1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY OF SANTA CLARA 3 4 STEVE KIRSCH on behalf of ) himself and all others ) 5 similarly situated, and on ) behalf of the general public, ) 6 ) Plaintiff, ) 7 ) vs. ) Case No. CV 810516 8 ) FAX.COM, INC.; KEVIN KATZ; ) 9 WILKINS TETHERED ) COMMUNICATIONS, INC. d.b.a. ) 10 FLATHEAD SOLUTIONS, et al., ) ) 11 Defendants. ) ______________________________) 12 13 14 15 Deposition of KEVIN KATZ, taken on 16 behalf of the Plaintiff, at 4101 Birch 17 Street, Suite 130, Newport Beach, 18 California, commencing at 10:10 a.m. on 19 Monday, December 8, 2003, before Pamela 20 Swanson, CSR #7143. 21 22 23 24 25 ABRAMS, MAH & KAHN 1 1 APPEARANCES OF COUNSEL: 2 For the Plaintiff: 3 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP BY: BARRY R. HIMMELSTEIN, ESQ. 4 CHRISTOPHER K. LEUNG, ESQ. 275 Battery Street 5 30th Floor San Francisco, California 94111-3339 6 (415) 956-1000 7 For the Defendants Fax.Com, Inc., and Kevin Katz: 8 CASELLO & LINCOLN 9 BY: JAMES H. CASELLO, ESQ. 1551 North Tustin Avenue 10 Suite 850 Santa Ana, California 92705-8636 11 (714) 541-8700 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ABRAMS, MAH & KAHN 2 1 I N D E X 2 DEPONENT EXAMINED BY PAGE 3 KEVIN KATZ MR. LEUNG 4 4 5 PLAINTIFF'S EXHIBITS PAGE FOR IDENTIFICATION: 6 1 Stipulation and Order Requiring Attendance at 16 7 Deposition and Production of Responsive Documents, dated 10/28/03, 10 pages 8 2 Wired.com article titled "Junk-Fax Firm 37 9 Disguising Rebirth," dated 9/15/03, 4 pages 10 3 Blank form titled "Certificate of Dissolution 101 of Outreach International, Inc.," dated 2/02, 11 2 pages 12 4 Document titled "Agreement" between Fax.com, 102 Inc. and Joseph A. Garson and Keith Marz, 13 dated 7/18/00, 10 pages 14 5 Blank document titled "Shareholders' Agreement" 111 between Larry Burnett, Dion Meltzer, Samuel 15 Meltzer and Kevin Katz, and Biltong Guy, Inc., dated 2001, 44 pages 16 6 Document titled "Master 'To Do' List," undated, 112 17 1 page 18 19 QUESTIONS WITH AN INSTRUCTION NOT TO ANSWER 20 PAGE LINE 4 20 21 6 20 8 11 22 9 2 15 25 23 37 17 38 19 24 106 4 132 22 25 ABRAMS, MAH & KAHN 3 1 NEWPORT BEACH, CALIFORNIA; MONDAY, DECEMBER 8, 2003 2 10:10 A.M. 3 4 KEVIN KATZ, 5 called as a witness by and on behalf of the 6 Plaintiff, having been first duly sworn, was examined 7 and testified as follows: 8 9 EXAMINATION 10 BY MR. LEUNG: 11 Q Good morning, Mr. Katz. My name is Chris 12 Leung, I work for the law firm of Lieff, Cabraser, 13 Heimann and Bernstein representing the plaintiff today, 14 Steve Kirsch. I'm here together with my partner on the 15 case, Mr. Barry Himmelstein. I notice you have your 16 counsel here today, Mr. James Casello. 17 So let me first ask you, could you please 18 state your full name for the record? 19 A Kevin Katz. 20 Q And where do you live? 21 THE WITNESS: (To Mr. Casello.) What's that got to 22 do with anything? 23 MR. CASELLO: Why don't you just -- you can contact 24 Mr. Katz through my office. 25 Q BY MR. LEUNG: Let me just explain some of the ABRAMS, MAH & KAHN 4 1 basic ground rules about depositions first of all. 2 Have you been deposed before? 3 A Yes. 4 Q In what cases or what case? 5 MR. CASELLO: You can answer that. 6 THE WITNESS: Covington and Burling, the Attorney 7 General of California. 8 Q BY MR. LEUNG: And when were you deposed for 9 the Covington and Burling case? 10 A I don't remember. 11 Q Was it this year? 12 A I don't remember. 13 Q Can you give me your best estimate as to 14 whether it was this year, last year, two years ago? 15 A Maybe two years ago. 16 Q Okay. Did you have the same counsel that you 17 have today? 18 A No. 19 Q And when were you deposed for the AG suit? 20 And by "AG" I mean the attorney general suit. 21 A Probably about a year ago. 22 MR. CASELLO: I don't think it was taken in 23 connection with the lawsuit that was filed in federal 24 court, it was probably a statement given under oath in 25 connection with their investigation. ABRAMS, MAH & KAHN 5 1 MR. LEUNG: Okay. 2 Q And you stated that was maybe a year ago, 3 maybe? 4 A Approximately. I don't know. I don't 5 remember. 6 Q You don't remember? Okay. 7 Your attorney has probably gone over some of 8 the ground rules for a deposition before with you 9 already, but your attorney will make various objections 10 for the record. Unless he instructs you not to answer, 11 you have to answer each question I pose before you. 12 Things I don't want to get into between your 13 counsel and yourself are matters related to the 14 attorney-client privilege, you know, specific 15 conversations. 16 You shouldn't talk over my questions. That 17 way the court reporter can record everything that you 18 say and that I say and the objections that your counsel 19 will make. And so that's basically it. 20 I want to go back to my first question 21 basically, and that's where do you live? 22 MR. CASELLO: I don't see any reason why you need 23 his address for this limited deposition. And for the 24 record also, he's had break-ins at his house -- 25 MR. LEUNG: Okay. ABRAMS, MAH & KAHN 6 1 MR. CASELLO: -- and he just doesn't want it to be a 2 public record. 3 MR. HIMMELSTEIN: This is not a law and motion 4 hearing, state your objections or instruct him not to 5 answer. But absent an instruction, he's required to 6 answer. 7 You can object hearsay, you can object 8 whatever you want. I don't want to hear any speaking 9 objections, I don't want to hear coaching of the 10 witness, I don't want to hear oral argument. 11 MR. CASELLO: Mr. Himmelstein, that's very nice, but 12 if he's taking the deposition, he's the only one 13 talking. I'm not going to be tag-teamed here. 14 MR. HIMMELSTEIN: You're talking out of turn here. 15 MR. CASELLO: I'm his lawyer. 16 MR. HIMMELSTEIN: This is not a law and motion 17 hearing, Mr. Casello. You can state your objection for 18 the record, you can instruct the witness not to answer, 19 there is no third thing. 20 MR. CASELLO: Who is taking the deposition here this 21 morning? 22 MR. LEUNG: I'm taking the deposition. 23 MR. CASELLO: Mr. Himmelstein, then I don't expect 24 another word out of your mouth; okay? I'm not going to 25 get double-teamed here. ABRAMS, MAH & KAHN 7 1 MR. HIMMELSTEIN: When you play by the rules -- 2 MR. CASELLO: There is no rules in depositions. I'm 3 making a statement for the record explaining why he 4 doesn't want to give his address. You don't need it for 5 purposes of this deposition. 6 (Counsel are speaking simultaneously.) 7 MR. CASELLO: If I choose to give one, I will give 8 it; okay? Don't tell me how to practice law and I won't 9 tell you how to practice law; okay? 10 Next question. 