 of THR. 25 I don't remember exactly. I'm not going GILBERT & JONES

29 1 to repeat it back to you exactly, but at the very 2 beginning he sort of helped. 3 Would you say that he helped sort of jump 4 start the thing? What was his involvement in the 5 beginning? Let me just ask you that. What was his 6 involvement at the beginning of the creation of the 7 new Web forum? 8 A. That's difficult to answer. It was a long 9 time ago. Best guess would be that he originally set 10 up the database and he probably originally configured 11 the software we were using from the technical aspects 12 of it, telling it how to talk to the database and 13 such. 14 Q. So as you understood the creation of this 15 new forum, we've talked about what you had done to 16 put the forum on your computer to host it.

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17 You had -- I'm just kind of recapping 18 here. Interrupt me if I'm saying anything wrong. 19 The new Web forum was being created. It was on your 20 computer. You tasked that computer to be a dedicated 21 server. 22 This guy Tyme had come in remotely and was 23 configuring things and tweaking things to get it 24 started. 25 At that time what was your understanding GILBERT & JONES

30 1 of what your role was going to be regarding this new 2 forum as things moved forward? What was your 3 understanding of who you were going to be to this 4 forum? 5 A. When we first started, I was just the guy 6 who had the resources and the ability to get it up 7 and running. So initially I was just -- I was 8 helping the community. 9 Q. At that time -- and again I know you don't 10 remember the exact year and everything but hopefully 11 you remember how you felt about the situation. 12 At that time do you remember claiming to 13 anyone that you were the owner of the new website? 14 A. No. 15 Q. Did you claim that you had a percentage of 16 the ownership of the new website? 17 A. Not at its founding, no. 18 Q. What about any kind of copyright or 19 trademark, was there any claim that because you had a 20 dedicated server then the trademark belonged to you 21 or anything like that? 22 A. At the time, no, I don't think so. 23 Q. Just moving forward a little bit, 24 thefiringline.com did eventually shut down; is that 25 right? Eventually it got turned off, and if you went GILBERT & JONES

31 1 to that Web page, it was no longer there? 2 A. I believe if you went to the Web page it 3 was still there. 4 MR. VOLK: It was archived but 5 nonfunctional. 6 Q. (By Mr. Branson) Let me ask you that. 7 Could you still post there? Was it a live active 8 forum or did it -- 9 A. I don't believe it was live for regular 10 users. It was probably still live for people on 11 staff there, but I don't know. I don't have any 12 knowledge that. 13 Q. But basically it was kaput, it was quit, 14 and the community moved to the new forum, a lot of

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15 them? 16 A. Chunks of the community did. Our forum, 17 when we started it up, was different from most 18 because we had an initial upsurge of users. Most 19 forums start small and have to struggle to actually 20 bring users in. 21 I think we probably started -- and again 22 I'd have to check records to be sure. I want to say 23 we started with 2,000 users or so within the first 24 month or two, which was pretty good. 25 Q. So this new forum, as it started up, what GILBERT & JONES

32 1 was your understanding as to who the owner of it was 2 or was there an owner at that time? 3 A. My understanding at the time, having not 4 been privy to conversations that happened in private 5 on The Firing Line, was that this was Oleg's, it was 6 Oleg's deal. 7 Q. Let's move forward then. Actually are you 8 feeling all right? You don't need a break or 9 anything? You want to keep going? 10 A. I'm fine. 11 Q. Let's talk about the naming of The High 12 Road. That was something that was discussed the last 13 time we did one of these. 14 Do you remember who the person was who 15 came up with the name The High Road? 16 A. I was not present for those conversations 17 but I've been told that was Matt Guess who came up 18 with the name. 19 Q. Do you know who he was in terms of -- or 20 who he was/is in terms of the community? 21 A. He was a moderator then. He's a moderator 22 now. 23 Q. So you weren't privy to the conversations 24 regarding how the name was going to be selected? 25 A. No. GILBERT & JONES

33 1 Q. How did you find out what the name of the 2 new forum was going to be? 3 A. I don't know. 4 Q. What were you guys calling it before that 5 name was chosen? 6 A. I don't recall. 7 Q. You didn't have like a working name, just 8 sort of we're going to call this the new forum for 9 now? How did you refer to it before THR was 10 selected? 11 A. I don't know. 12 Q. When THR first went online and that's what

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13 it was called, it was called the thehighroad.org for 14 the first time, did you think that you were the owner 15 of it at that time, now that it's called The High 16 Road I'm the owner of this thing? 17 A. I believe that happened before we actually 18 went live, so the answer would mirror my other 19 answers. 20 Q. And you didn't inform anyone else that you 21 were the owner, did you? You didn't tell anybody 22 that you considered yourself to be the owner of this 23 thing? 24 A. In December of 2002? 25 Q. I don't know when it first went live. GILBERT & JONES

34 1 Would that be December 2002 -- 2 A. In December 2002 I did not. 3 Q. December 2002 would be I think you said 4 when it went live? 5 A. Uh-huh. 6 Q. What does that mean in terms of a 7 technical term? When you say a website goes live, 8 what does that mean? 9 A. When we started, what we needed to do was 10 take a computer from its virgin state and set it up 11 so that it could handle at the time hundreds of users 12 at a time posting on it. 13 So we needed to have the Web server 14 software up. We had to have the database up and we 15 had to have the application software on there. 16 We tried a couple of versions before we 17 went back and decided to go with V Bulletin which we 18 used. So when I say go live, I mean we had 19 everything diagnosed prior to that. 20 Q. So basically you have -- and let me know 21 if my understanding about this is wrong. Basically 22 you have a test version of this thing that's on the 23 box and then at some point you decide this is going 24 to work, this is set up, and now you sort of open the 25 virtual gates to where people can access it from the GILBERT & JONES

35 1 worldwide Web for the first time? 2 A. I think that's a reasonable statement. 3 Q. So V Bulletin, is that the program that 4 actually runs the forum? 5 A. That is the application software. 6 Q. And is that something that you have to 7 purchase or do you license it or what? 8 A. You can purchase it or you can license it. 9 Q. In the case of this new forum that would 10 be The High Road -- I'm just going to call it The

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11 High Road from now on. In the case of The High Road 12 was it purchased or was it licensed? 13 A. Originally Rich Lucibella bought a license 14 and we used that and then later we had some problems 15 transferring that so I believe I bought a new 16 license. 17 So technically there are probably two 18 licenses to it, one which is many years out of date 19 and can't run current versions. 20 Q. A minute ago when you were talking about 21 setting up V Bulletin and doing the sort of training 22 wheels version of thehighroad.org, you were using 23 "we" a lot and saying we tried this, we set up a 24 couple of different programs. When you say we, who 25 are you talking about? GILBERT & JONES

36 1 A. Essentially all of the staff who were 2 there at the time. The first software that I set up, 3 again from recollection -- this was a long time ago 4 and it wasn't active for very long -- was free forum 5 software and it seemed to run fine. 6 The performance seemed to be fine. It 7 seemed to satisfy our needs, but after other staff 8 members came in and dealt with aspects of it I had 9 never dealt with before like the moderation controls 10 and the ability to actually prune discussions and 11 keep things on task, they decided that it wasn't 12 sufficient. 13 So there was the technical aspect, and, 14 yes, this qualifies, but then there was also again is 15 it suitable for the editorial needs of the board, 16 which was a separate decision. 17 Q. So we definitely had a group effort here 18 to get this thing off the ground and to make the 19 website go live? There was more than one person that 20 was involved with -- 21 A. THR has always been a group effort, yes. 22 Q. I've asked you what your understanding of 23 your role was in this. Let me ask you what your 24 understanding was of Oleg's role when THR was 25 created? Who was he to the board in your estimation? GILBERT & JONES

37 1 A. At the time I understood that -- I'm 2 trying to think back. At the time I understood that 3 it was his idea and everybody was sort of rallying 4 around him to make it happen. 5 Q. Let's talk about the organization of this. 6 What we're going to be doing today is moving sort of 7 chronologically and so as I go through and we have 8 this deposition I'm going to be moving from the stuff

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9 from a long, long time ago which is hard to remember 10 to closer and closer to the current day. So that's 11 how we've got this organized. 12 So let's keep going. Now that we have 13 thr.org hosted and we've chosen our software, we've 14 decided the software works, we're going live. 15 Now we have this organized forum that is 16 out there in the information super highway, say what 17 they called it at that time. It's a term that's 18 gotten old I think. 19 What parts of that forum and that website 20 that the public could come and participate in, what 21 parts of that were your idea? Do you want me to 22 break it down for you? 23 A. Yeah. That would be easier. 24 Q. What features of the Web page were 25 concepts that you set up? GILBERT & JONES

38 1 A. I believe I actually set up the forums we 2 had there but I just copied The Firing Line's layout. 3 I don't know if that qualifies -- 4 Q. Did you choose, say, for example, the 5 colors? 6 A. Actually Oleg picked the colors. He has a 7 better feel for color than I do and I believe his 8 girlfriend came up with the logo, but that's not the 9 question you're asking. 10 Q. No, that actually is the question. For 11 example, did you choose any of the fonts that the Web 12 page used? 13 A. I may have as part of setting up the 14 forums but I don't remember. I mean, it's in the 15 same configuration area as best I recall. 16 Q. Did you establish any of the guidelines 17 for membership, what it would take to be a member 18 there? 19 A. I want to say that I had some -- there's a 20 membership agreement that people have to sign and -- 21 it's not what it was when we started and I can't go 22 back and verify that I made any changes to it but I 23 believe we had some changes from what was default but 24 again I couldn't state with certainty. 25 Q. What about the code of conduct, did you GILBERT & JONES

39 1 have any input in setting up the code of conduct? 2 A. I posted the code of conduct, if that's 3 what you're asking. I created the page where it's 4 listed. 5 But really what we did is we continued the 6 same tone of discussions that The Firing Line created

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7 and so we used the same moderators and the same 8 standards. 9 We used some different wording to explain 10 those standards and over time it has evolved 11 slightly. But that was really where we were starting 12 from. 13 We were all quite happy with what that 14 community had become and we wanted to continue it. 15 That's why we did this. 16 Q. So would it be fair to say that the 17 content of the code of conduct page was something 18 that you did not come up with but that technically 19 you're the one that put it where it was on the Web 20 page? 21 A. I believe I wrote it. 22 Q. Oh, you actually wrote it? 23 A. But, I mean, it was understood community 24 standards. 25 Q. So when you say you wrote it, you mean you GILBERT & JONES

40 1 typed in the paragraphs; is that right? You typed in 2 the paragraphs and you created that page, the code of 3 conduct page? 4 There would be a code of conduct like a 5 page you could go to that would -- am I correct about 6 what that looks like when it's on the Web page? 7 MR. PEELER: Object to the form. 8 Q. (By Mr. Branson) I'm splintering here. 9 Let me break it down. Let's say I go to The High 10 Road and I want to see what the code of conduct is 11 there to figure out if I want to participate in this 12 thing or not. There would be a link somewhere that 13 says code of conduct and it would be a hot link? 14 Would that be right? 15 A. There is a link. It's not the link that 16 it was when we started. That's changed in the last 17 year. 18 But, yes, there is a link and it lists how 19 people are expected to behave and I believe I wrote 20 the original version of that and it's been tweaked a 21 bit. 22 There have been some additions and there 23 have been some modifications. I'm trying to answer 24 your question. 25 Q. I know you are. You're doing fine. GILBERT & JONES

41 1 So when I click on the hyperlink, then it 2 takes me to a new page that has the thing that you 3 wrote or is that a pop-up or what's the form for 4 that?

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5 A. I don't believe it's pop-up. I believe it 6 will take you to a post. I don't know whether that's 7 actually a bulletin or it's a post that's been locked 8 but it's something that the software actually 9 generates when you click on the link. 10 And at this point I belive that the code 11 of conduct has become something more communal. It's 12 not just my contribution to the wording there. I 13 just want to be clear on that. 14 When you say where did it come from, well, 15 I wrote it but that doesn't mean that's what it is 16 now -- 17 Q. When you say you wrote it, what you wrote 18 was -- 19 A. My interpretation of what the community 20 standards were at the time. 21 Q. Okay. That's fine. 22 A. Again that's from my recollection. 23 Q. That's fine. And I don't mean to get all 24 hung up on it. I just want to make sure that I'm 25 clear in my understanding of how all of this works GILBERT & JONES

42 1 and how it was created. So you're doing fine. 2 What guidelines -- okay. We already did 3 that. Let's say that I go to the code of conduct and 4 I decide I want to participate in The High Road and 5 so then to become a member I need to register; is 6 that right? 7 A. That is correct. 8 Q. And so there's a registration page where I 9 would have to fill out a bunch of information, my 10 name, what my user name is, and what my password is 11 and that sort of thing; is that right? 12 A. That's correct. 13 Q. Did you also create the registration page? 14 A. The registration page is generated by the 15 software. 16 Q. Okay. 17 A. Now, there is a user agreement that must 18 be signed, and my recollection is that when we set it 19 up we set it up such that we had wording in there 20 that required members to agree that they were giving 21 us permission to post their content and that's 22 changed in the last couple of years and there's no 23 record of the change. Some moderator did that. 24 So there are a couple things we're looking 25 at. We're looking at the user agreement and we're GILBERT & JONES

43 1 looking at the page the software generates. 2 Q. So the actual questions used on the

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3 registration page, that was all questions that was 4 just generated by V Bulletin? 5 A. I don't think so. I believe Oleg put in 6 there what do you do for the RKBA community and 7 something there says what would your mother's sister 8 be to you that I believe is in there to protect 9 against spam. 10 Q. Oh, I see. Just for the record so we're 11 clear, that would be something to show that the 12 registrant is a real person and not a spyware or 13 malware -- 14 A. It's for why it's been put there. I don't 15 believe we actually had any software tricks that 16 checked that but the question has been there, check 17 real quick, and if it doesn't have the right answer, 18 then assume it's a spammer. 19 Q. So as the forum existed day-to-day -- and 20 let's go through this chronologically because I 21 understand that it probably changed over time. 22 When THR first went live December 2002 as 23 this thing was going to exist day-to-day and it was 24 going to live its life in the worldwide Web, what was 25 your understanding of what your responsibilities to GILBERT & JONES

44 1 the forum were? 2 A. I needed to provide it a home. This 3 all -- again the initial discussions that -- I'm 4 going to restart. 5 When Rich Lucibella announced that he was 6 no longer going to run this, I want to say he gave 30 7 days notice. It may have been 60 or it may have been 8 something different, but off the top of my head I 9 want to say it was 30. 10 And there was a separate section of the 11 forum set up for discussions among the community 12 about what the community was going to do next, and 13 that set of discussions is no longer available for me 14 to look it. Apparently people on staff over there 15 still have access to it. 16 And I've forgotten your question. What 17 was your question? 18 Q. Well, what were your responsibilities 19 regarding THR -- 20 A. Well, we had 30 days and we needed to set 21 it up and I had enough bandwidth to host it and I had 22 a place to host it. So I was the initial site. 23 I don't believe at the beginning we had 24 the understanding that I was going to be the 25 permanent site. GILBERT & JONES

45

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1 Q. Did you wind up being the permanent site? 2 A. I did. 3 Q. Is it still on that same box now? 4 A. No. 5 Q. Let's take that thread and let's move it 6 forward a little bit. As time went by what happened 7 that caused you to have to move thr.org to a 8 different physical machine? 9 A. My wife finished her residency and we were 10 leaving Jacksonville moving to Statesboro so that was 11 going to imply some downtime and we reached a point 12 where it was probably less expensive to buy space in 13 a data center. 14 So that was actually the first fund drive, 15 to try and get money for that because I didn't have 16 $3,000 I could donate to that at the time. 17 Q. When you say buy space at a data center, 18 you mean taking it from, and again correct me if I'm 19 wrong -- 20 A. A better way to phrase that might be that 21 we purchased a different type of server, one that was 22 chosen based on performance and its height because 23 you get charged for how tall your stuff is and it was 24 placed in a rack at a data center and then we 25 migrated the site from hosting it in my den to GILBERT & JONES

46 1 hosting it at that site over a period of 24 hours. 2 Q. What was that site or what is that site? 3 Where is this data center? 4 A. It's in Atlanta. 5 Q. And do you remember when that transfer 6 actually happened? 7 A. No. 8 Q. And so you said that was the first fund 9 drive? 10 A. We needed money to buy -- 11 MR. PEELER: Is there a question? Listen 12 to his question. If there's a question pending, 13 then answer it. 14 Q. (By Mr. Branson) That's okay. So there 15 was a fund drive. Who organized the fund drive? 16 A. I don't remember. 17 Q. How many people contributed funds? 18 A. I do not know. 19 Q. Do you remember where the funds went or 20 who was in charge of collecting the funds? 21 A. I was after nobody else was willing to 22 take on the task. 23 Q. And so how long did the fund drive last? 24 A. I don't know. 25 Q. Let's talk about funding for a bit and GILBERT & JONES

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47 1 then maybe take a break. You contend that you paid 2 for the servers that THR ran on in the beginning 3 because it ran on your box in your den; is that 4 right? 5 A. Yes. 6 Q. What kind of costs are incurred by running 7 a forum as big as THR? What kind of expenses did it 8 take at the beginning when it was a small forum? 9 Let's start there. At the very beginning, 10 December 2002, how much does it cost to run a forum 11 like THR? 12 A. I don't have the numbers in front of me 13 but I want to say my best recollection is that I was 14 paying $250 a month for bandwidth and we bumped that 15 to 300 a little later. We needed to increase our 16 capacity a bit. That's from memory. 17 Q. That's fine. 18 A. You've got that in the discovery 19 documents. 20 Q. What kind of connection do you have to the 21 Internet to support all that bandwidth? 22 A. Right now I've just got a regular DSL 23 connection. At the time it was a synchronous DSL 24 connection, SDSL, and it was capable of one megabyte, 25 as I understand it, uploading and downloading GILBERT & JONES

48 1 simultaneously at the time and we upgraded that as 2 much as we could. We got to 1.2 to 1.4 megabytes, so 3 about as fast as a T-1. 4 Q. That was pretty good for back then. 5 A. Yes, it was. 6 Q. Let's flash forward. Now, from that point 7 in 2002 now we're here, you know, on the cusp of 2010 8 so flash forward almost eight full years, what's your 9 understanding of what it's costing to run thr.org as 10 it sits right now? What does it cost to actually 11 keep it up now? 12 A. Well, that's -- there are multiple 13 components there. The bandwidth that it consumes 14 over the last year has varied between about 330 and a 15 thousand dollars per month. 16 The only thousand dollar a month spiked 17 when Oleg hacked the server and copied the data 18 across. I don't think they were paying any attention 19 to that. 20 Right now the bandwidth might be around 21 400. It might be 330. Again it's going to vary, but 22 there are multiple components to actually pricing it. 23 There's the hardware that has to be 24 accounted for somehow, and there's licensing fees for

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25 software. There's a security company that actually GILBERT & JONES

49 1 maintains security on it. 2 There are a number of fees that would all 3 come into that number and I don't believe I can come 4 up with a flat number for you right now. 5 There's some accounting decisions that 6 have to be made to come up with that number anyway. 7 Q. All right. That's fair. 8 So let's go chronologically back to the 9 beginning of THR and the time period in which it was 10 still on your dedicated server in your den. 11 Was it the only Web page that you were 12 hosting on that dedicated server? 13 A. For some of that time period it was. 14 Afterwards I had some others as well. 15 Q. What other Web pages did you have on that 16 server? 17 A. There's an OB/GYN office in Savannah that 18 I hosted some Web pages for. I'm not sure if they 19 ever used it. They might have just used it for 20 e-mail. 21 I probably had a personal site. I 22 registered zeanah.com way back in the late nineties. 23 I don't know what else. It was handy for temporarily 24 posting information certainly. 25 Q. So would you say there were other things GILBERT & JONES

