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

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24 25 GILBERT & JONES 3 1 2 3 4 5 2 6 7 8 9 10 11 6 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GILBERT & JONES 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (Reporter disclosure made pursuant to Article 8.B. of the Rules and Regulations of the Board of Court Reporting of the Judicial Council of Georgia.) MR. BRANSON: My name is Michael Branson. I'm here with Oleg Volk, my client, and Charlie Peeler and Derek Zeanah, and this is Derek's deposition. Today is the 28th of October 2009. And without further ado, let's just get started. EXAMINATION BY MR. BRANSON: Q. Derek, please state and spell your name for me and tell me how to say it exactly. I think
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INDEX TO EXHIBITS Defendant's Exhibit 1 Description Website posts dated December 21, 2002 Website posts dated December 24, 2002 Website posts dated February 26, February 27, 2008, and July 8, July 11, 2008 Website posts dated July 25, 2008 Website posts dated August 11 and August 12, 2008 Website posts dated September 25 and September 26, 2008 Page 154

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(Original Exhibits 1 through 6 have been attached to the original transcript.)

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it's Zeanah but I may be wrong. A. It is. It's Derek Zeanah. First name Derek, spelled D-e-r-e-k. The last name is Zeanah, spelled Z-e-a-n-a-h. MR. PEELER: Michael, let me put one thing on the record since I'm the person that may be making objections. Do we agree that this is taken pursuant to the Federal Rules of Civil Procedure and that all objections are preserved except for those as to the form of the question or the GILBERT & JONES 5 responsiveness of the answer? MR. BRANSON: Yes, we agree to that. Thanks for locking that up for me. MR. PEELER: No problem. DEREK ZEANAH, having been first duly sworn, was examined and testified as follows: Q. (By Mr. Branson) Derek, where do you currently reside? A. Here in Statesboro. Q. What's the address there? A. 470 Country Club Road. Q. How long have you lived here? A. Four years, give or take. Q. Tell me about your educational background. A. I'm currently finishing an MBA. Q. Where are you studying for that MBA? Where do you go to school? A. I'm going to school here at Georgia Southern and I'll finish this December. Q. And what are you going to do with that? A. Actually I'm going to go on and get a PhD hopefully next year. I haven't sent out applications yet. Q. What's your educational background? GILBERT & JONES 6 What's your educational history? Before the MBA you got an undergraduate degree or something like that? A. I've got a bachelor's in history with a minor in economics, high school, middle school, elementary school. Q. Where did you get your history degree from? A. Birmingham Southern. Q. I also have a history degree. That's cool. Where are you currently employed? A. I'm not. I'm a full-time student. Well,
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I do consulting on the side but I do not have an employer. Q. Do you work for yourself? A. I work for an entity that I own. Q. What is that entity? A. wellbuiltnetworks. Q. Is that a corporation -A. It's a limited liability company here in Georgia. Q. How long has wellbuiltnetworks been in existence? A. I don't know. Do you mean as an LLC? Q. Yes, officially. GILBERT & JONES 7 A. I couldn't answer that but you can find it on the Secretary of State's website. Q. I'm not asking for an exact date or anything. I'm asking you for a ballpark figure. Has it been months, years? Has it been -A. It's been years. Q. Since before 2005 or after? A. Again you'd have to check online to be sure. Q. So wellbuiltnetworks is an LLC. Is it a sole membership LLC? A. It is. Q. And you do consulting through them? A. I do. Q. And what kind of consulting do you do? A. A variety of tasks. I think I explained the business model as being an IT staff for companies who are too small to have their own IT staff. My largest customer probably has 50 employees and for him I mostly do networking, EDI, VPN work, a variety of things, but if a hard drive fails, I'll come in and do a backup, recovery. Q. What systems do you like to work in? A. It doesn't matter. Q. Are you fluent in all the different -- do GILBERT & JONES 8 you like Linux or do you like UNIX or is there something that you specialize in with them? A. For the most part small businesses have a heavy dependence on Windows so most of the work I do is Windows. I like Linux for servers. It's got a bit of stability in it. It's fairly easy to configure so it works well there. Q. Do you do any hosting right now? A. I do.
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Q. And wellbuiltnetworks, are they the ones that -- well, is the LLC doing the hosting and you work for them? Is that how you would describe that relationship? How would you put that relationship? A. I don't think I'd use the term work for because that implies payroll. That doesn't happen. So I would say wellbuiltnetworks does the hosting. Q. Where do they do the hosting out of? A. Servers in Atlanta. Q. So you don't have any business partners that you work with with wellbuilt? You said it was a sole membership LLC but are there any business partners that you work with on that? A. What do you mean by business partner? GILBERT & JONES 9

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Q. Is there anyone you're in business with to do your consultancy? Do you have anybody that you would describe as a business partner doing the consulting and the Web hosting and all that stuff? A. No. Q. Is it a one-man show then basically? A. For the most part. Q. Would that be right? Let's see. Let's do some previous employment history. You're now a current student with wellbuiltnetworks, LLC, on the side. Is that a fair thing to say? A. (Nodded head affirmatively). Q. I need a verbal -MR. PEELER: You have to answer because she takes it down. THE WITNESS: That's fine. Q. (By Mr. Branson) That's something that takes some getting used to, that everything has to be verbalized. Don't worry about it. It's not a big deal. Previous to being the full-time student and having wellbuiltnetworks, what's the last job that you've had where you worked for someone else? A. I worked as a computer consultant for GILBERT & JONES 10 Entree Computer, Entree Technologies, something like that, in Savannah, Georgia, and that ended in 2002. That was when I started doing that independently. Q. So how did that end at that time? A. They were downsizing and my billings weren't as high as some others were and there were some -- yeah, that's pretty much it. That's how it was described to me.
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Q. And so at that point you decided to go and sort of do the same thing that you had been doing on your own? A. That's correct. Q. wellbuiltnetworks, is that a source of revenue for you? A. I mean, a penny is revenue, so sure. Q. If it's pennies, it's pennies, but just out of curiosity, how much revenue would you estimate it takes in, say, on a monthly basis? A. I'd have to get a calculator for that. I'd probably say it does twenty-five to thirty-five thousand in revenue annually, just depending on the year. So divide by 12 -Q. That's fine. Like I said, this isn't a situation where I need an exact number -A. And I don't have any documents to refer to GILBERT & JONES 11

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so that's a guesstimate. Q. That's fine. I want to ask you about some of your previous business ventures. For a while you were involved with a photo studio business with a woman named Karen Simmons. A. Yes. Q. She was a business partner of yours; is that right? A. She was. We had 50/50 ownership in that venture. Q. And what kind of venture was that? A. Again I don't have anything to refer to but I want to say we were actually a C corp. because she didn't do the Sub S corp. filing in time. But that's best recollection. That was years ago. Q. What kind of business was it? What did you guys do together? A. We did portrait wedding photography. Q. How long did that last? A. Not very long. I'd say a year, give or take. Q. Do you remember what year that was? A. I'd have to look. Not off the top of my head. GILBERT & JONES 12 Q. How did that business end up? A. I ended up spending more on legal fees to separate myself from Karen Simmons than I ever made from the business venture. Q. Why do you think that is? What happened to turn it into that situation?
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A. There were some ethical issues on the other side of the partnership that were bringing us to some real problems down the road if I didn't sever myself. Q. I guess I should tell you just to ease your mind a little bit that I'm not representing Karen at all and have really no interest in helping her or doing anything with her and we're not going to call her as a witness or anything like that. I'm just curious as to your business history. So I know when you say things like ethical problems, you can be more explicit than that and it's not going to hurt you or her or anybody. So let me rephrase. What were the ethical problems that came up that caused you to have to terminate that business relationship? A. The primary problem leading into it was that we had an understanding that until we were making enough revenue to pay expenses and salary we GILBERT & JONES 13 would each contribute half of our fixed costs. So every month, you know, I would write the business a check for my share of things like rent and it turned out she didn't and she wasn't making the rent payments on time and the landlord would come by and I'd have to bail out and get a phone call on a Sunday saying we're going to shut the doors on Monday unless you can come up with a check. And that got old. Beyond that, we got to the point where we were starting to do some good business and people would pay whatever it cost for their wedding album, I don't know, 4,000, $6,000 for it, and when it was time to spend a fraction of that to actually buy the album, print the images, deliver it, and Karen wouldn't. The money would disappear some way or it would be spent on advertising. So clients would start to contact me and would send me long e-mails of communications with Karen where it was excuse after excuse after excuse, my lab burned down, it was terrible, this happened and I shipped it, are you sure you haven't received it. And all this time she told me everything was running just fine. And when you start to get GILBERT & JONES 14

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clients who are angry that paid for a service and they paid for a product that simply had not been delivered and you can't make that happen, it's time to sever yourself.
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Q. So it sounds to me like there was a problem with lack of physical accountability on her end? A. She -- as we got into it, she expressed to me, and I believed her, that she was good at managing accounting and had done this for photo studios in the past and her job was to sit in the studio during the day and answer calls and actually make the payments. I was actually working and was contributing money until such time as the thing would be a self-supporting venture. Q. Did you ever get an accounting of where all of that client money went and what the monies were coming in and out? Did you ever get an accounting of that? A. I don't know. I don't know if I got that or not. Q. Was that frustrating to you? A. Excuse me? Q. That was a frustrating situation to you, wouldn't it be? GILBERT & JONES 15 A. Yes, there were a number of emotions involved in that situation. Q. That's fair enough. Did that business venture end in litigation? You said that there were some legal fees involved? A. Yes. It did end up in litigation. Q. Who sued who on that deal? A. I want to say I sued her but I'm not, again I don't -- this was over a decade ago. Q. Over ten years ago? A. May have been ten years ago. It may have been nine years ago. Q. Somewhere around there? A. Yeah. Q. How long did the litigation take? A. I couldn't tell you, too long and too much money. Q. How did it end up? A. I ended up with an award from the court for eight or ten thousand dollars plus interest and to date she's still never paid. There were some follow-up issues. Apparently she never took my name and social security number off the credit card processing account as she GILBERT & JONES 16 promised to do in writing so I got some calls about something more recent than that where she had not
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delivered and the State was looking for some back payments for sales tax which apparently she never turned off and stopped paying and that, you know -the court paperwork was enough to settle that problem. Some of those problems just go on and on and on. Q. Did that business file bankruptcy when it terminated? A. I do not know. I separated myself from the business and left her with it. I do not know what she did with it. Q. So when you left it, it was still an operating, running business as far as you knew? A. It still had revenue, yeah. Q. Has any business you've ever worked for or owned had to declare bankruptcy? A. No. Q. Have you ever had to declare personal bankruptcy at all? A. No. Q. That's enough about that. Let's move on. And by the way, if you ever want to take a break, just give me a holler and say, hey, I want to get up GILBERT & JONES 17 and stretch my legs for five minutes. That's no problem at all. I'm probably going to do the same thing. I get antsy after a while. A. It's the caffeine that gets to me. Q. I'm a diet Coke fiend too. Trying to cut down on it. Let's talk about The Firing Line. When did you first become involved with thefiringline.com? A. I don't know. Q. Do you remember when you discovered it and how you discovered it, how you found out that it existed? A. My earliest memory of The Firing Line, again this is from memory. Q. Sure. That's all I'm asking for. A. You can check The Firing Line for when I actually joined as a member, but I believe I was browsing it on break when I worked for Alston & Bird which would have been around the year 2000, just prior, just after, somewhere in there. Q. What were the things that attracted you to The Firing Line, that made you want to visit there regularly and become a part of that community? A. I don't remember. I think in hindsight the fact that I visited it suggests that I thought it GILBERT & JONES 18
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was a place that had valuable discussions but I can't tell what it was that I saw about it. Q. Did you ever wind up having any kind of official duties there? A. No. Q. You were never a moderator there, an administrator, anything like that? A. No. Q. Did you wind up hosting for them or doing any kind of IT work for them? A. No. Q. So would you -- and correct me if I'm wrong about this but would you have described your participation there as just a regular member as if Charlie or I decided to register and just start making posts on the forums? Is that about as deep into it as you got? Would that be a fair assessment? A. I would say that's a fair assessment. Q. Did you ever know or talk to Rich Lucibella when you were hanging out on thefiringline.com? Did you two know each other through that Web page? A. I have spoken with Rich Lucibella in the past. I don't know whether I was still participating GILBERT & JONES 19 in The Firing Line during that time so I think I'll ask you to rephrase the question. Q. And if you can't answer this -- all I'm asking you to do is to go from your memory. Let's quantify it in terms of timeline. After you discovered tfl.com but before the creation of The High Road or the Web page that would eventually became The High Road after it was named, before that thing got started did you know Rich during that chunk of time period? A. I know who was. I can't recall any telephone conversations we had during that time. I don't know whether we spoke as a function of participating in the forum or not. Q. Well, since we're talking about the Web, let me expand that a little bit. Besides phone conversations did you e-mail with the guy? A. I do not know. Q. If you had, you would be likely to recall that you think? A. Again I don't know. When I check e-mail today, I'm probably going to have 3,000 messages downloaded plus online forum and stuff and we're talking back ten years did I ever have -- I don't know. GILBERT & JONES
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20 Q. Sure. I know there's a lot of volume on this stuff. Well, let's see. Let me ask you -- it's going to be a similar question and maybe we'll get a similar answer but I want to ask anyway. Do you remember when you first encountered Oleg? A. That was probably on The Firing Line. Q. Did you two work together at all on The Firing Line? Did you have any projects that you took on together or anything like that? A. I don't recall any off the top of my head. Q. But you sort of knew who he was and -well, let me break that down. You knew who he was though on TFL? You would have recognized his user name and you would have known who he was? A. If I recall correctly, his user name was in bold so he stood out as somebody who was I guess on staff there. Q. This is a little preliminary but do you claim that you ever had any kind of ownership interest in The Firing Line? A. No. Q. Why not? A. Well, I don't claim any ownership interest in the Potomac River. It's difficult to say why I'm GILBERT & JONES 21

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not entitled to some form of ownership there. I don't know. Q. Well, I mean, I'm sure you're aware that the issue in this case is obviously regarding ownership and so the reason I'm asking that is because I want to establish and to try to figure out your rationale -- and we're probably going to spend a lot of time on this today but I want to figure out your rationale for why something is considered to be owned or not owned by you and so that's something that you're going to hear a lot today. And so it may seem a little bit odd to start there, but when I ask you why or why not would you consider having an ownership interest in, for example, that diet Coke can, there's a reason for that and so I would ask you to answer that if you could. A. Well, I understand but -MR. PEELER: Hold on. I'm going to object to the form. If you know the question that's being asked, you can try to answer. THE WITNESS: You know, it's like asking me why don't I have an ownership interest in your car.
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There's probably a better way to phrase GILBERT & JONES 22 this because I'm just not seeing where you're trying to go. I'll be happy to answer it but I'm -Q. (By Mr. Branson) Let's move on and then maybe I can contrast it later because I don't think we have enough context yet. But later on in the conversation we may come back and revisit it. At some point TFL was going to be -- and just for the record, when I say TFL, I mean The Firing Line. And The Firing Line was a dot com, was it, or was it a dot org or a dot net? A. I don't know. MR. VOLK: Com. Q. (By Mr. Branson) For the record when I say TFL, it's an acronym for thefiringline.com. When I say THR, which I'm probably going to wind up slipping into later, that would refer to thehighroad.org. Now, at some point The Firing Line was going to be shut down. Do you remember that happening? A. Yes. Q. Do you know why it was going to be shut down? A. My recollection -- and I would do better GILBERT & JONES 23

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if I reviewed the original discussions but my understanding is that all of those discussions have been hidden so they're not available now, is that Rich Lucibella was tired of the tone of the board. It may have been leading up to an election or something, but he'd just had enough and it wasn't worth his time and he was going to just close it down. That's how I remember it. Q. And about that same time there were discussions about creating a new forum. Do you remember those discussions? A. I don't believe I was in on those discussions. I believe most of those discussions happened within staff space, which I never had access to. Q. So Rich never asked you for your assistance in creating a new Web forum? A. No. Q. Did Oleg ask you for assistance in creating a new forum? A. I believe I volunteered. Q. Do you remember under what circumstances
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you volunteered and who you talked to about doing that? A. No. GILBERT & JONES 24 Q. How many people were going to be involved in setting up the new website? A. My understanding was that essentially all of the existing staff were ready to continue TFL under a new name on a new site and so that was what we set up. Q. And I'm not going to hold this against you but how many staff members are we talking about? Is it ten people or 50 people or what -A. I don't know. Again that can very easily be quantified but I don't have access to those -Q. And you wouldn't have a ballpark figure for me this morning? You wouldn't have a figure in your mind of how many people you can think of that would have been involved in the creation of what would become later thehighroad.org? A. Two dozen, give or take, eight, probably would be -- I'd say that with 85 percent certainty. Q. That's fine. What was your role going to be in setting up this new website? A. I already had sufficient bandwidth and a computer that could be tasked with the purpose so... Q. And was that computer with that bandwidth -- when you say you had a computer and you GILBERT & JONES 25 had bandwidth, your role was going to be to host the new Web page or what were you actually going to do with that computer and that bandwidth? A. I believe at the time the computer was actually my desktop machine and we just tasked it to provide TFL's home pretty much, yeah. If you want to phrase that as hosting, that's fine. We haven't defined hosting, and it can have half a dozen definitions. Q. Let's go there. That's fine. How do you define hosting? I'm not an IT guy, so how would you define hosting? What is hosting? A. Well, I suppose it depends. I think in general you could say that hosting is providing the resources required to give a website, in this case that's what we're talking about, a home on the Internet. Q. And that's what you wound up doing with the new forum? A. Uh-huh.
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Q. what would A. don't know Q.