11 Q BY MR. LEUNG: Where do you live, Mr. Katz? 12 MR. CASELLO: Instruct the witness not to answer. 13 This is a limited deposition as to the issue of the 14 identity of new entities that are faxing, that is the 15 limited scope of this deposition. 16 MR. LEUNG: Can I get the legal basis for that 17 objection, Mr. Casello? 18 MR. CASELLO: There is no relevance to the issue 19 that you have gotten a limited opening in discovery, 20 which is the identity of new entities that are faxing. 21 Mr. Katz's home residence is of no relevance to that. 22 MR. LEUNG: Well, I think the determination of 23 relevance is going to be done by the judge in this case. 24 And so until the judge makes the determination -- I 25 mean, the judge is the one who decides. Until that ABRAMS, MAH & KAHN 8 1 happens, you know -- 2 Q Mr. Katz, where do you live? 3 MR. CASELLO: I'm not going to let him answer the 4 question, so move on. 5 MR. LEUNG: Okay. 6 Q Mr. Katz, where do you work? 7 A I work at Fax.com. 8 Q Okay. And what is the physical address of 9 Fax.com? 10 A I don't remember it offhand. 11 Q Okay. 12 MR. CASELLO: They just moved. 13 MR. LEUNG: They did? 14 MR. CASELLO: 600 Anton, 11th Floor, Costa Mesa, 15 California. 16 MR. LEUNG: Can you spell Anton for me? 17 MR. CASELLO: A-n-t-o-n. 18 THE WITNESS: Thanks. 19 MR. CASELLO: You're welcome. 20 MR. LEUNG: Anton, 600 Anton. And was there a suite 21 number there? 22 MR. CASELLO: 11th Floor, 92626. 23 MR. LEUNG: Thank you. 24 Q When did Fax.com move to this location? 25 A Maybe a month ago, two months ago. ABRAMS, MAH & KAHN 9 1 Q Okay. And what position do you hold at 2 Fax.com again? 3 A I'm the president. 4 Q Okay. Did you found Fax.com? 5 A Yes. 6 Q Did you found it with anyone else? 7 A Yes. 8 Q Who else? 9 A Eric Wilson. 10 Q Okay. Anyone else? 11 A No. 12 Q Do you know who Scott Bloom is? 13 A Yes. 14 Q Who is Scott Bloom? 15 A Scott Bloom was an investor in Fax.com in the 16 earlier years. 17 Q When would be the earlier years? 18 (Mr. Himmelstein leaves the room.) 19 MR. CASELLO: Hold on a second. I'm giving you a 20 little leeway here, but technically Fax.com is not a new 21 entity, that's the scope of what the court opened up for 22 discovery. But it's just some preliminary stuff, so go 23 ahead and answer that. 24 THE WITNESS: What do you mean right now? '94, '93? 25 Five years ago -- ABRAMS, MAH & KAHN 10 1 THE REPORTER: You need to keep your voice up so I 2 can hear you. 3 THE WITNESS: I think 1998, somewhere around there. 4 Yeah, 1998. 5 (A discussion was held off the record.) 6 Q BY MR. LEUNG: Is Scott Bloom still involved 7 with Fax.com? 8 A No. 9 MR. LEUNG: All right. Mr. Casello, I just want to 10 explain that I'm going here because I want to figure out 11 who owns Fax.com. 12 MR. CASELLO: Go ahead. 13 MR. LEUNG: Okay. 14 Q When did he stop being involved with Fax.com? 15 A Approximately two years ago. 16 Q And why was that? 17 A I don't know. 18 Q Did you have a conversation with him about why 19 he wanted to leave? 20 A No. 21 Q Did he ever explain to you why he wanted to 22 leave? 23 A No. 24 Q Did he withdraw his investment money from your 25 company? ABRAMS, MAH & KAHN 11 1 A No. 2 Q Can you explain to me the circumstances, just 3 because I'm a little confused, how Scott Bloom left 4 his -- stopped being involved with Fax.com? 5 A Can I ask my counsel a quick question? 6 Q Actually, there is a -- I'm sorry, one of the 7 rules I should have also told you about, in a 8 deposition, when there is a question pending, we can't 9 take breaks and you can't talk to your counsel. Your 10 counsel can object if he thinks it's going to impinge on 11 the attorney-client privilege or if he has some 12 objection. 13 MR. CASELLO: My understanding is you bought him out 14 a couple of years ago, didn't you? 15 THE WITNESS: Yeah, that's right. He didn't 16 withdraw his money, we just bought him out. 17 MR. CASELLO: He was just bought out. I figured 18 there was a quick answer. 19 MR. LEUNG: Thank you. 20 MR. CASELLO: Okay. 21 Q BY MR. LEUNG: And who bought him out? 22 THE WITNESS: (To Mr. Casello.) I don't think it's 23 relevant. 24 MR. LEUNG: The judge will determine relevancy. 25 It's okay. ABRAMS, MAH & KAHN 12 1 MR. CASELLO: Again, we're outside the scope of the 2 little window that's opened. 3 MR. LEUNG: I'm trying to -- 4 MR. CASELLO: There are two shareholders of Fax.com. 5 THE WITNESS: That is correct. 6 MR. CASELLO: Mr. Wilson, Mr. Katz, they are the 7 sole officers, owners and directors of Fax.com and have 8 been for, what, at least a couple of years? 9 THE WITNESS: Sure. 10 MR. CASELLO: Is that correct? 11 THE WITNESS: A couple, two years, yeah. 12 Q BY MR. LEUNG: Okay. That was the last two 13 years. And before that Scott Bloom was also some sort 14 of officer or director. Did he have a title? 15 A No, he never had a title. 16 Q Okay. Did you bring any documents with you? 17 It doesn't seem like you have but-- 18 A No. 19 Q Okay. What is Eric Wilson's title? 20 Go ahead. 21 MR. CASELLO: What I was going to tell you, Chris, 22 is that we -- somebody is trying to run down the 23 statement of foreign stock corporation of Fax.com. And 24 they are supposed to fax it to me as soon as they get 25 the darn thing and I'll fax it up to you; okay? ABRAMS, MAH & KAHN 13 1 MR. LEUNG: Okay. 2 MR. CASELLO: I think the last one was filed some 3 time ago. 4 MR. LEUNG: Okay. 5 MR. CASELLO: And it's just Eric and Kevin, has been 6 for a long time. 7 MR. LEUNG: Okay. 8 MR. CASELLO: Okay. I interrupted your question, 9 I'm sorry, go ahead. 10 Q BY MR. LEUNG: Eric Wilson, does he have a 11 title at Fax.com aside from being owner or part owner? 12 A No. He's a founder. 13 Q Founder? 14 A Founder. 15 Q Okay. And your only title at Fax.com is 16 president? 17 A Correct. 18 Q And founder? 19 A Founder. 20 Q Okay. 21 MR. CASELLO: For the record though, I think he's 22 also listed as chief executive officer. 23 THE WITNESS: Who is? 24 MR. CASELLO: You. Are you the CEO? 25 THE WITNESS: I don't know. ABRAMS, MAH & KAHN 14 1 MR. CASELLO: Okay. 2 MR. LEUNG: Okay. 3 THE WITNESS: Before you ask me another question -- 4 (To Mr. Casello.) I mean, this is not a deposition -- 5 MR. CASELLO: That's okay. I think he's done. 6 Go ahead. 7 MR. LEUNG: Right. 8 THE WITNESS: Okay. 9 (A discussion was held off the record.) 10 Q BY MR. LEUNG: Did you meet with your attorney 11 to prepare for your deposition today? 12 Let me ask you another question. Strike that 13 last one. 14 Did you meet with anyone to prepare for your 15 deposition today? 16 A Yes. 17 Q Who? 18 A My attorney. 19 Q Anyone else? 20 A No. 21 Q Okay. I don't want to tread on the 22 attorney-client privilege, but when did you meet with 23 your attorney in preparing for your deposition? 