50 1 that you did on that server that sort of came and 2 went as time went by, something you would do for a 3 while and then -- 4 A. I don't remember. It could have just as 5 easily been hosted on my desktop machine. I used a 6 dynamic D and S allocation to point to it. That 7 would have been very easy to just put it away, so I 8 don't remember. 9 Q. When you say dynamic D and S allocation, 10 what do you mean by that? Technically speaking what 11 is that feature? 12 A. Every website you go to has an address it 13 lives at. That doesn't mean that there's only one 14 website per address. 15 Some of them I guess you could view as an 16 apartment complex where if you want to go to a 17 particular website you go to that address and you ask 18 for it. 19 And D and S is essentially a list of 20 addresses, a phone book that lists addresses, so when 21 you went to go to thehighroad.org, for instance, you 22 tell your computer you want to go to thehighroad.org

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23 and it will ask its D and S server who actually knows 24 the address for thehighroad.org and it will respond 25 with an answer. So your computer will ask that GILBERT & JONES

51 1 authoritative domain name server what the address is 2 and then it goes from that. 3 Q. And the address would be the IP -- 4 A. The address would be the IP address 5 itself. And at the time the authoritative server 6 that gave those answers told the querying machine 7 that the data was good for five minutes, 20 minutes, 8 something -- a short period of time, so that there 9 was a lot of flexibility if you wanted to move to a 10 new site. 11 And for clients who were wanting to host 12 inexpensively out of their own office, for instance, 13 that worked really well because they'd reconnect to 14 the Internet, they might get a new IP address so 15 they'd be down for, you know, two and a half minutes 16 on average when they did so. It was a fairly good 17 solution and I used the same for The High Road. 18 Q. So during the time period that The High 19 Road was on your server, there were other things that 20 were on that server but you can't really account for 21 what they were -- 22 A. I can't say for certain there were other 23 things on that server. There were other things 24 hosted out of my house using the same network 25 connection but I can't tell you -- GILBERT & JONES

52 1 Q. They used the same network connection and 2 that would be a function of the dynamic D and S, that 3 it would sort of go wherever it went -- 4 A. It had some flexibility but -- 5 Q. Okay. That's fine. 6 The other things that you were -- 7 obviously zeanah.com was your personal Web page and 8 you would say that you were the owner of that 9 personal Web page, right? 10 A. Yes. 11 Q. What about, for example, the OB/GYN 12 office, because you were handling their e-mail or Web 13 page for them, would that make you owner or part 14 owner of the OB/GYN office? 15 A. I don't believe whether I host for them or 16 not has any say as to who owns the building that they 17 do business in or the business venture that happens 18 within that building. I think they're unrelated. 19 Q. Let's take the OB/GYN situation. You were 20 using your house's Internet connection to handle

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21 their e-mail traffic; is that right? 22 A. Probably. It may have been Web traffic as 23 well. I don't remember. 24 Q. Well, let's say at a minimum -- 25 A. Some of their Internet-related traffic. GILBERT & JONES

53 1 We can say that and go forward. 2 Q. So regardless of who owns the business, 3 the building that they rent, the parking lot, the 4 medical equipment, as far as their mail traffic 5 server and their Web page, would you consider 6 yourself the owner of that Web page because you were 7 hosting it out of your house? 8 A. I don't remember the specifics of the 9 agreement there and your question is a bit vague. 10 Could you be more specific. 11 Q. Well, all right. Just put it as bluntly 12 as I can. In your mind is hosting a Web page and 13 supplying the technology to create a Web page on your 14 computer on your Internet connection, does that make 15 you the owner or the part owner of that Web page? 16 A. There's an issue of responsibility that 17 goes with it but I wouldn't say that I own the 18 content that I host. 19 Q. Okay. 20 A. Just because I host it. 21 Q. Let's talk about the donations again. I'm 22 going to circle back to that real quick. So at some 23 point there's a fund drive to upgrade the server? 24 A. We needed to buy a server to set up in a 25 data center to replace the current equipment. So the GILBERT & JONES

54 1 moderators were not capable of coming up with the 2 amount of money required among themselves so they 3 brought the community in. 4 Q. And nobody else wanted to take the 5 responsibility to collect money for this then, right? 6 A. Again we can check the discussions and see 7 exactly what happened. I believe the consensus was 8 that it was reasonable for Oleg to have to handle all 9 that and Oleg was not willing to but it had to be 10 done so I did it. 11 Q. And so Oleg directed that all of the funds 12 that were going to come in for the new server should 13 go straight to Derek? 14 A. No. I don't believe Oleg directed 15 anything. 16 Q. Let's step back from that then. You were 17 the one that was going to be actually managing the 18 data transfer and you were going to be choosing the

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19 new home for thehighroad.org; is that right? 20 Technically speaking you were the guy that 21 decided this is where the server is going to be from 22 now on? 23 A. If I remember correctly, I decided what 24 the specifications for the server should be and I 25 decided probably it would be a good place to house GILBERT & JONES

55 1 it. You never know until you do it. 2 And I asked for feedback from the other 3 administrators and I didn't really get any and that's 4 what we went with. 5 Q. And so in the event -- this may sound like 6 a colloquialism, but in the event you were the guy 7 that sort of went shopping and found the new home? 8 Would that be a fair thing to say? You were the 9 one -- 10 A. I believe it was actually purchased off 11 eBay. It was another one of those situations where 12 in this case Dell was willing to lose money in the 13 short-term in order to make their sales projections 14 to keep up their stock price, so somebody bought a 15 bunch of them and I got a fairly good deal on it. 16 Q. But you're the guy that actually spent the 17 money to make that happen, right? 18 A. Yes. 19 Q. So if the funds had gone to someone else 20 like Oleg first, they would have had to forward them 21 to you? 22 A. Or they would have had to pay out of their 23 Pay Pal account or something. 24 Q. Right. At some point it needed to end up 25 in your pocket so you could make the necessary GILBERT & JONES

56 1 purchase to do this? 2 A. No. If Oleg had actually handled that, it 3 would have been possible for me to find the server 4 for sale, you know, commit to the purchase and say, 5 hey, Oleg, why don't you give this -- 6 Q. And then Oleg's Pay Pal or credit card -- 7 A. -- or whatever you want to do. There was 8 no -- I didn't have to be in the middle of it. I 9 ended up in the middle of it because that was the 10 only way to make it happen. 11 Q. All right. That's actually very clear. 12 That's very clarifying. So good. I hadn't thought 13 about that. 14 The people that donated the money for the 15 server -- we've been using the term donation but I 16 don't want to put this term in your mouth.

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17 Was it your understanding that it was a 18 donation at that time? Is that what -- 19 A. I believe that the post that was put up 20 that asked for money explained that what we were 21 looking for was donations. 22 We weren't selling interest in it or 23 nobody could expect special treatment for having 24 contributed but -- and this is the gist of it. This 25 is from memory. GILBERT & JONES

57 1 It's been years since I've read this, but 2 that, you know, if they liked the forum and they 3 wanted to contribute to its ongoing success, we'd 4 love, you know, some contributions. 5 Q. So when this money came in, would you 6 consider it a gift from these people as opposed to, 7 say, an investment in a business entity from which 8 they were entitled to expect a return later on? 9 A. I considered it a donation and a donation 10 is closer to gift than it is to investment. 11 Q. What kind of records were kept regarding 12 what amount of money came in and who it came from? 13 A. I don't -- for the most part I don't 14 believe I can tie checks to individual donors. There 15 are a few that I can but for the most part it was, 16 you know, this much money has been received to date, 17 has been credited to THR's account. I believe there 18 were a few posts like that in the staff forum. 19 Q. Was there some kind of accounting between 20 what the money was coming in and what the expenses 21 were? 22 A. Yes. 23 Q. Who kept track of that? 24 A. I suppose I did. I posted about it in a 25 staff forum. Everybody was informed as things were GILBERT & JONES

58 1 going on. 2 Q. So it's your understanding that all of the 3 records regarding the donation and the fund drive are 4 on the forum? 5 A. No. 6 Q. Are there records that exist that are not 7 on the forum? 8 A. Yes. 9 Q. Have you shared those records with 10 anybody? 11 A. Y'all asked for them and they were 12 provided as part of discovery. 13 Q. Actually -- all right. I'm not going to 14 argue that with you.

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15 A. Well, I passed them on to my attorney. I 16 believe they've been passed on to you. 17 MR. BRANSON: I don't think we have those. 18 MR. PEELER: Those documents that you 19 asked for, I'll go back and check but I'm not 20 withholding anything. 21 MR. BRANSON: I know you're not. It's 22 just something -- 23 MR. PEELER: If they were responsive to 24 one of your document requests, then we provided 25 them, but I'll go back and check. GILBERT & JONES

59 1 MR. BRANSON: I think Glenn asked for them 2 and we didn't get a response. But we don't need 3 to worry about that for today. We can figure 4 that out between now and the end of discovery. 5 MR. PEELER: Okay. Well, just send me a 6 letter of what you think you need. 7 MR. BRANSON: When we get done with this 8 line of thought, I think I'm going to take a 9 break for everybody's benefit but I want to 10 finish out this line of questioning. 11 Q. (By Mr. Branson) So you wound up being 12 the guy who was responsible for all of that money and 13 where it went and the purchase of the new server? Is 14 that a good summation of what happened? 15 A. I ended up being the guy who was 16 responsible for the ongoing cost and maintenance of 17 the server and those duties included collecting that 18 money, buying the server. 19 Q. What type of bank accounts did those -- 20 let me ask you this. You said checks but were they 21 all checks or what forms of payment did these funds 22 take? 23 A. Probably got Pay Pal donations, checks, 24 postal money orders. I don't think I got any -- 25 well, it could have been other forms of money orders, GILBERT & JONES

60 1 but it was either paper or electronic, and if it was 2 electronic, it was -- 3 Q. So it was kind of a mix? 4 A. Yes. 5 Q. Where did all of that go into? A bank 6 account? 7 A. Yes. 8 Q. Was that a business bank account or a 9 personal bank account? 10 A. It was a business account. 11 Q. What business was it under; do you 12 remember?

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13 A. I believe the Pay Pal account has always 14 been listed as Derek Zeanah Photography but it tied 15 into the -- no. Actually I take that back. 16 This was -- the initial fund drive 17 happened before we moved and that was probably before 18 wellbuiltnetworks actually existed as such. So I 19 don't know. I'd have to look that up. Off the top 20 of my head I don't remember. 21 Q. There's a thread on donations on THR and 22 it's actually in a section called the evidence 23 locker; is that right? 24 A. That's correct. 25 Q. What is the evidence locker? GILBERT & JONES

61 1 A. It's a place where we hide posts from 2 view. I believe it was placed there after Oleg 3 hacked the database and started a competing site and 4 started to get the users riled up. So the moderators 5 thought it seemed inappropriate to leave the thread 6 up. 7 Q. So whose decision was it to move it into 8 the evidence locker so it couldn't be seen by people? 9 A. I don't know. I guess Mal Hightower but I 10 don't know. 11 Q. We've talked about the initial fund drive. 12 Have there been additional fund drives -- 13 A. There was one other. 14 Q. When did that happen? 15 A. I don't know. I wasn't aware of it until 16 we went through discovery. 17 Q. The second one would you say was not -- 18 you were not involved with the second one then since 19 you didn't really know about it until discovery? 20 A. I don't know how it started. I looked at 21 it briefly and my impression from a cursory view 22 people said, hey, we like this forum, let's donate 23 more money. And so it was somewhat ground up and a 24 bunch of donations happened. 25 Q. Are you still receiving donations to keep GILBERT & JONES

62 1 THR running now? 2 A. No. 3 Q. So there's no place where people post 4 information about donations that they made in the 5 past or at the present at this time? There isn't a 6 new donations thread anywhere that people can talk 7 about? 8 A. If there is, I'm unaware of it. 9 Q. Okay. That's fine. 10 Speaking of hosting Web pages out of your

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11 home, your wife is involved in -- what does your wife 12 do for a living? 13 A. She's a physician. 14 Q. Is she self-employed or does she work for 15 someone else to do that? 16 A. That's a difficult question to answer. If 17 you need the specifics of her business arrangements, 18 you can ask me more detailed questions and I'll try 19 to provide those. 20 Q. We'll move on then -- 21 A. She just had lawyers and accountants set 22 everything up and I mostly understand it but I don't 23 know -- 24 Q. Have you hosted a Web page or been the 25 administrator for any of her medical stuff? GILBERT & JONES

63 1 A. She has a personal site that I host. It's 2 not -- originally I hosted their e-mail and Web page 3 but I don't know that that lasted more than five or 4 six months. 5 Q. Would that business have had usage of the 6 same server that THR was on? 7 A. No. 8 Q. Would it have had usage of the server that 9 THR was upgraded to? 10 A. No. 11 Q. Has there ever been any other company, 12 business, or entity besides thr.org that has been 13 hosted on that server that's in the server space in 14 Georgia now? 15 A. I believe there are some other hosting 16 things happening on that server now that we've moved 17 to the new server. 18 Q. Do you run those as well? Is that 19 something that -- are you in charge of that server 20 and you can put what you want on there or is it 21 shared by the company that you bought space from? 22 A. Oh, no, it's -- if any hosting is 23 happening on it, it's happening with 24 wellbuiltnetworks' clients. 25 Q. Let me see if I understand -- GILBERT & JONES

64 1 A. There's going to be some confusion here 2 because there are three servers up in Atlanta 3 currently that have at one point or another hosted 4 THR in one form or not. 5 Q. Okay. 6 A. Well, actually there are more than that 7 because there are other servers that handle D and S 8 and e-mails. There are potentially seven but

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9 that's -- if you put things in a cluster, you get 10 better resiliency and it makes things complex. I'm 11 sorry. 12 Q. No, no. That's fine. I'm interested to 13 know about how this practically works. I'm not an IT 14 guy. 15 Well, does wellbuiltnetworks, LLC, have a 16 business account with -- what's the name of the place 17 that's actually doing the server? 18 A. Site South. 19 Q. So Site South are the people that run the 20 business of Web hosting and that's what they do? 21 A. They maintain the data center. 22 Q. And then wellbuiltnetworks, LLC, has an 23 account with them; is that right? 24 A. Site South maintains the data center and 25 from them I rent server space, bandwidth, and power. GILBERT & JONES

65 1 Q. Do you do that through wellbuiltnetworks? 2 A. Yes. 3 Q. Then wellbuiltnetworks also has other 4 business ventures of yours or personal pages that 5 also get run through Site South? 6 A. Yes. 7 Q. Are they run through the same account? 8 A. What account? 9 Q. Well, the wellbuiltnetworks, LLC, account. 10 A. I've rented enough space for servers to 11 satisfy all those needs and they're all -- I write 12 multiple checks a month. Well, virtual checks to 13 Site South. Rephrase your question -- 14 Q. You're giving me a good answer. Let's 15 move from what you just said. When you say you write 16 multiple checks, do you write a check for thr.org and 17 a check for the OB/GYN and a check for your wife's 18 personal -- 19 A. It's not broken down like that. I 20 essentially am charged a fee for space and an initial 21 amount of bandwidth and then I get additional charges 22 for bandwidth overages that we've had. 23 Q. Sort of like if I have a cell phone with a 24 limited number of minutes, I know I'm supposed to 25 have a hundred dollar a month plan, but then if I go GILBERT & JONES

66 1 over my minutes, I pay an extra 20 bucks? 2 A. That's a reasonable analogy. 3 Q. And so then you wind up writing multiple 4 checks, one for the hundred, one for the 20 in order 5 to pay -- 6 A. It works out.

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7 Q. But in terms of separating out 8 thehighroad.org and other wellbuiltnetworks, LLC, 9 clients, there is no separation there? 10 A. I have bandwidth logs for each one. It's 11 fairly easy to identify what used what resources. 12 Q. At this time how many other companies do 13 you have that you're doing Web hosting for through 14 Site South? 15 A. How many -- 16 Q. What other things do you have going on 17 besides the thr.org bandwidth usage? 18 A. A number of things. My sister sells 19 purses. I've got zeanah.com and derekzeanah.com and 20 karensimmons.info and some other sites -- I've got 21 personal sites hosted there as well that are not 22 commercial in nature. 23 There's a physician who host space. It's 24 an educational site that's related to some research 25 grant that he's got. GILBERT & JONES

67 1 There's a THR member who's currently not 2 paying me because he's flat broke, in his words. 3 He's got a number of sites. He sells -- tries to 4 sell bumper stickers. 5 Oleg's site was there for a bit. Oleg's 6 site was the Number 2 bandwidth user while it was 7 there. I'm certain there are more. 8 Q. So when it comes to figuring out where 9 donation money goes as opposed to where other money 10 goes to pay all these bills, do you have that 11 separated out or is it all just sort of the same 12 thing? 13 A. When I received the donations, I credited 14 THR's account in the billing software as part of the 15 hosting software that I use. 16 It was essentially a prepaid funds account 17 and I debit it down at less than the cost to host it 18 each month. We had to come up with some way to 19 account for the excess funds that were contributed so 20 that's what we did. 21 MR. BRANSON: Let me see if there's 22 anything else I need to run by you before we 23 take a break. 24 It is a little bit after 10:30. We've 25 been doing this for about an hour and a half I GILBERT & JONES

68 1 think. Let's just take a five-minute break and 2 stretch. 3 THE WITNESS: Why don't we make it ten 4 minutes.

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5 MR. BRANSON: Sure. We'll come back in 6 ten minutes or so and we'll keep going. 7 (Recess from 10:33 a.m. to 10:49 a.m.) 8 Q. (By Mr. Branson) It is a little bit 9 before 11:00 o'clock and we're back on the record 10 now. The same people as before, Michael Branson, 11 Oleg Volk, Charlie Peeler, Derek Zeanah, and Mynjuan. 12 Thank you. 13 Let's talk about the domain name of 14 thr.org. Sometime in August 2005 the issue of 15 reregistering the domain name came up. Is that when 16 that happened? 17 A. I don't recall. 18 Q. At some point you were put in charge of 19 reregistering thr.org's domain name though? 20 A. At some point the domain was transferred. 21 Past that time it's been my job to renew it. 22 Q. So there was a transfer of the domain name 23 and who did it transfer from and to? 24 A. It transferred to me, and that came from 25 Rich Lucibella but the previous registrant may have GILBERT & JONES

69 1 been a business entity that Rich Lucibella 2 controlled. So I don't know for certain. 3 Q. That's a fine answer. So from Rich to you 4 would be the bottom line answer on that? 5 A. I don't know if that's the bottom line 6 answer or not. I believe the owner may have been 7 somebody other than Rich. 8 Q. So tell me how that came about. Why did 9 that domain name transfer happen? 10 A. My understanding is that Rich was 11 frustrated that he had to remember to renew the 12 domain when he had nothing to do with THR so he 13 wanted THR to be responsible for that. 14 Q. So at that point it's your understanding 15 that Rich was not participating in THR, he was not 16 running the show or a member there? 17 A. I believe one of the statements we gave in 18 discovery from Rich is a quote, very close to, I 19 don't have anything to do with the site, I'm just a 20 fan. I believe that states it fairly. 21 I don't know that he's ever logged in or 22 created an account. He may have, but I'm not aware 23 of his participation. 24 Q. And so did you speak to Rich about the 25 reregistration or the domain name transfer? GILBERT & JONES

70 1 A. Yes. 2 Q. And what did he tell you to do on that?