So you consider yourself the Web host of become THR? I was the Web host of what became THR. I that I identify myself as such. Why the distinction there? GILBERT & JONES 26

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A. Well, I don't believe my role in what became THR was limited to Web host. Q. Okay. That's fair. Well, if it wasn't limited to Web host, then the next obvious question would be what other roles were there that would expand -- what else did you do for THR besides be the Web host that it would expand what you did for them? A. The biggest thing is finance it. The majority of what it's taken to keep THR running has been paid for by me. Q. Just to kind of circle back to something we talked about a little while ago, the computer, the box I guess in colloquialism, but the computer that THR was hosted on, your desktop machine, had you created wellbuiltnetworks by that time? A. No. Q. Was that a business computer that you were running a business off of or is that a personal computer? How would you describe the duties of that computer? A. It was a server class machine that I got on special. I think Gateway, in order to meet their quarterly projections one month, was willing to sell some hardware below cost. GILBERT & JONES 27 So it was a good deal and I bought it and I used it as a desktop machine and then we re-tasked it for THR. Q. After you re-tasked it for THR, did you continue to use it as a desktop machine or did you have to buy another machine? A. No. It had to work on its own there. Q. So it became the dedicated server then? Would that be fair to say? A. Yes. Q. Okay. I'll make a note of that real quick. So to do all this for the new website, who were you coordinating with to make that happen? I mean, it seems like there would be -- that's a pretty big undertaking. Who were you working with to make that a reality? A. Well, there were the people I worked with
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that were required to do the technical aspects of it. I mean, there's the service provider who was providing the bandwidth and people who do D and S registration. At the very beginning it was initially set up by Rich Lucibella's technical adman. He came in and tweaked things and we ended up reinstalling from GILBERT & JONES 28 scratch after the version of Linux had been running was not up to the task, it was not customizable enough, but for that first year he was probably the main tech guy. Q. Do you remember that guy's name? A. He goes by the online name Tyme, T-y-m-e, and I want to say his name was Justin Guyette but I've never heard it pronounced and I couldn't spell it for you. Q. His first name is Justin though; isn't that right? Tyme's first name is Justin? A. I believe so. Q. When you say he tweaked things, did he do that remotely or did he actually just come to your house and lay hands on the box? A. It was done remotely. I've never met the man. Q. So you've never actually met him? And you say that lasted for about a year? A. I don't know. I'm not sure what you mean by that lasted for and I'm not -Q. You said for the first year that he had a role in the technical aspects somehow of the creation of THR. I don't remember exactly. I'm not going GILBERT & JONES 29 to repeat it back to you exactly, but at the very beginning he sort of helped. Would you say that he helped sort of jump start the thing? What was his involvement in the beginning? Let me just ask you that. What was his involvement at the beginning of the creation of the new Web forum? A. That's difficult to answer. It was a long time ago. Best guess would be that he originally set up the database and he probably originally configured the software we were using from the technical aspects of it, telling it how to talk to the database and such. Q. So as you understood the creation of this new forum, we've talked about what you had done to put the forum on your computer to host it.
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You had -- I'm just kind of recapping here. Interrupt me if I'm saying anything wrong. The new Web forum was being created. It was on your computer. You tasked that computer to be a dedicated server. This guy Tyme had come in remotely and was configuring things and tweaking things to get it started. At that time what was your understanding GILBERT & JONES 30 of what your role was going to be regarding this new forum as things moved forward? What was your understanding of who you were going to be to this forum? A. When we first started, I was just the guy who had the resources and the ability to get it up and running. So initially I was just -- I was helping the community. Q. At that time -- and again I know you don't remember the exact year and everything but hopefully you remember how you felt about the situation. At that time do you remember claiming to anyone that you were the owner of the new website? A. No. Q. Did you claim that you had a percentage of the ownership of the new website? A. Not at its founding, no. Q. What about any kind of copyright or trademark, was there any claim that because you had a dedicated server then the trademark belonged to you or anything like that? A. At the time, no, I don't think so. Q. Just moving forward a little bit, thefiringline.com did eventually shut down; is that right? Eventually it got turned off, and if you went GILBERT & JONES 31

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to that Web page, it was no longer there? A. I believe if you went to the Web page it was still there. MR. VOLK: It was archived but nonfunctional. Q. (By Mr. Branson) Let me ask you that. Could you still post there? Was it a live active forum or did it -A. I don't believe it was live for regular users. It was probably still live for people on staff there, but I don't know. I don't have any knowledge that. Q. But basically it was kaput, it was quit, and the community moved to the new forum, a lot of
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them? A. Chunks of the community did. Our forum, when we started it up, was different from most because we had an initial upsurge of users. Most forums start small and have to struggle to actually bring users in. I think we probably started -- and again I'd have to check records to be sure. I want to say we started with 2,000 users or so within the first month or two, which was pretty good. Q. So this new forum, as it started up, what GILBERT & JONES 32 was your understanding as to who the owner of it was or was there an owner at that time? A. My understanding at the time, having not been privy to conversations that happened in private on The Firing Line, was that this was Oleg's, it was Oleg's deal. Q. Let's move forward then. Actually are you feeling all right? You don't need a break or anything? You want to keep going? A. I'm fine. Q. Let's talk about the naming of The High Road. That was something that was discussed the last time we did one of these. Do you remember who the person was who came up with the name The High Road? A. I was not present for those conversations but I've been told that was Matt Guess who came up with the name. Q. Do you know who he was in terms of -- or who he was/is in terms of the community? A. He was a moderator then. He's a moderator now. Q. So you weren't privy to the conversations regarding how the name was going to be selected? A. No. GILBERT & JONES 33 Q. How did you find out what the name of the new forum was going to be? A. I don't know. Q. What were you guys calling it before that name was chosen? A. I don't recall. Q. You didn't have like a working name, just sort of we're going to call this the new forum for now? How did you refer to it before THR was selected? A. I don't know. Q. When THR first went online and that's what
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it was called, it was called the thehighroad.org for the first time, did you think that you were the owner of it at that time, now that it's called The High Road I'm the owner of this thing? A. I believe that happened before we actually went live, so the answer would mirror my other answers. Q. And you didn't inform anyone else that you were the owner, did you? You didn't tell anybody that you considered yourself to be the owner of this thing? A. In December of 2002? Q. I don't know when it first went live. GILBERT & JONES 34 Would that be December 2002 -A. In December 2002 I did not. Q. December 2002 would be I think you said when it went live? A. Uh-huh. Q. What does that mean in terms of a technical term? When you say a website goes live, what does that mean? A. When we started, what we needed to do was take a computer from its virgin state and set it up so that it could handle at the time hundreds of users at a time posting on it. So we needed to have the Web server software up. We had to have the database up and we had to have the application software on there. We tried a couple of versions before we went back and decided to go with V Bulletin which we used. So when I say go live, I mean we had everything diagnosed prior to that. Q. So basically you have -- and let me know if my understanding about this is wrong. Basically you have a test version of this thing that's on the box and then at some point you decide this is going to work, this is set up, and now you sort of open the virtual gates to where people can access it from the GILBERT & JONES 35 worldwide Web for the first time? A. I think that's a reasonable statement. Q. So V Bulletin, is that the program that actually runs the forum? A. That is the application software. Q. And is that something that you have to purchase or do you license it or what? A. You can purchase it or you can license it. Q. In the case of this new forum that would be The High Road -- I'm just going to call it The
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High Road from now on. In the case of The High Road was it purchased or was it licensed? A. Originally Rich Lucibella bought a license and we used that and then later we had some problems transferring that so I believe I bought a new license. So technically there are probably two licenses to it, one which is many years out of date and can't run current versions. Q. A minute ago when you were talking about setting up V Bulletin and doing the sort of training wheels version of thehighroad.org, you were using "we" a lot and saying we tried this, we set up a couple of different programs. When you say we, who are you talking about? GILBERT & JONES 36

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A. Essentially all of the staff who were there at the time. The first software that I set up, again from recollection -- this was a long time ago and it wasn't active for very long -- was free forum software and it seemed to run fine. The performance seemed to be fine. It seemed to satisfy our needs, but after other staff members came in and dealt with aspects of it I had never dealt with before like the moderation controls and the ability to actually prune discussions and keep things on task, they decided that it wasn't sufficient. So there was the technical aspect, and, yes, this qualifies, but then there was also again is it suitable for the editorial needs of the board, which was a separate decision. Q. So we definitely had a group effort here to get this thing off the ground and to make the website go live? There was more than one person that was involved with -A. THR has always been a group effort, yes. Q. I've asked you what your understanding of your role was in this. Let me ask you what your understanding was of Oleg's role when THR was created? Who was he to the board in your estimation? GILBERT & JONES 37 A. At the time I understood that -- I'm trying to think back. At the time I understood that it was his idea and everybody was sort of rallying around him to make it happen. Q. Let's talk about the organization of this. What we're going to be doing today is moving sort of chronologically and so as I go through and we have this deposition I'm going to be moving from the stuff
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from a long, long time ago which is hard to remember to closer and closer to the current day. So that's how we've got this organized. So let's keep going. Now that we have thr.org hosted and we've chosen our software, we've decided the software works, we're going live. Now we have this organized forum that is out there in the information super highway, say what they called it at that time. It's a term that's gotten old I think. What parts of that forum and that website that the public could come and participate in, what parts of that were your idea? Do you want me to break it down for you? A. Yeah. That would be easier. Q. What features of the Web page were concepts that you set up? GILBERT & JONES 38 A. I believe I actually set up the forums we had there but I just copied The Firing Line's layout. I don't know if that qualifies -Q. Did you choose, say, for example, the colors? A. Actually Oleg picked the colors. He has a better feel for color than I do and I believe his girlfriend came up with the logo, but that's not the question you're asking. Q. No, that actually is the question. For example, did you choose any of the fonts that the Web page used? A. I may have as part of setting up the forums but I don't remember. I mean, it's in the same configuration area as best I recall. Q. Did you establish any of the guidelines for membership, what it would take to be a member there? A. I want to say that I had some -- there's a membership agreement that people have to sign and -it's not what it was when we started and I can't go back and verify that I made any changes to it but I believe we had some changes from what was default but again I couldn't state with certainty. Q. What about the code of conduct, did you GILBERT & JONES 39 have any input in setting up the code of conduct? A. I posted the code of conduct, if that's what you're asking. I created the page where it's listed. But really what we did is we continued the same tone of discussions that The Firing Line created
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and so we used the same moderators and the same standards. We used some different wording to explain those standards and over time it has evolved slightly. But that was really where we were starting from. We were all quite happy with what that community had become and we wanted to continue it. That's why we did this. Q. So would it be fair to say that the content of the code of conduct page was something that you did not come up with but that technically you're the one that put it where it was on the Web page? A. I believe I wrote it. Q. Oh, you actually wrote it? A. But, I mean, it was understood community standards. Q. So when you say you wrote it, you mean you GILBERT & JONES 40 typed in the paragraphs; is that right? You typed in the paragraphs and you created that page, the code of conduct page? There would be a code of conduct like a page you could go to that would -- am I correct about what that looks like when it's on the Web page? MR. PEELER: Object to the form. Q. (By Mr. Branson) I'm splintering here. Let me break it down. Let's say I go to The High Road and I want to see what the code of conduct is there to figure out if I want to participate in this thing or not. There would be a link somewhere that says code of conduct and it would be a hot link? Would that be right? A. There is a link. It's not the link that it was when we started. That's changed in the last year. But, yes, there is a link and it lists how people are expected to behave and I believe I wrote the original version of that and it's been tweaked a bit. There have been some additions and there have been some modifications. I'm trying to answer your question. Q. I know you are. You're doing fine. GILBERT & JONES 41 So when I click on the hyperlink, then it takes me to a new page that has the thing that you wrote or is that a pop-up or what's the form for that?
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A. I don't believe it's pop-up. I believe it will take you to a post. I don't know whether that's actually a bulletin or it's a post that's been locked but it's something that the software actually generates when you click on the link. And at this point I belive that the code of conduct has become something more communal. It's not just my contribution to the wording there. I just want to be clear on that. When you say where did it come from, well, I wrote it but that doesn't mean that's what it is now -Q. When you say you wrote it, what you wrote was -A. My interpretation of what the community standards were at the time. Q. Okay. That's fine. A. Again that's from my recollection. Q. That's fine. And I don't mean to get all hung up on it. I just want to make sure that I'm clear in my understanding of how all of this works GILBERT & JONES 42 and how it was created. So you're doing fine. What guidelines -- okay. We already did that. Let's say that I go to the code of conduct and I decide I want to participate in The High Road and so then to become a member I need to register; is that right? A. That is correct. Q. And so there's a registration page where I would have to fill out a bunch of information, my name, what my user name is, and what my password is and that sort of thing; is that right? A. That's correct. Q. Did you also create the registration page? A. The registration page is generated by the software. Q. Okay. A. Now, there is a user agreement that must be signed, and my recollection is that when we set it up we set it up such that we had wording in there that required members to agree that they were giving us permission to post their content and that's changed in the last couple of years and there's no record of the change. Some moderator did that. So there are a couple things we're looking at. We're looking at the user agreement and we're GILBERT & JONES 43

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looking at the page the software generates. Q. So the actual questions used on the
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registration page, that was all questions that was just generated by V Bulletin? A. I don't think so. I believe Oleg put in there what do you do for the RKBA community and something there says what would your mother's sister be to you that I believe is in there to protect against spam. Q. Oh, I see. Just for the record so we're clear, that would be something to show that the registrant is a real person and not a spyware or malware -A. It's for why it's been put there. I don't believe we actually had any software tricks that checked that but the question has been there, check real quick, and if it doesn't have the right answer, then assume it's a spammer. Q. So as the forum existed day-to-day -- and let's go through this chronologically because I understand that it probably changed over time. When THR first went live December 2002 as this thing was going to exist day-to-day and it was going to live its life in the worldwide Web, what was your understanding of what your responsibilities to GILBERT & JONES 44 the forum were? A. I needed to provide it a home. This all -- again the initial discussions that -- I'm going to restart. When Rich Lucibella announced that he was no longer going to run this, I want to say he gave 30 days notice. It may have been 60 or it may have been something different, but off the top of my head I want to say it was 30. And there was a separate section of the forum set up for discussions among the community about what the community was going to do next, and that set of discussions is no longer available for me to look it. Apparently people on staff over there still have access to it. And I've forgotten your question. What was your question? Q. Well, what were your responsibilities regarding THR -A. Well, we had 30 days and we needed to set it up and I had enough bandwidth to host it and I had a place to host it. So I was the initial site. I don't believe at the beginning we had the understanding that I was going to be the permanent site. GILBERT & JONES 45
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Q. Did you wind up being the permanent site? A. I did. Q. Is it still on that same box now? A. No. Q. Let's take that thread and let's move it forward a little bit. As time went by what happened that caused you to have to move thr.org to a different physical machine? A. My wife finished her residency and we were leaving Jacksonville moving to Statesboro so that was going to imply some downtime and we reached a point where it was probably less expensive to buy space in a data center. So that was actually the first fund drive, to try and get money for that because I didn't have $3,000 I could donate to that at the time. Q. When you say buy space at a data center, you mean taking it from, and again correct me if I'm wrong -A. A better way to phrase that might be that we purchased a different type of server, one that was chosen based on performance and its height because you get charged for how tall your stuff is and it was placed in a rack at a data center and then we migrated the site from hosting it in my den to GILBERT & JONES 46

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hosting it at that site over a period of 24 hours. Q. What was that site or what is that site? Where is this data center? A. It's in Atlanta. Q. And do you remember when that transfer actually happened? A. No. Q. And so you said that was the first fund drive? A. We needed money to buy -MR. PEELER: Is there a question? Listen to his question. If there's a question pending, then answer it. Q. (By Mr. Branson) That's okay. So there was a fund drive. Who organized the fund drive? A. I don't remember. Q. How many people contributed funds? A. I do not know. Q. Do you remember where the funds went or who was in charge of collecting the funds? A. I was after nobody else was willing to take on the task. Q. And so how long did the fund drive last? A. I don't know. Q. Let's talk about funding for a bit and GILBERT & JONES
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47 then maybe take a break. You contend that you paid for the servers that THR ran on in the beginning because it ran on your box in your den; is that right? A. Yes. Q. What kind of costs are incurred by running a forum as big as THR? What kind of expenses did it take at the beginning when it was a small forum? Let's start there. At the very beginning, December 2002, how much does it cost to run a forum like THR? A. I don't have the numbers in front of me but I want to say my best recollection is that I was paying $250 a month for bandwidth and we bumped that to 300 a little later. We needed to increase our capacity a bit. That's from memory. Q. That's fine. A. You've got that in the discovery documents. Q. What kind of connection do you have to the Internet to support all that bandwidth? A. Right now I've just got a regular DSL connection. At the time it was a synchronous DSL connection, SDSL, and it was capable of one megabyte, as I understand it, uploading and downloading GILBERT & JONES 48

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

There's a security company that actually GILBERT & JONES

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49 maintains security on it. There are a number of fees that would all come into that number and I don't believe I can come up with a flat number for you right now. There's some accounting decisions that have to be made to come up with that number anyway. Q. All right. That's fair. So let's go chronologically back to the beginning of THR and the time period in which it was still on your dedicated server in your den. Was it the only Web page that you were hosting on that dedicated server? A. For some of that time period it was. Afterwards I had some others as well. Q. What other Web pages did you have on that server? A. There's an OB/GYN office in Savannah that I hosted some Web pages for. I'm not sure if they ever used it. They might have just used it for e-mail. I probably had a personal site. I registered zeanah.com way back in the late nineties. I don't know what else. It was handy for temporarily posting information certainly. Q. So would you say there were other things GILBERT & JONES 50