24 A This morning. 25 Q Okay. And for how long? ABRAMS, MAH & KAHN 15 1 MR. CASELLO: That's not relevant; instruct him not 2 to answer. 3 Q BY MR. LEUNG: Okay. Did you review any 4 documents in preparation for your deposition today? 5 A No. 6 Q Was anyone else present when you met with your 7 attorney this morning? 8 A No. 9 Q Okay. 10 (Mr. Himmelstein enters the room.) 11 (Plaintiff's Exhibit No. 1 was marked 12 for identification by the reporter.) 13 Q BY MR. LEUNG: Mr. Katz, have you had a chance 14 to review the document? 15 A No. 16 Q Can you review the document? 17 A (The witness reviews the document.) 18 (A discussion was held between the 19 witness and his attorney out of the 20 hearing of the reporter.) 21 Q BY MR. LEUNG: Mr. Katz, I want to bring your 22 attention to the sixth page. At the very top it says, 23 at the very beginning, the very first full sentence 24 says, "At the time and place of deposition, Kevin Katz 25 is further required to produce the documents identified ABRAMS, MAH & KAHN 16 1 by Attachment A." 2 Do you see where it says that? 3 It's on page 6. It's not really labeled as 4 such, but it's the sixth page. 5 A Is this it here? This is the sixth page. 6 Q That's it. 7 A This one? 8 Q That's the one. 9 A (The witness reviews the document.) 10 Q Do you recognize this document at all? 11 A No. 12 Q Is this the first time that you have seen it, 13 this document, Exhibit 1? 14 A Yes. 15 Q Is this the first time that you have seen the 16 notice of deposition which is attached to -- let's see, 17 where it is -- which is attached as Exhibit A? 18 A (The witness reviews the document.) Is this 19 the first time I've seen this; is that the question? 20 Q That's right. 21 A Yeah. 22 Q Okay. I'd like to - I realize you didn't 23 bring any documents with you here today, but all the 24 same, I want to go through some of these requests with 25 you. ABRAMS, MAH & KAHN 17 1 According to Attachment A, request No. 1 2 states, "Documents sufficient to show the ownership and 3 management of Fax.com, Incorporated from August 22nd, 4 1988 to the present." 5 Mr. Casello, I recognize that you told me that 6 you're going to send me some documents when you receive 7 them. I am going to pose the question to Mr. Katz all 8 the same. 9 Do you have any documents showing the 10 ownership and management of Fax.com, Incorporated from 11 August 22nd, 1998 to the present? 12 A Do I have anything? 13 Q Yeah. 14 A No. 15 Q Do you know people who do? 16 A No. 17 Q Okay. And when you say that you don't have 18 any documents, what do you mean by that? Do you mean 19 not with you right now or are they located somewhere 20 else? 21 A I don't have any documents. 22 Q Anywhere? 23 A No. 24 Q As the president of Fax.com, do you have any 25 documents that show that you own Fax.com from 1998 to ABRAMS, MAH & KAHN 18 1 the present -- at any time? 2 A No. 3 Q Does Eric Wilson have any documents showing 4 that you own Fax.com at any point for the last four 5 years? 6 A I don't know. I don't know if he does or not. 7 Q Okay. When you say that you have no documents 8 relating to -- when you say that you have no documents 9 showing your ownership of Fax.com from 1998 to the 10 present, do you mean you do not as Kevin Katz or do you 11 mean as Fax.com? 12 A I don't. I don't. 13 Q And "I" in this capacity means you as Kevin 14 Katz? 15 A Yes. 16 Q So you don't have a stock certificate? 17 A No. 18 Q Okay. I just want to make -- I'm just a 19 little surprised here. 20 Does your attorney have something that shows 21 that you are the president of Fax.com or own Fax.com? 22 A I'm sure they do. Somebody's got to have it. 23 Q If you were going to go look for it -- if you 24 were going to try to find a document that showed that 25 you were president of Fax.com, where would you go? ABRAMS, MAH & KAHN 19 1 A I'd call my attorney. 2 Q Okay. 3 MR. CASELLO: And for the record, he wouldn't call 4 this one. 5 MR. LEUNG: Thank you, Mr. Casello. 6 Q Which attorney would you call? 7 A I would call the David Felsenthal. 8 Q Can you spell his last name for me? 9 A F-e-l-s-e-n-t-h-a-l. 10 MR. CASELLO: And also for the record, it is David 11 who is trying to run down the statement of foreign stock 12 corporation and the corporate documents that reflect 13 No. 1. I was supposed to have them before this morning; 14 okay? 15 MR. LEUNG: Okay. Thank you. This is probably -- 16 off the record. 17 (A discussion was held off the record.) 18 MR. LEUNG: Going back on the record. 19 Q How long has David Felsenthal been your 20 attorney? 21 A Probably about five years. 22 Q Okay. And is he your personal attorney or is 23 he Fax.com's personal attorney as well? 24 A Fax.com's attorney. 25 Q Okay. Fax.com's attorney. ABRAMS, MAH & KAHN 20 1 Where is his office located; do you know? 2 A Los Angeles. 3 Q Okay. Mr. Katz, you mentioned before that 4 you're president of Fax.com. Do you have any other 5 positions at any other companies? 6 A No. 7 Q Are you an investor in any other -- that's a 8 broad question. 9 Are you an investor in any other companies 10 related to fax broadcasting. 11 Are you familiar with the term "fax 12 broadcasting"? 13 A Yes. 14 Q What is fax broadcasting to you? 15 A Sending a fax. 16 Q Just one fax? 17 A Just sending a fax. Fax broadcasting is 18 sending a fax. 19 Q Yes-or-no question. Is fax broadcasting 20 sending more than one fax? 21 A Could be. 22 Q Okay. Is it faxed to more than one recipient 23 at a time? 24 A In what context? 25 Q I don't know. Why don't you describe the ABRAMS, MAH & KAHN 21 1 context for me in which it might be considered fax 2 broadcasting when you are sending a fax advertisement to 3 more than one recipient at a time? 4 A Well, fax broadcasting doesn't mean you are 5 sending an advertisement, fax broadcasting could be 6 sending anything. 7 Q Okay. 8 MR. CASELLO: Well, I understand you are trying to 9 lay a foundation for the purposes of limiting the 10 question as to his ownership in companies. 11 Do you have any problem with understanding if 12 he asks you if you have any ownership interests in any 13 other company that is involved with fax broadcasting? 14 Do you understand -- would you understand what 15 he's trying to ask? 16 THE WITNESS: Yes, I understand perfectly. Yeah. 17 MR. CASELLO: Okay. 18 Q BY MR. LEUNG: So the question is, so you 19 don't have an ownership in any other company related to 20 fax broadcasting? 21 A That's correct. 22 Q Sending out faxes? 