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3 A. I don't remember the conversation. In 4 reviewing our written communications about this, it 5 turns out there were actually two sets of 6 communication, one where we were talking about trying 7 to transfer it before the end of December and for 8 various reasons we couldn't do that, and the second a 9 significant fraction of a year later, maybe five 10 months, give or take, when we actually made the 11 transfer. So there were a series of discussions over 12 time. 13 Q. Well, I guess in the second set of 14 discussions there was -- the second set of 15 discussions would be the ones that actually resulted 16 in the domain name transfer then? The first set of 17 discussions didn't really go anywhere? 18 A. I believe Rich ended up renewing before 19 the December deadline and so the second set was where 20 it happened, yes. 21 Q. I think I understand. So in the December 22 discussions you wanted to get it done before renewal 23 had to happen but it didn't get done and so renewal 24 happened in Rich's name; is that right? 25 A. I'm assuming that was Rich's motivation. GILBERT & JONES

71 1 That's what was communicated -- 2 Q. And then the transfer happened sometime 3 later but not under the pressure of, oh, my gosh, we 4 have to renew, there's the deadline, it just sort of 5 happened without the pressure of worrying about 6 renewal a few months later? 7 A. I believe so. 8 Q. Tell me what the registering of a domain 9 name means. What does that mean? 10 A. Earlier we talked about what D and S was 11 and how there are servers that are authoritative that 12 give the answer for what address actually host a 13 site. 14 And there is a series of databases that 15 are queried to determine who is authoritative and 16 that ties into the domain name registry. So -- what 17 detail of that were you asking for? 18 Q. Well, let's say that -- let's go to a 19 hypothetical, and if my hypothetical stinks, we can 20 try to make up another one. 21 Let's say that I'm going to have you host 22 attorneymichaelbranson.com and that's going to be my 23 Web page, personal, business, it doesn't really 24 matter, and we're going to register the domain name. 25 Why does it matter whose name the domain name is GILBERT & JONES

72

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1 registered to? 2 A. Well, in that case what I would -- the way 3 we would probably go forward is have you go to a 4 domain registrar like Go Daddy and register 5 michaelbranson.com, and then when you set up my 6 servers for hosting, it will tell you what changes 7 you need to make to your domain settings. 8 You will tell it what D and S servers are 9 authoritative in those IP addresses that I provide to 10 you or domain names that I provide to you. 11 Q. Okay. 12 A. So that's how it's done. As to the 13 importance of who it's registered under, that varies. 14 There are four -- if I remember correctly, there are 15 four separate areas in a domain registration area -- 16 in a domain registration record where names can go. 17 There's owner. There's technical contact. 18 There's administrative contact and there's something 19 else and I believe each of those has a different area 20 of responsibility and a different amount of power and 21 I don't think I understand the system well enough to 22 really break down what those distinctions are. 23 Q. If you don't, I certainly don't because 24 I'm not as tech savvy as you are. 25 So if I wanted to register my Web page and GILBERT & JONES

73 1 I said would you please handle the domain name 2 registration for me and you registered that domain 3 name in the name of, say, wellbuiltnetworks, LLC, 4 would that mean that you owned my Web page? 5 A. I wouldn't. You'd go into the software 6 and say create the registration for me and it would 7 create it in your name and I would be listed as the 8 technical contact so maintenance could be done from 9 within my account but you would still be the owner. 10 Q. So in the case of -- going back to THR, in 11 the case of the transfer of registration did you 12 register it in your name or in the name of the 13 company or in Oleg's name? Whose name -- 14 A. There was no company to use. I just 15 registered it in my name. 16 Q. And did Rich Lucibella tell you that you 17 were the person that should be the domain name 18 registrant? 19 A. I don't know if he ever made any statement 20 one way or the other. 21 Q. Did he give you permission to register it 22 in your own name or is it -- let me ask it that way. 23 Did he give you permission to register it in your own 24 name? 25 A. I don't really understand the question. GILBERT & JONES

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74 1 Q. Well, if he's the guy who has this 2 property that we're talking about, this domain name 3 that is in his name, and he's giving that up, he's 4 going to transfer it, certainly he gave you some sort 5 of instruction as to who he wanted it to be 6 transferred to, right? 7 A. I don't remember any such instruction. 8 What I remember is he wanted it out of his name so he 9 didn't have to deal with it, random people wouldn't 10 e-mail him anymore about problems they had on The 11 High Road. 12 So I took care of it, and I'm assuming 13 that I took care of it in a way that met his 14 satisfaction because he had nothing to say about this 15 until, you know, quite recently when Oleg started 16 stirring things up. 17 Q. Did he indicate at that time that he was 18 giving the Web page to you? 19 MR. PEELER: Hold on. I object to the 20 form of that question. I think we're talking 21 about a domain name, not a Web page. If I'm 22 wrong, let me know. 23 MR. BRANSON: No, that's good. 24 Q. (By Mr. Branson) Let's break that down. 25 Did he indicate that he was giving you the domain GILBERT & JONES

75 1 name? 2 A. He called me and told me to take it from 3 him so I would think that would be a clear indication 4 to everybody involved as to what the transaction 5 entailed and who the parties involved in the 6 transaction were. 7 Q. When you registered it in your name and 8 you put the domain name under Derek Zeanah, in your 9 mind did that make you the owner of thr.org? 10 A. No. 11 MR. PEELER: Let me ask you a quick 12 question. I'll object to the form. When you 13 say thr.org, are you talking about the domain 14 name thr.org or the website? 15 THE WITNESS: I assumed he was talking 16 about the entire entity that compromised -- 17 MR. PEELER: I did too but I wanted to 18 make sure. 19 MR. BRANSON: Yes, I meant the whole 20 thing. 21 Q. (By Mr. Branson) Let's go beyond that. 22 What about the trademark of thr.org, was there any 23 discussion of the trademark at that time and what the 24 domain name meant regarding the trademark? Do you

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25 remember any discussions about that? GILBERT & JONES

76 1 A. I don't know that Rich and I ever 2 discussed any property issues other than the transfer 3 of the domain name. 4 Q. Was there a discussion on the forums 5 regarding the transfer of the domain name? 6 A. I don't remember one. There may have 7 been. I tended to report when this has happened I've 8 done X, just to keep everybody in the loop, but I 9 don't have any specific recollection there. 10 Q. Let's move forward to more current events. 11 I want to talk about the introduction of a company 12 called Cheaper Than Dirt and a man who runs Cheaper 13 Than Dirt named Michael Tenney. 14 Again for the record I'm probably going to 15 refer to Cheaper Than Dirt as CTD in the way that THR 16 is The High Road and TFL is The Firing Line. 17 I have a habit of turning things into 18 acronyms, and if that's confusing, let me know, and 19 I'll stop doing it. 20 How did you first become aware that 21 Michael Tenney of Cheaper Than Dirt had contacted 22 Oleg about becoming involved in thehighroad.org? 23 A. I believe Michael Tenney actually 24 contacted me, e-mailed me a letter dealing with that. 25 My first apprisal of that was when I GILBERT & JONES

77 1 believe Mal Hightower sent me a message saying we got 2 an e-mail to the Web master account. 3 Q. So the e-mail wasn't directed to Derek 4 Zeanah of thr.org; it was directed to the Web master? 5 A. I believe so. 6 Q. Were you the Web master of thr.org at that 7 time -- 8 A. The Web master reflects to a number of 9 people. 10 Q. So Web master, the return -- here's the 11 part when recording this lets us down because they 12 can't see that I'm making quotation marks with my 13 hand. 14 But, quote, unquote, Web master actually 15 refers to multiple individuals? Who all would be on 16 the Web master group? 17 A. There are two questions there. To answer 18 the first question, I'm not sure what most people 19 mean by Web master. 20 In our particular instance Web master is a 21 generic account that forwards to multiple people in 22 case there's an issue that needs to brought up that

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23 somebody needs to deal with, that that lets us deal 24 with it as quickly as possible. 25 Right now I believe that forwards to at GILBERT & JONES

78 1 least Mal Hightower and myself. I don't know who 2 else is on the distribution list. There may be 3 others, but I need to look. 4 Q. Okay. 5 A. Actually I take that back. I think we may 6 have changed it. There's a G mail account that is 7 used to access one of the e-mails that Web master is 8 forwarded to and a number of members or staff may 9 have log information for that e-mail account but I 10 think Mal may be the only guy who uses it with any 11 frequency. But again I don't access it that way so I 12 don't know. 13 Q. But when Michael Tenney in CTD sent this 14 Web master e-mail, at that time it would have gone to 15 several people at thr.org? 16 It would have been in several people's 17 e-mail in-boxes? Would that be a fair way of putting 18 it? 19 A. I think it was in more than one e-mail 20 box. I don't know how you define several and I can't 21 answer that question. 22 Q. You know, more than one is fine. 23 And so that e-mail was forwarded to Oleg; 24 is that right? 25 A. I don't know. GILBERT & JONES

79 1 Q. When Mr. Tenney first contacted 2 thehighroad.org, did you claim that you were the 3 owner of the Web page, of that entity? 4 A. The -- I did not claim that I was the 5 owner, with the emphasis on the. 6 Q. Did you claim to him that you were a part 7 owner? 8 A. I claimed that I had an ownership 9 interest. 10 Q. So as we've gone through chronologically 11 through this deposition I've sort of asked a few 12 times about this. 13 Would you say that Michael Tenney was the 14 first person that you claimed an ownership interest 15 to or had you already been claiming an ownership 16 interest for some time? 17 A. Oleg and I had that understanding for some 18 time. Now, I have discussed that with other people 19 but that's not what you're asking. 20 Q. Well, let's follow that for a minute. Had

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21 you discussed it with other people before this Web 22 master e-mail from Michael Tenney? 23 A. Yes. 24 Q. Who would those other people be? 25 A. Neighbors, friends, people I introduced to GILBERT & JONES

80 1 the site. 2 Q. To your knowledge -- and I know we're 3 talking about a pile of information. I know. But to 4 your knowledge is there any record on the site of you 5 claiming that you're an owner or a part owner of 6 thr.org before the Cheaper Than Dirt introduction 7 into that entity? 8 A. Not that I'm aware of. 9 Q. Did you claim at that time that anybody 10 else was also a part owner? 11 A. I'm sorry. Claim at what time? 12 Q. When Michael Tenney came in and sent the 13 e-mail and at the time that you guys had the first 14 contact from Michael Tenney and you told him that you 15 were part owner of the Web master, who else did you 16 say -- 17 A. I don't believe -- 18 MR. PEELER: Let him finish his question. 19 THE WITNESS: Can you please restate the 20 question. 21 Q. (By Mr. Branson) Sure. At the time that 22 you claimed to Michael Tenney that you were part 23 owner, that you had an ownership right in -- 24 A. I have never made that claim to Michael 25 Tenney as far as I'm aware. We've only spoken once. GILBERT & JONES

81 1 I do not believe it came up in the conversation. 2 Q. Oh, okay. All right. I misunderstood 3 then. 4 A. Oh, actually I did send something in 5 writing that reaffirmed his existing understanding 6 but that was not a discussion. I did not tell 7 Michael Tenney that. 8 Q. Well, I want to make sure that I'm clear 9 on this and that we're not splitting hairs. 10 A. I think language is a terribly imprecise 11 thing. 12 Q. Yes, it is, even English. 13 You said I believe the word you -- well, 14 we didn't really use a word. You said that you 15 claimed at that time that you were part owner of 16 thr.org. In what manner did you make that claim? 17 A. To whom? 18 Q. To Michael Tenney or to other people on

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19 thr.org. 20 A. When this came up, I received -- again 21 this is from memory but the way this went down was 22 Michael Tenney wanted to meet with Oleg and 23 explicitly that was because he had a job offer for 24 Oleg but there were a number of concerns that I 25 shared with other moderators that Oleg was not really GILBERT & JONES

82 1 prepared to have that conversation and there was some 2 worry about how that would happen. 3 In the meantime Oleg and I agreed that 4 Glenn would act as our agent in this to try to 5 determine what details could be determined prior to 6 August 8th. 7 And I informed Glenn that, you know, the 8 important thing to convey to Michael Tenney was that 9 THR did not have just one owner and Oleg was not 10 authorized to negotiate by himself on those things. 11 And so that communication, if there was one, would 12 have happened through Glenn. 13 Q. We all know who you mean when you say 14 Glenn but let's put it on the record anyway. When 15 you say Glenn, you're talking about Glenn Bellamy, 16 the intellectual property attorney out of 17 Indianapolis, Indiana -- 18 A. He was also a moderator using the name 19 Henry Bowman which I believe was taken after a 20 character who killed a bunch of federal officers and 21 fed them to pigs actually. 22 Q. I've read that book. 23 A. Yes. 24 MR. PEELER: Let's focus on his questions. 25 THE WITNESS: Right. GILBERT & JONES

83 1 MR. BRANSON: Can we go off the record for 2 a second. 3 (Discussion off the record.) 4 Q. (By Mr. Branson) Let's go back on the 5 record and back on task because our time is important 6 but I had to make that comment. 7 So we have a situation here, to recap, 8 where Michael Tenney has contacted thr.org and he's 9 making some sort of an offer. What was the nature of 10 that offer as you understood it? 11 A. He was very vague and I don't know that we 12 had much of an understanding before the meeting 13 happened. 14 Q. He was vague but within the vagaries, 15 understanding that it wasn't a hard deal at all, 16 preliminarily what did you think what was going to

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17 happen? 18 What were your concerns about what was 19 going to happen? Let's make it even more specific. 20 A. We didn't know what was going to happen. 21 Q. Who was this guy Michael Tenney and what's 22 Cheaper Than Dirt? 23 A. My understanding is Michael Tenney is, if 24 not the owner, then the decision maker for Cheaper 25 Than Dirt which is a large firearms good retailer. GILBERT & JONES

84 1 They sell ammunition and surplus items and various 2 things. 3 Q. And they have this catalog they send out 4 to everybody -- 5 A. I don't know. 6 Q. And so when he contacted Web master when 7 he sent this contact, do you remember what the 8 content of that contact was, what he was asking to 9 do? 10 A. Not off the top of my head. I want to say 11 that it was essentially the same content he mailed me 12 directly but I'd have to look at both of them and 13 compare them. I believe -- 14 Q. What was he asking to do? What was he 15 wanting to do? 16 A. It was something very vague along the 17 lines of developing a partnership and/or buy THR. So 18 there was a lot of hedge room in there. 19 Q. Mr. Tenney at some point wanted to talk to 20 Oleg and fly him out to Texas? 21 A. My understanding is he was also offering 22 Oleg a job that involved graphic design in some form 23 and he thought it would be -- he expressed that he 24 thought it would be convenient to discuss both issues 25 at the same time. GILBERT & JONES

85 1 A number of us had concerns that he was 2 going to use this as a hard sell for Oleg and Oleg is 3 quite susceptible to that sort of thing so we thought 4 Oleg was -- 5 Q. When you say -- I'm sorry. I didn't mean 6 to interrupt. 7 A. Go ahead. 8 Q. When you say hard sell, what do you mean 9 by that? 10 A. I believe he was -- my thought at the time 11 was probably that what he was trying to do was get 12 Oleg to commit to what was a bad business decision 13 while he was in Texas, which was the importance of 14 communicating to Glenn that Oleg was not there to

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15 make a decision and could not make a decision simply 16 on his own authority. 17 So I believe that was communicated. That 18 was where the understanding came about. 19 Q. So when you communicated to Glenn to let 20 Michael Tenney know that Oleg wasn't authorized to 21 make a decision on behalf of thr.org, what did Glenn 22 do after that? 23 A. I don't know if that's the exact wording 24 that I used and I don't know what conversation Glenn 25 actually had with Michael Tenney. GILBERT & JONES

86 1 This morphed somewhere from Glenn acting 2 as my agent to a number of secretive things going on 3 with Oleg and Glenn and Michael Tenney behind the 4 scenes. 5 But Michael Tenney has communicated that 6 he understood that this was joint ownership. I don't 7 know if that was Glenn or Oleg that informed him of 8 that, but that's certainly something we can identify 9 in the future. 10 Q. And so your point of view on this was that 11 at this time as this situation was developing that 12 Glenn was acting as your agent in this? 13 A. Yes, that's my understanding. 14 Q. When you say that Oleg was not authorized 15 to make a business decision like this, who would have 16 authorized him to do that? Who did he need 17 authorization from and couldn't get? 18 A. This would be a much easier question to 19 answer if we had formalized documents relating to 20 that. 21 Oleg and I had a number of conversations, 22 possibly dozens, in the time period leading up to 23 this where we discussed ownership. 24 And our understanding was that he and I 25 were equal owners. He brought up that he thought GILBERT & JONES

87 1 staff should have some stake in that. 2 I had some mixed feelings about that. I 3 thought sharing the proceeds with staff might have 4 been more appropriate than giving them the other, but 5 at the time we never came to a formal decision as 6 to -- we know who the stakeholders are but we didn't 7 know what ownership, in quotes, stake everybody had 8 respectively. That had never been determined. 9 Q. You never got far enough -- 10 A. -- but, at best, Oleg had half ownership, 11 so, you know, 50 percent is not enough to make that 12 sort of decision.

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13 Q. So informally your understanding is, at 14 best, Oleg had 50 percent -- 15 A. Informally my understanding was Oleg and I 16 had an equal stake in this. 17 Q. So if you two have equal stakes and then 18 other people as well that have to be considered, what 19 does their stake turn out to be? 20 A. Again that's a discussion that has yet to 21 happen so I'd hate to speculate about what the 22 resolution of that discussion would be. 23 Q. So you never really got that far in 24 figuring it out? 25 A. Oleg and I reached an agreement, and GILBERT & JONES

88 1 apparently he's changed his mind since then, that we 2 had equal shares, equal stakes, we were equal owners 3 in this and that the administrative staff of the 4 board had some interest as well but I don't know that 5 we clarified whether that was strictly a financial 6 interest, if money was to be made from this, or if it 7 represented ownership, but that was about as far as 8 we got. 9 Q. So going back to the discussions regarding 10 Mr. Tenney, Cheaper Than Dirt, Oleg, you, THR, the 11 situation, did Oleg ever go out to Texas and visit 12 with Tenney? 13 A. I believe he did on August 8th. 14 Q. That's the first time that you've given me 15 an exact date -- 16 A. We have come across that date many times 17 in dealing with documents since then. 18 Q. Why do you think that is? What's the 19 significance of that to you? 20 MR. PEELER: Object to the form. If you 21 know what he's asking, you can answer. 22 THE WITNESS: There were two questions 23 there, so if you'd restate that, it would be 24 helpful. 25 Q. (By Mr. Branson) Sorry. Is the August GILBERT & JONES

89 1 8th date an important date in the history of this 2 case and in the history of thr.org in your mind? 3 MR. PEELER: Same objection. 4 MR. BRANSON: It's a yes or no. 5 MR. PEELER: Is it an important date and 6 is it an important date in the history of THR. 7 I'm not sure what you're asking so I'm going to 8 object that it's vague. 9 MR. BRANSON: I'm sorry. I'm asking 10 compound questions without realizing it.