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that you did on that server that sort of came and went as time went by, something you would do for a while and then -A. I don't remember. It could have just as easily been hosted on my desktop machine. I used a dynamic D and S allocation to point to it. That would have been very easy to just put it away, so I don't remember. Q. When you say dynamic D and S allocation, what do you mean by that? Technically speaking what is that feature? A. Every website you go to has an address it lives at. That doesn't mean that there's only one website per address. Some of them I guess you could view as an apartment complex where if you want to go to a particular website you go to that address and you ask for it. And D and S is essentially a list of addresses, a phone book that lists addresses, so when you went to go to thehighroad.org, for instance, you tell your computer you want to go to thehighroad.org
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and it will ask its D and S server who actually knows the address for thehighroad.org and it will respond with an answer. So your computer will ask that GILBERT & JONES 51 authoritative domain name server what the address is and then it goes from that. Q. And the address would be the IP -A. The address would be the IP address itself. And at the time the authoritative server that gave those answers told the querying machine that the data was good for five minutes, 20 minutes, something -- a short period of time, so that there was a lot of flexibility if you wanted to move to a new site. And for clients who were wanting to host inexpensively out of their own office, for instance, that worked really well because they'd reconnect to the Internet, they might get a new IP address so they'd be down for, you know, two and a half minutes on average when they did so. It was a fairly good solution and I used the same for The High Road. Q. So during the time period that The High Road was on your server, there were other things that were on that server but you can't really account for what they were -A. I can't say for certain there were other things on that server. There were other things hosted out of my house using the same network connection but I can't tell you -GILBERT & JONES 52 Q. They used the same network connection and that would be a function of the dynamic D and S, that it would sort of go wherever it went -A. It had some flexibility but -Q. Okay. That's fine. The other things that you were -obviously zeanah.com was your personal Web page and you would say that you were the owner of that personal Web page, right? A. Yes. Q. What about, for example, the OB/GYN office, because you were handling their e-mail or Web page for them, would that make you owner or part owner of the OB/GYN office? A. I don't believe whether I host for them or not has any say as to who owns the building that they do business in or the business venture that happens within that building. I think they're unrelated. Q. Let's take the OB/GYN situation. You were using your house's Internet connection to handle
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their e-mail traffic; is that right? A. Probably. It may have been Web traffic as well. I don't remember. Q. Well, let's say at a minimum -A. Some of their Internet-related traffic. GILBERT & JONES 53

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We can say that and go forward. Q. So regardless of who owns the business, the building that they rent, the parking lot, the medical equipment, as far as their mail traffic server and their Web page, would you consider yourself the owner of that Web page because you were hosting it out of your house? A. I don't remember the specifics of the agreement there and your question is a bit vague. Could you be more specific. Q. Well, all right. Just put it as bluntly as I can. In your mind is hosting a Web page and supplying the technology to create a Web page on your computer on your Internet connection, does that make you the owner or the part owner of that Web page? A. There's an issue of responsibility that goes with it but I wouldn't say that I own the content that I host. Q. Okay. A. Just because I host it. Q. Let's talk about the donations again. I'm going to circle back to that real quick. So at some point there's a fund drive to upgrade the server? A. We needed to buy a server to set up in a data center to replace the current equipment. So the GILBERT & JONES 54 moderators were not capable of coming up with the amount of money required among themselves so they brought the community in. Q. And nobody else wanted to take the responsibility to collect money for this then, right? A. Again we can check the discussions and see exactly what happened. I believe the consensus was that it was reasonable for Oleg to have to handle all that and Oleg was not willing to but it had to be done so I did it. Q. And so Oleg directed that all of the funds that were going to come in for the new server should go straight to Derek? A. No. I don't believe Oleg directed anything. Q. Let's step back from that then. You were the one that was going to be actually managing the data transfer and you were going to be choosing the
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new home for thehighroad.org; is that right? Technically speaking you were the guy that decided this is where the server is going to be from now on? A. If I remember correctly, I decided what the specifications for the server should be and I decided probably it would be a good place to house GILBERT & JONES 55

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it.

You never know until you do it. And I asked for feedback from the other administrators and I didn't really get any and that's what we went with. Q. And so in the event -- this may sound like a colloquialism, but in the event you were the guy that sort of went shopping and found the new home? Would that be a fair thing to say? You were the one -A. I believe it was actually purchased off eBay. It was another one of those situations where in this case Dell was willing to lose money in the short-term in order to make their sales projections to keep up their stock price, so somebody bought a bunch of them and I got a fairly good deal on it. Q. But you're the guy that actually spent the money to make that happen, right? A. Yes. Q. So if the funds had gone to someone else like Oleg first, they would have had to forward them to you? A. Or they would have had to pay out of their Pay Pal account or something. Q. Right. At some point it needed to end up in your pocket so you could make the necessary GILBERT & JONES 56 purchase to do this? A. No. If Oleg had actually handled that, it would have been possible for me to find the server for sale, you know, commit to the purchase and say, hey, Oleg, why don't you give this -Q. And then Oleg's Pay Pal or credit card -A. -- or whatever you want to do. There was no -- I didn't have to be in the middle of it. I ended up in the middle of it because that was the only way to make it happen. Q. All right. That's actually very clear. That's very clarifying. So good. I hadn't thought about that. The people that donated the money for the server -- we've been using the term donation but I don't want to put this term in your mouth.
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Was it your understanding that it was a donation at that time? Is that what -A. I believe that the post that was put up that asked for money explained that what we were looking for was donations. We weren't selling interest in it or nobody could expect special treatment for having contributed but -- and this is the gist of it. This is from memory. GILBERT & JONES 57 It's been years since I've read this, but that, you know, if they liked the forum and they wanted to contribute to its ongoing success, we'd love, you know, some contributions. Q. So when this money came in, would you consider it a gift from these people as opposed to, say, an investment in a business entity from which they were entitled to expect a return later on? A. I considered it a donation and a donation is closer to gift than it is to investment. Q. What kind of records were kept regarding what amount of money came in and who it came from? A. I don't -- for the most part I don't believe I can tie checks to individual donors. There are a few that I can but for the most part it was, you know, this much money has been received to date, has been credited to THR's account. I believe there were a few posts like that in the staff forum. Q. Was there some kind of accounting between what the money was coming in and what the expenses were? A. Yes. Q. Who kept track of that? A. I suppose I did. I posted about it in a staff forum. Everybody was informed as things were GILBERT & JONES 58

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going on. Q. So it's your understanding that all of the records regarding the donation and the fund drive are on the forum? A. No. Q. Are there records that exist that are not on the forum? A. Yes. Q. Have you shared those records with anybody? A. Y'all asked for them and they were provided as part of discovery. Q. Actually -- all right. I'm not going to argue that with you.
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A. Well, I passed them on to my attorney. I believe they've been passed on to you. MR. BRANSON: I don't think we have those. MR. PEELER: Those documents that you asked for, I'll go back and check but I'm not withholding anything. MR. BRANSON: I know you're not. It's just something -MR. PEELER: If they were responsive to one of your document requests, then we provided them, but I'll go back and check. GILBERT & JONES 59 MR. BRANSON: I think Glenn asked for them and we didn't get a response. But we don't need to worry about that for today. We can figure that out between now and the end of discovery. MR. PEELER: Okay. Well, just send me a letter of what you think you need. MR. BRANSON: When we get done with this line of thought, I think I'm going to take a break for everybody's benefit but I want to finish out this line of questioning. Q. (By Mr. Branson) So you wound up being the guy who was responsible for all of that money and where it went and the purchase of the new server? Is that a good summation of what happened? A. I ended up being the guy who was responsible for the ongoing cost and maintenance of the server and those duties included collecting that money, buying the server. Q. What type of bank accounts did those -let me ask you this. You said checks but were they all checks or what forms of payment did these funds take? A. Probably got Pay Pal donations, checks, postal money orders. I don't think I got any -well, it could have been other forms of money orders, GILBERT & JONES 60 but it was either paper or electronic, and if it was electronic, it was -Q. So it was kind of a mix? A. Yes. Q. Where did all of that go into? A bank account? A. Yes. Q. Was that a business bank account or a personal bank account? A. It was a business account. Q. What business was it under; do you remember?
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A. I believe the Pay Pal account has always been listed as Derek Zeanah Photography but it tied into the -- no. Actually I take that back. This was -- the initial fund drive happened before we moved and that was probably before wellbuiltnetworks actually existed as such. So I don't know. I'd have to look that up. Off the top of my head I don't remember. Q. There's a thread on donations on THR and it's actually in a section called the evidence locker; is that right? A. That's correct. Q. What is the evidence locker? GILBERT & JONES 61 It's a place where we hide posts from view. I believe it was placed there after Oleg hacked the database and started a competing site and started to get the users riled up. So the moderators thought it seemed inappropriate to leave the thread up. Q. So whose decision was it to move it into the evidence locker so it couldn't be seen by people? A. I don't know. I guess Mal Hightower but I don't know. Q. We've talked about the initial fund drive. Have there been additional fund drives -A. There was one other. Q. When did that happen? A. I don't know. I wasn't aware of it until we went through discovery. Q. The second one would you say was not -you were not involved with the second one then since you didn't really know about it until discovery? A. I don't know how it started. I looked at it briefly and my impression from a cursory view people said, hey, we like this forum, let's donate more money. And so it was somewhat ground up and a bunch of donations happened. Q. Are you still receiving donations to keep GILBERT & JONES A. 62 THR running now? A. No. Q. So there's no place where people post information about donations that they made in the past or at the present at this time? There isn't a new donations thread anywhere that people can talk about? A. If there is, I'm unaware of it. Q. Okay. That's fine. Speaking of hosting Web pages out of your
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home, your wife is involved in -- what does your wife do for a living? A. She's a physician. Q. Is she self-employed or does she work for someone else to do that? A. That's a difficult question to answer. If you need the specifics of her business arrangements, you can ask me more detailed questions and I'll try to provide those. Q. We'll move on then -A. She just had lawyers and accountants set everything up and I mostly understand it but I don't know -Q. Have you hosted a Web page or been the administrator for any of her medical stuff? GILBERT & JONES 63 A. She has a personal site that I host. It's not -- originally I hosted their e-mail and Web page but I don't know that that lasted more than five or six months. Q. Would that business have had usage of the same server that THR was on? A. No. Q. Would it have had usage of the server that THR was upgraded to? A. No. Q. Has there ever been any other company, business, or entity besides thr.org that has been hosted on that server that's in the server space in Georgia now? A. I believe there are some other hosting things happening on that server now that we've moved to the new server. Q. Do you run those as well? Is that something that -- are you in charge of that server and you can put what you want on there or is it shared by the company that you bought space from? A. Oh, no, it's -- if any hosting is happening on it, it's happening with wellbuiltnetworks' clients. Q. Let me see if I understand -GILBERT & JONES 64 A. There's going to be some confusion here because there are three servers up in Atlanta currently that have at one point or another hosted THR in one form or not. Q. Okay. A. Well, actually there are more than that because there are other servers that handle D and S and e-mails. There are potentially seven but
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that's -- if you put things in a cluster, you get better resiliency and it makes things complex. I'm sorry. Q. No, no. That's fine. I'm interested to know about how this practically works. I'm not an IT guy. Well, does wellbuiltnetworks, LLC, have a business account with -- what's the name of the place that's actually doing the server? A. Site South. Q. So Site South are the people that run the business of Web hosting and that's what they do? A. They maintain the data center. Q. And then wellbuiltnetworks, LLC, has an account with them; is that right? A. Site South maintains the data center and from them I rent server space, bandwidth, and power. GILBERT & JONES 65 Q. Do you do that through wellbuiltnetworks? A. Yes. Q. Then wellbuiltnetworks also has other business ventures of yours or personal pages that also get run through Site South? A. Yes. Q. Are they run through the same account? A. What account? Q. Well, the wellbuiltnetworks, LLC, account. A. I've rented enough space for servers to satisfy all those needs and they're all -- I write multiple checks a month. Well, virtual checks to Site South. Rephrase your question -Q. You're giving me a good answer. Let's move from what you just said. When you say you write multiple checks, do you write a check for thr.org and a check for the OB/GYN and a check for your wife's personal -A. It's not broken down like that. I essentially am charged a fee for space and an initial amount of bandwidth and then I get additional charges for bandwidth overages that we've had. Q. Sort of like if I have a cell phone with a limited number of minutes, I know I'm supposed to have a hundred dollar a month plan, but then if I go GILBERT & JONES 66 over my minutes, I pay an extra 20 bucks? A. That's a reasonable analogy. Q. And so then you wind up writing multiple checks, one for the hundred, one for the 20 in order to pay -A. It works out.
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Q. But in terms of separating out thehighroad.org and other wellbuiltnetworks, LLC, clients, there is no separation there? A. I have bandwidth logs for each one. It's fairly easy to identify what used what resources. Q. At this time how many other companies do you have that you're doing Web hosting for through Site South? A. How many -Q. What other things do you have going on besides the thr.org bandwidth usage? A. A number of things. My sister sells purses. I've got zeanah.com and derekzeanah.com and karensimmons.info and some other sites -- I've got personal sites hosted there as well that are not commercial in nature. There's a physician who host space. It's an educational site that's related to some research grant that he's got. GILBERT & JONES 67 There's a THR member who's currently not paying me because he's flat broke, in his words. He's got a number of sites. He sells -- tries to sell bumper stickers. Oleg's site was there for a bit. Oleg's site was the Number 2 bandwidth user while it was there. I'm certain there are more. Q. So when it comes to figuring out where donation money goes as opposed to where other money goes to pay all these bills, do you have that separated out or is it all just sort of the same thing? A. When I received the donations, I credited THR's account in the billing software as part of the hosting software that I use. It was essentially a prepaid funds account and I debit it down at less than the cost to host it each month. We had to come up with some way to account for the excess funds that were contributed so that's what we did. MR. BRANSON: Let me see if there's anything else I need to run by you before we take a break. It is a little bit after 10:30. We've been doing this for about an hour and a half I GILBERT & JONES 68 Let's just take a five-minute break and Why don't we make it ten
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MR. BRANSON: Sure. We'll come back in ten minutes or so and we'll keep going. (Recess from 10:33 a.m. to 10:49 a.m.) Q. (By Mr. Branson) It is a little bit before 11:00 o'clock and we're back on the record now. The same people as before, Michael Branson, Oleg Volk, Charlie Peeler, Derek Zeanah, and Mynjuan. Thank you. Let's talk about the domain name of thr.org. Sometime in August 2005 the issue of reregistering the domain name came up. Is that when that happened? A. I don't recall. Q. At some point you were put in charge of reregistering thr.org's domain name though? A. At some point the domain was transferred. Past that time it's been my job to renew it. Q. So there was a transfer of the domain name and who did it transfer from and to? A. It transferred to me, and that came from Rich Lucibella but the previous registrant may have GILBERT & JONES 69 been a business entity that Rich Lucibella controlled. So I don't know for certain. Q. That's a fine answer. So from Rich to you would be the bottom line answer on that? A. I don't know if that's the bottom line answer or not. I believe the owner may have been somebody other than Rich. Q. So tell me how that came about. Why did that domain name transfer happen? A. My understanding is that Rich was frustrated that he had to remember to renew the domain when he had nothing to do with THR so he wanted THR to be responsible for that. Q. So at that point it's your understanding that Rich was not participating in THR, he was not running the show or a member there? A. I believe one of the statements we gave in discovery from Rich is a quote, very close to, I don't have anything to do with the site, I'm just a fan. I believe that states it fairly. I don't know that he's ever logged in or created an account. He may have, but I'm not aware of his participation. Q. And so did you speak to Rich about the reregistration or the domain name transfer? GILBERT & JONES 70

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Yes. And what did he tell you to do on that?
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A. I don't remember the conversation. In reviewing our written communications about this, it turns out there were actually two sets of communication, one where we were talking about trying to transfer it before the end of December and for various reasons we couldn't do that, and the second a significant fraction of a year later, maybe five months, give or take, when we actually made the transfer. So there were a series of discussions over time. Q. Well, I guess in the second set of discussions there was -- the second set of discussions would be the ones that actually resulted in the domain name transfer then? The first set of discussions didn't really go anywhere? A. I believe Rich ended up renewing before the December deadline and so the second set was where it happened, yes. Q. I think I understand. So in the December discussions you wanted to get it done before renewal had to happen but it didn't get done and so renewal happened in Rich's name; is that right? A. I'm assuming that was Rich's motivation. GILBERT & JONES 71 That's what was communicated -Q. And then the transfer happened sometime later but not under the pressure of, oh, my gosh, we have to renew, there's the deadline, it just sort of happened without the pressure of worrying about renewal a few months later? A. I believe so. Q. Tell me what the registering of a domain name means. What does that mean? A. Earlier we talked about what D and S was and how there are servers that are authoritative that give the answer for what address actually host a site. And there is a series of databases that are queried to determine who is authoritative and that ties into the domain name registry. So -- what detail of that were you asking for? Q. Well, let's say that -- let's go to a hypothetical, and if my hypothetical stinks, we can try to make up another one. Let's say that I'm going to have you host attorneymichaelbranson.com and that's going to be my Web page, personal, business, it doesn't really matter, and we're going to register the domain name. Why does it matter whose name the domain name is GILBERT & JONES 72
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registered to? A. Well, in that case what I would -- the way we would probably go forward is have you go to a domain registrar like Go Daddy and register michaelbranson.com, and then when you set up my servers for hosting, it will tell you what changes you need to make to your domain settings. You will tell it what D and S servers are authoritative in those IP addresses that I provide to you or domain names that I provide to you. Q. Okay. A. So that's how it's done. As to the importance of who it's registered under, that varies. There are four -- if I remember correctly, there are four separate areas in a domain registration area -in a domain registration record where names can go. There's owner. There's technical contact. There's administrative contact and there's something else and I believe each of those has a different area of responsibility and a different amount of power and I don't think I understand the system well enough to really break down what those distinctions are. Q. If you don't, I certainly don't because I'm not as tech savvy as you are. So if I wanted to register my Web page and GILBERT & JONES 73

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I said would you please handle the domain name registration for me and you registered that domain name in the name of, say, wellbuiltnetworks, LLC, would that mean that you owned my Web page? A. I wouldn't. You'd go into the software and say create the registration for me and it would create it in your name and I would be listed as the technical contact so maintenance could be done from within my account but you would still be the owner. Q. So in the case of -- going back to THR, in the case of the transfer of registration did you register it in your name or in the name of the company or in Oleg's name? Whose name -A. There was no company to use. I just registered it in my name. Q. And did Rich Lucibella tell you that you were the person that should be the domain name registrant? A. I don't know if he ever made any statement one way or the other. Q. Did he give you permission to register it in your own name or is it -- let me ask it that way. Did he give you permission to register it in your own name? A. I don't really understand the question. GILBERT & JONES
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74 Q. Well, if he's the guy who has this property that we're talking about, this domain name that is in his name, and he's giving that up, he's going to transfer it, certainly he gave you some sort of instruction as to who he wanted it to be transferred to, right? A. I don't remember any such instruction. What I remember is he wanted it out of his name so he didn't have to deal with it, random people wouldn't e-mail him anymore about problems they had on The High Road. So I took care of it, and I'm assuming that I took care of it in a way that met his satisfaction because he had nothing to say about this until, you know, quite recently when Oleg started stirring things up. Q. Did he indicate at that time that he was giving the Web page to you? MR. PEELER: Hold on. I object to the form of that question. I think we're talking about a domain name, not a Web page. If I'm wrong, let me know. MR. BRANSON: No, that's good. Q. (By Mr. Branson) Let's break that down. Did he indicate that he was giving you the domain GILBERT & JONES 75