23 A No, I don't. 24 Q Are you a partner in any other entity 25 related -- that is somewhat related to fax broadcasting? ABRAMS, MAH & KAHN 22 1 A No. 2 Q Are there any business entities that you have 3 any relationship with aside from Fax.com that -- let me 4 rephrase the question. 5 Are there other entities that engage in fax 6 broadcasting that you have some relationship with aside 7 from Fax.com? 8 A What do you mean by "relationship"? 9 Q How would you determine -- how would you 10 define the term "relationship"? 11 A Well, I'm not sure, that's why I didn't know 12 what relationship you're talking about within the 13 context of your question. 14 Q Okay. 15 A If you could explain a little bit better, what 16 do you mean by type of relationship with a company that 17 does fax broadcasting? 18 Q Sure. 19 Are you in contact with any other companies 20 that engage in fax broadcasting, had a conversation? 21 A Currently as of today or in the last five 22 years? 23 Q Since August of 1998. 24 A So let me just get this straight. So the 25 question is have I ever had a conversation with somebody ABRAMS, MAH & KAHN 23 1 else in the fax broadcasting business; is that accurate? 2 Q That's right. 3 A Yes, absolutely. 4 Q Who? 5 A A company called Expedite. 6 Q Okay. 7 A A company called Vision Lab, a company called 8 Protus. 9 Q Can you spell that? 10 A P-r-o-t-u-s, a company called Fax Source, and 11 a bunch of others I wouldn't -- I don't even remember 12 anymore. 13 Q Okay. Have you heard of the company Impact 14 Marketing Solutions? 15 A I have now. 16 Q Okay. Is this the first time that you have 17 heard the term "Impact Marketing Solutions"? 18 A I've heard of it. I've heard the name. 19 Q When was the first time you heard the name? 20 A I can't recall the exact date I heard the 21 name. 22 Q What do you know about Impact Marketing 23 Solutions? 24 A Nothing. 25 Q I realize that you don't know the exact date ABRAMS, MAH & KAHN 24 1 that you first heard the term "Impact Marketing 2 Solutions" but can you give me your best estimate as to 3 when you first heard it? 4 A Maybe a few years ago I may have heard of it. 5 Q Do you remember in what context it came up? 6 A No. 7 Q Do you have any idea -- 8 Can you tell me everything that you do know 9 about Impact Marketing Solutions? 10 A I don't know anything about Impact Marketing 11 Solutions. 12 Q Do you know what their business is? 13 A I assume it's a marketing company. 14 Q Have you heard of a company called Impact 15 Marketing Solutions, LLC? 16 A No. 17 Q Okay. Have you heard of a company in any sort 18 of iteration of the terms or words Impact Marketing 19 Solutions? 20 A I've heard the name. 21 Q Okay. Did it come up in a conversation? 22 A I don't remember. 23 Q Okay. Have you heard of a company called 24 Lighthouse Marketing, LLC or Lighthouse Marketing? 25 A Yeah, I've heard of that name. ABRAMS, MAH & KAHN 25 1 Q When did you first hear of that name? 2 A I don't recall. 3 Q Okay. Can you give me a best guess of when 4 you heard of that name? 5 A I really don't recall. 6 Q Can you tell me everything that you do know 7 about Lighthouse Marketing? 8 A I really don't know any details about 9 Lighthouse Marketing. 10 Q Okay. What do you know about Lighthouse 11 Marketing? I realize you don't know the details, but do 12 you have a sense of what they do? 13 A I'm not sure what they do. 14 Q What have you heard that they do? 15 A I really haven't heard too much about it. 16 Q What have you heard that they do? 17 A I guess maybe it was a marketing company 18 according to the name. 19 Q Do you know what they market? 20 A No. 21 Q Do you know what Impact Marketing Solutions 22 markets? 23 A No. 24 Q When you told me that you think that they do 25 marketing, did you just come up with that because ABRAMS, MAH & KAHN 26 1 marketing is in the name or have you heard that from 2 some other people? 3 A Just because it's in the name. 4 Q Okay. And I'm not sure that you still 5 answered my question. 6 What have you heard about Lighthouse 7 Marketing? 8 A Not much. 9 Q What have you heard? 10 THE WITNESS: (To Mr. Casello.) He's asked this 11 question like four times already. 12 MR. CASELLO: Give it one last try. 13 THE WITNESS: I don't know what -- I don't know what 14 they do. 15 Q BY MR. LEUNG: Okay. Have you heard of a 16 company called Data Research Systems? 17 A No, I don't know who they are. 18 Q Do you know who owns Data Research Systems? 19 A No. 20 Q Do you know who owns Lighthouse Marketing or 21 Impact Marketing Solutions for that matter? 22 A No. 23 Q Do you know where Data Research Systems is 24 located? 25 A No. ABRAMS, MAH & KAHN 27 1 Q Have you heard of Data Research Systems, Inc.? 2 A No. 3 Q Have you heard of Data Research Systems, LLC? 4 A (No audible response.) 5 THE REPORTER: I need a verbal. 6 THE WITNESS: No, I haven't. 7 Q BY MR. LEUNG: Have you heard of Data Research 8 Systems in any other sort of iteration along the lines 9 of corporation, incorporated, LLC, partnership, 10 anything? 11 A No. 12 Q Have people mentioned the term -- that company 13 to you at all, Data Research Systems? 14 A Not that I can recall. 15 Q Okay. 16 A Can I ask my attorney something? 17 MR. CASELLO: Sure. Let's go outside. We'll be 18 right back. 19 (The witness and his attorney 20 leave the deposition room.) 21 (Brief interruption in the proceedings.) 22 MR. CASELLO: Go ahead. 23 MR. LEUNG: Back on the record. 24 Q I think we left off with Data Research 25 Systems. Can you tell me everything that you know about ABRAMS, MAH & KAHN 28 1 Data Research Systems? 2 A I don't know anything about Data Research 3 Systems. 4 Q Okay. Moving on, have you heard of a company 5 called Tech Access Systems? 6 A No. 7 Q Do you know who owns Tech Access Systems? 8 A No. 9 Q Do you know where they are located? 10 A No. 11 Q What do you know about Tech Access Systems? 12 A Nothing. 13 Q Has it ever come up within a conversation that 14 you have had? 15 A No. 16 Q I don't suppose you remember any comments that 17 you may have heard that relate to Tech Access Systems, 18 do you? 19 A No. 20 Q Have you heard of a company called Twingem, 21 Inc.? 22 A No. 23 Q Have you heard of a company called Twingem? 24 A No. 25 Q Have you heard of a company by any other ABRAMS, MAH & KAHN 29 1 iteration with the word Twingem in it? 2 A No. 3 Q Okay. Do you know where Twingem is located? 4 A No. 5 Q Do you know anyone connected at all to that 6 company? 7 A No. 8 Q Can you tell me what you do know about 9 Twingem? 10 A Nothing. 11 Q Okay. Have you heard of a company called 12 Martec Consulting Services? 13 A No. 14 Q Have you heard of a company called Martec 15 Consulting? 16 A No. 17 Q Have you heard of a company with any other 18 iteration of Martec or consulting, Martec Consulting? 