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11 Q. (By Mr. Branson) Is August the 8th an 12 important date in the history of thr.org? 13 A. I believe that weekend is important. 14 Q. Why is it important? 15 A. Because for years prior to that in all the 16 conversations leading up to that, Oleg and I had been 17 of the understanding that we were equal owners in 18 this, which is why I had been willing to contribute 19 as much as I had. 20 And sometime after that, and it's 21 difficult to tell where because Oleg got quite 22 secretive, he decided he didn't like that as much. 23 So sometime in that month after that or 24 before the end of October there was a significant 25 shift in Oleg's mind-set I believe and that's at the GILBERT & JONES

90 1 root of the current difficulty. 2 Q. Well, why is it that Mr. Tenney wanted to 3 fly Oleg out to Texas instead of you? 4 A. Because he was offering him a graphic 5 design job at the same time. He seemed to like 6 Oleg's work and he -- what he said was he thought 7 having both discussions at the same time would be 8 beneficial. 9 Q. And you disagreed with that, didn't you? 10 A. My suspicion is he thought it would be 11 easier to talk with the artist than to talk to 12 somebody who was in the process of getting his MBA in 13 trying to be persuasive. 14 Q. And so you wanted to separate any deals 15 between Tenney and Oleg and Tenney and THR; is that 16 right? 17 In other words, you wanted to have two 18 separate conversations instead of mixing it all into 19 one ball? 20 A. I don't know what I wanted. I thought 21 that was a stupid thing to do because I thought Oleg 22 going down there would turn this into one big 23 emotional mess and cause future problems. 24 I just don't think Oleg was mentally and 25 emotionally equipped to have that conversation by GILBERT & JONES

91 1 himself. 2 But that was the way Tenney wanted to 3 proceed. We had some discussions to try to minimize 4 the damage. I don't know that they were terribly 5 effective. 6 Q. Michael Tenney actually refused to split 7 that conversation that way, didn't he? He insisted 8 on doing it all at once --

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9 A. I never spoke with Michael Tenney until he 10 called me while he was driving Oleg back to the 11 airport. So I don't know that that conversation 12 you're referring to actually ever happened. I'm not 13 aware of it. 14 Q. What was the substance of the conversation 15 when he called you coming back from the airport? 16 A. He wanted to summarize what he talked 17 about with regard to the THR deal with Oleg and so we 18 covered some of those details. 19 Q. Whose idea was it for -- well, you may not 20 know that. 21 Did he indicate to you why he was making 22 that call to you? 23 A. I don't recall. 24 Q. So at a certain point there was a 25 disagreement between you and Oleg regarding the GILBERT & JONES

92 1 future of thehighroad.org? Is that a fair thing to 2 say? 3 A. I don't like your characterization of it 4 because there was a big discussion among the 5 administrators regarding the future of The High Road 6 and there were a number of points of view involved in 7 that. 8 Q. So again going back to that concept that 9 this is a group effort, there was group input on this 10 discussion? 11 A. There was. 12 Q. And lots of people had their say regarding 13 what they thought about the situation? 14 A. Yes. 15 Q. And some of those people would include 16 Tyme? Would he have been part of that discussion? 17 A. I don't know that he actually offered -- I 18 don't remember any comments he offered specifically. 19 Q. Do you remember anybody else, any other 20 specific posters, members, people, that were part of 21 this conversation? Is there anybody that comes to 22 mind that was important in this discussion? 23 A. Mal Hightower contributed. Jeff White 24 contributed. Art Eatman didn't really contribute. 25 Somebody who later resigned due to Oleg's GILBERT & JONES

93 1 behavior in approaching the business deal as he 2 communicated to me who had been friends with Oleg 3 since he was 13, I don't remember his name, he had 4 something to say about it. 5 Larry Korea (phonetic) had something to 6 say about it. The guy who goes by the name Coronach,

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7 his first name is Mike, had some comments. Mike 8 Crenshaw had some comments. 9 I'm going from memory. That's a 10 discussion -- 11 Q. A number of people -- 12 A. If you're -- it should be fairly easy for 13 you to look up and you'd come up with a much more 14 comprehensive answer than I can give you, a much more 15 accurate answer because again this is from memory, 16 over a year ago. 17 Q. Sure. So all of the people that were part 18 of this discussion -- and this was in the admin 19 forums, right? This wasn't in the general -- 20 A. This was not a public discussion. 21 Q. So it was something that staff, 22 moderators, only a select few people had access to, 23 is that right, a good way to characterize that? 24 A. I'm not sure. At the time it was 25 something I thought only select few people had access GILBERT & JONES

94 1 to. 2 Q. I don't mean to ask you that in a 3 technical sense as in if you can prove that, but that 4 was your impression? 5 A. The conversations were shared with other 6 people outside of this. I believe Michael Tenney was 7 one of those and there were some others and I don't 8 know whether Oleg actually sent them copies of the 9 conversation or characterized it over the phone. 10 Q. Is there anybody else in this conversation 11 that you would characterize as having an ownership 12 interest in thr.org? 13 A. You're going to have to be more specific 14 there. I'm seeing three ways I can answer that and I 15 want to answer the right question. 16 Q. Sure. You said earlier that you have an 17 interest in owning this thing and that Oleg has an 18 interest in owning this thing and that there are some 19 other people that have an interest in owning this 20 thing. Would those other people be the same people 21 that were part of this decision-making process? 22 MR. PEELER: And I'm going to object to 23 the form. That mischaracterizes his previous 24 testimony. 25 MR. BRANSON: Okay. GILBERT & JONES

95 1 MR. PEELER: I think his testimony was he 2 and Oleg shared equal ownership interest. They 3 were going to decide what, if any, interest 4 other people may have.

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5 But your question said that he testified 6 that other people had -- 7 THE WITNESS: And let's clarify that more. 8 At the time when we had that discussion that was 9 my understanding. 10 And looking back at this other discussion, 11 answering the question I believe you're trying 12 to ask, I believe I can say at the time I 13 thought there was three stakeholders. 14 There was me. There was Oleg and there 15 was the moderators and I was arguing that 16 moderators ought to have an ownership interest 17 and they ought to have some proceeds from this 18 because their contribution is quite significant. 19 And for the most part -- actually every 20 moderator comment I can remember said we don't 21 want that. 22 So I still believe they're stakeholders. 23 I don't know if I would say they have an 24 ownership interest. 25 At the time they said no. Since that GILBERT & JONES

96 1 point in time they may have changed their mind 2 but I can't really tell you what they're 3 thinking. Is that closer to what you were 4 trying to ask? 5 Q. (By Mr. Branson) That's fine. I wouldn't 6 ask you to tell me what all the moderators are 7 thinking because we really would be here all day. 8 That's a good point. 9 The moderator group has evolved over time. 10 Would that be a fair characterization? Would you 11 agree with me that some moderators have become 12 moderators since the founding of THR and others have 13 left? 14 A. I would say that the moderators we have 15 now are not the same moderators that we started with. 16 There have been changes over the last six years, 17 seven years, whatever. 18 Q. And so when we're talking about a 19 potential for a financial interest in proceeds of 20 thr.org, would the group of people that you call 21 shareholders in that entity, would that be all the 22 moderators? 23 A. Stakeholders. 24 Q. Sorry, stakeholders. Would that be all 25 the moderators past and present? GILBERT & JONES

97 1 A. Again that is a conversation that needs to 2 happen that has not yet occurred. I have an opinion

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3 there but I'd really hate to speculate as to what the 4 resolution would be because in deciding who they are, 5 they in quotes, the moderators will have a point of 6 view that may outweigh mine. 7 Q. Well, without asking to you speculate on 8 what the final answer would be, what is your opinion 9 on that? 10 A. I think that as far as decision making 11 with regard to whatever decision power they may end 12 up having, if they have any, but certainly with 13 respect to how distribution of proceeds will be 14 handled, that's up to the moderators to determine. 15 If they want to do that by how it's logged 16 in or subjective sense of contribution or how many 17 posts they have or how many months they have been on 18 staff or if they just want to give it all to charity 19 as, you know, we're going to fund the NRA with 20 whatever our proceeds are, it's entirely up to them 21 and I think there are probably dozens of reasonable 22 and acceptable outcomes there but I don't know what 23 they're going to argue for. 24 I don't have a particularly strong 25 interest in any one of those over the others. I just GILBERT & JONES

98 1 believe that the health of the forum would best be 2 maintained if all the important stakeholders had some 3 form of ownership interest over time. 4 Q. Okay. That's great. 5 Regarding this discussion about CTD, Oleg, 6 and the future of the website, what -- and I'm not 7 asking for any kind of speculation. I'm just asking 8 for what you had in mind at the time. 9 What did you want to do with the website 10 at that time back in August 2008? 11 A. I saw a number of options, and the options 12 that were discussed with moderators, that you should 13 have records of them if you choose to look for them, 14 were forming a nonprofit of some kind and taking the 15 proceeds to either donate to charity, the proceeds 16 above a living wage for Oleg and I, that was 17 understood, either giving that to charity or possibly 18 forming a nonprofit that was designed to promote the 19 right to keep and bear arms. 20 I believe the example I used to Oleg was 21 some of these images had emotional appeal and it 22 would be perfectly reasonable for us to put those on 23 the sides of buses in large cities. That might be 24 enough to help persuade some minds. So that was one 25 option. GILBERT & JONES

99

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1 Another option was just splitting the 2 proceeds, which I didn't think was a very good one. 3 Another option was just sitting and waiting, take a 4 year and decide because all of a sudden we realized 5 this had much higher value than we ever thought it 6 would. 7 Q. Let's talk about that because we've talked 8 about on the one end -- earlier before the break we 9 talked about how expensive it is to run this thing 10 and you're talking about significant amounts of money 11 for hardware, software, bandwidth each month and how 12 much it cost to do this and then we've talked about a 13 couple of one successful and maybe one less 14 successful fund-raising drive that was done and now 15 we're talking about stakeholders and proceeds. 16 Where are the proceeds coming from and 17 what kind of profit is the site making? 18 A. To date -- actually all proceeds are 19 speculative. We have not made a penny. 20 Q. So this is all just in the future if 21 things work out for the website? 22 A. Actually these discussions were held in 23 the context of somebody who showed up and offered to 24 drop two hundred grand a year on the site, a hundred 25 and fifty in cash and fifty in promotion -- GILBERT & JONES

100 1 Q. And that person would be? 2 A. Michael Tenney. So it certainly seemed 3 something more than speculative at the time, but this 4 wasn't some vague discussion about a hypothetical. 5 I think we've reached the point where we 6 understood it had real value. And I believe again if 7 you go back through those documents I made statements 8 such that it would be okay to put this decision off 9 and choose not to monetize now, but if we've got this 10 much money on the table, I don't think it's 11 reasonable for me to keep funding this completely 12 out-of-pocket. 13 But I wouldn't call it -- we've never made 14 a penny but I don't think it was speculative. There 15 was some real money at stake and I believe there 16 still is some real money at stake. 17 Q. Well, let me just ask you directly and 18 bluntly. If there is still some real money at stake, 19 where do you think that's going to come from? 20 A. Well, I think the site has value. There 21 are a number of ways that it could be monetized. 22 Q. Going back, did you have a business plan 23 back in August 2008 that you wanted to implement for 24 monetizing the site as you say? 25 A. No. It was all wide open discussion. GILBERT & JONES

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101 1 Q. And in this conversation, this virtual 2 Internet conversation regarding the future of the 3 website and CTD and their involvement, you and Oleg 4 wound up having a pretty good size disagreement, 5 didn't you? 6 A. Eventually it turned out that way. 7 Q. Was that disagreement -- is that something 8 that happened on the forums or did it happen by phone 9 or how did you communicate with each other regarding 10 that disagreement? 11 A. We communicated by phone and every time we 12 talked we would always reach a resolution. I don't 13 know if we had that much disagreement. 14 By the end of each phone call we had 15 understandings but those understandings didn't last 16 the night. 17 Oleg would change his mind I guess 18 depending on how he felt when he woke up the next 19 morning or maybe he's -- I don't know. 20 I thought we kept reaching a series of 21 understandings as we went and we were pretty much in 22 accord, and in hindsight that was not the case. 23 Q. And so while you're having this 24 disagreement with Oleg, were you claiming to be the 25 owner of the website to anybody? GILBERT & JONES

102 1 A. Oleg and my understanding going back years 2 has been that we had an equal stake in this, and 3 eventually that came out in the public discussion 4 too. I wasn't of the opinion that it was really 5 anybody else's business but it became relevant. 6 Q. At some point Oleg's account status was 7 changed. He had been -- see, I don't want to be 8 testifying for you here. Let me rephrase and try not 9 to put words in your mouth. 10 At some point did Oleg's technical status, 11 his account on thr.org, did it get changed? 12 A. Yes. 13 Q. Who changed it? 14 A. You're asking a much more complicated 15 question than you think you are. But the best way I 16 can summarize this is Oleg had some conversations 17 with me and a number of other moderators that 18 suggested that his emotional state was such that he 19 would be satisfied to just see the entire community 20 die. 21 I believe his terminology to me was, 22 quote, burn the house down with everybody in it, 23 unquote. 24 So that came out in some of the

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25 discussions and he had another discussion I don't GILBERT & JONES

103 1 know the details of with Mal Hightower that convinced 2 Mal he was ready to do something stupid. 3 So Mal changed his account status I 4 believe from administrator to moderator, and he 5 called me as I was about to go into class and had me 6 toggle some settings that would not allow Oleg to do 7 very detrimental things to the database. 8 I'm not sure that that would have been the 9 case had he just had administrative access, but it 10 was a joint approach to changing those. 11 And then later Oleg was -- this is 12 difficult to say because what I'm doing is relying on 13 statements Oleg made to other people. 14 Apparently Oleg was trying to kill 15 thehighroad.org in the interest of building up the 16 thehighroad.us as a replacement and moderators were 17 watching his behavior and he was digging through the 18 band members' file and doing all sorts of stuff that 19 he shouldn't have been doing and wasn't talking to 20 anybody and moderators decided that he no longer 21 needed to have any exceptional access, and I believe 22 they bumped him down to a senior member. 23 He might have a title moderator emeritus, 24 something like that, but they took away his access to 25 the staff area and set up a separate place where only GILBERT & JONES

104 1 he and staff had access to for further discussions. 2 I don't know that it's seen much use. So there were 3 three answers there. 4 Q. That's good. There's a lot of information 5 there. And this is a complicated situation. I 6 understand and appreciate that. It's a complicated 7 thing that happened. 8 Okay. Let me go back to some of the 9 things that you talked about. When you say that Oleg 10 made a statement that he was going to burn down the 11 house with everyone in it and he was going to kill 12 thr.org, what did that mean to you? 13 A. He didn't say he was going to kill THR. 14 The statement, as best I remember it, was something 15 along the lines of, Derek, I understand I'm being 16 emotional here and I want to be rational but my 17 emotional state is such that, you know, I want to 18 burn the house down with everybody in it and I know 19 that's not something productive and I know it's not 20 in my best interest but frankly I really don't care 21 right now. 22 And that's the closest I have to that

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23 quote and I made sure I had good backups. I do not 24 know what he said to Mal Hightower that made Mal 25 think that he was about to do something imminent, so GILBERT & JONES

105 1 I can't testify to that. 2 Q. So let's split this into two questions. 3 When you read that statement, that's obviously sort 4 of an analogizing statement. There's no house. 5 There's no people. There's no matches and 6 gasoline -- 7 A. My wife didn't take it that way. She was 8 quite upset as somebody who's had a house fire around 9 her before. So she took it much more directly than I 10 did. 11 Q. You as a technical person and as an IT Web 12 hoster and the guy that's in charge of all of that 13 stuff, how did you take that to mean? 14 What kind of action could he have taken or 15 did that statement lead you to think he was going to 16 take? What's he going to do to carry out that 17 threat? 18 A. I don't know that Oleg has a whole lot of 19 technical ability but he has friends with technical 20 ability so I don't know what they would do. 21 I don't know. There are a number of 22 things that can be done but I think the intent enough 23 is enough to -- 24 Q. What was the thing that you were worried 25 about? What were you worried that he was going to GILBERT & JONES

106 1 do? 2 A. Delete the database, start tampering with 3 things. It would be more useful from the perspective 4 of somebody trying to destroy it to suddenly mangle 5 the database over a period of time so the backups 6 would become corrupt, but I don't think he would have 7 thought of that, but there are a number of things 8 that could be difficult to anticipate and difficult 9 to detect. 10 Q. Because I'm not technical either and I can 11 guess, but I don't want to guess. I want you to tell 12 me. 13 When you say delete the database, we have 14 thehighroad.org as it existed in August of 2008 and 15 let's say someone, be it Oleg or a hacker or 16 whatever, deletes the database and I want to go to 17 the worldwide Web thehighroad.org and I hit enter, 18 what do I actually see? What has happened to this 19 website? 20 A. You get a database error saying I can't

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21 connect to the database. That's all the content of 22 the site, including the pages that actually get 23 displayed because they're all generated 24 automatically. 25 That would be where we had to restore from GILBERT & JONES

107 1 the most recent backup so we would lose data and 2 ongoing discussions would be halted because 3 everything that happened since the last -- that may 4 be that 10,000 posts are suddenly gone and that 5 causes harm to the community. 6 I mean, I hate to say that's the only 7 thing to do. There are a number of things that could 8 be done. 9 Q. But that's what came to mind? 10 A. That's what came to mind. 11 Q. Okay. 12 A. But again I don't know what he told Mal 13 Hightower. That was really the precipitating event 14 when the status changed. 15 Q. So Mal Hightower then took what action to 16 prevent the burning down of the house? 17 A. He changed Oleg's status from I want to 18 say administrator to moderator and this would be a 19 very technically detailed question so I'll try to 20 avoid some of the technical details because I don't 21 know exactly what he did anyway. 22 But by removing administrative access he 23 removed the easiest ways to do harm and he also had 24 me change a line or two in the configuration file 25 which gave Oleg's user ID some special permissions. GILBERT & JONES

108 1 Q. What kind of special permissions were 2 those? 3 A. I can't tell you off the top of my head. 4 Q. Do you have those same special permissions 5 in your file? 6 A. No. 7 Q. So those were things that Oleg could do 8 on -- 9 A. Actually I might have. I believe there 10 are two things I changed. One of them is the ability 11 to prune the administrative log. So you can make 12 changes in the administrator and then go back and 13 hide the fact you made changes. 14 I don't know that I ever added myself to 15 do that. I think Oleg was added by default by the 16 software when it was installed. But there's really 17 no reason to do that. 18 Q. Okay.

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19 A. I don't know what the second one was but I 20 don't believe -- I might -- I don't know. 21 Q. That's fair. 22 A. Let's pause here. I just really have to 23 pee. I'll be back in -- 24 MR. PEELER: First of all, let's remember 25 that everything is taken down. GILBERT & JONES

109 1 THE WITNESS: Oh, I'm sorry. Please 2 remove references to my bodily function. 3 MR. PEELER: Secondly let's take a break 4 and go off the record. 5 (Lunch recess from 11:45 a.m. to 1:00 6 a.m.) 7 MR. BRANSON: It is a little bit after 8 1:00 o'clock. I'm Michael Branson. Again the 9 same players as before, Oleg Volk, Charlie 10 Peeler, Derek Zeanah. 11 Without any further ado, we will agree the 12 same conditions as before, everything pursuant 13 to the federal rules, the same kind of situation 14 as we did this morning. Any disagreements or 15 comments on that? 16 MR. PEELER: That sounds great to me. 17 Q. (By Mr. Branson) We were talking about 18 the altering of Oleg's account status on thr.org and 19 we were discussing that at some point, Derek, you and 20 Mal thought that a threat had been made toward the 21 Web page so you decided to alter Oleg's account; is 22 that correct? Would you agree -- 23 A. Our understanding was -- well, Mal didn't 24 tell me what Oleg said to him directly. He seemed to 25 think it would be inappropriate to do so but he GILBERT & JONES

110 1 seemed to think that Oleg was going to do something 2 very soon, that the action was imminent, and we 3 eliminated his ability to do so. 4 It didn't really change anything that he 5 did on the site. It changed what he could do. The 6 sort of tasks he typically did were not affected by 7 that at all as far as I'm aware. 8 Q. Let me ask you then in terms of ownership 9 of this entity, of THR, and control of this entity, 10 THR, this decision to strip Oleg of his higher 11 functions, his higher technical functions, is that 12 something that you and Mal did on your own or did you 13 consult with other people before you made that 14 decision? 15 A. I don't know who was consulted with before 16 Mal made that action. I don't know.