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name? A. He called me and told me to take it from him so I would think that would be a clear indication to everybody involved as to what the transaction entailed and who the parties involved in the transaction were. Q. When you registered it in your name and you put the domain name under Derek Zeanah, in your mind did that make you the owner of thr.org? A. No. MR. PEELER: Let me ask you a quick question. I'll object to the form. When you say thr.org, are you talking about the domain name thr.org or the website? THE WITNESS: I assumed he was talking about the entire entity that compromised -MR. PEELER: I did too but I wanted to make sure. MR. BRANSON: Yes, I meant the whole thing. Q. (By Mr. Branson) Let's go beyond that. What about the trademark of thr.org, was there any discussion of the trademark at that time and what the domain name meant regarding the trademark? Do you
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remember any discussions about that? GILBERT & JONES 76 A. I don't know that Rich and I ever discussed any property issues other than the transfer of the domain name. Q. Was there a discussion on the forums regarding the transfer of the domain name? A. I don't remember one. There may have been. I tended to report when this has happened I've done X, just to keep everybody in the loop, but I don't have any specific recollection there. Q. Let's move forward to more current events. I want to talk about the introduction of a company called Cheaper Than Dirt and a man who runs Cheaper Than Dirt named Michael Tenney. Again for the record I'm probably going to refer to Cheaper Than Dirt as CTD in the way that THR is The High Road and TFL is The Firing Line. I have a habit of turning things into acronyms, and if that's confusing, let me know, and I'll stop doing it. How did you first become aware that Michael Tenney of Cheaper Than Dirt had contacted Oleg about becoming involved in thehighroad.org? A. I believe Michael Tenney actually contacted me, e-mailed me a letter dealing with that. My first apprisal of that was when I GILBERT & JONES 77 believe Mal Hightower sent me a message saying we got an e-mail to the Web master account. Q. So the e-mail wasn't directed to Derek Zeanah of thr.org; it was directed to the Web master? A. I believe so. Q. Were you the Web master of thr.org at that time -A. The Web master reflects to a number of people. Q. So Web master, the return -- here's the part when recording this lets us down because they can't see that I'm making quotation marks with my hand. But, quote, unquote, Web master actually refers to multiple individuals? Who all would be on the Web master group? A. There are two questions there. To answer the first question, I'm not sure what most people mean by Web master. In our particular instance Web master is a generic account that forwards to multiple people in case there's an issue that needs to brought up that
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somebody needs to deal with, that that lets us deal with it as quickly as possible. Right now I believe that forwards to at GILBERT & JONES 78 least Mal Hightower and myself. I don't know who else is on the distribution list. There may be others, but I need to look. Q. Okay. A. Actually I take that back. I think we may have changed it. There's a G mail account that is used to access one of the e-mails that Web master is forwarded to and a number of members or staff may have log information for that e-mail account but I think Mal may be the only guy who uses it with any frequency. But again I don't access it that way so I don't know. Q. But when Michael Tenney in CTD sent this Web master e-mail, at that time it would have gone to several people at thr.org? It would have been in several people's e-mail in-boxes? Would that be a fair way of putting it? A. I think it was in more than one e-mail box. I don't know how you define several and I can't answer that question. Q. You know, more than one is fine. And so that e-mail was forwarded to Oleg; is that right? A. I don't know. GILBERT & JONES 79 Q. When Mr. Tenney first contacted thehighroad.org, did you claim that you were the owner of the Web page, of that entity? A. The -- I did not claim that I was the owner, with the emphasis on the. Q. Did you claim to him that you were a part owner? A. I claimed that I had an ownership interest. Q. So as we've gone through chronologically through this deposition I've sort of asked a few times about this. Would you say that Michael Tenney was the first person that you claimed an ownership interest to or had you already been claiming an ownership interest for some time? A. Oleg and I had that understanding for some time. Now, I have discussed that with other people but that's not what you're asking. Q. Well, let's follow that for a minute. Had
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you discussed it with other people before this Web master e-mail from Michael Tenney? A. Yes. Q. Who would those other people be? A. Neighbors, friends, people I introduced to GILBERT & JONES 80

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the site. Q. To your knowledge -- and I know we're talking about a pile of information. I know. But to your knowledge is there any record on the site of you claiming that you're an owner or a part owner of thr.org before the Cheaper Than Dirt introduction into that entity? A. Not that I'm aware of. Q. Did you claim at that time that anybody else was also a part owner? A. I'm sorry. Claim at what time? Q. When Michael Tenney came in and sent the e-mail and at the time that you guys had the first contact from Michael Tenney and you told him that you were part owner of the Web master, who else did you say -A. I don't believe -MR. PEELER: Let him finish his question. THE WITNESS: Can you please restate the question. Q. (By Mr. Branson) Sure. At the time that you claimed to Michael Tenney that you were part owner, that you had an ownership right in -A. I have never made that claim to Michael Tenney as far as I'm aware. We've only spoken once. GILBERT & JONES 81 I do not believe it came up in the conversation. Q. Oh, okay. All right. I misunderstood then. A. Oh, actually I did send something in writing that reaffirmed his existing understanding but that was not a discussion. I did not tell Michael Tenney that. Q. Well, I want to make sure that I'm clear on this and that we're not splitting hairs. A. I think language is a terribly imprecise thing. Q. Yes, it is, even English. You said I believe the word you -- well, we didn't really use a word. You said that you claimed at that time that you were part owner of thr.org. In what manner did you make that claim? A. To whom? Q. To Michael Tenney or to other people on
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thr.org. A. When this came up, I received -- again this is from memory but the way this went down was Michael Tenney wanted to meet with Oleg and explicitly that was because he had a job offer for Oleg but there were a number of concerns that I shared with other moderators that Oleg was not really GILBERT & JONES 82 prepared to have that conversation and there was some worry about how that would happen. In the meantime Oleg and I agreed that Glenn would act as our agent in this to try to determine what details could be determined prior to August 8th. And I informed Glenn that, you know, the important thing to convey to Michael Tenney was that THR did not have just one owner and Oleg was not authorized to negotiate by himself on those things. And so that communication, if there was one, would have happened through Glenn. Q. We all know who you mean when you say Glenn but let's put it on the record anyway. When you say Glenn, you're talking about Glenn Bellamy, the intellectual property attorney out of Indianapolis, Indiana -A. He was also a moderator using the name Henry Bowman which I believe was taken after a character who killed a bunch of federal officers and fed them to pigs actually. Q. I've read that book. A. Yes. MR. PEELER: Let's focus on his questions. THE WITNESS: Right. GILBERT & JONES 83 MR. BRANSON: Can we go off the record for a second. (Discussion off the record.) Q. (By Mr. Branson) Let's go back on the record and back on task because our time is important but I had to make that comment. So we have a situation here, to recap, where Michael Tenney has contacted thr.org and he's making some sort of an offer. What was the nature of that offer as you understood it? A. He was very vague and I don't know that we had much of an understanding before the meeting happened. Q. He was vague but within the vagaries, understanding that it wasn't a hard deal at all, preliminarily what did you think what was going to
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happen? What were your concerns about what was going to happen? Let's make it even more specific. A. We didn't know what was going to happen. Q. Who was this guy Michael Tenney and what's Cheaper Than Dirt? A. My understanding is Michael Tenney is, if not the owner, then the decision maker for Cheaper Than Dirt which is a large firearms good retailer. GILBERT & JONES 84 They sell ammunition and surplus items and various things. Q. And they have this catalog they send out to everybody -A. I don't know. Q. And so when he contacted Web master when he sent this contact, do you remember what the content of that contact was, what he was asking to do? A. Not off the top of my head. I want to say that it was essentially the same content he mailed me directly but I'd have to look at both of them and compare them. I believe -Q. What was he asking to do? What was he wanting to do? A. It was something very vague along the lines of developing a partnership and/or buy THR. So there was a lot of hedge room in there. Q. Mr. Tenney at some point wanted to talk to Oleg and fly him out to Texas? A. My understanding is he was also offering Oleg a job that involved graphic design in some form and he thought it would be -- he expressed that he thought it would be convenient to discuss both issues at the same time. GILBERT & JONES 85

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A number of us had concerns that he was going to use this as a hard sell for Oleg and Oleg is quite susceptible to that sort of thing so we thought Oleg was -Q. When you say -- I'm sorry. I didn't mean to interrupt. A. Go ahead. Q. When you say hard sell, what do you mean by that? A. I believe he was -- my thought at the time was probably that what he was trying to do was get Oleg to commit to what was a bad business decision while he was in Texas, which was the importance of communicating to Glenn that Oleg was not there to
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make a decision and could not make a decision simply on his own authority. So I believe that was communicated. That was where the understanding came about. Q. So when you communicated to Glenn to let Michael Tenney know that Oleg wasn't authorized to make a decision on behalf of thr.org, what did Glenn do after that? A. I don't know if that's the exact wording that I used and I don't know what conversation Glenn actually had with Michael Tenney. GILBERT & JONES 86 This morphed somewhere from Glenn acting as my agent to a number of secretive things going on with Oleg and Glenn and Michael Tenney behind the scenes. But Michael Tenney has communicated that he understood that this was joint ownership. I don't know if that was Glenn or Oleg that informed him of that, but that's certainly something we can identify in the future. Q. And so your point of view on this was that at this time as this situation was developing that Glenn was acting as your agent in this? A. Yes, that's my understanding. Q. When you say that Oleg was not authorized to make a business decision like this, who would have authorized him to do that? Who did he need authorization from and couldn't get? A. This would be a much easier question to answer if we had formalized documents relating to that. Oleg and I had a number of conversations, possibly dozens, in the time period leading up to this where we discussed ownership. And our understanding was that he and I were equal owners. He brought up that he thought GILBERT & JONES 87

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staff should have some stake in that. I had some mixed feelings about that. I thought sharing the proceeds with staff might have been more appropriate than giving them the other, but at the time we never came to a formal decision as to -- we know who the stakeholders are but we didn't know what ownership, in quotes, stake everybody had respectively. That had never been determined. Q. You never got far enough -A. -- but, at best, Oleg had half ownership, so, you know, 50 percent is not enough to make that sort of decision.
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Q. So informally your understanding is, at best, Oleg had 50 percent -A. Informally my understanding was Oleg and I had an equal stake in this. Q. So if you two have equal stakes and then other people as well that have to be considered, what does their stake turn out to be? A. Again that's a discussion that has yet to happen so I'd hate to speculate about what the resolution of that discussion would be. Q. So you never really got that far in figuring it out? A. Oleg and I reached an agreement, and GILBERT & JONES 88 apparently he's changed his mind since then, that we had equal shares, equal stakes, we were equal owners in this and that the administrative staff of the board had some interest as well but I don't know that we clarified whether that was strictly a financial interest, if money was to be made from this, or if it represented ownership, but that was about as far as we got. Q. So going back to the discussions regarding Mr. Tenney, Cheaper Than Dirt, Oleg, you, THR, the situation, did Oleg ever go out to Texas and visit with Tenney? A. I believe he did on August 8th. Q. That's the first time that you've given me an exact date -A. We have come across that date many times in dealing with documents since then. Q. Why do you think that is? What's the significance of that to you? MR. PEELER: Object to the form. If you know what he's asking, you can answer. THE WITNESS: There were two questions there, so if you'd restate that, it would be helpful. Q. (By Mr. Branson) Sorry. Is the August GILBERT & JONES 89 8th date an important date in the history of this case and in the history of thr.org in your mind? MR. PEELER: Same objection. MR. BRANSON: It's a yes or no. MR. PEELER: Is it an important date and is it an important date in the history of THR. I'm not sure what you're asking so I'm going to object that it's vague. MR. BRANSON: I'm sorry. I'm asking compound questions without realizing it.
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Q. (By Mr. Branson) Is August the 8th an important date in the history of thr.org? A. I believe that weekend is important. Q. Why is it important? A. Because for years prior to that in all the conversations leading up to that, Oleg and I had been of the understanding that we were equal owners in this, which is why I had been willing to contribute as much as I had. And sometime after that, and it's difficult to tell where because Oleg got quite secretive, he decided he didn't like that as much. So sometime in that month after that or before the end of October there was a significant shift in Oleg's mind-set I believe and that's at the GILBERT & JONES 90

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root of the current difficulty. Q. Well, why is it that Mr. Tenney wanted to fly Oleg out to Texas instead of you? A. Because he was offering him a graphic design job at the same time. He seemed to like Oleg's work and he -- what he said was he thought having both discussions at the same time would be beneficial. Q. And you disagreed with that, didn't you? A. My suspicion is he thought it would be easier to talk with the artist than to talk to somebody who was in the process of getting his MBA in trying to be persuasive. Q. And so you wanted to separate any deals between Tenney and Oleg and Tenney and THR; is that right? In other words, you wanted to have two separate conversations instead of mixing it all into one ball? A. I don't know what I wanted. I thought that was a stupid thing to do because I thought Oleg going down there would turn this into one big emotional mess and cause future problems. I just don't think Oleg was mentally and emotionally equipped to have that conversation by GILBERT & JONES 91

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himself. But that was the way Tenney wanted to proceed. We had some discussions to try to minimize the damage. I don't know that they were terribly effective. Q. Michael Tenney actually refused to split that conversation that way, didn't he? He insisted on doing it all at once --47-

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A. I never spoke with Michael Tenney until he called me while he was driving Oleg back to the airport. So I don't know that that conversation you're referring to actually ever happened. I'm not aware of it. Q. What was the substance of the conversation when he called you coming back from the airport? A. He wanted to summarize what he talked about with regard to the THR deal with Oleg and so we covered some of those details. Q. Whose idea was it for -- well, you may not know that. Did he indicate to you why he was making that call to you? A. I don't recall. Q. So at a certain point there was a disagreement between you and Oleg regarding the GILBERT & JONES 92 Is that a fair thing to

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future of thehighroad.org? say? A. I don't like your characterization of it because there was a big discussion among the administrators regarding the future of The High Road and there were a number of points of view involved in that. Q. So again going back to that concept that this is a group effort, there was group input on this discussion? A. There was. Q. And lots of people had their say regarding what they thought about the situation? A. Yes. Q. And some of those people would include Tyme? Would he have been part of that discussion? A. I don't know that he actually offered -- I don't remember any comments he offered specifically. Q. Do you remember anybody else, any other specific posters, members, people, that were part of this conversation? Is there anybody that comes to mind that was important in this discussion? A. Mal Hightower contributed. Jeff White contributed. Art Eatman didn't really contribute. Somebody who later resigned due to Oleg's GILBERT & JONES 93 behavior in approaching the business deal as he communicated to me who had been friends with Oleg since he was 13, I don't remember his name, he had something to say about it. Larry Korea (phonetic) had something to say about it. The guy who goes by the name Coronach,
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his first name is Mike, had some comments. Mike Crenshaw had some comments. I'm going from memory. That's a discussion -Q. A number of people -A. If you're -- it should be fairly easy for you to look up and you'd come up with a much more comprehensive answer than I can give you, a much more accurate answer because again this is from memory, over a year ago. Q. Sure. So all of the people that were part of this discussion -- and this was in the admin forums, right? This wasn't in the general -A. This was not a public discussion. Q. So it was something that staff, moderators, only a select few people had access to, is that right, a good way to characterize that? A. I'm not sure. At the time it was something I thought only select few people had access GILBERT & JONES 94

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to. Q. I don't mean to ask you that in a technical sense as in if you can prove that, but that was your impression? A. The conversations were shared with other people outside of this. I believe Michael Tenney was one of those and there were some others and I don't know whether Oleg actually sent them copies of the conversation or characterized it over the phone. Q. Is there anybody else in this conversation that you would characterize as having an ownership interest in thr.org? A. You're going to have to be more specific there. I'm seeing three ways I can answer that and I want to answer the right question. Q. Sure. You said earlier that you have an interest in owning this thing and that Oleg has an interest in owning this thing and that there are some other people that have an interest in owning this thing. Would those other people be the same people that were part of this decision-making process? MR. PEELER: And I'm going to object to the form. That mischaracterizes his previous testimony. MR. BRANSON: Okay. GILBERT & JONES 95 MR. PEELER: I think his testimony was he and Oleg shared equal ownership interest. They were going to decide what, if any, interest other people may have.
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But your question said that he testified that other people had -THE WITNESS: And let's clarify that more. At the time when we had that discussion that was my understanding. And looking back at this other discussion, answering the question I believe you're trying to ask, I believe I can say at the time I thought there was three stakeholders. There was me. There was Oleg and there was the moderators and I was arguing that moderators ought to have an ownership interest and they ought to have some proceeds from this because their contribution is quite significant. And for the most part -- actually every moderator comment I can remember said we don't want that. So I still believe they're stakeholders. I don't know if I would say they have an ownership interest. At the time they said no. Since that GILBERT & JONES 96 point in time they may have changed their mind but I can't really tell you what they're thinking. Is that closer to what you were trying to ask? Q. (By Mr. Branson) That's fine. I wouldn't ask you to tell me what all the moderators are thinking because we really would be here all day. That's a good point. The moderator group has evolved over time. Would that be a fair characterization? Would you agree with me that some moderators have become moderators since the founding of THR and others have left? A. I would say that the moderators we have now are not the same moderators that we started with. There have been changes over the last six years, seven years, whatever. Q. And so when we're talking about a potential for a financial interest in proceeds of thr.org, would the group of people that you call shareholders in that entity, would that be all the moderators? A. Stakeholders. Q. Sorry, stakeholders. Would that be all the moderators past and present? GILBERT & JONES 97 A. Again that is a conversation that needs to happen that has not yet occurred. I have an opinion
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there but I'd really hate to speculate as to what the resolution would be because in deciding who they are, they in quotes, the moderators will have a point of view that may outweigh mine. Q. Well, without asking to you speculate on what the final answer would be, what is your opinion on that? A. I think that as far as decision making with regard to whatever decision power they may end up having, if they have any, but certainly with respect to how distribution of proceeds will be handled, that's up to the moderators to determine. If they want to do that by how it's logged in or subjective sense of contribution or how many posts they have or how many months they have been on staff or if they just want to give it all to charity as, you know, we're going to fund the NRA with whatever our proceeds are, it's entirely up to them and I think there are probably dozens of reasonable and acceptable outcomes there but I don't know what they're going to argue for. I don't have a particularly strong interest in any one of those over the others. I just GILBERT & JONES 98 believe that the health of the forum would best be maintained if all the important stakeholders had some form of ownership interest over time. Q. Okay. That's great. Regarding this discussion about CTD, Oleg, and the future of the website, what -- and I'm not asking for any kind of speculation. I'm just asking for what you had in mind at the time. What did you want to do with the website at that time back in August 2008? A. I saw a number of options, and the options that were discussed with moderators, that you should have records of them if you choose to look for them, were forming a nonprofit of some kind and taking the proceeds to either donate to charity, the proceeds above a living wage for Oleg and I, that was understood, either giving that to charity or possibly forming a nonprofit that was designed to promote the right to keep and bear arms. I believe the example I used to Oleg was some of these images had emotional appeal and it would be perfectly reasonable for us to put those on the sides of buses in large cities. That might be enough to help persuade some minds. So that was one option. GILBERT & JONES 99
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Another option was just splitting the proceeds, which I didn't think was a very good one. Another option was just sitting and waiting, take a year and decide because all of a sudden we realized this had much higher value than we ever thought it would. Q. Let's talk about that because we've talked about on the one end -- earlier before the break we talked about how expensive it is to run this thing and you're talking about significant amounts of money for hardware, software, bandwidth each month and how much it cost to do this and then we've talked about a couple of one successful and maybe one less successful fund-raising drive that was done and now we're talking about stakeholders and proceeds. Where are the proceeds coming from and what kind of profit is the site making? A. To date -- actually all proceeds are speculative. We have not made a penny. Q. So this is all just in the future if things work out for the website? A. Actually these discussions were held in the context of somebody who showed up and offered to drop two hundred grand a year on the site, a hundred and fifty in cash and fifty in promotion -GILBERT & JONES 100