19 A No. 20 Q Okay. Do you know where they are located? 21 A No. 22 Q Do you know anyone who works for them? 23 A No. 24 Q What can you tell me about Martec Consulting? 25 A Nothing. ABRAMS, MAH & KAHN 30 1 Q Okay. Have you heard of a company called 2 Database Logistics? 3 A No. 4 Q Do you know where they are located? 5 A No. 6 Q Do you know anyone who works for Database 7 Logistics? 8 A No. 9 Q Can you tell me everything that you do know 10 about Database Logistics? 11 A Nothing. 12 Q Okay. Have you heard of a company called Soho 13 Marketing? 14 A Sounds familiar, the name. 15 Q The name? 16 A It's Soho. 17 Q What does it remind you of? 18 A Well, it's a very generic term in marketing, 19 it means small office, home office. That's the way it 20 sounds familiar. 21 Q Oh, I didn't know that. 22 Can you tell me what you do know about Soho 23 Marketing? 24 A I don't know anything about Soho Marketing. 25 Q Do you know where they are located? ABRAMS, MAH & KAHN 31 1 A No. 2 Q Do you know who owns Soho Marketing? 3 A No. 4 Q Do you know anyone who works for Soho 5 Marketing? 6 A No. 7 MR. CASELLO: I think I can help you out there. I 8 think Chris Lamarre -- what's his first name? 9 MR. LEUNG: Richard. 10 MR. CASELLO: Richard Lamarre, thank you, to the 11 best of my knowledge is the owner of Soho Marketing. 12 Q BY MR. LEUNG: Do you know Richard Lamarre, 13 Mr. Katz? 14 A No. 15 Q Does the name sound familiar to you at all? 16 A No. 17 Q Do you recall ever meeting someone named 18 Richard Lamarre? 19 A No. 20 Q Have you heard of a company or have you heard 21 of a business entity called Everglades Enterprises or an 22 entity called Everglades Enterprises? 23 A No. 24 Q Have you heard of any company called 25 Everglades Enterprises with any sort of iteration of ABRAMS, MAH & KAHN 32 1 that name? 2 A No. 3 Q Do you know who owns Everglades Enterprises? 4 A No. 5 Q Do you know what Everglades Enterprises -- 6 strike that. 7 Do you know where Everglades Enterprises is 8 located at? 9 A No, I don't. 10 Q Do you know anyone who works for Everglades 11 Enterprises? 12 A No. 13 Q Okay. Has Everglades Enterprises ever come up 14 in a conversation that you can recall? 15 A Not that I can recall. 16 Q Have you ever heard of a company called 17 Outreach International? 18 A No. 19 Q Have you ever heard of a company called 20 Outreach International, LLC or LLP or Incorporated or 21 any other sort of business form? 22 A No. 23 Q Okay. Do you know where Outreach 24 International is located? 25 A No. ABRAMS, MAH & KAHN 33 1 Q Do you know who owns Outreach International? 2 A No. 3 Q What can you tell me about Outreach 4 International? 5 A Nothing. 6 Q Okay. Have you heard of a company called AMI 7 Communications? 8 A No. 9 Q Have you heard of a company called Anzaroot 10 and Miller, Incorporated? 11 A No. 12 Q Have you heard of a company called Anzaroot 13 and Miller or any other sort of iteration thereof? 14 A No. 15 Q Do you know where Anzaroot and Miller is 16 located? 17 A No. 18 Q Do you know whether or not they have ever done 19 business with Fax.com? 20 A No, I don't know if they have or haven't. 21 Q Who would know? 22 A I don't know. 23 Q Who would be the first person that you would 24 ask if you wanted to find out? 25 A You could ask me. ABRAMS, MAH & KAHN 34 1 Q Okay. So I'm asking? 2 A I don't recall. 3 Q Okay. Have you heard of a company called 4 Telcom Tech Support? 5 A I've heard the name, yeah. 6 Q When did you first hear of the name? 7 A I don't recall the exact time. I've heard 8 that name before. 9 Q Do you recall the year perhaps when you first 10 heard that name? 11 A No. 12 Q Okay. Do you recall how the name came up -- 13 A No. 14 Q -- how you heard about it? 15 Okay. Do you know why it sounds familiar to 16 you by any chance? 17 A Not really. 18 Q Okay. Are you familiar -- have you heard of a 19 business entity called Voice Mail Broadcasting Company? 20 A Yes, I have. 21 Q When was the first time that you heard about 22 Voice Mail Broadcasting Company? 23 A I don't remember the time or date. 24 Q Do you remember the year? 25 A No, I don't. ABRAMS, MAH & KAHN 35 1 Q Can you give me your best guess as to when you 2 first heard about Voice Mail Broadcasting Company? 3 A I would have no idea. 4 Q Okay. Do you know what it is that they do? 5 A I think they do voice broadcasting. 6 Q Okay. Do you know if they do anything else? 7 A No, I don't. 8 Q Okay. Do you know who owns Voice Mail 9 Broadcasting Company? 10 A No. 11 Q Do you know who has any sort of partnership or 12 ownership interest or otherwise in Voice Mail 13 Broadcasting Company? 14 A No. 15 Q Do you know, is that a company that's done 16 business with Fax.com? 17 A No, it hasn't. 18 Q Do you know what companies it has done 19 business with? 20 A No, I don't. 21 Q Do you know anyone who works for Voice Mail 22 Broadcasting Company? 23 A No. 24 Q And just so I'm straight, you don't know 25 anyone who owns or operates Voice Mail Broadcasting ABRAMS, MAH & KAHN 36 1 Company? 2 A No, I don't know who is there right now. 3 Q Okay. 4 A No. 5 Q Do you know where they are located? 6 A No. 7 Q Okay. All right. 8 (Plaintiff's Exhibit No. 2 was marked 9 for identification by the reporter.) 10 Q BY MR. LEUNG: Mr. Katz, what's been marked as 11 Exhibit 2 is an article entitled "Junk-Fax Firm 12 Disguising Rebirth" by Ryan Singel. 13 Have you read or seen this article before? 14 A No. 15 Q Do you recall any articles -- let see. Let's 16 just go through some of what this author states here. 17 In the first sentence it states, "Under 18 pressure from federal regulators, million-dollar 19 lawsuits and actions by the California's attorney 20 general, Fax.com may soon be closing it's doors." 21 As the president of Fax.com, is there any 22 truth to that statement there? 23 MR. CASELLO: Objection; that's beyond the scope of 24 this deposition. 25 Q BY MR. LEUNG: You can answer. ABRAMS, MAH & KAHN 37 1 MR. CASELLO: I'll instruct him not to answer. 2 MR. LEUNG: All right. Okay. The purpose of this 3 deposition is to find out what Fax.com -- it's basically 4 all about, it's just basically Fax.com closing its doors 5 and spinning off into new companies. This is the whole 6 purpose of the deposition. 7 MR. CASELLO: Perhaps you should depose Mr. Singel. 8 MR. LEUNG: We're just trying to determine the 9 veracity of what Mr. Singel is saying and we thought 10 we'd go to the source, the president of Fax.com. If 11 there is no truth to this, then the witness can answer 12 the question. We can talk to the judge about this. 13 MR. CASELLO: I think you're entitled to ask him if 14 he's aware of the identity of new entities that are 15 faxing, that is certainly within the scope of what the 16 judge opened up. I will allow you to ask him if Fax.com 17 is currently in business and doing business which will 18 indirectly answer your question. 