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17 Q. If you're part owner and Oleg is part 18 owner and there may be some stakeholders -- there's 19 this other entity of members, moderators and so forth 20 as out there, what is it in your opinion that gave 21 you the authority or the right to take his account 22 privileges away? 23 A. I believe the account privileges that were 24 taken away were not taken away by me, not in the way 25 that you mean it there. GILBERT & JONES

111 1 I made some changes that would keep him 2 from doing things that nobody ever really needed to 3 do. So I guess I'm not -- rephrase your question. 4 I'll try to give you a better answer. 5 Q. Well, basically his settings had been 6 changed and it was you and Mal that changed those 7 settings. 8 If he's at least a part owner of the Web 9 page, what gives you the right to change his 10 settings? 11 A. Well, the entity and its value had to be 12 protected. He'd stated pretty clearly that he was 13 driven, though he was resisting to some degree or 14 another, but he had the desire to do damage to it out 15 of -- I don't know. I don't know how you want to 16 characterize his emotions at the time. 17 Q. And that feeling on your part that 18 something was about to happen then justified taking a 19 preemptive action to make sure that no harm could be 20 done? Is that a fair statement on my part? 21 A. I think that the threat that seemed to be 22 there justified taking away privileges that none of 23 us had ever actually needed to use. 24 Q. Who has the final say in this entity of 25 the Web page, who has the final say in what rights or GILBERT & JONES

112 1 privileges administrators, moderators, owners have -- 2 A. I -- 3 MR. PEELER: Let him finish his question 4 and then answer the question. 5 Q. (By Mr. Branson) Who gets to choose who 6 has what power? 7 A. I'm going to have you rephrase that 8 because the entity is one entity and the Web pages 9 are produced by software that that entity depends 10 upon and there's some confusion the way you worded 11 that. So if you'd just reword that. 12 Q. Oleg, you, Mal, Tyme, other members of the 13 site all have an account status and the account 14 status can have various levels of accessibility and

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15 responsibility? Would you agree with me on that? 16 A. Yes. 17 Q. Depending on whether you're a moderator or 18 an administrator -- 19 A. Yes. 20 Q. So who has the final say in what options 21 are clicked on people's accounts, this person is an 22 administrator, this person is a moderator, this 23 person is not? 24 A. Generally those decisions are made by 25 consensus and we've always reached them by consensus. GILBERT & JONES

113 1 Now, there were some special circumstances 2 about a year ago but for the most part it's -- I 3 won't say the majority rule but we have discussions 4 about them in the staff lounge, sometimes quite 5 heated discussions. 6 Q. And those special circumstances would have 7 been this instance because there wasn't really a 8 consensus, it was just something you felt needed to 9 be done and so you did it? 10 A. Actually I responded to help Mal do it. I 11 trust the guy. I don't know what Oleg told him 12 privately. 13 Now, there's also another -- I mean, the 14 most significant change to Oleg's status, you're 15 talking about the first one that happened, and that 16 didn't really change much. 17 His name was still in bold afterwards and 18 for all intents and purposes he could do everything 19 on the site he had always done previously. 20 And there was a second change that was 21 done by consensus that I did not vote on that was 22 handled by the moderators themselves. 23 And there were probably a group of them 24 who made that decision one night as Oleg was being 25 very destructive. Apparently that was the stated GILBERT & JONES

114 1 intent of some of the moderators as well. And then 2 they put themselves up for if y'all disagree with 3 what I've done I'll be happy to step down but this is 4 what we did, what do you think. And the consensus 5 was Oleg had to go, or at least as a moderator. 6 I did not have any say in that. I watched 7 it from the sideline. I figured I was a bit too 8 close to it to contribute rationally. 9 Q. And after they made the decision that Oleg 10 had to go, what happened to his account then? 11 A. I believe it was set to regular member 12 status. He was given special permission to a forum

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13 that we created so that only staff and he had access 14 to it and I believe he has access to a private forum 15 as well. 16 So he essentially became a user with as 17 many privileges as -- actually more privileges than 18 any other user has but he didn't have any -- 19 Q. So he really has sort of his own little 20 forum where he can go that's not under the public 21 eye? 22 A. The thinking was that there were some 23 discussions that needed to be had that shouldn't be 24 done in public so a place was provided for that. 25 I don't know that it's ever really been GILBERT & JONES

115 1 used but there were a few, Oleg, what were you 2 thinking posts in there. For the most part -- it 3 doesn't matter. 4 But, yes, there is a special section that 5 he and staff only have access to. 6 Q. You know, the danger with making decisions 7 by consensus like this is that sometimes you'll have 8 a situation where a consensus can't be reached 9 because you have roughly a 50/50 input and it's a 10 coin flip on voting aye or nay on some issue. 11 Before August of last year, was there 12 somebody who was known as sort of a tiebreaker who 13 would have the final say and things like that if 14 there was a dispute or a vote that came to a 50/50? 15 A. I think some -- 16 MR. PEELER: Hold on. Object to the form. 17 If you understand the question, you can answer 18 it. 19 THE WITNESS: I believe I understand the 20 question. There were some moderators who gave 21 Oleg's opinion special deference but there were 22 a number of cases, as I remember it, where 23 Oleg's actions were frowned upon and the 24 communal decision was contrary to what Oleg 25 wanted to do, but I don't know that we actually GILBERT & JONES

116 1 had a tiebreaker. 2 When it came to issues that affected 3 liability as I saw it, I pretty much set the 4 rule there. There were some things that would 5 not be permitted. 6 For the most part, everything else was 7 editorial and there were some opinions. We've 8 got a great moderation staff and I didn't step 9 in very much. 10 Q. (By Mr. Branson) When there was sort of a

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11 clash between Oleg's opinion and the opinion of some 12 of the moderators, what usually wound up happening in 13 terms of the actual decision that was made? 14 A. It depends on what was done. The one that 15 stands out where he upset a bunch of moderators is he 16 created a private area that made some users more 17 privileged than others and a lot of moderators 18 thought that was anti -- I don't know. It wasn't 19 equalitarian enough, and I understood that. 20 I happened to agree with it. I think 21 we've got a pretty good membership base and it's nice 22 to discuss some topics that are not strictly within 23 the realm that the board tries to limit itself to and 24 it was nice to have a place where people who are 25 known to be cooler heads can hang out to do that. GILBERT & JONES

117 1 But that was left to stay because it would 2 look bad to create it and people realize it and then 3 it disappear and they ask questions about it in 4 public. 5 Q. Right. So did he create that just on his 6 own and decide he was going to do that on his own or 7 did he -- 8 A. He did. That's the only time I can think 9 where he showed any real autonomy in decision making. 10 So, yes, he did that on his own and we almost lost 11 moderators over it. 12 Q. Did you ever have occasion to create any 13 forums that were ideas of yours? 14 A. No. For the most part I didn't take a 15 stand in editorial decisions. 16 Q. There's one particular alteration that I'm 17 curious about. In his account biography you said 18 earlier this morning when we were discussing the 19 setup of thr.org that there's a set of registration 20 questions and they got turned into an account -- I 21 call them the account biography. I don't know what 22 the technical term is. 23 And one of those questions that Oleg came 24 up with was what do you do for the right to keep and 25 bear arms. Do you remember talking about that this GILBERT & JONES

118 1 morning? 2 A. Yes. 3 Q. At some point in his account biography in 4 that registration section in answer to that query 5 what do you do for the right to keep and bear arms, 6 Oleg's -- do you recall what Oleg's answer to that 7 was? 8 A. I don't.

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9 Q. If I said that his answer was I'm the 10 owner of this website, would that sound wrong to you? 11 A. I don't know what his statement was so I 12 can't make any comment as to what it said. 13 Q. And if I told you that at some point his 14 account biography with that statement in it was 15 altered so that that line was removed, would you have 16 any knowledge of that alteration? 17 A. No. 18 Q. So we've gotten to the point where Oleg 19 has had his account changed because you were worried 20 about any damage done to the Web page or that could 21 happen; is that right? 22 A. Yes. 23 Q. Did any damage to the Web page actually 24 ever occur? Did he actually make good on his threat 25 or attempt to make good on his threat? GILBERT & JONES

119 1 A. Yes. 2 Q. What kind of damage was that? 3 A. He hacked the server, set up a competing 4 site, and spammed all the members multiple times, 5 talking about how the new site was the authentic 6 site, caused a great deal of confusion. 7 Q. So when you say he hacked the site, you 8 mean he accessed the site? Somehow he got access to 9 it, to what? When you say he hacked the site, what 10 do you mean? 11 A. I mean the database was transferred. I 12 mean, he's gone into that in his testimony. I can't 13 tell you exactly what he did. I can tell you what it 14 looks like, but I can't tell you much more than that. 15 Q. Well, I'm just trying to build a picture 16 of -- 17 A. Proprietary data, including all user 18 accounts and all previous posts, was taken from the 19 site and set up at a competing site. 20 Q. Right, which would be thehighroad.us? 21 A. Yes. 22 Q. And that data would be basically an 23 archive, basically a copy, like a copy-paste-type 24 situation where he copied what existed at a certain 25 point on thr.org and then pasted onto thr.us? Would GILBERT & JONES

120 1 that be a fair -- 2 A. I haven't examined his database. 3 Q. Well, in doing so, as you described doing 4 that -- let me go back. When you say he spammed 5 people, what does that mean? What does spamming 6 people mean?

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7 A. Well, since our inception we've never seen 8 the need to e-mail the users in general, a mass 9 e-mail to everybody who's ever registered, and he saw 10 the need twice within about a ten-day period. 11 Q. And so when you say spammed, you say he 12 basically sent an e-mail out to everybody that he 13 could possibly e-mail that was part of this -- 14 A. Multiple e-mails to try and diminish the 15 value of our site with the intent of I would assume 16 increasing the value of his. 17 Q. When you said proprietary a minute ago in 18 terms of the database, what do you mean by 19 proprietary, proprietary data or proprietary 20 information? How would you define that word in that 21 context? 22 A. I think it's an appropriate word. I can't 23 give you the definition for the word proprietary off 24 top of my head. 25 It was private information that was shown GILBERT & JONES

121 1 to nobody else. It was actually set private. I 2 don't believe that -- 3 Q. Private to who? 4 A. Let me rephrase this slightly. If THR was 5 going to become a commercial venture, the value that 6 it had is based off of the contributions that users 7 have made. 8 We got over 6 million posts now, around 6 9 million posts posted by up to 80,000 people and the 10 value was in that content and all of that value was 11 duplicated and copied over and set up as a competing 12 site. 13 So when I say proprietary data, I mean all 14 those things that made our site unique and it made 15 our site what it is. 16 Q. In doing any of this did he ever do 17 anything that actually limited public access to 18 thr.org? 19 A. I don't know. 20 Q. Okay. 21 A. There were some bandwidth spikes so our 22 bandwidth was maxed out. It would have looked like a 23 denial of service attack. That's another term of 24 art. 25 And I don't know if anybody was unable to GILBERT & JONES

122 1 reach the site while that was happening or not, so I 2 cannot give you a definitive answer there. 3 I think the odds are probably but I 4 couldn't quantify it in any way and I couldn't say it

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5 with any certainty. 6 Q. On the other hand at a certain point you 7 actually shut down thr.org for a certain period of 8 time, didn't you? 9 A. I shut down THR for about 12 hours. 10 Q. And so when we say you shut it down, I've 11 also heard the phrase pulled the plug. That's fairly 12 colloquial. 13 Why don't you tell me technically what you 14 did to shut it down for those 12 hours. 15 A. Oleg sort of started a firestorm that was 16 directed at me and at the forum and it looked likely 17 to damage the forum and it required some kind of 18 response. 19 But as Oleg had been saying, this will go 20 to court, I will not talk, we cannot settle it and 21 let's got to court, I felt like I needed to get legal 22 advice before I could actually post any response. 23 So I put up a maintenance message and as 24 soon as I could talk with a lawyer I put it back 25 online and I believe we put up a response and then GILBERT & JONES

123 1 the moderators tweaked that response a bit over a few 2 days and it eventually contained our statement and 3 the goal was to reduce damage to the forum. 4 Q. But if you were going to wait and talk to 5 an attorney before you responded, why shut down the 6 entire forum so no one could access it? 7 A. Because Oleg was driving up interest in 8 this matter on a number of unrelated forums, some of 9 which are quite busy, and it's quite possibly we 10 could have had 10,000 posts overnight which would 11 have been detrimental to the site and would have 12 stopped all other conversation and it would have 13 caused damage to the site. 14 And in order to protect the site I had to 15 shut it down until I could get advice on what I was 16 allowed to do to respond. 17 Q. So it's your testimony today that you 18 can't really tell me that anything he ever did 19 limited public access to thr.org; is that right? 20 A. Oh, I believe it did but I can't quantify 21 it. 22 Q. But that you admit to shutting down the 23 Web page for all users anywhere throughout the 24 worldwide Web to prevent him from making a mess of it 25 and give you time to think? GILBERT & JONES

124 1 A. No. I believe I limited access to users. 2 At the time I thought moderators still had access and

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3 there were discussions I put up. 4 It turns out only administrators had 5 access. But there were still a number of us who had 6 access to the site, but the majority of people did 7 not have access to it for 12 hours or less. 8 Q. So actually a certain number of people 9 still had access to thr.org and it would come up for 10 them but for everybody else they wouldn't be able to 11 go there and see what was going on? 12 A. That's what maintenance messages do. When 13 you put a forum into maintenance mode, using the 14 software we're using, administrators can still access 15 the forum. 16 They get a big red warning at the top 17 saying forums are currently inactive, but whatever 18 message you post is what everybody else sees. 19 Q. Could everybody else go to the archives 20 and see previous posts during that period? 21 A. I don't know. 22 Q. There's been some other people whose 23 accounts have been altered since August of 2008 and I 24 want to inquire about them. 25 We talked about Justin otherwise known as GILBERT & JONES

125 1 Tyme, T-y-m-e. What's the status of his account now? 2 A. I don't know. 3 Q. Do you remember him being banned or locked 4 out? 5 A. I haven't done so. Other moderators and I 6 have spoken on the phone after this and I expressed 7 it was my belief that he was involved with the hack 8 and as a result the moderators or the representatives 9 may have decided to limit his access to it, but I 10 don't know. 11 Q. Okay. So -- 12 MR. VOLK: May I ask a question? 13 MR. BRANSON: No, you can't. You can talk 14 to me real quick. 15 Can we go off the record for a moment, 16 please. 17 (Discussion off the record.) 18 Q. (By Mr. Branson) I've got another 19 technical question for you. What's the difference 20 between a site administrator and a server 21 administrator? 22 A. When you're talking about the site, you're 23 talking about what people see when they go to visit 24 The High Road. You're talking about the pages that 25 are served via the http protocol off of a Web server. GILBERT & JONES

126

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1 Now, if you're talking about server 2 administrator, then you're talking administrating the 3 server that sort of underlines everything else. 4 Q. How many server administrators are there 5 on thr.org? 6 A. There's one. 7 Q. Who would that be? 8 A. That would be me. 9 Q. Is the server administrator, you, the only 10 person that has the technical ability to lock out 11 accounts? 12 A. I think in theory the answer should be 13 yes. After the hack, I'm not so sure about that. 14 Q. As far as you know right now, is the 15 answer still yes? 16 A. Define what you mean by lock out accounts. 17 Q. To ban people, to kick them off. 18 A. No, that doesn't tie into server 19 administration at all. That's something moderators 20 or at least administrators can do. 21 Moderators may have that power as well. 22 I've never run as a moderator so I don't know if they 23 have actual ban power. I believe they do. 24 Q. Justin, otherwise known as Tyme, was he 25 also a server admin at some point? GILBERT & JONES

127 1 A. He had command line access to the server. 2 He had a regular user account on the server. He used 3 that to update some files periodically. 4 Q. And do you know about him being locked 5 out? 6 A. He wasn't locked out directly. There 7 was -- after Oleg met with Michael Tenney, my 8 understanding prior to that had been that an agency 9 relationship had been developed between Glenn and I, 10 and he was also acting on behalf of Oleg, and we ran 11 into a situation where there were negotiations 12 ongoing with Michael Tenney that Glenn simply 13 wouldn't answer questions to, neither would Oleg. 14 Now, we've actually seen some e-mails 15 recently which explained what was going on but there 16 were a number of backroom deals on the ground and 17 that was worrisome to me -- 18 Q. Were you not included in those backroom 19 deals? You didn't know what these conversations -- 20 A. If I was included, I probably wouldn't 21 refer to it as a backroom deal. 22 Q. Sure. Sorry. Okay. And so you were 23 under the impression that Glenn was representing you, 24 Glenn was representing Oleg -- 25 A. Actually I'd just finished my business law GILBERT & JONES

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128 1 class and I believe there were four points you need 2 to establish agency and I believe we actually 3 established all those points verbally. 4 But somehow that relationship changed in 5 there. So negotiations were ongoing with Michael 6 Tenney. And at the time the only leverage we had, 7 should we decide to enter an agreement with him, was 8 that we had access to the database and he did not. 9 Q. Who is we? 10 A. THR as an entity had its database, that 11 which makes it unique, and Michael Tenney did not. 12 And at the time there was a log in to the server that 13 I had access to and Oleg had access to and Justin had 14 access to and other people may have as well. I'm not 15 sure. 16 If they had gotten that log in, they could 17 have essentially copied the database down and that 18 would have been the end of it. 19 And with the negotiations that were 20 ongoing I went ahead and changed the password to that 21 and then within about ten minutes I made a post to 22 the staff lounge which explained a lot of things but 23 also mentioned that I had just changed the password 24 on that until we could actually sit down and have a 25 rational discussion about what was going on, you GILBERT & JONES

129 1 know, that sort of change that would drastically 2 affect our future, it wasn't something I was going to 3 consent to. 4 Q. To change that password, that's a decision 5 that you made unilaterally? You didn't consult Oleg 6 or Tyme about whether or not they wanted you to do 7 that? 8 A. I had legal advice that lead me to do 9 that. 10 MR. PEELER: Don't disclose anything 11 that -- 12 THE WITNESS: It was -- 13 MR. PEELER: Don't disclose anything that 14 related to advice given by an attorney to you. 15 THE WITNESS: Very good. I made that -- 16 MR. PEELER: I don't think that's what you 17 were asking for. 18 THE WITNESS: I did not turn around and 19 ask Tyme and Oleg what was going on. This was 20 based on my suspicion of what was eventually 21 going to happen and it turned out my suspicions 22 were correct. 23 But, yes, I did that without saying -- and 24 let's be candid here. Oleg had never actually

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25 used that account. GILBERT & JONES

130 1 This changed his ability to do something 2 he never needed to do but which could destroy 3 the site and he was expressing to me in 4 conversations that he was having some very 5 negative thoughts about -- 6 Q. (By Mr. Branson) You don't have to be 7 around-about about that. You can be specific if you 8 want. What were the negative thoughts he expressed 9 to you? 10 A. Well, the quote as I remember it was burn 11 the house down with everybody in it. He wasn't 12 getting his way. 13 What he expressed to other moderators was 14 that I had made him more angry than any other adult 15 in his life because I told him no and so that seemed 16 to be the justification for a very emotional 17 response. 18 In hindsight I'm not sure that's what was 19 going on. That's just what was communicated. But 20 that was what I thought I was dealing with. 21 Q. He wasn't used to people telling him no on 22 this Web page, was he? 23 A. On the Web page I think there have been a 24 few instances where people said, Oleg, no, that's 25 stupid. GILBERT & JONES