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Q. And that person would be? A. Michael Tenney. So it certainly seemed something more than speculative at the time, but this wasn't some vague discussion about a hypothetical. I think we've reached the point where we understood it had real value. And I believe again if you go back through those documents I made statements such that it would be okay to put this decision off and choose not to monetize now, but if we've got this much money on the table, I don't think it's reasonable for me to keep funding this completely out-of-pocket. But I wouldn't call it -- we've never made a penny but I don't think it was speculative. There was some real money at stake and I believe there still is some real money at stake. Q. Well, let me just ask you directly and bluntly. If there is still some real money at stake, where do you think that's going to come from? A. Well, I think the site has value. There are a number of ways that it could be monetized. Q. Going back, did you have a business plan back in August 2008 that you wanted to implement for monetizing the site as you say? A. No. It was all wide open discussion. GILBERT & JONES
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101 Q. And in this conversation, this virtual Internet conversation regarding the future of the website and CTD and their involvement, you and Oleg wound up having a pretty good size disagreement, didn't you? A. Eventually it turned out that way. Q. Was that disagreement -- is that something that happened on the forums or did it happen by phone or how did you communicate with each other regarding that disagreement? A. We communicated by phone and every time we talked we would always reach a resolution. I don't know if we had that much disagreement. By the end of each phone call we had understandings but those understandings didn't last the night. Oleg would change his mind I guess depending on how he felt when he woke up the next morning or maybe he's -- I don't know. I thought we kept reaching a series of understandings as we went and we were pretty much in accord, and in hindsight that was not the case. Q. And so while you're having this disagreement with Oleg, were you claiming to be the owner of the website to anybody? GILBERT & JONES 102 A. Oleg and my understanding going back years has been that we had an equal stake in this, and eventually that came out in the public discussion too. I wasn't of the opinion that it was really anybody else's business but it became relevant. Q. At some point Oleg's account status was changed. He had been -- see, I don't want to be testifying for you here. Let me rephrase and try not to put words in your mouth. At some point did Oleg's technical status, his account on thr.org, did it get changed? A. Yes. Q. Who changed it? A. You're asking a much more complicated question than you think you are. But the best way I can summarize this is Oleg had some conversations with me and a number of other moderators that suggested that his emotional state was such that he would be satisfied to just see the entire community die. I believe his terminology to me was, quote, burn the house down with everybody in it, unquote. So that came out in some of the
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discussions and he had another discussion I don't GILBERT & JONES 103 know the details of with Mal Hightower that convinced Mal he was ready to do something stupid. So Mal changed his account status I believe from administrator to moderator, and he called me as I was about to go into class and had me toggle some settings that would not allow Oleg to do very detrimental things to the database. I'm not sure that that would have been the case had he just had administrative access, but it was a joint approach to changing those. And then later Oleg was -- this is difficult to say because what I'm doing is relying on statements Oleg made to other people. Apparently Oleg was trying to kill thehighroad.org in the interest of building up the thehighroad.us as a replacement and moderators were watching his behavior and he was digging through the band members' file and doing all sorts of stuff that he shouldn't have been doing and wasn't talking to anybody and moderators decided that he no longer needed to have any exceptional access, and I believe they bumped him down to a senior member. He might have a title moderator emeritus, something like that, but they took away his access to the staff area and set up a separate place where only GILBERT & JONES 104 he and staff had access to for further discussions. I don't know that it's seen much use. So there were three answers there. Q. That's good. There's a lot of information there. And this is a complicated situation. I understand and appreciate that. It's a complicated thing that happened. Okay. Let me go back to some of the things that you talked about. When you say that Oleg made a statement that he was going to burn down the house with everyone in it and he was going to kill thr.org, what did that mean to you? A. He didn't say he was going to kill THR. The statement, as best I remember it, was something along the lines of, Derek, I understand I'm being emotional here and I want to be rational but my emotional state is such that, you know, I want to burn the house down with everybody in it and I know that's not something productive and I know it's not in my best interest but frankly I really don't care right now. And that's the closest I have to that
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quote and I made sure I had good backups. I do not know what he said to Mal Hightower that made Mal think that he was about to do something imminent, so GILBERT & JONES 105 I can't testify to that. Q. So let's split this into two questions. When you read that statement, that's obviously sort of an analogizing statement. There's no house. There's no people. There's no matches and gasoline -A. My wife didn't take it that way. She was quite upset as somebody who's had a house fire around her before. So she took it much more directly than I did. Q. You as a technical person and as an IT Web hoster and the guy that's in charge of all of that stuff, how did you take that to mean? What kind of action could he have taken or did that statement lead you to think he was going to take? What's he going to do to carry out that threat? A. I don't know that Oleg has a whole lot of technical ability but he has friends with technical ability so I don't know what they would do. I don't know. There are a number of things that can be done but I think the intent enough is enough to -Q. What was the thing that you were worried about? What were you worried that he was going to GILBERT & JONES 106

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do? A. Delete the database, start tampering with things. It would be more useful from the perspective of somebody trying to destroy it to suddenly mangle the database over a period of time so the backups would become corrupt, but I don't think he would have thought of that, but there are a number of things that could be difficult to anticipate and difficult to detect. Q. Because I'm not technical either and I can guess, but I don't want to guess. I want you to tell me. When you say delete the database, we have thehighroad.org as it existed in August of 2008 and let's say someone, be it Oleg or a hacker or whatever, deletes the database and I want to go to the worldwide Web thehighroad.org and I hit enter, what do I actually see? What has happened to this website? A. You get a database error saying I can't
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connect to the database. That's all the content of the site, including the pages that actually get displayed because they're all generated automatically. That would be where we had to restore from GILBERT & JONES 107

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the most recent backup so we would lose data and ongoing discussions would be halted because everything that happened since the last -- that may be that 10,000 posts are suddenly gone and that causes harm to the community. I mean, I hate to say that's the only thing to do. There are a number of things that could be done. Q. But that's what came to mind? A. That's what came to mind. Q. Okay. A. But again I don't know what he told Mal Hightower. That was really the precipitating event when the status changed. Q. So Mal Hightower then took what action to prevent the burning down of the house? A. He changed Oleg's status from I want to say administrator to moderator and this would be a very technically detailed question so I'll try to avoid some of the technical details because I don't know exactly what he did anyway. But by removing administrative access he removed the easiest ways to do harm and he also had me change a line or two in the configuration file which gave Oleg's user ID some special permissions. GILBERT & JONES 108 Q. What kind of special permissions were those? A. I can't tell you off the top of my head. Q. Do you have those same special permissions in your file? A. No. Q. So those were things that Oleg could do on -A. Actually I might have. I believe there are two things I changed. One of them is the ability to prune the administrative log. So you can make changes in the administrator and then go back and hide the fact you made changes. I don't know that I ever added myself to do that. I think Oleg was added by default by the software when it was installed. But there's really no reason to do that. Q. Okay.
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A. I don't know what the second one was but I don't believe -- I might -- I don't know. Q. That's fair. A. Let's pause here. I just really have to pee. I'll be back in -MR. PEELER: First of all, let's remember that everything is taken down. GILBERT & JONES 109

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THE WITNESS: Oh, I'm sorry. Please remove references to my bodily function. MR. PEELER: Secondly let's take a break and go off the record. (Lunch recess from 11:45 a.m. to 1:00 a.m.) MR. BRANSON: It is a little bit after 1:00 o'clock. I'm Michael Branson. Again the same players as before, Oleg Volk, Charlie Peeler, Derek Zeanah. Without any further ado, we will agree the same conditions as before, everything pursuant to the federal rules, the same kind of situation as we did this morning. Any disagreements or comments on that? MR. PEELER: That sounds great to me. Q. (By Mr. Branson) We were talking about the altering of Oleg's account status on thr.org and we were discussing that at some point, Derek, you and Mal thought that a threat had been made toward the Web page so you decided to alter Oleg's account; is that correct? Would you agree -A. Our understanding was -- well, Mal didn't tell me what Oleg said to him directly. He seemed to think it would be inappropriate to do so but he GILBERT & JONES 110 seemed to think that Oleg was going to do something very soon, that the action was imminent, and we eliminated his ability to do so. It didn't really change anything that he did on the site. It changed what he could do. The sort of tasks he typically did were not affected by that at all as far as I'm aware. Q. Let me ask you then in terms of ownership of this entity, of THR, and control of this entity, THR, this decision to strip Oleg of his higher functions, his higher technical functions, is that something that you and Mal did on your own or did you consult with other people before you made that decision? A. I don't know who was consulted with before Mal made that action. I don't know.
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Q. If you're part owner and Oleg is part owner and there may be some stakeholders -- there's this other entity of members, moderators and so forth as out there, what is it in your opinion that gave you the authority or the right to take his account privileges away? A. I believe the account privileges that were taken away were not taken away by me, not in the way that you mean it there. GILBERT & JONES 111 I made some changes that would keep him from doing things that nobody ever really needed to do. So I guess I'm not -- rephrase your question. I'll try to give you a better answer. Q. Well, basically his settings had been changed and it was you and Mal that changed those settings. If he's at least a part owner of the Web page, what gives you the right to change his settings? A. Well, the entity and its value had to be protected. He'd stated pretty clearly that he was driven, though he was resisting to some degree or another, but he had the desire to do damage to it out of -- I don't know. I don't know how you want to characterize his emotions at the time. Q. And that feeling on your part that something was about to happen then justified taking a preemptive action to make sure that no harm could be done? Is that a fair statement on my part? A. I think that the threat that seemed to be there justified taking away privileges that none of us had ever actually needed to use. Q. Who has the final say in this entity of the Web page, who has the final say in what rights or GILBERT & JONES 112 privileges administrators, moderators, owners have -A. I -MR. PEELER: Let him finish his question and then answer the question. Q. (By Mr. Branson) Who gets to choose who has what power? A. I'm going to have you rephrase that because the entity is one entity and the Web pages are produced by software that that entity depends upon and there's some confusion the way you worded that. So if you'd just reword that. Q. Oleg, you, Mal, Tyme, other members of the site all have an account status and the account status can have various levels of accessibility and
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responsibility? Would you agree with me on that? A. Yes. Q. Depending on whether you're a moderator or an administrator -A. Yes. Q. So who has the final say in what options are clicked on people's accounts, this person is an administrator, this person is a moderator, this person is not? A. Generally those decisions are made by consensus and we've always reached them by consensus. GILBERT & JONES 113 Now, there were some special circumstances about a year ago but for the most part it's -- I won't say the majority rule but we have discussions about them in the staff lounge, sometimes quite heated discussions. Q. And those special circumstances would have been this instance because there wasn't really a consensus, it was just something you felt needed to be done and so you did it? A. Actually I responded to help Mal do it. I trust the guy. I don't know what Oleg told him privately. Now, there's also another -- I mean, the most significant change to Oleg's status, you're talking about the first one that happened, and that didn't really change much. His name was still in bold afterwards and for all intents and purposes he could do everything on the site he had always done previously. And there was a second change that was done by consensus that I did not vote on that was handled by the moderators themselves. And there were probably a group of them who made that decision one night as Oleg was being very destructive. Apparently that was the stated GILBERT & JONES 114 intent of some of the moderators as well. And then they put themselves up for if y'all disagree with what I've done I'll be happy to step down but this is what we did, what do you think. And the consensus was Oleg had to go, or at least as a moderator. I did not have any say in that. I watched it from the sideline. I figured I was a bit too close to it to contribute rationally. Q. And after they made the decision that Oleg had to go, what happened to his account then? A. I believe it was set to regular member status. He was given special permission to a forum
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that we created so that only staff and he had access to it and I believe he has access to a private forum as well. So he essentially became a user with as many privileges as -- actually more privileges than any other user has but he didn't have any -Q. So he really has sort of his own little forum where he can go that's not under the public eye? A. The thinking was that there were some discussions that needed to be had that shouldn't be done in public so a place was provided for that. I don't know that it's ever really been GILBERT & JONES 115 used but there were a few, Oleg, what were you thinking posts in there. For the most part -- it doesn't matter. But, yes, there is a special section that he and staff only have access to. Q. You know, the danger with making decisions by consensus like this is that sometimes you'll have a situation where a consensus can't be reached because you have roughly a 50/50 input and it's a coin flip on voting aye or nay on some issue. Before August of last year, was there somebody who was known as sort of a tiebreaker who would have the final say and things like that if there was a dispute or a vote that came to a 50/50? A. I think some -MR. PEELER: Hold on. Object to the form. If you understand the question, you can answer it. THE WITNESS: I believe I understand the question. There were some moderators who gave Oleg's opinion special deference but there were a number of cases, as I remember it, where Oleg's actions were frowned upon and the communal decision was contrary to what Oleg wanted to do, but I don't know that we actually GILBERT & JONES 116 had a tiebreaker. When it came to issues that affected liability as I saw it, I pretty much set the rule there. There were some things that would not be permitted. For the most part, everything else was editorial and there were some opinions. We've got a great moderation staff and I didn't step in very much. Q. (By Mr. Branson) When there was sort of a
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clash between Oleg's opinion and the opinion of some of the moderators, what usually wound up happening in terms of the actual decision that was made? A. It depends on what was done. The one that stands out where he upset a bunch of moderators is he created a private area that made some users more privileged than others and a lot of moderators thought that was anti -- I don't know. It wasn't equalitarian enough, and I understood that. I happened to agree with it. I think we've got a pretty good membership base and it's nice to discuss some topics that are not strictly within the realm that the board tries to limit itself to and it was nice to have a place where people who are known to be cooler heads can hang out to do that. GILBERT & JONES 117 But that was left to stay because it would look bad to create it and people realize it and then it disappear and they ask questions about it in public. Q. Right. So did he create that just on his own and decide he was going to do that on his own or did he -A. He did. That's the only time I can think where he showed any real autonomy in decision making. So, yes, he did that on his own and we almost lost moderators over it. Q. Did you ever have occasion to create any forums that were ideas of yours? A. No. For the most part I didn't take a stand in editorial decisions. Q. There's one particular alteration that I'm curious about. In his account biography you said earlier this morning when we were discussing the setup of thr.org that there's a set of registration questions and they got turned into an account -- I call them the account biography. I don't know what the technical term is. And one of those questions that Oleg came up with was what do you do for the right to keep and bear arms. Do you remember talking about that this GILBERT & JONES 118 morning? A. Yes. Q. At some point in his account biography in that registration section in answer to that query what do you do for the right to keep and bear arms, Oleg's -- do you recall what Oleg's answer to that was? A. I don't.
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Q. If I said that his answer was I'm the owner of this website, would that sound wrong to you? A. I don't know what his statement was so I can't make any comment as to what it said. Q. And if I told you that at some point his account biography with that statement in it was altered so that that line was removed, would you have any knowledge of that alteration? A. No. Q. So we've gotten to the point where Oleg has had his account changed because you were worried about any damage done to the Web page or that could happen; is that right? A. Yes. Q. Did any damage to the Web page actually ever occur? Did he actually make good on his threat or attempt to make good on his threat? GILBERT & JONES 119

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A. Yes. Q. What kind of damage was that? A. He hacked the server, set up a competing site, and spammed all the members multiple times, talking about how the new site was the authentic site, caused a great deal of confusion. Q. So when you say he hacked the site, you mean he accessed the site? Somehow he got access to it, to what? When you say he hacked the site, what do you mean? A. I mean the database was transferred. I mean, he's gone into that in his testimony. I can't tell you exactly what he did. I can tell you what it looks like, but I can't tell you much more than that. Q. Well, I'm just trying to build a picture of -A. Proprietary data, including all user accounts and all previous posts, was taken from the site and set up at a competing site. Q. Right, which would be thehighroad.us? A. Yes. Q. And that data would be basically an archive, basically a copy, like a copy-paste-type situation where he copied what existed at a certain point on thr.org and then pasted onto thr.us? Would GILBERT & JONES 120

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that be a fair -A. I haven't examined Q. Well, in doing so, that -- let me go back. When people, what does that mean? people mean?