19 Q BY MR. LEUNG: Are there any functions of 20 Fax.com right now that are being outsourced to other 21 companies? 22 MR. CASELLO: Hold on a second. If you limit the 23 question to fax broadcasting itself, I'll let him answer 24 it. 25 MR. LEUNG: Mr. Casello, I understand your ABRAMS, MAH & KAHN 38 1 objection. I just want to go through what the business 2 operations are at Fax.com. 3 MR. CASELLO: What the business operations are of 4 Fax.com is not what the judge opened up. The judge 5 opened up inquiries as to the identity of new entities 6 that are faxing; okay? 7 Because this is a TCPA case, that is the only 8 thing that's illegal, to the extent that it's found to 9 be illegal, which would be faxing. And certainly 10 Mr. Katz is in the industry, you can ask him any 11 question you want about his knowledge of entities, his 12 competition, who is out there and who is faxing and I 13 will let him answer any of those questions. 14 But as to Fax.com and its operations, that was 15 not reopened. And we have a petition for coordination 16 pending. I don't want Mr. Katz to have to answer these 17 questions in six, seven, eight different depositions. 18 So if you can limit it to the scope of what was opened, 19 that's great, please. 20 MR. LEUNG: Okay. All right. Just for the record, 21 I differ with your interpretation, Mr. Casello, but next 22 question. 23 Q Do you know what a faxcaster is? 24 THE WITNESS: (To Mr. Casello.) What does it have 25 to do with anything? ABRAMS, MAH & KAHN 39 1 MR. CASELLO: Answer that, it's preliminary. 2 THE WITNESS: Do I know what a faxcaster is? 3 Q BY MR. LEUNG: Right. 4 A Yeah, I know what a faxcaster is. 5 Q What is a faxcaster? 6 A It's a piece of equipment that can send out 7 faxes. 8 Q Okay. Is Fax.com engaged in the business of 9 dealing with faxcasters? 10 A We send out faxes, yes. 11 Q Do you use faxcasters? 12 A Yeah, that's one of them, that's a piece of 13 equipment. 14 Q What are the other ways that your company 15 sends out faxes? 16 A Just computers basically. 17 Q Are there any other ways to send out faxes 18 aside from computers and faxcasters? 19 A Fax machines. 20 Q Is that something that your company does, send 21 out faxes over fax machines? 22 A Yeah, we've done that before. 23 Q Have you ever done that before, to send out 24 fax advertisements? 25 A I can't be sure. I don't -- I don't know if ABRAMS, MAH & KAHN 40 1 we have or we haven't. 2 Q To the best of your recollection. 3 A We send out faxes a number of different ways. 4 I don't remember all the different ways we use. 5 Q How about just fax advertisements? 6 A What's the question again? 7 Q What are the different ways that you send out 8 fax advertisements aside from computers and faxcasters? 9 A Probably that's it. 10 Q Probably or -- 11 A I don't know. I'm not technical, I don't deal 12 with that department at all. 13 Q Okay. Have you ever heard of the term "super 14 faxcaster" before? 15 A No. 16 Q Has it ever come up in a conversation that you 17 can recall sitting here today? 18 A No. 19 Q Who owns the faxcasters, these pieces of 20 equipment? 21 MR. CASELLO: Hold on. We're now well beyond the 22 scope. 23 MR. HIMMELSTEIN: Let's call the judge. Give me the 24 number. 25 THE WITNESS: I have to use the bathroom for a ABRAMS, MAH & KAHN 41 1 second. 2 (The witness leaves the room.) 3 (Brief interruption in the proceedings.) 4 (The witness is now present.) 5 (The record was read as follows: 6 "Q Who owns the faxcasters, these pieces 7 of equipment?") 8 MR. CASELLO: Who owns the faxcasters that Fax.com 9 is using? 10 MR. LEUNG: Right. 11 (A discussion was held between the 12 witness and his attorney out of the 13 hearing of the reporter.) 14 MR. HIMMELSTEIN: You cannot take a break with a 15 question pending. 16 MR. CASELLO: Bullshit. I'll take breaks anytime I 17 want. 18 MR. HIMMELSTEIN: Bullshit. 19 MR. CASELLO: You need to learn some discovery. 20 You're going to have your deputy arrest him next? By 21 the way, show me in the Code where you can arrest people 22 for depositions. 23 (The witness and his attorney leave the room.) 24 MR. LEUNG: For the record, Mr. Casello and his 25 client Mr. Katz have walked out of the room and slammed ABRAMS, MAH & KAHN 42 1 the door. 2 (Brief interruption in the proceedings.) 3 (The witness and his attorney enter the room.) 4 MR. CASELLO: Okay. Let's start over. 5 MR. LEUNG: Would you read back the last question? 6 (The record was read as follows: 7 "Q Who owns the faxcasters, these pieces 8 of equipment?") 9 (A discussion was held off the record.) 10 Q BY MR. LEUNG: Who owns the faxcasters that 11 Fax.com is using? 12 A I don't know. 13 Q Do you know how many faxcasters Fax.com uses? 14 A Repeat the question, please. 15 MR. LEUNG: Could you do a read back of the last 16 question, please. 17 (The record was read as follows: 18 "Q Do you know how many faxcasters Fax.com 19 uses?") 20 THE WITNESS: No. 21 Q BY MR. LEUNG: Do you know the name of the 22 company that is -- how does Fax.com send out its fax 23 advertisements? 24 A Through computers. 25 Q Through computers and faxcasters, is that ABRAMS, MAH & KAHN 43 1 right, and maybe other ways? 2 A Computers basically. 3 Q Do they use faxcasters as well? 4 Your answer now seems a bit different than 5 what it was five minutes ago. 6 A Well, the faxcaster is a computer. 7 Q Okay. Where are they physically located? 8 A Where is what physically located? 9 Q Where are the faxcasters that Fax.com uses, 10 where are -- 11 A I don't know. 12 Q -- they physically located? Okay. 13 MR. CASELLO: Okay. I think we're on the technical 14 side of Fax.com's business and you've got the wrong 15 person here. 16 Q BY MR. LEUNG: Who would know -- who would 17 know about the faxcasters that Fax.com uses? 18 A Eric Wilson. 19 Q Eric Wilson would. 20 Does Fax.com own the faxcasters? 21 A I don't know. 22 Q Do you know if Eric Wilson owns the 23 faxcasters? 24 A I don't know. 25 Q Do you know who owns the faxcasters? ABRAMS, MAH & KAHN 44 1 A No. 2 Q Do you know if there is another company that 3 deals with the faxcasters used by Fax.com? 4 A I don't know. 5 Q Who would I ask to find out? 6 A Eric Wilson. 7 Q Okay. Why did Fax.com move to its new 8 location? 9 A Down- -- 10 MR. CASELLO: It's outside the scope, but I'll let 11 him answer it any way. 12 THE WITNESS: Just downsizing, trying to save costs. 13 Q BY MR. LEUNG: Okay. Are there any other -- 14 Are there any business functions performed by 15 fax -- that were performed by Fax.com that are now being 16 outsourced to other companies? 