131 1 I think the issue was there were financial 2 consequences and it was something he really, really 3 wanted. 4 He communicated to me a few weeks 5 previously that he was convinced that his current 6 commute was going to kill him and he desperately 7 needed a new job. 8 And I thought that was hyperbole until 9 another moderator told me he had a panic attack while 10 he was commuting some day, so there may have been 11 some correlation there and I think there was a very 12 strong desire to find a way out. 13 He saw the Cheaper Than Dirt deal as a way 14 out, and looking at other people's interest or what 15 was in the best long-term interest of the forum was 16 something he was incapable of for a period of time. 17 That's a nice way to put it. There are 18 some allegations I could probably levy but I think 19 that represents the situation well enough that we can 20 run with it. 21 Q. Well, let's get into that a little bit. 22 We talked earlier about the Cheaper Than Dirt

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23 involvement. 24 A. Yes. 25 Q. And it seemed like it was -- would you GILBERT & JONES

132 1 agree with me that the negotiations were at an early 2 stage? You said that -- 3 A. I don't know. 4 Q. And you said there was a -- I don't 5 remember your exact words but I paraphrased that 6 there was sort of this nebulous and vague offer that 7 was hanging out there? 8 A. Everything I know about the offer at this 9 point is as follows. Michael Tenney was willing to 10 essentially lease THR for $200,000 in value from his 11 perspective, $50,000 in advertising and a hundred and 12 fifty thousand dollars to be distributed as we chose 13 to distribute it. And that was per year. That was 14 annually. 15 And somewhere over the next month that 16 turned into, well, why doesn't he rent the site for 17 $90,000 and hire Oleg for $60,000. I'm assuming 18 because when we split everything else equally Oleg 19 ends up with the lion's share of the proceeds. 20 So there were things like that going on. 21 Things seemed really bad. Nobody was answering any 22 questions and Oleg had the ability to ham in the 23 database which would essentially kill all other 24 options. 25 Q. And Oleg and Glenn at some point just GILBERT & JONES

133 1 stopped answering your queries and stopped talking to 2 you about all this? 3 A. They -- off the top of my head I can't 4 tell you specific events or the specific order of 5 events that happened there. 6 It was a very rushed time at least as far 7 as my memory is concerned. There were a lot of 8 events that piled right on top of each other. 9 Q. I'm going to ask you about another member 10 who went by the Internet pseudonym of Preacherman. 11 Do you know about his account and him being locked 12 out of thr.org? 13 A. I have read his account. I disagree with 14 it strongly. He and I had a 15-minute conversation 15 which he has characterized in a number of ways. 16 My recollection of the conversation is 17 that he had a master's degree in management and 18 therefore understood the legal implications of all 19 these things we were looking at and was trying to 20 give me legal advice.

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21 And beyond that we didn't really discuss 22 anything but his account is much more detailed and 23 much less charitable towards me. 24 Q. Do you know why he was locked out of 25 thr.org? GILBERT & JONES

134 1 A. My understanding is that he said I'm never 2 coming back and he left and it's quite possible -- 3 we've done some pruning of the administrative and 4 moderator roles since then. 5 I have not done them and I have not 6 participated in that. But I didn't change his 7 status. I wouldn't be shocked if it had changed. He 8 said he was never coming back, therefore, there's no 9 need to leave his account open with any special 10 privileges. 11 Q. Are you aware that there is a group of 12 moderators who have created a nonprofit corporation 13 in Tennessee named The High Road Foundation, Inc.? 14 A. Yes. 15 Q. As far as you know, is Jim Crenshaw, also 16 known as hso on the forums, is he the guy that came 17 up with this idea? 18 A. I believe his name is Mike Crenshaw and I 19 do not know who came up with the idea. 20 MR. VOLK: Can we have a bathroom break? 21 MR. BRANSON: I suppose. It's now 1:35. 22 Let's break for ten minutes until 1:45. How 23 does that sound? 24 MR. PEELER: Sure. 25 MR. BRANSON: That works for me. GILBERT & JONES

135 1 MR. PEELER: Works for me. 2 (Recess from 1:33 p.m. to 1:46 p.m.) 3 Q. (By Mr. Branson) It is now about ten to 4 2:00 and we're back on the record and continuing. 5 The same players as before. 6 We were talking about The High Road 7 Foundation, Inc. Have you had any conversations or 8 negotiations with them regarding the future of THR? 9 A. We've talked about the future. 10 Q. What was the substance of those 11 conversations? 12 A. They were vague. Most of this was in -- 13 oh, back when Oleg said he had me served before he 14 had me served, for that month, month and a half, 15 whatever it was, and we had -- I don't know. 16 Conversations about the future? 17 My goal during the conversation -- my 18 position through all this is a number of unfair

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19 statements have been made about me online and rather 20 than get into a he said she said situation, I opted 21 to hold my tongue in the interest of protecting the 22 board. 23 I felt like any open interpersonal 24 conflict would hurt the board, so I didn't. Now, a 25 number of moderators -- most of the moderators have GILBERT & JONES

136 1 been there as witnesses to this whole thing going 2 down and I would have loved to hear a statement such 3 that, you know, there is a point of view other than 4 what you've heard. And they were willing to make 5 such a statement but never did. 6 Beyond that, looking to the future, I 7 think their main concern was that my intent was to 8 see the board continue to grow and thrive and exist. 9 There was some concern for a while that I 10 might lose interest and just turn it off and I think 11 I alleviated those concerns. 12 Further on in the future they wanted to 13 know what my position would be should the Court 14 determine that I was the sole owner and I expressed 15 that probably the most rational breakdown of 16 responsibility was operational versus editorial and 17 moderators versus what I do was probably a reasonable 18 way to do that. 19 I don't believe they've ever actually 20 responded to that. They may have a different way of 21 trying to structure responsibility and decision 22 making and all the rest of that. 23 But we really don't have anything to talk 24 about until this whole issue is resolved. I think we 25 established that we all cared about the community and GILBERT & JONES

137 1 were working on behalf of the community and that's as 2 far as we got. 3 Q. But these are conversations that occurred 4 between you and The High Road Foundation, Inc., off 5 the board? 6 A. I don't believe The High Road Foundation, 7 Inc., existed then. Originally a number of 8 moderators were concerned that one of the people they 9 depended on who they believed had a strong interest 10 in the board had tried to destroy the board and they 11 were quite concerned about that and so they wanted 12 some more formalized way of representing their point 13 of view is how I understand it. 14 I have not been present for all these 15 conversations and they don't happen on the board and 16 didn't for a while because of security concerns.

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17 And originally they elected three people 18 who they thought were appropriate to speak on behalf 19 of them, and those were Mal and Mike and Jeff, and 20 since then they've got some formal structure. I'm 21 not sure what it is. 22 I don't believe I have spoken to anybody 23 who's a formal representative of whatever formal 24 structure it is that they've come up with. But those 25 were all discussions with moderators I suppose is GILBERT & JONES

138 1 what I was answering before instead of discussions 2 with that entity. 3 Q. And Oleg was excluded from these 4 discussions? He wasn't part of any of them? 5 A. I believe Mike Crenshaw actually had a 6 number of discussions with him. For a while Mike 7 Crenshaw thought the way out of this morass and what 8 would make the best sense for the board would be to 9 have a formal entity that owned it that had a number 10 of members, say, seven, nine, have one of those be 11 me, have one of them be Oleg, have the rest be filled 12 by either staff or people that the staff elected 13 because they thought were cooler heads who had no 14 interest whatsoever and use that going forward. 15 So I believe some discussions were held 16 with Oleg but I don't know anything about them. 17 Q. What's your opinion of a plan like that? 18 What do you think about that idea? 19 A. I think there are probably better ideas. 20 Q. We'll get to that in a bit. 21 Do you know what their intent is? I guess 22 we've covered that. It looks like they want to set 23 up like a board basically. 24 Are these people current moderators on 25 THR? GILBERT & JONES

139 1 A. I don't know. 2 Q. Do you know if they have any kind of 3 control over thr.org? 4 A. They have no control over thr.org. 5 Q. Who does have control over thr.org at this 6 point -- 7 A. Right now I'm the only person who has 8 control over it. I mean, the moderators are still 9 overseeing day-to-day decisions. 10 They might discuss those in places where I 11 can't see them but I'm not aware of any such things 12 going on. 13 Q. Well, let's talk about for that for a 14 little bit. Right now you're the only person that

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15 has -- you have sole control of thr.org you've 16 stated. 17 Is there a policy on thr.org regarding 18 members who bring up this dispute on the forums and 19 what happens to their accounts? 20 A. I don't believe there is. For a while 21 after this all started the moderators weren't sure 22 how to respond so I had to set the tone so I started 23 doing seven-day bans for people just to try and let 24 cooler heads prevail and -- you know. 25 That didn't work as well as it could but GILBERT & JONES

140 1 that was the start. I don't know if there's some 2 existing policy about how such things are treated. 3 I think for the most part we like to 4 discuss responsible firearms ownership, and issues of 5 ownership of the board are really detrimental to 6 that. So I think there's some baseline understanding 7 that does not serve as the mission of the board but I 8 don't know that we've got anything formal. 9 Q. So without anything formal, on your 10 authority as sole controller of thr.org at this point 11 you were banning people from bringing up this dispute 12 because it just wasn't conducive to what you wanted 13 to talk about? 14 A. I banned one person and that was for 15 misbehaving in a related way but not -- 16 Q. Who was that person? 17 A. That was a moderator formally known as The 18 Blues Man. He was yelling and screaming. I ended up 19 knocking him down to user status to see what he did. 20 I had the feeling he was going to come out 21 over the top and he ended up using the staff account 22 to put together a global announcement with a bunch of 23 arguments he thought were reasonable and I thought 24 that was exceeding his bounds so I banned him on my 25 authority but he's the only ban. GILBERT & JONES

141 1 Yeah, he's the only ban I've actually 2 done. I may have banned people in years past for 3 egregious behavior but related to this issue. 4 Q. Let me ask you again, going back to The 5 High Road Foundation people, is it your opinion that 6 the members of The High Road Foundation, whoever they 7 are -- I understand that probably neither Charlie nor 8 I nor you nor Oleg really know who exactly their 9 membership is so I'm not going to try to get you to 10 figure that out, but whoever those people are and the 11 entity known as The High Road Foundation Inc., do you 12 think they have that entity and the members of that

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13 entity have an ownership interest in thr.org? 14 A. This reflects back on something that we've 15 discussed previously. I do believe the 16 administrative personnel, people who maintain 17 editorial control, people who are administrators and 18 moderators, are stakeholders in this. 19 Whether they have an ownership interest is 20 something we have yet to determine. 21 Q. So to sum it up, would you consider them 22 partial owners or is that wording that you would 23 prefer not to use? 24 A. I don't have any opinion as to whether 25 this entity has an ownership interest or not. I've GILBERT & JONES

142 1 reached it once in a past. That was a year ago, 2 before a lot of bad behavior happened which may have 3 changed their minds. 4 And at the time they were of the opinion 5 that they should not have an ownership interest. I 6 have been of the opinion that the long-term health of 7 the forum would be better ensured if they did have an 8 ownership interest, but, as I said, we really need to 9 sit down and have a discussion about that once all of 10 this is settled to determine what it's going to be. 11 Q. After this lawsuit was filed, the matter 12 that we've been talking about today, specifically 13 after this suit was filed, did you create a 14 for-profit Georgia corporation called Firearms Forum, 15 Inc.? 16 A. I don't know. This suit was apparently 17 filed before I was served and I can't recall whether 18 I formed a forum -- formed an entity before or after 19 that. 20 Q. That's fair. 21 A. When we were leading up to -- this was -- 22 I originally -- let me get my thoughts straight. 23 Way back when this conflict first started 24 it became apparent that we had a need for a way to 25 share ownership. GILBERT & JONES

143 1 Right now everything pretty much is in my 2 name, and until we create an entity that allows for 3 fractional ownership, it's going to have to be in one 4 person's name and I think most people agree that 5 that's not the best way to distribute it. 6 So I tried to form a corporation back 7 then. Oleg and I discussed it before I did, and it 8 ended up failing on the grounds that there was, I 9 don't know, some conflict with the name. 10 So I formed another one and then sat on it

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11 for a while. I didn't want to have the appearance of 12 trying to do anything improper and then eventually I 13 transferred the domain to it once I realized that 14 perception didn't matter. 15 Q. When you say you transferred the domain to 16 it, what do you mean by that? 17 A. I mean if you look up on the domain right 18 now you're going to see it's registered to me in the 19 form of an officer of Firearms Forum, Inc. 20 Q. And that's a for-profit entity? 21 A. Apparently it takes about three years and 22 $50,000 to become a nonprofit entity and it's 23 something you have to go after and there are a dozen 24 different types of nonprofits you can choose, so I 25 haven't made a decision whether it should be a GILBERT & JONES

144 1 for-profit entity or not. 2 Its big value right now is that it can 3 issue shares and fractional ownership can be 4 accomplished should we choose to go that route. 5 Q. And it's authorized to distribute, what, 6 10,000 shares? 7 A. I don't know how many shares it's 8 authorized to distribute. 9 Q. Are you the sole shareholder in that 10 corporation right now? 11 A. Right now I am. 12 Q. Before we move on, I want to circle back 13 to something that you mentioned before we took our 14 break. 15 You said that since this dispute which is 16 now over a year ago in August of 2008, you said I 17 believe we have pruned the moderators. Who is the we 18 in that statement? 19 A. I don't remember making a statement that 20 we have pruned the moderators. Now, we have 21 different moderators than we had initially, but for 22 the most part that's been an organic thing. 23 Some people don't have time for it. Other 24 people are brought on. People have votes as to 25 whether somebody is appropriate or not. GILBERT & JONES

145 1 Now, more recently after all this 2 started -- oh, I know what you're talking about now. 3 Once the server was hacked, the database was copied 4 over, and there was a competing site, there were a 5 number of security concerns. 6 A number of people who were not active 7 moderators still had access to discussions that were 8 going on in private so an effort was made to limit

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9 the number of people who had access to people who 10 were still serving moderating and administration 11 duties. So that was handled. 12 I did not handle that. The moderators 13 took that upon themselves and researched it and did 14 whatever it was they did to make that happen. 15 Q. So you weren't in charge of that process 16 then? 17 A. No. 18 Q. Let's talk about some of the Web security 19 issues. You've hired a Web security expert? 20 A. I've hired a firm that does such things. 21 Q. Do you know if you're going to be calling 22 them to testify in this case? 23 A. I don't expect to be calling them to 24 testify in this case. 25 Q. What services have they done for you GILBERT & JONES

146 1 regarding thr.org? 2 A. As the man who had the server hacked is 3 sitting in this room, I am very uncomfortable going 4 into what specific measures have been taken to secure 5 the server. 6 MR. PEELER: I don't know that that was 7 his question. 8 Q. (By Mr. Branson) Let me rephrase that and 9 ease -- 10 MR. PEELER: I think we can probably get 11 you what you're looking for here. 12 Q. (By Mr. Branson) In general without -- 13 the thing is that obviously I'd have him leave the 14 room but we're going to have a transcript anyway. 15 So let me quantify it and say I do not 16 expect you to give me an answer which would in any 17 way endanger the security of thr.org or the possible 18 value of that entity, right, because if it's hacked 19 and the value is down, that's not something that 20 anybody wants. 21 So without going into specific technical 22 detail, can you tell me what these people do and what 23 they've done for THR in general terms. 24 A. In general terms they have ensured that 25 the server is as secure as it can be. So as far as GILBERT & JONES

147 1 we can determine, THR is more resilient and it gives 2 current administration staff a place to discuss 3 things that they are reasonably sure don't have 4 eavesdroppers involved. Those are two major things 5 that they've established. 6 Q. Okay. In terms of the copying of the THR

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7 database or the hacking, as you would put it, have 8 they found any kind of damage that had to be fixed or 9 corrected since that event took place and thr.us was 10 created? 11 A. Actually I had this group build a fresh 12 server from scratch so there was no question as to 13 what had been done previously that couldn't be 14 determined. 15 So everything started from a clean state 16 which is really the only way to secure a server once 17 security has been compromised. You really have to 18 restart from scratch. So we started with brand-new 19 hardware, brand-new everything. 20 Q. I see. 21 Okay. So you've stated that you're in 22 sole control of thr.org at this time? 23 A. Well, it depends on what you mean by 24 control. I'm the only person who's got the keys to 25 the server but I am essentially making no decisions GILBERT & JONES

148 1 with regard to editorial control and moderators are 2 continuing to do that as they've always done. 3 Q. Do you consider yourself to be the sole 4 owner of the entity, of thr.org, at this time? 5 A. No. 6 MR. PEELER: And let me just object for 7 the record that that calls for a legal 8 conclusion. 9 MR. BRANSON: Okay. 10 Q. (By Mr. Branson) You have a business plan 11 for THR and where you want to go from here, don't 12 you? 13 A. I do not have a formal business plan. 14 Q. Do you have an informal business plan in 15 your mind that's not been taken down to pen and paper 16 of what direction you want to take this thing in? 17 A. I've tried to remain open to all ideas. A 18 year ago when we were discussing this Oleg declared 19 as far as he was concerned the Tenney deal would 20 never happen. 21 I've never ruled it out but I don't see it 22 as something that's in the best interest of THR. My 23 guess is the right way to go forward is a very 24 controlled and structured and nonaggressive attempt 25 to introduce advertising on the site in some form or GILBERT & JONES

149 1 another. 2 I mean, there are other alternatives. 3 There are moderators who think we ought to turn it 4 into a for-pay site where people can join and that

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5 will help cover cost and the rest but I don't agree 6 that that's the best way forward. 7 Q. Do you intend to profit from thr.org 8 eventually? 9 A. You mean if I end up in control of it? 10 Q. Sure. Assuming that you win the case and 11 you keep control of this entity, you know, are you 12 going to run it for profit? 13 A. I think that at a minimum my expenses are 14 going to be reimbursed and I'm going to see a 15 reasonable return on that investment. 16 Over the long-term, and this may be a 17 decade, I believe the best thing for THR is own 18 itself. 19 So it wouldn't be unreasonable to come up 20 with a setup which starts with me with majority 21 interest which sort of slides over time and 22 eventually me getting out of it entirely. 23 But again this is how I feel today. No 24 formal plan and this is something that would have to 25 be negotiated with other stakeholders and I'm certain GILBERT & JONES

150 1 they have some opinions that they may not have shared 2 with me yet. 3 Q. And those other stakeholders, would that 4 include Oleg at this point? 5 A. At this point I don't believe it does. 6 Q. And why would that be? 7 A. We had an agreement going back years that 8 we were equal shareholders going forward and over 9 that time I've invested over $20,000. Oleg has 10 invested 200. I've put in a bunch of time. 11 And when the offer came down, I never 12 complained about that. So I was willing to honor the 13 agreement. 14 But since that time Oleg has gone so far 15 as to testify under oath that no agreement existed in 16 an attempt to get under it. 17 If that's what we want to argue, then we 18 need to argue -- we need to look at the amount of 19 value that's been contributed to the site, and it 20 turns out in hindsight Oleg didn't have nearly as 21 much to do with initially building the site as I 22 thought he did, which cuts his ownership interest 23 back, and right now thr.us, which is the site he 24 formed to compete with it, is seeing about one sixth 25 of the traffic that thr.org is seeing, which suggests GILBERT & JONES