his database. as you described doing you say he spammed What does spamming
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A. Well, since our inception we've never seen the need to e-mail the users in general, a mass e-mail to everybody who's ever registered, and he saw the need twice within about a ten-day period. Q. And so when you say spammed, you say he basically sent an e-mail out to everybody that he could possibly e-mail that was part of this -A. Multiple e-mails to try and diminish the value of our site with the intent of I would assume increasing the value of his. Q. When you said proprietary a minute ago in terms of the database, what do you mean by proprietary, proprietary data or proprietary information? How would you define that word in that context? A. I think it's an appropriate word. I can't give you the definition for the word proprietary off top of my head. It was private information that was shown GILBERT & JONES 121 to nobody else. It was actually set private. I don't believe that -Q. Private to who? A. Let me rephrase this slightly. If THR was going to become a commercial venture, the value that it had is based off of the contributions that users have made. We got over 6 million posts now, around 6 million posts posted by up to 80,000 people and the value was in that content and all of that value was duplicated and copied over and set up as a competing site. So when I say proprietary data, I mean all those things that made our site unique and it made our site what it is. Q. In doing any of this did he ever do anything that actually limited public access to thr.org? A. I don't know. Q. Okay. A. There were some bandwidth spikes so our bandwidth was maxed out. It would have looked like a denial of service attack. That's another term of art. And I don't know if anybody was unable to GILBERT & JONES 122 reach the site while that was happening or not, so I cannot give you a definitive answer there. I think the odds are probably but I couldn't quantify it in any way and I couldn't say it
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with any certainty. Q. On the other hand at a certain point you actually shut down thr.org for a certain period of time, didn't you? A. I shut down THR for about 12 hours. Q. And so when we say you shut it down, I've also heard the phrase pulled the plug. That's fairly colloquial. Why don't you tell me technically what you did to shut it down for those 12 hours. A. Oleg sort of started a firestorm that was directed at me and at the forum and it looked likely to damage the forum and it required some kind of response. But as Oleg had been saying, this will go to court, I will not talk, we cannot settle it and let's got to court, I felt like I needed to get legal advice before I could actually post any response. So I put up a maintenance message and as soon as I could talk with a lawyer I put it back online and I believe we put up a response and then GILBERT & JONES 123 the moderators tweaked that response a bit over a few days and it eventually contained our statement and the goal was to reduce damage to the forum. Q. But if you were going to wait and talk to an attorney before you responded, why shut down the entire forum so no one could access it? A. Because Oleg was driving up interest in this matter on a number of unrelated forums, some of which are quite busy, and it's quite possibly we could have had 10,000 posts overnight which would have been detrimental to the site and would have stopped all other conversation and it would have caused damage to the site. And in order to protect the site I had to shut it down until I could get advice on what I was allowed to do to respond. Q. So it's your testimony today that you can't really tell me that anything he ever did limited public access to thr.org; is that right? A. Oh, I believe it did but I can't quantify it. Q. But that you admit to shutting down the Web page for all users anywhere throughout the worldwide Web to prevent him from making a mess of it and give you time to think? GILBERT & JONES 124 A. No. I believe I limited access to users. At the time I thought moderators still had access and
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there were discussions I put up. It turns out only administrators had access. But there were still a number of us who had access to the site, but the majority of people did not have access to it for 12 hours or less. Q. So actually a certain number of people still had access to thr.org and it would come up for them but for everybody else they wouldn't be able to go there and see what was going on? A. That's what maintenance messages do. When you put a forum into maintenance mode, using the software we're using, administrators can still access the forum. They get a big red warning at the top saying forums are currently inactive, but whatever message you post is what everybody else sees. Q. Could everybody else go to the archives and see previous posts during that period? A. I don't know. Q. There's been some other people whose accounts have been altered since August of 2008 and I want to inquire about them. We talked about Justin otherwise known as GILBERT & JONES 125 Tyme, T-y-m-e. What's the status of his account now? A. I don't know. Q. Do you remember him being banned or locked out? A. I haven't done so. Other moderators and I have spoken on the phone after this and I expressed it was my belief that he was involved with the hack and as a result the moderators or the representatives may have decided to limit his access to it, but I don't know. Q. Okay. So -MR. VOLK: May I ask a question? MR. BRANSON: No, you can't. You can talk to me real quick. Can we go off the record for a moment, please. (Discussion off the record.) Q. (By Mr. Branson) I've got another technical question for you. What's the difference between a site administrator and a server administrator? A. When you're talking about the site, you're talking about what people see when they go to visit The High Road. You're talking about the pages that are served via the http protocol off of a Web server. GILBERT & JONES 126
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Now, if you're talking about server administrator, then you're talking administrating the server that sort of underlines everything else. Q. How many server administrators are there on thr.org? A. There's one. Q. Who would that be? A. That would be me. Q. Is the server administrator, you, the only person that has the technical ability to lock out accounts? A. I think in theory the answer should be yes. After the hack, I'm not so sure about that. Q. As far as you know right now, is the answer still yes? A. Define what you mean by lock out accounts. Q. To ban people, to kick them off. A. No, that doesn't tie into server administration at all. That's something moderators or at least administrators can do. Moderators may have that power as well. I've never run as a moderator so I don't know if they have actual ban power. I believe they do. Q. Justin, otherwise known as Tyme, was he also a server admin at some point? GILBERT & JONES 127 A. He had command line access to the server. He had a regular user account on the server. He used that to update some files periodically. Q. And do you know about him being locked out? A. He wasn't locked out directly. There was -- after Oleg met with Michael Tenney, my understanding prior to that had been that an agency relationship had been developed between Glenn and I, and he was also acting on behalf of Oleg, and we ran into a situation where there were negotiations ongoing with Michael Tenney that Glenn simply wouldn't answer questions to, neither would Oleg. Now, we've actually seen some e-mails recently which explained what was going on but there were a number of backroom deals on the ground and that was worrisome to me -Q. Were you not included in those backroom deals? You didn't know what these conversations -A. If I was included, I probably wouldn't refer to it as a backroom deal. Q. Sure. Sorry. Okay. And so you were under the impression that Glenn was representing you, Glenn was representing Oleg -A. Actually I'd just finished my business law GILBERT & JONES
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128 class and I believe there were four points you need to establish agency and I believe we actually established all those points verbally. But somehow that relationship changed in there. So negotiations were ongoing with Michael Tenney. And at the time the only leverage we had, should we decide to enter an agreement with him, was that we had access to the database and he did not. Q. Who is we? A. THR as an entity had its database, that which makes it unique, and Michael Tenney did not. And at the time there was a log in to the server that I had access to and Oleg had access to and Justin had access to and other people may have as well. I'm not sure. If they had gotten that log in, they could have essentially copied the database down and that would have been the end of it. And with the negotiations that were ongoing I went ahead and changed the password to that and then within about ten minutes I made a post to the staff lounge which explained a lot of things but also mentioned that I had just changed the password on that until we could actually sit down and have a rational discussion about what was going on, you GILBERT & JONES 129

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know, that sort of change that would drastically affect our future, it wasn't something I was going to consent to. Q. To change that password, that's a decision that you made unilaterally? You didn't consult Oleg or Tyme about whether or not they wanted you to do that? A. I had legal advice that lead me to do that. MR. PEELER: Don't disclose anything that -THE WITNESS: It was -MR. PEELER: Don't disclose anything that related to advice given by an attorney to you. THE WITNESS: Very good. I made that -MR. PEELER: I don't think that's what you were asking for. THE WITNESS: I did not turn around and ask Tyme and Oleg what was going on. This was based on my suspicion of what was eventually going to happen and it turned out my suspicions were correct. But, yes, I did that without saying -- and let's be candid here. Oleg had never actually
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used that account. GILBERT & JONES 130 This changed his ability to do something he never needed to do but which could destroy the site and he was expressing to me in conversations that he was having some very negative thoughts about -Q. (By Mr. Branson) You don't have to be around-about about that. You can be specific if you want. What were the negative thoughts he expressed to you? A. Well, the quote as I remember it was burn the house down with everybody in it. He wasn't getting his way. What he expressed to other moderators was that I had made him more angry than any other adult in his life because I told him no and so that seemed to be the justification for a very emotional response. In hindsight I'm not sure that's what was going on. That's just what was communicated. But that was what I thought I was dealing with. Q. He wasn't used to people telling him no on this Web page, was he? A. On the Web page I think there have been a few instances where people said, Oleg, no, that's stupid. GILBERT & JONES 131 I think the issue was there were financial consequences and it was something he really, really wanted. He communicated to me a few weeks previously that he was convinced that his current commute was going to kill him and he desperately needed a new job. And I thought that was hyperbole until another moderator told me he had a panic attack while he was commuting some day, so there may have been some correlation there and I think there was a very strong desire to find a way out. He saw the Cheaper Than Dirt deal as a way out, and looking at other people's interest or what was in the best long-term interest of the forum was something he was incapable of for a period of time. That's a nice way to put it. There are some allegations I could probably levy but I think that represents the situation well enough that we can run with it. Q. Well, let's get into that a little bit. We talked earlier about the Cheaper Than Dirt
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involvement. A. Yes. Q. And it seemed like it was -- would you GILBERT & JONES 132 agree with me that the negotiations were at an early stage? You said that -A. I don't know. Q. And you said there was a -- I don't remember your exact words but I paraphrased that there was sort of this nebulous and vague offer that was hanging out there? A. Everything I know about the offer at this point is as follows. Michael Tenney was willing to essentially lease THR for $200,000 in value from his perspective, $50,000 in advertising and a hundred and fifty thousand dollars to be distributed as we chose to distribute it. And that was per year. That was annually. And somewhere over the next month that turned into, well, why doesn't he rent the site for $90,000 and hire Oleg for $60,000. I'm assuming because when we split everything else equally Oleg ends up with the lion's share of the proceeds. So there were things like that going on. Things seemed really bad. Nobody was answering any questions and Oleg had the ability to ham in the database which would essentially kill all other options. Q. And Oleg and Glenn at some point just GILBERT & JONES 133 stopped answering your queries and stopped talking to you about all this? A. They -- off the top of my head I can't tell you specific events or the specific order of events that happened there. It was a very rushed time at least as far as my memory is concerned. There were a lot of events that piled right on top of each other. Q. I'm going to ask you about another member who went by the Internet pseudonym of Preacherman. Do you know about his account and him being locked out of thr.org? A. I have read his account. I disagree with it strongly. He and I had a 15-minute conversation which he has characterized in a number of ways. My recollection of the conversation is that he had a master's degree in management and therefore understood the legal implications of all these things we were looking at and was trying to give me legal advice.
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And beyond that we didn't really discuss anything but his account is much more detailed and much less charitable towards me. Q. Do you know why he was locked out of thr.org? GILBERT & JONES 134 A. My understanding is that he said I'm never coming back and he left and it's quite possible -we've done some pruning of the administrative and moderator roles since then. I have not done them and I have not participated in that. But I didn't change his status. I wouldn't be shocked if it had changed. He said he was never coming back, therefore, there's no need to leave his account open with any special privileges. Q. Are you aware that there is a group of moderators who have created a nonprofit corporation in Tennessee named The High Road Foundation, Inc.? A. Yes. Q. As far as you know, is Jim Crenshaw, also known as hso on the forums, is he the guy that came up with this idea? A. I believe his name is Mike Crenshaw and I do not know who came up with the idea. MR. VOLK: Can we have a bathroom break? MR. BRANSON: I suppose. It's now 1:35. Let's break for ten minutes until 1:45. How does that sound? MR. PEELER: Sure. MR. BRANSON: That works for me. GILBERT & JONES 135 MR. PEELER: Works for me. (Recess from 1:33 p.m. to 1:46 p.m.) Q. (By Mr. Branson) It is now about ten to 2:00 and we're back on the record and continuing. The same players as before. We were talking about The High Road Foundation, Inc. Have you had any conversations or negotiations with them regarding the future of THR? A. We've talked about the future. Q. What was the substance of those conversations? A. They were vague. Most of this was in -oh, back when Oleg said he had me served before he had me served, for that month, month and a half, whatever it was, and we had -- I don't know. Conversations about the future? My goal during the conversation -- my position through all this is a number of unfair
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statements have been made about me online and rather than get into a he said she said situation, I opted to hold my tongue in the interest of protecting the board. I felt like any open interpersonal conflict would hurt the board, so I didn't. Now, a number of moderators -- most of the moderators have GILBERT & JONES 136

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been there as witnesses to this whole thing going down and I would have loved to hear a statement such that, you know, there is a point of view other than what you've heard. And they were willing to make such a statement but never did. Beyond that, looking to the future, I think their main concern was that my intent was to see the board continue to grow and thrive and exist. There was some concern for a while that I might lose interest and just turn it off and I think I alleviated those concerns. Further on in the future they wanted to know what my position would be should the Court determine that I was the sole owner and I expressed that probably the most rational breakdown of responsibility was operational versus editorial and moderators versus what I do was probably a reasonable way to do that. I don't believe they've ever actually responded to that. They may have a different way of trying to structure responsibility and decision making and all the rest of that. But we really don't have anything to talk about until this whole issue is resolved. I think we established that we all cared about the community and GILBERT & JONES 137 were working on behalf of the community and that's as far as we got. Q. But these are conversations that occurred between you and The High Road Foundation, Inc., off the board? A. I don't believe The High Road Foundation, Inc., existed then. Originally a number of moderators were concerned that one of the people they depended on who they believed had a strong interest in the board had tried to destroy the board and they were quite concerned about that and so they wanted some more formalized way of representing their point of view is how I understand it. I have not been present for all these conversations and they don't happen on the board and didn't for a while because of security concerns.
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And originally they elected three people who they thought were appropriate to speak on behalf of them, and those were Mal and Mike and Jeff, and since then they've got some formal structure. I'm not sure what it is. I don't believe I have spoken to anybody who's a formal representative of whatever formal structure it is that they've come up with. But those were all discussions with moderators I suppose is GILBERT & JONES 138 what I was answering before instead of discussions with that entity. Q. And Oleg was excluded from these discussions? He wasn't part of any of them? A. I believe Mike Crenshaw actually had a number of discussions with him. For a while Mike Crenshaw thought the way out of this morass and what would make the best sense for the board would be to have a formal entity that owned it that had a number of members, say, seven, nine, have one of those be me, have one of them be Oleg, have the rest be filled by either staff or people that the staff elected because they thought were cooler heads who had no interest whatsoever and use that going forward. So I believe some discussions were held with Oleg but I don't know anything about them. Q. What's your opinion of a plan like that? What do you think about that idea? A. I think there are probably better ideas. Q. We'll get to that in a bit. Do you know what their intent is? I guess we've covered that. It looks like they want to set up like a board basically. Are these people current moderators on THR? GILBERT & JONES 139

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A. I don't know. Q. Do you know if they have any kind of control over thr.org? A. They have no control over thr.org. Q. Who does have control over thr.org at this point -A. Right now I'm the only person who has control over it. I mean, the moderators are still overseeing day-to-day decisions. They might discuss those in places where I can't see them but I'm not aware of any such things going on. Q. Well, let's talk about for that for a little bit. Right now you're the only person that
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has -- you have sole control of thr.org you've stated. Is there a policy on thr.org regarding members who bring up this dispute on the forums and what happens to their accounts? A. I don't believe there is. For a while after this all started the moderators weren't sure how to respond so I had to set the tone so I started doing seven-day bans for people just to try and let cooler heads prevail and -- you know. That didn't work as well as it could but GILBERT & JONES 140 that was the start. I don't know if there's some existing policy about how such things are treated. I think for the most part we like to discuss responsible firearms ownership, and issues of ownership of the board are really detrimental to that. So I think there's some baseline understanding that does not serve as the mission of the board but I don't know that we've got anything formal. Q. So without anything formal, on your authority as sole controller of thr.org at this point you were banning people from bringing up this dispute because it just wasn't conducive to what you wanted to talk about? A. I banned one person and that was for misbehaving in a related way but not -Q. Who was that person? A. That was a moderator formally known as The Blues Man. He was yelling and screaming. I ended up knocking him down to user status to see what he did. I had the feeling he was going to come out over the top and he ended up using the staff account to put together a global announcement with a bunch of arguments he thought were reasonable and I thought that was exceeding his bounds so I banned him on my authority but he's the only ban. GILBERT & JONES 141

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Yeah, he's the only ban I've actually done. I may have banned people in years past for egregious behavior but related to this issue. Q. Let me ask you again, going back to The High Road Foundation people, is it your opinion that the members of The High Road Foundation, whoever they are -- I understand that probably neither Charlie nor I nor you nor Oleg really know who exactly their membership is so I'm not going to try to get you to figure that out, but whoever those people are and the entity known as The High Road Foundation Inc., do you think they have that entity and the members of that
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entity have an ownership interest in thr.org? A. This reflects back on something that we've discussed previously. I do believe the administrative personnel, people who maintain editorial control, people who are administrators and moderators, are stakeholders in this. Whether they have an ownership interest is something we have yet to determine. Q. So to sum it up, would you consider them partial owners or is that wording that you would prefer not to use? A. I don't have any opinion as to whether this entity has an ownership interest or not. I've GILBERT & JONES 142 reached it once in a past. That was a year ago, before a lot of bad behavior happened which may have changed their minds. And at the time they were of the opinion that they should not have an ownership interest. I have been of the opinion that the long-term health of the forum would be better ensured if they did have an ownership interest, but, as I said, we really need to sit down and have a discussion about that once all of this is settled to determine what it's going to be. Q. After this lawsuit was filed, the matter that we've been talking about today, specifically after this suit was filed, did you create a for-profit Georgia corporation called Firearms Forum, Inc.? A. I don't know. This suit was apparently filed before I was served and I can't recall whether I formed a forum -- formed an entity before or after that. Q. That's fair. A. When we were leading up to -- this was -I originally -- let me get my thoughts straight. Way back when this conflict first started it became apparent that we had a need for a way to share ownership. GILBERT & JONES 143 Right now everything pretty much is in my name, and until we create an entity that allows for fractional ownership, it's going to have to be in one person's name and I think most people agree that that's not the best way to distribute it. So I tried to form a corporation back then. Oleg and I discussed it before I did, and it ended up failing on the grounds that there was, I don't know, some conflict with the name. So I formed another one and then sat on it
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for a while. I didn't want to have the appearance of trying to do anything improper and then eventually I transferred the domain to it once I realized that perception didn't matter. Q. When you say you transferred the domain to it, what do you mean by that? A. I mean if you look up on the domain right now you're going to see it's registered to me in the form of an officer of Firearms Forum, Inc. Q. And that's a for-profit entity? A. Apparently it takes about three years and $50,000 to become a nonprofit entity and it's something you have to go after and there are a dozen different types of nonprofits you can choose, so I haven't made a decision whether it should be a GILBERT & JONES 144