17 A Just repeat that question again. Are there 18 any -- 19 MR. LEUNG: Could we have a read back of the last 20 question, please? 21 (The record was read as follows: 22 "Q Are there any business functions 23 performed by fax -- that were performed by Fax.com 24 that are now being outsourced to other companies?") 25 THE WITNESS: I don't know at this point. ABRAMS, MAH & KAHN 45 1 Q BY MR. LEUNG: Are there any that are -- 2 Are there any business functions of Fax.com 3 that are going to be outsourced to other business 4 companies? 5 A Possibly. 6 Q Do you know in what areas? 7 A Not right now. No, I don't know right now. 8 Q What are the functions that were being -- that 9 were or are being outsourced from Fax.com? 10 MR. CASELLO: I don't believe he testified there 11 were any. 12 MR. LEUNG: I'm sorry? 13 MR. CASELLO: I don't remember him testifying that 14 there were any. You asked him and he said he didn't 15 know. 16 Q BY MR. LEUNG: Is that right? 17 A That's right. 18 Q Who would I talk to to find out? 19 A I'm not sure on that one. 20 Q Okay. You mentioned before that part of the 21 reason that Fax.com moved is because it was downsizing, 22 trying to save costs. 23 Do you have the same number of employees now 24 that Fax.com has moved? 25 A I think we have a little less now. ABRAMS, MAH & KAHN 46 1 Q Do you remember the names of any of the 2 employees that left Fax.com? 3 A No. 4 Q Do you remember what their function was at 5 Fax.com? 6 A No. 7 Q Their job responsibilities, titles; do you 8 remember what their job responsibilities or titles were 9 at Fax.com before they left? 10 A No, I can't recall right now. 11 (A discussion was held between the 12 witness and his attorney out of the 13 hearing of the reporter.) 14 Q BY MR. LEUNG: I want to turn your attention 15 to Exhibit 2, at the bottom of the page, the bottom of 16 the first page. In this article Ryan Singel states that 17 the vice president of finance over at Fax.com is Thomas 18 Roth; is that correct? 19 A That's correct. 20 Q He also states that the vice president of 21 Fax.com -- vice president of compliance at Fax.com is 22 Charles Martin; is that correct? 23 A He was, not anymore. 24 Q When did he stop being the vice president of 25 compliance at Fax.com? ABRAMS, MAH & KAHN 47 1 A I don't recall exactly when he left. 2 Q Was it this year? 3 A Could have been. 4 Q Do you remember the circumstances under which 5 he left? 6 A No, I don't. 7 (A discussion was held between the 8 witness and his attorney out of the 9 hearing of the reporter.) 10 (A discussion was held off the record.) 11 MR. CASELLO: To the best of my knowledge he has 12 been in South Africa for probably most of the last six 13 months -- 14 THE WITNESS: Yeah. 15 MR. CASELLO: -- to seven months. 16 THE WITNESS: Correct. 17 Q BY MR. LEUNG: Okay. Are there any other vice 18 presidents over at Fax.com? 19 What are the other positions or titles of the 20 officers at Fax.com? 21 MR. CASELLO: Can we get a definition of "officer"? 22 Fax.com calls people titles but there really are only 23 two corporate officers at Fax.com, Mr. Wilson and 24 Mr. Katz. The other people have titles. 25 Q BY MR. LEUNG: What are the other titles at ABRAMS, MAH & KAHN 48 1 Fax.com? 2 A I don't believe we have any titles anymore. 3 Q What did they used to be? 4 A The word "title" -- I guess CFO could have 5 been one, compliance could be another. 6 Q You mentioned before that Charles Martin is no 7 longer the vice president of compliance at Fax.com. Do 8 you know who is? 9 A We don't have a vice president of compliance 10 at this point. 11 Q Is there someone that handles the compliance 12 over at Fax.com or has another title that does 13 essentially the same functions that Charlie Martin did? 14 A I don't believe there is anybody right now 15 that handles compliance for us. 16 Q What's the basis of your belief? 17 A Just based on my knowledge. 18 Q And on what knowledge is that based, what 19 facts is your knowledge based on? 20 A No facts, just what I believe, there is no one 21 that does it right now. 22 Q Did you have a conversation with someone -- 23 How were you made aware that Charles Martin is 24 no longer vice president of compliance? 25 A I heard about him when I got back from one of ABRAMS, MAH & KAHN 49 1 my trips. 2 Q Who did you hear it from? 3 A I don't recall. 4 Q Do you recall which trip you came back from 5 that you heard about it? 6 A No. 7 Q Could it have been this year or last year, can 8 you give me a general time frame? 9 A Probably this year. 10 Q Okay. Who is the CFO of Fax.com; is that 11 Thomas Roth? 12 A Yes, that's correct. 13 Q How long has he been the CFO at Fax.com? 14 A I believe since we started. 15 Q And when did Fax.com start? 16 A 1998. 17 Q Do you know what Charles Martin is doing now? 18 A No. 19 Q Do you know what he's doing -- do you know 20 where he's employed right now? 21 A No. 22 Q When was the last time you spoke with Charles 23 Martin? 24 A I don't recall. 25 Q Was it sometime this year? ABRAMS, MAH & KAHN 50 1 A Probably was. 2 Q How long have you known Charles Martin? 3 A About four, five years maybe. 4 Q Is this before Fax.com, before you started 5 Fax.com? 6 A No, during Fax.com. 7 Q During Fax.com. 8 Did you hire Mr. Martin? 9 A Yes, I did. 10 Q Okay. And at the time that he was hired, was 11 he the vice president of compliance? 12 A I don't recall what his position was when he 13 first started. 14 Q How long has he been -- how long was he the 15 vice president of compliance at Fax.com? 16 A I don't remember exactly. 17 Q What's your best guess? 18 A Maybe two or three years. 19 Q Do you know someone named Erwin Dass, the last 20 name is spelled D-a-s-s? 21 A Yes, I do. 22 Q Who is Erwin Dass? 23 How do you say it? Do you know him, do you 24 know how he says it? 25 A Das, Dass, I don't know. ABRAMS, MAH & KAHN 51 1 Q Okay. We'll just say Dass for now. 2 A Okay. 3 Q How do you know Erwin Dass? 4 A He used to work at Fax.com. 5 Q Okay. Do you know when he started at Fax.com? 6 A No. 7 Q What's your best guess? 8 A I really don't know. I couldn't even guess. 9 Q How did you find out that he's no longer 10 working at Fax.com? 11 A I just heard that he left at some point. 12 Q Do you remember when you heard that he left? 13 A Not the exact date. Probably this year 14 sometime. 15 Q Okay. Do you know the circumstances under 16 which he left? 17 A No. 18 Q Do you know where he's working now? 19 A No. 20 Q What was his position or title over at 21 Fax.com? 22 A I don't know if he ever had a position or 23 title. 