151 1 to me that one seventh of the value, which I'm going 2 to call 15 percent, has disappeared from THR as a

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3 result of his actions and I think that's got to come 4 out of his stake. 5 Now, that's not a legal decision. This is 6 something that the Court will decide, but I think 7 that without an agreement Oleg's stake was much 8 smaller than it would have been with the agreement 9 and since then damage he's caused to the site has to 10 come out of his side. 11 Q. So his side is zero then as far as you're 12 concerned? 13 A. I haven't run calculations but it's 14 slight, if it exists at all. I don't know that his 15 contribution was more than 15 percent of the value of 16 the site and I think it's pretty easy to show that he 17 destroyed more than 15 percent of the value. So I 18 think the calculation is pretty easy there. 19 Q. Well, let's flip this business plan. What 20 is your plan for what's going to happen to thr.org if 21 it fails to make a profit in the future? What if it 22 continues to cost and its monetization is 23 unsuccessful? 24 A. I believe in the community. I mean, I've 25 always supported the community when I didn't have the GILBERT & JONES

152 1 resources. We asked for help when I couldn't do 2 that. But I think it ought to be able to support its 3 cost. Then if not, then I'll probably continue to do 4 so. 5 Q. You think you could just keep running it 6 at a loss as long as it takes then? 7 A. It's a good community. I think it 8 makes -- I think it sets a good example for people 9 who are on the sidelines about gun ownership and 10 private gun ownership, at least in the U.S., and I 11 think it's a very good forum for what it does. 12 You know, there are all kinds of charity. 13 How much do you give to the Lion's Club, you know, 14 how much do you give to the NRA, what would you give 15 to support a site like THR if it wouldn't exist but 16 for your input. It's worth supporting. 17 Q. If there's anybody else that's a part 18 owner in this going forward from here -- well, let me 19 just ask you that. 20 In your mind if you win this case, knowing 21 that you are the sole member of Firearms Forum, Inc., 22 and you are the sole shareholder in that corporation 23 and that you have all the chips right now, going 24 forward from here if you win the case, is there 25 anybody else that you are going to consider be a part GILBERT & JONES

153

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1 owner and recognize their stake as you claim it? 2 A. I think the moderators should be. I think 3 if the goal is at some indefinite point in the future 4 the site is to run itself and be responsible to 5 itself, those stakeholders who represent the site at 6 its core need to be involved. 7 Q. And if it doesn't make any money and it 8 continues to cost, will they have to help fund the 9 loss? 10 A. Again that's a discussion we'd have to 11 have. Up until now only one of them has been willing 12 to contribute monetarily to the site. 13 Q. Who was that? 14 A. It was Art Eatman. 15 Q. What's his Internet name again? 16 A. Art Eatman. 17 Q. He didn't have a pseudonym in other words? 18 A. No. 19 MR. BRANSON: I'm so used to everybody 20 having their Internet name and their real name. 21 That's kind of a breath of fresh air, isn't it? 22 Let me collect my thoughts for a minute. 23 We are just about there. 24 I have six exhibits that I have marked and 25 everybody except Mynjuan is going to get a copy, GILBERT & JONES

154 1 and I want to talk about these. 2 These are in chronological order and 3 they're going to go from way back up until the 4 present day. 5 MR. PEELER: Do you want to put stickers 6 so that we know what the original exhibits are 7 as opposed to the handwriting? Are you going to 8 make them a part of the record? 9 MR. BRANSON: This is not going to be 10 anything that I'm going to -- how do I say this? 11 If I'm going to introduce these into evidence 12 later, I'll do it fresh then. 13 MR. PEELER: Right, but are you going to 14 make them a part of the deposition record? 15 MR. BRANSON: Sure. 16 (Plaintiff's Exhibit 1 was marked for 17 identification.) 18 Q. (By Mr. Branson) I am marking Plaintiff's 19 Exhibit 1 at this time, and, if you would, please 20 review that. There are a few pages to it, I think 21 four pages. 22 A. Okay. 23 Q. I know that there are an insanely high 24 number of threads and posts that have been part of 25 the discovery in this case, and when I ask you if you GILBERT & JONES

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155 1 recognize this particular thread, if you don't, 2 please feel free to say so. 3 A. I don't have any recollection of this 4 thread. 5 Q. You don't remember this at all? 6 A. No. 7 Q. That's fine. 8 You recognize this is a thread off of The 9 High Road from December of 2002 though? 10 A. I recognize that this is a thread off of 11 thehighroad.us from December 2002 and I do not know 12 for certain if that is the same database that we 13 have. 14 I'm assuming we can look and this will 15 show up the same as our database but again I have no 16 knowledge of that. 17 Q. If I told you that this printout was from 18 the archives of thr.org as accessed through thr.us, 19 would you disagree with that? 20 MR. PEELER: Object to the form. 21 THE WITNESS: I understand that this 22 thread exists in the database at thehighroad.us 23 and that that database started as a direct copy 24 of the database that, you know, existed on 25 thr.org. GILBERT & JONES

156 1 Having said that, I can't vouch for the 2 authenticity of all the records in the new 3 database because I don't know that it was 4 handled other than some people who I would say 5 are of less than outstanding moral character 6 handled it. 7 So, I mean, I'm assuming when looking at 8 this that if I look at my copy of the database 9 or an archived copy of the database that goes 10 back prior to August of last year that I will 11 see a mirroring post and I will certainly 12 respond as if that's the case but I can't state 13 with any authenticity -- 14 MR. PEELER: He's not asking you to 15 speculate. He's just asking if you know. If 16 you don't know -- 17 THE WITNESS: I don't know. 18 Q. (By Mr. Branson) That's okay then. 19 A. Wow. 20 Q. I understand the distinction that you're 21 making. In other words, you don't know if this has 22 been tampered with is what you're saying? 23 A. No, I don't know. 24 Q. Do you recall ever posting up on

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25 thehighroad.org something to the effect of I might GILBERT & JONES

157 1 own the hardware but he runs the show? 2 A. I don't, but that was the understanding 3 when we started up. This originally started as a 4 place, oh, my God, we have to have a new site now, 5 what are we going to do. 6 Well, I had a good home for it. So that's 7 not terribly inconsistent with the understanding we 8 had when we started. 9 Q. And that's not obviously the understanding 10 that we have now in October of 2009. That's not the 11 same understanding. That would be a fair thing to 12 say, wouldn't it? 13 A. I don't know what Oleg's understanding is. 14 My impression is that he is arguing the contents of 15 both sites are 100 percent his. 16 I guess we have -- my understanding now is 17 not the same as it was then. You said we and I guess 18 the we threw me off. 19 Q. Your understanding is it's certainly not 20 Oleg's show if you're the one that's running thr.org 21 at this point? That would be a fair thing to say, 22 wouldn't it? 23 A. I suppose. 24 Q. Do you think that -- in your mind at what 25 point did it stop being Oleg's show? GILBERT & JONES

158 1 A. It was before I left Jacksonville and it 2 was probably within the first 20 months, 16 months, 3 15 months of existence that we had the discussions 4 where we came to the understanding of equal 5 ownership. 6 Q. And chronologically speaking in terms of 7 years, you said before you left Jacksonville. When 8 did you leave Jacksonville? 9 A. I don't know. 10 Q. Okay. 11 A. Less than three years after it started 12 because I only lived in Jacksonville for three years. 13 That was the duration of my wife's residency. 14 Q. So somewhere between 2002 and say 2005 is 15 when -- 16 A. Somewhere there. And, you know, this was 17 a series of discussions that we had over the phone 18 and I can dig through phone records but I wouldn't 19 know what discussions were where. 20 This is probably about the time when 21 somebody asked me how much I had spent so far, and I 22 believe I said it was about $6,000. He called in

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23 appreciation of that and said as far as he was 24 concerned it wasn't his, it was ours. 25 That was a nice statement. And then he GILBERT & JONES

159 1 called again and reiterated it and from that point on 2 I took him seriously and behaved as such. 3 But somewhere there. Since I was paying 4 about $300 a month, I would guess that 6,000 divided 5 by 300, that many months, but there were some other 6 upgrades which could shorten it and I don't know for 7 sure -- 8 MR. BRANSON: That's okay. The ballpark 9 figure is all I'm looking for at this stage. I 10 mean, we're talking about years between 2002 and 11 2009, so, you know, if you can even get close, 12 then that's definitely going to be good enough 13 for me because I'm just trying to figure out in 14 general how things changed and when. 15 (Plaintiff's Exhibit 2 was marked for 16 identification.) 17 Q. (By Mr. Branson) I've marked Plaintiff's 18 Exhibit 2. Please review this and take your time. 19 A. Okay. Again this is still from that first 20 week of our inception and my understanding -- 21 MR. PEELER: Did you ask a question? 22 Let him ask a question. Lots of questions 23 he wants to ask you about it. 24 THE WITNESS: I'm an academic by day, bad 25 habits. GILBERT & JONES

160 1 MR. PEELER: He'll ask you what he wants 2 to know. 3 Q. (By Mr. Branson) And again keeping in 4 mind the distinction between dot U.S. and dot org 5 that you've already brought up, do you remember a 6 thread like this on thr.org? 7 A. I think there probably was a thread that 8 said, hey, it works, it's fast. But I don't remember 9 it. 10 Q. These posts do not look familiar to you at 11 this time? 12 A. No. 13 MR. PEELER: I'm sorry. I have a -- is 14 part of it redacted? 15 THE WITNESS: I think part of it is 16 probably in color and it didn't print well on 17 the laser jet. 18 MR. BRANSON: That's what I was thinking. 19 Yes. I just noticed that. 20 MR. PEELER: Did I just miss that?

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21 MR. BRANSON: No. You just caught it. 22 And I just caught it too. In fact, that's what 23 I was looking at. 24 MR. VOLK: Where it says at the top right 25 highlighted equals Oleg, that's the word that's GILBERT & JONES

161 1 disappearing because it's printed in very light 2 ink. 3 MR. BRANSON: Can we go off the record for 4 a second. 5 (Discussion off the record.) 6 MR. BRANSON: We're back on the record and 7 I've decided that I'm not going to ask Derek 8 about Exhibit Number 2 as he does not remember 9 the conversation so we're going to move on to 10 Number 3. I'm marking Number 3 now. 11 (Plaintiff's Exhibit 3 was marked for 12 identification.) 13 Q. (By Mr. Branson) It's a similar document. 14 We're getting to the point where we're in 2008 now so 15 maybe these will jog your memory a little bit better 16 than the previous ones have. Please review at your 17 leisure. 18 A. Okay. 19 Q. Do you remember this conversation, this 20 thread? 21 A. I remember something about it. I don't 22 remember the posts in particular but I do remember 23 the events surrounding it. 24 Q. What were the events? The library went 25 down? GILBERT & JONES

162 1 A. There is -- there was something called the 2 library on the site and that was a series of 3 documents that were useful on a number of sites that 4 had the same sort of interests, I mean, conceal carry 5 laws in different states, how different states viewed 6 different sorts of knives, links to Supreme Court 7 case history and stuff like that. You know, ongoing 8 legal events that were interesting were updated with 9 some frequency. 10 So there was a link that allowed people to 11 get to that library and those were all static files. 12 They didn't change. They were just uploaded to the 13 server and people could access them. 14 And around this time we were running out 15 of space on the old server, so between the time when 16 the old files would be deleted and the new files 17 would be uploaded, somebody would upload an 18 attachment that would take up the space instead so

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19 the upload would fail -- actually I take that back. 20 That's what I remember. 21 But it said later here that the server got 22 confused and it just said THR, you're over your 23 limit, you can't post anymore. And that was what 24 happened and once I resolved that I guess it went 25 away. That's not going from memory. That's going GILBERT & JONES

163 1 from what the posts say happened. 2 Q. And so there's a question here about who 3 has access to the library. Do you remember who had 4 access to the library? 5 MR. PEELER: Where are you reading? 6 THE WITNESS: I said here apparently on 7 Post Number 8 on the second to the last page 8 that Oleg has access to it and I don't know if 9 anybody has been given the log in info and that 10 was in response to Mal asking who other than 11 Justin had access. 12 So at the time I stated I knew Justin and 13 Oleg did but there could have been other people 14 as well. 15 Q. (By Mr. Branson) And so Justin being 16 Tyme, that would have been the people that were 17 server admins, right? 18 A. No, he had no administrator rights on the 19 server. 20 Q. So we have an example here where we have 21 three people who had access to this -- at least three 22 people who had access -- 23 A. Log in information to the FTP site. It 24 stands for file transfer protocol. 25 Q. In your opinion at this time, back in GILBERT & JONES

164 1 February of 2008, is there any link between access to 2 the FTP site, access to areas like the library as 3 shown in this example, is there any link to that and 4 ownership rights in thr.org? 5 A. I wouldn't say so. 6 Q. It's just part of me trying to figure out 7 what the group of people is that you're claiming have 8 an ownership right in it. 9 A. And I don't think people who perform 10 technical tasks necessarily have an ownership right 11 simply due to the fact that they perform technical 12 tasks. That's where my confusion comes from. 13 MR. BRANSON: Okay. Thank you. I am now 14 marking Plaintiff's Number 4. 15 (Plaintiff's Exhibit 4 was marked for 16 identification.)

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17 Q. (By Mr. Branson) This one is only a 18 one-pager. 19 A. Okay. 20 Q. Do you remember this conversation on the 21 forums from July of 2008? 22 A. I don't remember this specific 23 conversation but this hits on points we've already 24 covered. I think it reinforces those points. 25 Q. Again keeping in mind the concept that GILBERT & JONES

165 1 this is thr.us and not thr.org, if you see anything 2 that you think looks wrong to you or like it's been 3 altered or tampered with, feel free to let me know. 4 A. I can't make that conclusion. If I don't 5 remember the conversation, I don't know what was or 6 was not. 7 MR. PEELER: For the record, I'll point 8 out this appears to be a document that we 9 produced. 10 THE WITNESS: Okay. 11 MR. PEELER: Maybe that helps you some, 12 Michael. 13 MR. BRANSON: I don't remember if I 14 printed these off of discovery PDF's or if I 15 printed them off of thr.us. 16 MR. VOLK: It's printed off dot org, 17 judging by the header on top. 18 MR. BRANSON: Well, maybe. I don't think 19 it really matters because I'm not going to be 20 using these -- these aren't going to be used for 21 impeachment or anything like that. 22 They just have information that I want to 23 question him about. So practically speaking I 24 don't think that it's going to be something that 25 we have to really split hairs about. GILBERT & JONES

166 1 Q. (By Mr. Branson) At this time in July of 2 2008 did you believe Glenn was acting as your 3 attorney regarding the possible deal with Michael 4 Tenney and CTD? 5 A. I believe agency had been established. I 6 would not say he was my attorney. He was an 7 attorney. He was acting as my agent. 8 You're making a distinction and I don't 9 understand the consequences of the language. I don't 10 understand legal terminology that well. 11 Q. Well, let me ask you open-ended then. Who 12 did you think he was being an agent for? Who was he 13 being an agent for at this point? 14 A. Oleg and I.

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15 Q. Was he being an agent for THR as an entity 16 do you think? 17 A. Our understanding at the time was that THR 18 as an entity was essentially Oleg and I and whoever 19 else we let in, and we hadn't made that determination 20 yet, just that we were both there. 21 Q. Okay. 22 A. But it looks like from this I had made 23 some discussions about whether Oleg was authorized to 24 enter into any commitments while he was there so... 25 Q. You remember discussing CTD's at that GILBERT & JONES

167 1 point pending trip that Oleg was going to take to 2 Texas to visit Michael Tenney? 3 A. Yes. 4 Q. How did you feel about Michael Tenney 5 inviting Oleg to Texas and talking about it in person 6 with him and you not being there and having input? 7 A. I thought that it gave him a fairly strong 8 opportunity to influence Oleg and Oleg can be quite 9 easy to sway like that. 10 He's -- and I had some suspicions that 11 since he chose him to do it that way he might have 12 understood that having a discussion with Oleg in 13 person might be an easier way to be persuasive and 14 get a good deal for him than if he were to have 15 something more in the open. 16 And I was concerned that he was not 17 willing to say anything about what the discussions 18 were going to be about prior to the meeting other 19 than, oh, well, I want to offer Oleg a job and maybe 20 I'll buy THR or work out some other kind of 21 partnering deal. 22 Q. Do you think that Michael Tenney chose 23 Oleg for this Texas trip over you because he would be 24 more easily persuaded to take the offer? 25 A. I don't know. That was a suspicion. In GILBERT & JONES

168 1 hindsight I don't know. 2 Q. Is there any other reason you can think of 3 why he would have chosen to exclude you and include 4 only Oleg in these negotiations regarding the pending 5 deal? 6 A. My understanding was that he was offering 7 Oleg a job at the same time. And I've seen some 8 communication from Tenney that suggested that 9 business wasn't really discussed. 10 It was more an opportunity to show off his 11 operation to convince Oleg that there was some 12 seriousness behind it.