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for-profit entity or not. Its big value right now is that it can issue shares and fractional ownership can be accomplished should we choose to go that route. Q. And it's authorized to distribute, what, 10,000 shares? A. I don't know how many shares it's authorized to distribute. Q. Are you the sole shareholder in that corporation right now? A. Right now I am. Q. Before we move on, I want to circle back to something that you mentioned before we took our break. You said that since this dispute which is now over a year ago in August of 2008, you said I believe we have pruned the moderators. Who is the we in that statement? A. I don't remember making a statement that we have pruned the moderators. Now, we have different moderators than we had initially, but for the most part that's been an organic thing. Some people don't have time for it. Other people are brought on. People have votes as to whether somebody is appropriate or not. GILBERT & JONES 145 Now, more recently after all this started -- oh, I know what you're talking about now. Once the server was hacked, the database was copied over, and there was a competing site, there were a number of security concerns. A number of people who were not active moderators still had access to discussions that were going on in private so an effort was made to limit
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the number of people who had access to people who were still serving moderating and administration duties. So that was handled. I did not handle that. The moderators took that upon themselves and researched it and did whatever it was they did to make that happen. Q. So you weren't in charge of that process then? A. No. Q. Let's talk about some of the Web security issues. You've hired a Web security expert? A. I've hired a firm that does such things. Q. Do you know if you're going to be calling them to testify in this case? A. I don't expect to be calling them to testify in this case. Q. What services have they done for you GILBERT & JONES 146

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regarding thr.org? A. As the man who had the server hacked is sitting in this room, I am very uncomfortable going into what specific measures have been taken to secure the server. MR. PEELER: I don't know that that was his question. Q. (By Mr. Branson) Let me rephrase that and ease -MR. PEELER: I think we can probably get you what you're looking for here. Q. (By Mr. Branson) In general without -the thing is that obviously I'd have him leave the room but we're going to have a transcript anyway. So let me quantify it and say I do not expect you to give me an answer which would in any way endanger the security of thr.org or the possible value of that entity, right, because if it's hacked and the value is down, that's not something that anybody wants. So without going into specific technical detail, can you tell me what these people do and what they've done for THR in general terms. A. In general terms they have ensured that the server is as secure as it can be. So as far as GILBERT & JONES 147 we can determine, THR is more resilient and it gives current administration staff a place to discuss things that they are reasonably sure don't have eavesdroppers involved. Those are two major things that they've established. Q. Okay. In terms of the copying of the THR
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database or the hacking, as you would put it, have they found any kind of damage that had to be fixed or corrected since that event took place and thr.us was created? A. Actually I had this group build a fresh server from scratch so there was no question as to what had been done previously that couldn't be determined. So everything started from a clean state which is really the only way to secure a server once security has been compromised. You really have to restart from scratch. So we started with brand-new hardware, brand-new everything. Q. I see. Okay. So you've stated that you're in sole control of thr.org at this time? A. Well, it depends on what you mean by control. I'm the only person who's got the keys to the server but I am essentially making no decisions GILBERT & JONES 148 with regard to editorial control and moderators are continuing to do that as they've always done. Q. Do you consider yourself to be the sole owner of the entity, of thr.org, at this time? A. No. MR. PEELER: And let me just object for the record that that calls for a legal conclusion. MR. BRANSON: Okay. Q. (By Mr. Branson) You have a business plan for THR and where you want to go from here, don't you? A. I do not have a formal business plan. Q. Do you have an informal business plan in your mind that's not been taken down to pen and paper of what direction you want to take this thing in? A. I've tried to remain open to all ideas. A year ago when we were discussing this Oleg declared as far as he was concerned the Tenney deal would never happen. I've never ruled it out but I don't see it as something that's in the best interest of THR. My guess is the right way to go forward is a very controlled and structured and nonaggressive attempt to introduce advertising on the site in some form or GILBERT & JONES 149

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another. I mean, there are other alternatives. There are moderators who think we ought to turn it into a for-pay site where people can join and that
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will help cover cost and the rest but I don't agree that that's the best way forward. Q. Do you intend to profit from thr.org eventually? A. You mean if I end up in control of it? Q. Sure. Assuming that you win the case and you keep control of this entity, you know, are you going to run it for profit? A. I think that at a minimum my expenses are going to be reimbursed and I'm going to see a reasonable return on that investment. Over the long-term, and this may be a decade, I believe the best thing for THR is own itself. So it wouldn't be unreasonable to come up with a setup which starts with me with majority interest which sort of slides over time and eventually me getting out of it entirely. But again this is how I feel today. No formal plan and this is something that would have to be negotiated with other stakeholders and I'm certain GILBERT & JONES 150 they have some opinions that they may not have shared with me yet. Q. And those other stakeholders, would that include Oleg at this point? A. At this point I don't believe it does. Q. And why would that be? A. We had an agreement going back years that we were equal shareholders going forward and over that time I've invested over $20,000. Oleg has invested 200. I've put in a bunch of time. And when the offer came down, I never complained about that. So I was willing to honor the agreement. But since that time Oleg has gone so far as to testify under oath that no agreement existed in an attempt to get under it. If that's what we want to argue, then we need to argue -- we need to look at the amount of value that's been contributed to the site, and it turns out in hindsight Oleg didn't have nearly as much to do with initially building the site as I thought he did, which cuts his ownership interest back, and right now thr.us, which is the site he formed to compete with it, is seeing about one sixth of the traffic that thr.org is seeing, which suggests GILBERT & JONES 151 to me that one seventh of the value, which I'm going to call 15 percent, has disappeared from THR as a
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result of his actions and I think that's got to come out of his stake. Now, that's not a legal decision. This is something that the Court will decide, but I think that without an agreement Oleg's stake was much smaller than it would have been with the agreement and since then damage he's caused to the site has to come out of his side. Q. So his side is zero then as far as you're concerned? A. I haven't run calculations but it's slight, if it exists at all. I don't know that his contribution was more than 15 percent of the value of the site and I think it's pretty easy to show that he destroyed more than 15 percent of the value. So I think the calculation is pretty easy there. Q. Well, let's flip this business plan. What is your plan for what's going to happen to thr.org if it fails to make a profit in the future? What if it continues to cost and its monetization is unsuccessful? A. I believe in the community. I mean, I've always supported the community when I didn't have the GILBERT & JONES 152 resources. We asked for help when I couldn't do that. But I think it ought to be able to support its cost. Then if not, then I'll probably continue to do so. Q. You think you could just keep running it at a loss as long as it takes then? A. It's a good community. I think it makes -- I think it sets a good example for people who are on the sidelines about gun ownership and private gun ownership, at least in the U.S., and I think it's a very good forum for what it does. You know, there are all kinds of charity. How much do you give to the Lion's Club, you know, how much do you give to the NRA, what would you give to support a site like THR if it wouldn't exist but for your input. It's worth supporting. Q. If there's anybody else that's a part owner in this going forward from here -- well, let me just ask you that. In your mind if you win this case, knowing that you are the sole member of Firearms Forum, Inc., and you are the sole shareholder in that corporation and that you have all the chips right now, going forward from here if you win the case, is there anybody else that you are going to consider be a part GILBERT & JONES 153
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owner and recognize their stake as you claim it? A. I think the moderators should be. I think if the goal is at some indefinite point in the future the site is to run itself and be responsible to itself, those stakeholders who represent the site at its core need to be involved. Q. And if it doesn't make any money and it continues to cost, will they have to help fund the loss? A. Again that's a discussion we'd have to have. Up until now only one of them has been willing to contribute monetarily to the site. Q. Who was that? A. It was Art Eatman. Q. What's his Internet name again? A. Art Eatman. Q. He didn't have a pseudonym in other words? A. No. MR. BRANSON: I'm so used to everybody having their Internet name and their real name. That's kind of a breath of fresh air, isn't it? Let me collect my thoughts for a minute. We are just about there. I have six exhibits that I have marked and everybody except Mynjuan is going to get a copy, GILBERT & JONES 154

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and I want to talk about these. These are in chronological order and they're going to go from way back up until the present day. MR. PEELER: Do you want to put stickers so that we know what the original exhibits are as opposed to the handwriting? Are you going to make them a part of the record? MR. BRANSON: This is not going to be anything that I'm going to -- how do I say this? If I'm going to introduce these into evidence later, I'll do it fresh then. MR. PEELER: Right, but are you going to make them a part of the deposition record? MR. BRANSON: Sure. (Plaintiff's Exhibit 1 was marked for identification.) Q. (By Mr. Branson) I am marking Plaintiff's Exhibit 1 at this time, and, if you would, please review that. There are a few pages to it, I think four pages. A. Okay. Q. I know that there are an insanely high number of threads and posts that have been part of the discovery in this case, and when I ask you if you GILBERT & JONES
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155 recognize this particular thread, if you don't, please feel free to say so. A. I don't have any recollection of this thread. Q. You don't remember this at all? A. No. Q. That's fine. You recognize this is a thread off of The High Road from December of 2002 though? A. I recognize that this is a thread off of thehighroad.us from December 2002 and I do not know for certain if that is the same database that we have. I'm assuming we can look and this will show up the same as our database but again I have no knowledge of that. Q. If I told you that this printout was from the archives of thr.org as accessed through thr.us, would you disagree with that? MR. PEELER: Object to the form. THE WITNESS: I understand that this thread exists in the database at thehighroad.us and that that database started as a direct copy of the database that, you know, existed on thr.org. GILBERT & JONES 156

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Having said that, I can't vouch for the authenticity of all the records in the new database because I don't know that it was handled other than some people who I would say are of less than outstanding moral character handled it. So, I mean, I'm assuming when looking at this that if I look at my copy of the database or an archived copy of the database that goes back prior to August of last year that I will see a mirroring post and I will certainly respond as if that's the case but I can't state with any authenticity -MR. PEELER: He's not asking you to speculate. He's just asking if you know. If you don't know -THE WITNESS: I don't know. Q. (By Mr. Branson) That's okay then. A. Wow. Q. I understand the distinction that you're making. In other words, you don't know if this has been tampered with is what you're saying? A. No, I don't know. Q. Do you recall ever posting up on
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thehighroad.org something to the effect of I might GILBERT & JONES 157 own the hardware but he runs the show? A. I don't, but that was the understanding when we started up. This originally started as a place, oh, my God, we have to have a new site now, what are we going to do. Well, I had a good home for it. So that's not terribly inconsistent with the understanding we had when we started. Q. And that's not obviously the understanding that we have now in October of 2009. That's not the same understanding. That would be a fair thing to say, wouldn't it? A. I don't know what Oleg's understanding is. My impression is that he is arguing the contents of both sites are 100 percent his. I guess we have -- my understanding now is not the same as it was then. You said we and I guess the we threw me off. Q. Your understanding is it's certainly not Oleg's show if you're the one that's running thr.org at this point? That would be a fair thing to say, wouldn't it? A. I suppose. Q. Do you think that -- in your mind at what point did it stop being Oleg's show? GILBERT & JONES 158 A. It was before I left Jacksonville and it was probably within the first 20 months, 16 months, 15 months of existence that we had the discussions where we came to the understanding of equal ownership. Q. And chronologically speaking in terms of years, you said before you left Jacksonville. When did you leave Jacksonville? A. I don't know. Q. Okay. A. Less than three years after it started because I only lived in Jacksonville for three years. That was the duration of my wife's residency. Q. So somewhere between 2002 and say 2005 is when -A. Somewhere there. And, you know, this was a series of discussions that we had over the phone and I can dig through phone records but I wouldn't know what discussions were where. This is probably about the time when somebody asked me how much I had spent so far, and I believe I said it was about $6,000. He called in
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appreciation of that and said as far as he was concerned it wasn't his, it was ours. That was a nice statement. And then he GILBERT & JONES 159 called again and reiterated it and from that point on I took him seriously and behaved as such. But somewhere there. Since I was paying about $300 a month, I would guess that 6,000 divided by 300, that many months, but there were some other upgrades which could shorten it and I don't know for sure -MR. BRANSON: That's okay. The ballpark figure is all I'm looking for at this stage. I mean, we're talking about years between 2002 and 2009, so, you know, if you can even get close, then that's definitely going to be good enough for me because I'm just trying to figure out in general how things changed and when. (Plaintiff's Exhibit 2 was marked for identification.) Q. (By Mr. Branson) I've marked Plaintiff's Exhibit 2. Please review this and take your time. A. Okay. Again this is still from that first week of our inception and my understanding -MR. PEELER: Did you ask a question? Let him ask a question. Lots of questions he wants to ask you about it. THE WITNESS: I'm an academic by day, bad habits. GILBERT & JONES 160 MR. PEELER: He'll ask you what he wants to know. Q. (By Mr. Branson) And again keeping in mind the distinction between dot U.S. and dot org that you've already brought up, do you remember a thread like this on thr.org? A. I think there probably was a thread that said, hey, it works, it's fast. But I don't remember it. Q. These posts do not look familiar to you at this time? A. No. MR. PEELER: I'm sorry. I have a -- is part of it redacted? THE WITNESS: I think part of it is probably in color and it didn't print well on the laser jet. MR. BRANSON: That's what I was thinking. Yes. I just noticed that. MR. PEELER: Did I just miss that?
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MR. BRANSON: No. You just caught it. And I just caught it too. In fact, that's what I was looking at. MR. VOLK: Where it says at the top right highlighted equals Oleg, that's the word that's GILBERT & JONES 161 disappearing because it's printed in very light ink. MR. BRANSON: Can we go off the record for a second. (Discussion off the record.) MR. BRANSON: We're back on the record and I've decided that I'm not going to ask Derek about Exhibit Number 2 as he does not remember the conversation so we're going to move on to Number 3. I'm marking Number 3 now. (Plaintiff's Exhibit 3 was marked for identification.) Q. (By Mr. Branson) It's a similar document. We're getting to the point where we're in 2008 now so maybe these will jog your memory a little bit better than the previous ones have. Please review at your leisure. A. Okay. Q. Do you remember this conversation, this thread? A. I remember something about it. I don't remember the posts in particular but I do remember the events surrounding it. Q. What were the events? The library went down? GILBERT & JONES 162 A. There is -- there was something called the library on the site and that was a series of documents that were useful on a number of sites that had the same sort of interests, I mean, conceal carry laws in different states, how different states viewed different sorts of knives, links to Supreme Court case history and stuff like that. You know, ongoing legal events that were interesting were updated with some frequency. So there was a link that allowed people to get to that library and those were all static files. They didn't change. They were just uploaded to the server and people could access them. And around this time we were running out of space on the old server, so between the time when the old files would be deleted and the new files would be uploaded, somebody would upload an attachment that would take up the space instead so
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the upload would fail -- actually I take that back. That's what I remember. But it said later here that the server got confused and it just said THR, you're over your limit, you can't post anymore. And that was what happened and once I resolved that I guess it went away. That's not going from memory. That's going GILBERT & JONES 163

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from what the posts say happened. Q. And so there's a question here about who has access to the library. Do you remember who had access to the library? MR. PEELER: Where are you reading? THE WITNESS: I said here apparently on Post Number 8 on the second to the last page that Oleg has access to it and I don't know if anybody has been given the log in info and that was in response to Mal asking who other than Justin had access. So at the time I stated I knew Justin and Oleg did but there could have been other people as well. Q. (By Mr. Branson) And so Justin being Tyme, that would have been the people that were server admins, right? A. No, he had no administrator rights on the server. Q. So we have an example here where we have three people who had access to this -- at least three people who had access -A. Log in information to the FTP site. It stands for file transfer protocol. Q. In your opinion at this time, back in GILBERT & JONES 164 February of 2008, is there any link between access to the FTP site, access to areas like the library as shown in this example, is there any link to that and ownership rights in thr.org? A. I wouldn't say so. Q. It's just part of me trying to figure out what the group of people is that you're claiming have an ownership right in it. A. And I don't think people who perform technical tasks necessarily have an ownership right simply due to the fact that they perform technical tasks. That's where my confusion comes from. MR. BRANSON: Okay. Thank you. I am now marking Plaintiff's Number 4. (Plaintiff's Exhibit 4 was marked for identification.)
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Q. (By Mr. Branson) This one is only a one-pager. A. Okay. Q. Do you remember this conversation on the forums from July of 2008? A. I don't remember this specific conversation but this hits on points we've already covered. I think it reinforces those points. Q. Again keeping in mind the concept that GILBERT & JONES 165 this is thr.us and not thr.org, if you see anything that you think looks wrong to you or like it's been altered or tampered with, feel free to let me know. A. I can't make that conclusion. If I don't remember the conversation, I don't know what was or was not. MR. PEELER: For the record, I'll point out this appears to be a document that we produced. THE WITNESS: Okay. MR. PEELER: Maybe that helps you some, Michael. MR. BRANSON: I don't remember if I printed these off of discovery PDF's or if I printed them off of thr.us. MR. VOLK: It's printed off dot org, judging by the header on top. MR. BRANSON: Well, maybe. I don't think it really matters because I'm not going to be using these -- these aren't going to be used for impeachment or anything like that. They just have information that I want to question him about. So practically speaking I don't think that it's going to be something that we have to really split hairs about. GILBERT & JONES 166 Q. (By Mr. Branson) At this time in July of 2008 did you believe Glenn was acting as your attorney regarding the possible deal with Michael Tenney and CTD? A. I believe agency had been established. I would not say he was my attorney. He was an attorney. He was acting as my agent. You're making a distinction and I don't understand the consequences of the language. I don't understand legal terminology that well. Q. Well, let me ask you open-ended then. Who did you think he was being an agent for? Who was he being an agent for at this point? A. Oleg and I.
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Q. Was he being an agent for THR as an entity do you think? A. Our understanding at the time was that THR as an entity was essentially Oleg and I and whoever else we let in, and we hadn't made that determination yet, just that we were both there. Q. Okay. A. But it looks like from this I had made some discussions about whether Oleg was authorized to enter into any commitments while he was there so... Q. You remember discussing CTD's at that GILBERT & JONES 167 point pending trip that Oleg was going to take to Texas to visit Michael Tenney? A. Yes. Q. How did you feel about Michael Tenney inviting Oleg to Texas and talking about it in person with him and you not being there and having input? A. I thought that it gave him a fairly strong opportunity to influence Oleg and Oleg can be quite easy to sway like that. He's -- and I had some suspicions that since he chose him to do it that way he might have understood that having a discussion with Oleg in person might be an easier way to be persuasive and get a good deal for him than if he were to have something more in the open. And I was concerned that he was not willing to say anything about what the discussions were going to be about prior to the meeting other than, oh, well, I want to offer Oleg a job and maybe I'll buy THR or work out some other kind of partnering deal. Q. Do you think that Michael Tenney chose Oleg for this Texas trip over you because he would be more easily persuaded to take the offer? A. I don't know. That was a suspicion. In GILBERT & JONES 168

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hindsight I don't know. Q. Is there any other reason you can think of why he would have chosen to exclude you and include only Oleg in these negotiations regarding the pending deal? A. My understanding was that he was offering Oleg a job at the same time. And I've seen some communication from Tenney that suggested that business wasn't really discussed. It was more an opportunity to show off his operation to convince Oleg that there was some seriousness behind it.
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Again I can't really tell you what was going on in his head but... (Plaintiff's Exhibit 5 was marked for identification.) Q. (By Mr. Branson) Okay. We're almost there. I'm going to mark Plaintiff's Exhibit Number 5. A. So this is a fraction of the conversation? Q. Yes. These threads go a long, long time, printing out the whole thing. Some of these threads got to be pretty massive before they ended. I'm sure you remember. Actually -- yes, I guess this is just the GILBERT & JONES 169 first part. On these that are four and five pages I tried to print out the whole thing but I think this one is just a fragment, the first part of it. A. Okay. Q. Having reviewed this, is it your understanding that part of Michael Tenney's offer Cheaper Than Dirt was to house THR or to Web host THR through his company? A. My understanding in relation to this question has two components. The first is that he told me what he wanted to do was make -- convert thehighroad.org into www.cheaperthandirt.com/ thehighroad instead, and there was some concern about devaluing our brand by doing so. There's also -- what Glenn communicated after his initial conversations with Michael Tenney was that there was some special technology he wanted to incorporate where when you highlight over a word it brings pop-ups and if you click on ammunition it takes you to Cheaper Than Dirt ammunition sales area and things like that. So my understanding was that he wanted to house it with his servers at a minimum because doing so would allow him to tie it into the rest of the site so that he could use this as a funnel for more GILBERT & JONES 170 business in his site. Now, if you want to look at it from the perspective of somebody who needs to look at all aspects to make sure they're not going to get screwed in some business deal, putting it on his servers like this does give him quite a bit of power, and I'm not sure that if we did that and it worked out wrong that's something we could recover from. At least that was my understanding at the time. Q. And to continue that line of thought, if
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he has the servers and it's connected to the Cheaper Than Dirt server network or network of websites, then you wouldn't have to be the one that would be paying for the servers and you wouldn't have to be housing the servers in Atlanta, Georgia, right? A. That's true. They'd probably be in Texas. Q. So we're talking about physically moving not the IP address but literally the physical hard drives and servers that actually run this entity? A. No. He was talking about having the server he hosted and everything be copied over to it. Q. So not taking the hard drive and putting it on a UPS truck and delivering it but just by through the DSL lines -A. After the server was hacked and I had a GILBERT & JONES 171 new server secured, we migrated over to it and there was no downtime related to that because you can do it in such a way that the user base doesn't see the move. I would assume he would do something comparable except in the end it would end up being cheaperthandirt.com/thehighroad as the final point. Q. And so your services and the services of wellbuiltnetworks would not have been used any longer if this deal had gone through? A. That's correct. Another way to look at that is it's $400 a month I wouldn't have to spend to maintain it. Q. That's true. Let me see if there's anything else I wanted to bring up regarding this one. There's a post in here and I'm not going to ask you to confirm that you wrote it because of course this could be from dot U.S. or whatever. But if you look at Post Number 12, I wanted to just sort of ask about your mind-set during this time. This is on August the 12th. A. Go ahead. Q. Did your mind-set towards what you were doing with thr.org change at this time, around the GILBERT & JONES 172 time that this post or this thread would have been made? That's really broad. There's a statement here to the effect of we've been here donating time, effort, and money for six years because we believe in what we're doing. Less than a month ago this guy Michael Tenney shows up and expresses interest in the site and we suddenly woke up to the monetary aspect
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of this thing. Would you say that in August of 2008 was the first time that you realized that thr.org could be self-sufficient or even profitable? A. No, because Oleg and I had had this discussion after Michael Tenney's initial contact with us. Q. Did you disagree about whether or not it should be profitable? A. I don't understand your question. Q. Did you disagree with Oleg about how commercialized this site should become? A. Oleg's primary concern was that he wanted $70,000 a year so he could stop working and just do this. Beyond that I don't understand that he had much concern. I believe I was more concerned about how GILBERT & JONES 173

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some options might be less lucrative but help the community more or be less detrimental to the community, however you want to look at it, but again I'm trying to answer your question as best I can but it's a bit too broad. Q. There's a comment in this post about offering to buy out Oleg's share. Do you remember anybody offering to buy out Oleg's share? A. My dad said he would. Q. Whatever happened to that? A. Oleg came back and said he wasn't interested. It's probably in this thread, a post he didn't print. MR. PEELER: Let me just note for the record that this composite Exhibit 5 does not appear to reflect successive posts. In other words, it looks like it reflects Post 20 and then 10, 11, 12, 13, and 14. For whatever it's worth I just want to make that clear so that way later when we're going back to look we don't think somehow this was in error. It is what it is. I just want to note that it's not successive posts. I don't know that there's a question pending. GILBERT & JONES 174 MR. BRANSON: I probably put them in the wrong order while I was collating these but that's okay. I don't think that my questions regarding 20 really tie in that much with my questions regarding 12 but anyway.
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Q. (By Mr. Branson) So your dad offered to buy out Oleg's share. What was that offer? A. I don't remember and I don't know that it was specific. At the time Oleg's concern was his commute was literally going to kill him and he needed a change and he needed it right now. That offered Oleg a change right now in a way that would not impact the forum in any negative way and it would allow plenty of time to make the correct decision and do the research and essentially do our due diligence. Q. And you don't remember what that share was worth at that time or what that monetary amount was? A. On August 11th? Was that from August 11th? August 12th. Q. Do you remember what your father's offer to him in terms of the monetary value of that share would have been? A. I don't know. GILBERT & JONES 175 Q. Do you know what the offer as far as what your father considered Oleg's percentage share of the Web page was at that time? A. He understood it to be half. Q. So it was a financial offer of some kind to buy out Oleg's half share in thr.org? A. There was no offer. There was simply a mention that I knew for a fact that there were other interested parties and before jumping at the first offer we should probably consider all of our options. MR. BRANSON: Okay. I'm going to move on to our last exhibit. (Plaintiff's Exhibit 6 was marked for identification.) Q. (By Mr. Branson) I am now marking Plaintiff's Exhibit Number 6. This one I'm pretty sure I printed out in its entirety because it's a little bit longer. I've just figured out what The High Road equal Oleg thing is. These were printed using a search and my search term was Oleg, therefore, wherever it shows up in any of these threads it's highlighted, and using a black and white printer you can't read the red letters. That's why it did that. Okay. Have you reviewed this? It's a big GILBERT & JONES 176

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one. A. I have. Q. This is a pretty ugly thread because I think people were editing posts and other people were
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quoting posts before they were edited so it kind of got a little bit confusing. This is on September the 25th and there's a question about staff members being removed and Oleg's account being altered. A. I believe that Oleg's account had been altered prior to this but he hadn't noticed. Q. Okay. A. Again it was features that he never used that were disabled. Q. The post I'm interested in is Post Number 9 on here which is the second to last page. A. Okay. Q. There's a statement here about the board being turned off for 12 hours. When you say or when Derek Zeanah, the poster, said our lawyers are actually trying to talk through the situation, without giving me details of any legal advice you got, who do you mean when you mean our? Who's our lawyers at this point? A. I believe the day previous to this Glenn GILBERT & JONES 177 had asked us to make some kind of an offer and we made three, and in response apparently Oleg made some legal threats online. That's what I posted here. That's probably better than my recollection. Instead of responding to the three offers we made, he opted to attack the forum instead, and that caught me by surprise. At least that's what I wrote at the time. This sounds about like my tone and it sounds like the sort of thing I would have said so this is probably authentic. Q. There's a line in here that says sorry if you see bringing the board down from 11:00 p.m. to 11:00 a.m. is overly authoritarian or anything. Who would you be concerned about viewing that as overly authoritarian? A. Well, are we seeing a whole thread here? In context it looks like that's a response to somebody else, to Don Gwinn in Post 6 it looks like. Q. Don, it looks like he was one of the moderators? Does it look like Don was considering it to be a sabotaging of the forum? A. I don't know what he was considering. I will say that if legal threats were made I think it's GILBERT & JONES 178 reasonable to get legal advice before responding and I don't think a 12-hour outage in order to allow me
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to do so and to stop harm from happening in the meantime was an unreasonable action to take. MR. BRANSON: Okay. I think that's all I have on six and, therefore, let me look and collect some thoughts. If we want to take a short break, I'm going to collect some thoughts and see if I have any further questions and then we'll come back. (Recess from 2:49 p.m. to 3:0 p.m.) Q. (By Mr. Branson) I want to go back to Petitioner's Exhibit Number 5, so pull that out but let's not mess with that yet. I want to ask, Derek, some definitional questions, and when I ask you these, I'm not asking for a legal definition because I've got Black's Law Dictionary just like anybody else. I want to know in your opinion and in your understanding of what it means, I want to know how you think about this as opposed to giving me a legal definition. When we consider ownership of a website, what are the things that you have done that have given you an ownership stake in the website of GILBERT & JONES 179 thr.org? A. Well, I've paid the majority of the costs. I've done all the maintenance that had to be on it, including keeping the thing in my name. I've worked maybe thousands of hours, oftentimes in the middle of the night responding to things like attacks on the site. And when people were threatening to sue us, I was the guy that stood up and stood to take the heat for that. I think in every way you can be responsible for the site instead of taking public credit for that responsibility, that's what I've done. Q. Is there any distinction between the answer you gave me for the website and if I asked you the same question but in terms of the whole entity of thr.org? A. When you asked about the website, I took that as the whole entity because you've used them interchangeably in the past I believe. Q. Since I've used them interchangeably, that doesn't necessarily mean that you do. So are those things that you would agree would be fairly interchangeable or is there a distinction in your GILBERT & JONES 180
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mind? A. No, but communication is tough. You can use 2,000 words to say exactly what you mean and somebody can see it differently. So we do the best we can. Q. There's nothing that would cause you to right now disagree with me if I had said I'm going to use website and entity interchangeably? That wouldn't be a huge disagreement as far as your understanding of those words? A. Not in this particular context. Q. Sure. What about trademark, what have you done that makes you the owner or the part owner of the trademark of thr.org? A. Trademark really goes with the domain, I mean, the domain name itself. I mean, they're inextricably tied together. thehighroad.org and the trademark thehighroad.org, I mean, it's another aspect of the same language, not from a legal definition because I am no intellectual property expert but that just seems reasonable. My role in all this other than paying for it is to keep and own and maintain all the assets required to keep the site going and sort of donate GILBERT & JONES 181 those to the venture and the trademark falls in line with the server, hardware, and domain and everything else. Q. So the property, the hardware, all that stuff is sort of tied in together in your mind with -- the things that you've done to claim an ownership in all this are the same actions in other words? There's not one thing that you did -A. I'm hearing multiple questions. I'm confused. Q. Yes, you are, and that's a bad habit of mind, isn't it? Are the actions that you took that give you an ownership right in the website entity, are those the same actions that give you an ownership right in the property as in the hardware? MR. PEELER: Object to the form. THE WITNESS: I think I understand where you're trying to go with that, and there are a couple of answers to this. My first inkling that I was an owner was due to an understanding that I had with Oleg and in good faith believing I was an owner I invested a lot. Now he's backing out of that agreement. GILBERT & JONES
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182 But having said that, I mean, I've paid the majority of the fees to keep it going and other things that I've listed and I believe that also establishes an ownership stake but I was brought onboard to pay the fees and... Q. (By Mr. Branson) Okay. That's a good answer. Let's move on then and I'm going to revisit Petitioner's Exhibit Number 5 and this is the August 11th post. A. The one on the first page -Q. On the first page, yes, and specifically Number 20. This is the one where Number 20 is not necessarily in the same conversation. This is a composite exhibit because I think really this page should have been like Exhibit 7 but I just was collating and I think I sort of -A. Actually the thread numbers are completely different. Q. Let's say that Number 20 is a completely different thread from the rest in this exhibit, but Number 20 is the one that I'm interested in. If you'd review this for a second and let me know when you're done reviewing it. A. Okay. Q. In this post at this time period, this is GILBERT & JONES 183 at the beginning of CTD's involvement and we're still discussing a possible offer, you were concerned about where THR was going to be housed; is that correct? A. Actually I see a number of concerns here and seeing physical control gives them a lot of power for technical reasons, so that is one of those concerns, yes. Q. In a practical sense if you have physical control, you can literally walk up to the plug on the wall and literally pull the plug, correct? A. That's not so much the concern. A more reasonable concern would be that his plan was to change thehighroad.org into cheaperthandirt/ thehighroad. Q. Right. A. So his offer was either of us can end this at any particular time, and if things were worded poorly or if things were worded so they weren't enforceable, it would be possible, for instance, for him to say, you know what, this just isn't working, why don't y'all take your site back and go someplace else and fail to give us access to the database or do such but now everybody has bookmarked the new site instead of the old site so they just go to the
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bookmark and so he owns it free and clear even though GILBERT & JONES 184 he's fulfilled all the legal obligations that he was trying to build into the agreement. I mean, there are probably 20 ways you can think about where if somebody is up to no good, giving them that level of power is just stupid, and we could probably work around those but we weren't discussing that. Q. Yeah, why create the problem if you don't have to, right? And one of the things that's listed in here is the concept that Michael Tenney and Cheaper Than Dirt would possibly as an example pay for all the costs for a few years and then make an argument in front of the Court that he's the owner because he paid the costs. Was that a concern of yours? A. Not particularly. That tied into a discussion that we had in undergrad with a former governor who taught money and banking and that was in Alabama and there's apparently a guy around Birmingham who will pay the property taxes on people's land without telling them and after three years he comes in and say I paid the property taxes, I own it. It's called something like adverse possession. But there are a lot of things that sneaky GILBERT & JONES 185 people can do that involve the law that normal people who think, you know, my word is my bond would be blind-sided by. And so I thought that was an example of the sort of games that could be going on in the background that we can't even conceive of because it always struck me as just about as around the bush as can you get. Q. So somebody who would, you know, make the argument in front of the Court that because they were paying for all the costs for a Web page that they owned the Web page, that's something you considered devious then? MR. PEELER: Object to the form. MR. BRANSON: Well, it's his word. THE WITNESS: Well, I will say that while this was going on there were a number of devious things that were happening and what I characterized earlier as backroom conversations. I wasn't quite sure what they were. I have a better feeling now. But there are devious things that could be like that I think.
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Actually paying the -- well, could you restate your question. Q. (By Mr. Branson) Well, if someone pays GILBERT & JONES 186 for all the costs for a few years for a Web page and then makes the claim that they're the owner of the Web page because they paid all those costs, is something that you were worried about that that would be a way to steal the Web page? A. Not particularly, but it was something that we should consider there. And I believe the distinction you're trying to make is that in adverse possession somebody actually pays all of those fees when they have no right to it and then try to make some claim like that. In a case where somebody has been assured that their interest is equal to the interest of other people who, you know, in good faith pays these fees all the time and at the end it turns out the original offer was made in bad faith and there was never any intention of sharing, that's a much different situation. I mean, you could characterize them the same on the surface but I'd argue they're really not at all. MR. BRANSON: All right. I think that's it. I think that's all that I have, guys. MR. PEELER: Thanks a lot. (Deposition concluded at 3:10 p.m.) GILBERT & JONES 187 (Pursuant to Rule 30(e) of the Federal Rules of Civil Procedure and/or O.C.G.A. 9-11-30(e), signature of the witness has been reserved.)

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

MYNJUAN P. JONES, CCR-B-1422

GILBERT & JONES 189 1 2 3 4 5 6 7 8 9 10 11 12 Gilbert and Jones, Inc., was contacted by the offices of Law Offices of Michael Branson to provide
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DISCLOSURE STATE OF GEORGIA: COUNTY OF CHATHAM: Deposition of DEREK ZEANAH Date: October 28, 2009

Pursuant to Article 10.B. of the Rules and Regulations of the Board of Court Reporting of the Judicial Council of Georgia, I make the following disclosure: I am a Georgia Certified Court Reporter. I am here as a representative of Gilbert and Jones, Inc. I am not disqualified for a relationship of interest under the provisions of O.C.G.A. §9-11-28(c).

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court reporting services for this deposition. 13 14 15 16 17 18 19 20 21 22 23 24 25 GILBERT & JONES 190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
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Gilbert and Jones, Inc., will not be taking this deposition under any contract that is prohibited by O.C.G.A. §15-14-37(a) and (b). Gilbert and Jones, Inc., has no exclusive contract to provide reporting services with any party to the case, any counsel in the case, or any reporter or reporting agency from whom a referral might have been made to cover this deposition. Gilbert and Jones, Inc., will charge its usual and customary rates to all parties in the case, and a financial discount will not be given to any party to this litigation.

MYNJUAN P. JONES, CCR-B-1422

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

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should read: should read: should read: should read:

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

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