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13 Again I can't really tell you what was 14 going on in his head but... 15 (Plaintiff's Exhibit 5 was marked for 16 identification.) 17 Q. (By Mr. Branson) Okay. We're almost 18 there. I'm going to mark Plaintiff's Exhibit Number 19 5. 20 A. So this is a fraction of the conversation? 21 Q. Yes. These threads go a long, long time, 22 printing out the whole thing. Some of these threads 23 got to be pretty massive before they ended. I'm sure 24 you remember. 25 Actually -- yes, I guess this is just the GILBERT & JONES

169 1 first part. On these that are four and five pages I 2 tried to print out the whole thing but I think this 3 one is just a fragment, the first part of it. 4 A. Okay. 5 Q. Having reviewed this, is it your 6 understanding that part of Michael Tenney's offer 7 Cheaper Than Dirt was to house THR or to Web host THR 8 through his company? 9 A. My understanding in relation to this 10 question has two components. The first is that he 11 told me what he wanted to do was make -- convert 12 thehighroad.org into www.cheaperthandirt.com/ 13 thehighroad instead, and there was some concern about 14 devaluing our brand by doing so. 15 There's also -- what Glenn communicated 16 after his initial conversations with Michael Tenney 17 was that there was some special technology he wanted 18 to incorporate where when you highlight over a word 19 it brings pop-ups and if you click on ammunition it 20 takes you to Cheaper Than Dirt ammunition sales area 21 and things like that. 22 So my understanding was that he wanted to 23 house it with his servers at a minimum because doing 24 so would allow him to tie it into the rest of the 25 site so that he could use this as a funnel for more GILBERT & JONES

170 1 business in his site. 2 Now, if you want to look at it from the 3 perspective of somebody who needs to look at all 4 aspects to make sure they're not going to get screwed 5 in some business deal, putting it on his servers like 6 this does give him quite a bit of power, and I'm not 7 sure that if we did that and it worked out wrong 8 that's something we could recover from. At least 9 that was my understanding at the time. 10 Q. And to continue that line of thought, if

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11 he has the servers and it's connected to the Cheaper 12 Than Dirt server network or network of websites, then 13 you wouldn't have to be the one that would be paying 14 for the servers and you wouldn't have to be housing 15 the servers in Atlanta, Georgia, right? 16 A. That's true. They'd probably be in Texas. 17 Q. So we're talking about physically moving 18 not the IP address but literally the physical hard 19 drives and servers that actually run this entity? 20 A. No. He was talking about having the 21 server he hosted and everything be copied over to it. 22 Q. So not taking the hard drive and putting 23 it on a UPS truck and delivering it but just by 24 through the DSL lines -- 25 A. After the server was hacked and I had a GILBERT & JONES

171 1 new server secured, we migrated over to it and there 2 was no downtime related to that because you can do it 3 in such a way that the user base doesn't see the 4 move. 5 I would assume he would do something 6 comparable except in the end it would end up being 7 cheaperthandirt.com/thehighroad as the final point. 8 Q. And so your services and the services of 9 wellbuiltnetworks would not have been used any longer 10 if this deal had gone through? 11 A. That's correct. Another way to look at 12 that is it's $400 a month I wouldn't have to spend to 13 maintain it. 14 Q. That's true. 15 Let me see if there's anything else I 16 wanted to bring up regarding this one. There's a 17 post in here and I'm not going to ask you to confirm 18 that you wrote it because of course this could be 19 from dot U.S. or whatever. 20 But if you look at Post Number 12, I 21 wanted to just sort of ask about your mind-set during 22 this time. This is on August the 12th. 23 A. Go ahead. 24 Q. Did your mind-set towards what you were 25 doing with thr.org change at this time, around the GILBERT & JONES

172 1 time that this post or this thread would have been 2 made? 3 That's really broad. There's a statement 4 here to the effect of we've been here donating time, 5 effort, and money for six years because we believe in 6 what we're doing. Less than a month ago this guy 7 Michael Tenney shows up and expresses interest in the 8 site and we suddenly woke up to the monetary aspect

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9 of this thing. 10 Would you say that in August of 2008 was 11 the first time that you realized that thr.org could 12 be self-sufficient or even profitable? 13 A. No, because Oleg and I had had this 14 discussion after Michael Tenney's initial contact 15 with us. 16 Q. Did you disagree about whether or not it 17 should be profitable? 18 A. I don't understand your question. 19 Q. Did you disagree with Oleg about how 20 commercialized this site should become? 21 A. Oleg's primary concern was that he wanted 22 $70,000 a year so he could stop working and just do 23 this. Beyond that I don't understand that he had 24 much concern. 25 I believe I was more concerned about how GILBERT & JONES

173 1 some options might be less lucrative but help the 2 community more or be less detrimental to the 3 community, however you want to look at it, but again 4 I'm trying to answer your question as best I can but 5 it's a bit too broad. 6 Q. There's a comment in this post about 7 offering to buy out Oleg's share. Do you remember 8 anybody offering to buy out Oleg's share? 9 A. My dad said he would. 10 Q. Whatever happened to that? 11 A. Oleg came back and said he wasn't 12 interested. It's probably in this thread, a post he 13 didn't print. 14 MR. PEELER: Let me just note for the 15 record that this composite Exhibit 5 does not 16 appear to reflect successive posts. In other 17 words, it looks like it reflects Post 20 and 18 then 10, 11, 12, 13, and 14. 19 For whatever it's worth I just want to 20 make that clear so that way later when we're 21 going back to look we don't think somehow this 22 was in error. 23 It is what it is. I just want to note 24 that it's not successive posts. I don't know 25 that there's a question pending. GILBERT & JONES

174 1 MR. BRANSON: I probably put them in the 2 wrong order while I was collating these but 3 that's okay. 4 I don't think that my questions regarding 5 20 really tie in that much with my questions 6 regarding 12 but anyway.

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7 Q. (By Mr. Branson) So your dad offered to 8 buy out Oleg's share. What was that offer? 9 A. I don't remember and I don't know that it 10 was specific. At the time Oleg's concern was his 11 commute was literally going to kill him and he needed 12 a change and he needed it right now. 13 That offered Oleg a change right now in a 14 way that would not impact the forum in any negative 15 way and it would allow plenty of time to make the 16 correct decision and do the research and essentially 17 do our due diligence. 18 Q. And you don't remember what that share was 19 worth at that time or what that monetary amount was? 20 A. On August 11th? Was that from August 21 11th? August 12th. 22 Q. Do you remember what your father's offer 23 to him in terms of the monetary value of that share 24 would have been? 25 A. I don't know. GILBERT & JONES

175 1 Q. Do you know what the offer as far as what 2 your father considered Oleg's percentage share of the 3 Web page was at that time? 4 A. He understood it to be half. 5 Q. So it was a financial offer of some kind 6 to buy out Oleg's half share in thr.org? 7 A. There was no offer. There was simply a 8 mention that I knew for a fact that there were other 9 interested parties and before jumping at the first 10 offer we should probably consider all of our options. 11 MR. BRANSON: Okay. I'm going to move on 12 to our last exhibit. 13 (Plaintiff's Exhibit 6 was marked for 14 identification.) 15 Q. (By Mr. Branson) I am now marking 16 Plaintiff's Exhibit Number 6. This one I'm pretty 17 sure I printed out in its entirety because it's a 18 little bit longer. 19 I've just figured out what The High Road 20 equal Oleg thing is. These were printed using a 21 search and my search term was Oleg, therefore, 22 wherever it shows up in any of these threads it's 23 highlighted, and using a black and white printer you 24 can't read the red letters. That's why it did that. 25 Okay. Have you reviewed this? It's a big GILBERT & JONES

176 1 one. 2 A. I have. 3 Q. This is a pretty ugly thread because I 4 think people were editing posts and other people were

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5 quoting posts before they were edited so it kind of 6 got a little bit confusing. 7 This is on September the 25th and there's 8 a question about staff members being removed and 9 Oleg's account being altered. 10 A. I believe that Oleg's account had been 11 altered prior to this but he hadn't noticed. 12 Q. Okay. 13 A. Again it was features that he never used 14 that were disabled. 15 Q. The post I'm interested in is Post Number 16 9 on here which is the second to last page. 17 A. Okay. 18 Q. There's a statement here about the board 19 being turned off for 12 hours. When you say or when 20 Derek Zeanah, the poster, said our lawyers are 21 actually trying to talk through the situation, 22 without giving me details of any legal advice you 23 got, who do you mean when you mean our? Who's our 24 lawyers at this point? 25 A. I believe the day previous to this Glenn GILBERT & JONES

177 1 had asked us to make some kind of an offer and we 2 made three, and in response apparently Oleg made some 3 legal threats online. 4 That's what I posted here. That's 5 probably better than my recollection. Instead of 6 responding to the three offers we made, he opted to 7 attack the forum instead, and that caught me by 8 surprise. At least that's what I wrote at the time. 9 This sounds about like my tone and it 10 sounds like the sort of thing I would have said so 11 this is probably authentic. 12 Q. There's a line in here that says sorry if 13 you see bringing the board down from 11:00 p.m. to 14 11:00 a.m. is overly authoritarian or anything. Who 15 would you be concerned about viewing that as overly 16 authoritarian? 17 A. Well, are we seeing a whole thread here? 18 In context it looks like that's a response to 19 somebody else, to Don Gwinn in Post 6 it looks like. 20 Q. Don, it looks like he was one of the 21 moderators? 22 Does it look like Don was considering it 23 to be a sabotaging of the forum? 24 A. I don't know what he was considering. I 25 will say that if legal threats were made I think it's GILBERT & JONES

178 1 reasonable to get legal advice before responding and 2 I don't think a 12-hour outage in order to allow me

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3 to do so and to stop harm from happening in the 4 meantime was an unreasonable action to take. 5 MR. BRANSON: Okay. I think that's all I 6 have on six and, therefore, let me look and 7 collect some thoughts. 8 If we want to take a short break, I'm 9 going to collect some thoughts and see if I have 10 any further questions and then we'll come back. 11 (Recess from 2:49 p.m. to 3:0 p.m.) 12 Q. (By Mr. Branson) I want to go back to 13 Petitioner's Exhibit Number 5, so pull that out but 14 let's not mess with that yet. 15 I want to ask, Derek, some definitional 16 questions, and when I ask you these, I'm not asking 17 for a legal definition because I've got Black's Law 18 Dictionary just like anybody else. 19 I want to know in your opinion and in your 20 understanding of what it means, I want to know how 21 you think about this as opposed to giving me a legal 22 definition. 23 When we consider ownership of a website, 24 what are the things that you have done that have 25 given you an ownership stake in the website of GILBERT & JONES

179 1 thr.org? 2 A. Well, I've paid the majority of the costs. 3 I've done all the maintenance that had to be on it, 4 including keeping the thing in my name. 5 I've worked maybe thousands of hours, 6 oftentimes in the middle of the night responding to 7 things like attacks on the site. 8 And when people were threatening to sue 9 us, I was the guy that stood up and stood to take the 10 heat for that. 11 I think in every way you can be 12 responsible for the site instead of taking public 13 credit for that responsibility, that's what I've 14 done. 15 Q. Is there any distinction between the 16 answer you gave me for the website and if I asked you 17 the same question but in terms of the whole entity of 18 thr.org? 19 A. When you asked about the website, I took 20 that as the whole entity because you've used them 21 interchangeably in the past I believe. 22 Q. Since I've used them interchangeably, that 23 doesn't necessarily mean that you do. So are those 24 things that you would agree would be fairly 25 interchangeable or is there a distinction in your GILBERT & JONES

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1 mind? 2 A. No, but communication is tough. You can 3 use 2,000 words to say exactly what you mean and 4 somebody can see it differently. So we do the best 5 we can. 6 Q. There's nothing that would cause you to 7 right now disagree with me if I had said I'm going to 8 use website and entity interchangeably? That 9 wouldn't be a huge disagreement as far as your 10 understanding of those words? 11 A. Not in this particular context. 12 Q. Sure. What about trademark, what have you 13 done that makes you the owner or the part owner of 14 the trademark of thr.org? 15 A. Trademark really goes with the domain, I 16 mean, the domain name itself. I mean, they're 17 inextricably tied together. 18 thehighroad.org and the trademark 19 thehighroad.org, I mean, it's another aspect of the 20 same language, not from a legal definition because I 21 am no intellectual property expert but that just 22 seems reasonable. 23 My role in all this other than paying for 24 it is to keep and own and maintain all the assets 25 required to keep the site going and sort of donate GILBERT & JONES

181 1 those to the venture and the trademark falls in line 2 with the server, hardware, and domain and everything 3 else. 4 Q. So the property, the hardware, all that 5 stuff is sort of tied in together in your mind 6 with -- the things that you've done to claim an 7 ownership in all this are the same actions in other 8 words? There's not one thing that you did -- 9 A. I'm hearing multiple questions. I'm 10 confused. 11 Q. Yes, you are, and that's a bad habit of 12 mind, isn't it? 13 Are the actions that you took that give 14 you an ownership right in the website entity, are 15 those the same actions that give you an ownership 16 right in the property as in the hardware? 17 MR. PEELER: Object to the form. 18 THE WITNESS: I think I understand where 19 you're trying to go with that, and there are a 20 couple of answers to this. 21 My first inkling that I was an owner was 22 due to an understanding that I had with Oleg and 23 in good faith believing I was an owner I 24 invested a lot. 25 Now he's backing out of that agreement. GILBERT & JONES

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182 1 But having said that, I mean, I've paid the 2 majority of the fees to keep it going and other 3 things that I've listed and I believe that also 4 establishes an ownership stake but I was brought 5 onboard to pay the fees and... 6 Q. (By Mr. Branson) Okay. That's a good 7 answer. Let's move on then and I'm going to revisit 8 Petitioner's Exhibit Number 5 and this is the August 9 11th post. 10 A. The one on the first page -- 11 Q. On the first page, yes, and specifically 12 Number 20. This is the one where Number 20 is not 13 necessarily in the same conversation. 14 This is a composite exhibit because I 15 think really this page should have been like Exhibit 16 7 but I just was collating and I think I sort of -- 17 A. Actually the thread numbers are completely 18 different. 19 Q. Let's say that Number 20 is a completely 20 different thread from the rest in this exhibit, but 21 Number 20 is the one that I'm interested in. 22 If you'd review this for a second and let 23 me know when you're done reviewing it. 24 A. Okay. 25 Q. In this post at this time period, this is GILBERT & JONES

183 1 at the beginning of CTD's involvement and we're still 2 discussing a possible offer, you were concerned about 3 where THR was going to be housed; is that correct? 4 A. Actually I see a number of concerns here 5 and seeing physical control gives them a lot of power 6 for technical reasons, so that is one of those 7 concerns, yes. 8 Q. In a practical sense if you have physical 9 control, you can literally walk up to the plug on the 10 wall and literally pull the plug, correct? 11 A. That's not so much the concern. A more 12 reasonable concern would be that his plan was to 13 change thehighroad.org into cheaperthandirt/ 14 thehighroad. 15 Q. Right. 16 A. So his offer was either of us can end this 17 at any particular time, and if things were worded 18 poorly or if things were worded so they weren't 19 enforceable, it would be possible, for instance, for 20 him to say, you know what, this just isn't working, 21 why don't y'all take your site back and go someplace 22 else and fail to give us access to the database or do 23 such but now everybody has bookmarked the new site 24 instead of the old site so they just go to the

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25 bookmark and so he owns it free and clear even though GILBERT & JONES

184 1 he's fulfilled all the legal obligations that he was 2 trying to build into the agreement. 3 I mean, there are probably 20 ways you can 4 think about where if somebody is up to no good, 5 giving them that level of power is just stupid, and 6 we could probably work around those but we weren't 7 discussing that. 8 Q. Yeah, why create the problem if you don't 9 have to, right? 10 And one of the things that's listed in 11 here is the concept that Michael Tenney and Cheaper 12 Than Dirt would possibly as an example pay for all 13 the costs for a few years and then make an argument 14 in front of the Court that he's the owner because he 15 paid the costs. Was that a concern of yours? 16 A. Not particularly. That tied into a 17 discussion that we had in undergrad with a former 18 governor who taught money and banking and that was in 19 Alabama and there's apparently a guy around 20 Birmingham who will pay the property taxes on 21 people's land without telling them and after three 22 years he comes in and say I paid the property taxes, 23 I own it. It's called something like adverse 24 possession. 25 But there are a lot of things that sneaky GILBERT & JONES

185 1 people can do that involve the law that normal people 2 who think, you know, my word is my bond would be 3 blind-sided by. 4 And so I thought that was an example of 5 the sort of games that could be going on in the 6 background that we can't even conceive of because it 7 always struck me as just about as around the bush as 8 can you get. 9 Q. So somebody who would, you know, make the 10 argument in front of the Court that because they were 11 paying for all the costs for a Web page that they 12 owned the Web page, that's something you considered 13 devious then? 14 MR. PEELER: Object to the form. 15 MR. BRANSON: Well, it's his word. 16 THE WITNESS: Well, I will say that while 17 this was going on there were a number of devious 18 things that were happening and what I 19 characterized earlier as backroom conversations. 20 I wasn't quite sure what they were. I 21 have a better feeling now. But there are 22 devious things that could be like that I think.

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23 Actually paying the -- well, could you 24 restate your question. 25 Q. (By Mr. Branson) Well, if someone pays GILBERT & JONES

186 1 for all the costs for a few years for a Web page and 2 then makes the claim that they're the owner of the 3 Web page because they paid all those costs, is 4 something that you were worried about that that would 5 be a way to steal the Web page? 6 A. Not particularly, but it was something 7 that we should consider there. And I believe the 8 distinction you're trying to make is that in adverse 9 possession somebody actually pays all of those fees 10 when they have no right to it and then try to make 11 some claim like that. 12 In a case where somebody has been assured 13 that their interest is equal to the interest of other 14 people who, you know, in good faith pays these fees 15 all the time and at the end it turns out the original 16 offer was made in bad faith and there was never any 17 intention of sharing, that's a much different 18 situation. 19 I mean, you could characterize them the 20 same on the surface but I'd argue they're really not 21 at all. 22 MR. BRANSON: All right. I think that's 23 it. I think that's all that I have, guys. 24 MR. PEELER: Thanks a lot. 25 (Deposition concluded at 3:10 p.m.) GILBERT & JONES

187 1 (Pursuant to Rule 30(e) of the Federal 2 Rules of Civil Procedure and/or O.C.G.A. 9-11-30(e), 3 signature of the witness has been reserved.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

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21 22 23 24 25 GILBERT & JONES

188 1 C E R T I F I C A T E 2 3 STATE OF GEORGIA: 4 COUNTY OF CHATHAM: 5 6 I hereby certify that the foregoing 7 transcript was taken down, as stated in the 8 caption, and the questions and answers thereto 9 were reduced to typewriting under my direction; 10 that the foregoing pages 1 through 187 represent 11 a true, complete, and correct transcript of the 12 evidence given upon said hearing, and I further 13 certify that I am not of kin or counsel to the 14 parties in the case; am not in the regular 15 employ of counsel for any of said parties; nor 16 am I in anywise interested in the result of said 17 case. 18 This, the 16th day of November, 2009. 19 20 21 MYNJUAN P. JONES, CCR-B-1422 22 23 24 25 GILBERT & JONES

189 1 DISCLOSURE 2 3 STATE OF GEORGIA: Deposition of DEREK ZEANAH 4 COUNTY OF CHATHAM: Date: October 28, 2009 5 Pursuant to Article 10.B. of the Rules and 6 Regulations of the Board of Court Reporting of the Judicial Council of Georgia, I make the following 7 disclosure: 8 I am a Georgia Certified Court Reporter. I am here as a representative of Gilbert and Jones, Inc. 9 I am not disqualified for a relationship of 10 interest under the provisions of O.C.G.A. Â§9-11-28(c). 11 Gilbert and Jones, Inc., was contacted by the 12 offices of Law Offices of Michael Branson to provide

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court reporting services for this deposition. 13 Gilbert and Jones, Inc., will not be taking this 14 deposition under any contract that is prohibited by O.C.G.A. Â§15-14-37(a) and (b). 15 Gilbert and Jones, Inc., has no exclusive 16 contract to provide reporting services with any party to the case, any counsel in the case, or any reporter 17 or reporting agency from whom a referral might have been made to cover this deposition. 18 Gilbert and Jones, Inc., will charge its usual 19 and customary rates to all parties in the case, and a financial discount will not be given to any party to 20 this litigation. 21 22 MYNJUAN P. JONES, CCR-B-1422 23 24 25 GILBERT & JONES

190 1 DEPOSITION OF DEREK ZEANAH/MPJ 2 I do hereby certify that I have read all questions propounded to me and all answers given by 3 me on the 28th day of October, 2009, taken before Mynjuan P. Jones, and that: 4 1) There are no changes noted. 5 2) The following changes are noted: 6 Pursuant to Rule 30(e) of the Federal Rules of Civil Procedure and/or the Official Code of Georgia 7 Annotated 9-11-30(e), both of which read in part: Any changes in form or substance which you desire to 8 make shall be entered upon the deposition...with a statement of the reasons given...for making them. 9 Accordingly, to assist you in effecting corrections, please use the form below: 10 11 Page No. Line No. should read: 12 Page No. Line No. should read: 13 14 Page No. Line No. should read: 15 Page No. Line No. should read: 16 17 Page No. Line No. should read: 18 Page No. Line No. should read: 19

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20 Page No. Line No. should read: 21 Page No. Line No. should read: 22 23 Page No. Line No. should read: 24 Page No. Line No. should read: 25 GILBERT & JONES

191 1 DEPOSITION OF DEREK ZEANAH/MPJ 2 Page No. Line No. should read: 3 Page No. Line No. should read: 4 5 Page No. Line No. should read: 6 Page No. Line No. should read: 7 8 Page No. Line No. should read: 9 Page No. Line No. should read: 10 11 Page No. Line No. should read: 12 Page No. Line No. should read: 13 14 If supplemental or additional pages are necessary, 15 please furnish same in typewriting annexed to this deposition. 16 17 DEREK ZEANAH 18 Sworn to and subscribed before me, 19 This the day of , 20 . 20 Notary Public 21 My commission expires: 22 23 24 25 GILBERT & JONES

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The Deposition of Derek Zeanah

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