24 Q Did he work for Fax.com? 25 A Yeah. ABRAMS, MAH & KAHN 52 1 Q What did he do for Fax.com? 2 A He was a graphic designer. 3 Q Okay. What was the sort of relationship he 4 had with Fax.com; was he a full-time employee, a 5 contractor? 6 A He was employed. 7 Q Full time? 8 A Yes. 9 Q Okay. You said he was a graphic designer; 10 right? 11 A That's right. 12 Q Okay. What did he design? 13 A All kinds of things from what I can remember. 14 That really wasn't my department so I don't really know 15 exactly what he designed. He was a designer. 16 Q Do you know if he designed fax advertisements? 17 A Yeah, I'm sure he did. 18 Q All right. Do you know if that was part of 19 his job description? 20 A I don't know if that was part of his job 21 description. 22 Q Do you know what his job description was? 23 A No. 24 Q Okay. Do you know someone named Ahmed Sadiq? 25 Ahmed is spelled A-h-m-e-d, Sadiq is spelled S-a-d-i-q. ABRAMS, MAH & KAHN 53 1 A Yeah, he used to work for us. 2 Q Do you know where he works today? 3 A No. 4 Q Do you know when he was first hired by 5 Fax.com? 6 A No. 7 Q Do you know when he left Fax.com? 8 A No. 9 Q Do you know the circumstance under which he 10 left? 11 A No. 12 Q You mentioned before that Charles Martin, 13 Erwin Dass and Ahmed Sadiq no longer work at Fax.com. 14 And you recall that maybe, I think -- and 15 correct me if I'm wrong -- that, you know, you heard 16 about it maybe sometime this year; is that right? 17 A That's correct. 18 Q Did you hear about all of them leaving Fax.com 19 in the same conversation or meeting? 20 A I don't think so. 21 Q What do you think? 22 A I don't think so. 23 Q Do you know if they all left at the same time? 24 A I don't know that. 25 Q Do you remember who told you that they left? ABRAMS, MAH & KAHN 54 1 A No. 2 Q Was it a document maybe that was circulated 3 around Fax.com that is the basis of your knowledge? 4 A Could have been. 5 Q When was the last time that you were at the 6 old location for Fax.com, Aliso Viejo? 7 A About six months ago, seven months ago, I 8 don't recall exactly. 9 Q Okay. But that's your best guess; right? 10 A Probably. 11 Q I'm sorry? 12 A Yeah, I would say so. 13 Q Okay. When was the last time that you were at 14 the new office location for Fax.com? 15 A I don't remember. 16 Q Was it sometime this year? 17 A Yeah, probably a couple of weeks ago, 18 probably -- no, it couldn't be a couple of weeks ago. 19 Probably maybe -- maybe a week ago or so. 20 Q A week ago? 21 A When I got back, yeah. 22 Q When did you get back again? 23 A On Monday, last Monday. 24 Q Okay. When was the last time that you saw, 25 met or talked to Erwin Dass? ABRAMS, MAH & KAHN 55 1 A I really don't remember. 2 Q Could it have been sometime this year? 3 A It was probably this year. 4 Q When was the last time you saw, met or talked 5 to Ahmed Sadiq? 6 A Probably this year as well. I don't remember 7 the exact dates, no. 8 Q When was the last time you saw, met or talked 9 to Charles Martin? 10 A About the same. 11 Q Just so I'm understanding you correctly, the 12 last time you saw, met or talked to either Erwin Dass, 13 Ahmed Sadiq or Charles Martin, was that all about the 14 same time, the last time that you talked to any of those 15 three people? 16 A Yeah, I think so. I think it was the same 17 time, but I don't remember when. 18 Q Have you talked to Charles Martin within the 19 last month? 20 A I don't think so. 21 Q Do you think you've talked to him within the 22 last week? 23 A No. 24 Q Do you think you've talked to Erwin Dass 25 within the last month? ABRAMS, MAH & KAHN 56 1 A I don't think so. 2 Q What is the knowledge that -- what are the 3 facts that are the basis of your belief that you don't 4 think you talked to him? 5 A Just from my recollections, best as I can. 6 Q Okay. When was the last time you talked to 7 Eric Wilson? 8 A Probably this week at some point. 9 (Brief interruption in the proceedings.) 10 (A recess was taken.) 11 Q BY MR. LEUNG: Mr. Katz, do you know anyone 12 named Clayton Wagner? 13 A Yeah, I think he used to work at Fax.com. 14 Q Do you know when he left Fax.com? 15 A No. 16 Q Do you know in what capacity he was employed 17 at Fax.com? 18 A Something technical. 19 Q Okay. Do you know when he left; was it 20 sometime this year? 21 A I don't know. I really don't know. 22 Q When is the last time you spoke with Clayton 23 Wagner? 24 A I have no idea. 25 Q What's your best guess? ABRAMS, MAH & KAHN 57 1 A A year ago maybe. 2 Q A year ago? 3 A It could be. 4 Q Was that when he was still employed at 5 Fax.com? 6 A Probably would have had to be, yeah. 7 Q Why do you say "had to be"? 8 A Because that's the only way I would have 9 spoken to him, I guess, when he was an employee. 10 Q Do you know where he's working now? 11 A No. 12 Q Okay. Do you know someone named Alicia Gaut, 13 I'm not sure if I'm saying the last name right, but it's 14 spelled G-a-u-t? 15 A Yeah, I've heard that name, I know who she is. 16 Q Who is she? 17 A She used to work at Fax.com. 18 Q You know, it sounds like a lot of people left 19 Fax.com. Do you know where they are working today, any 20 of the people that we've gone over already, Erwin Dass, 21 Ahmed Sadiq, Clayton Wagner, Alicia Gaut? 22 A I kind of lost touch, I mean I've been away 23 for a long time. 24 Q Could you get in touch with these people if 25 you wanted to? ABRAMS, MAH & KAHN 58 1 A With some difficulty I probably could. 2 Q Why would it be difficult to get in touch with 3 these people? 4 A Well, unless they are listed in the telephone 5 book, it would be kind of hard. 6 Q When was the last time you spoke with Alicia 7 Gaut? 8 A I really don't know. 9 Q What's your best guess? 10 A Probably sometime in 2003, sometime this year. 11 Q Sometime this year. Was it within the last 12 six months? 13 A I don't think so. 14 Q Was it when you were in South Africa? 15 A I wouldn't have spoken to her from South 16 Africa. 17 Q Okay. Was it within the last week? 18 A No. 19 Q Okay. Do you remember what you spoke to her 20 about? 21 A No. 22 Q Do you remember the last time that you were 23 contacted by her? 24 A No. 25 Q Was it sometime this year? ABRAMS, MAH & KAHN 59 1 A I don't think I've ever been contacted by her. 2 Q You've always contacted her? 3 A She used to work at Fax.com, I used to see her 4 occasionally. 5 Q Okay. Do you know when she started working at 6 Fax.com? 7 A No. 8 Q Do you know when she left Fax.com? 9 A No. 10 Q Do you know someone named Shad Wicker, first 11 name spelled S-h-a-d, Wicker spelled W-i-c-k-e-r. 12 A Yeah. 13 Q How do you know Shad Wicker? 14 A Shad worked for Fax.com at some point. 15 Q Do you remember when he started? 16 A No. 17 Q Do you know when he left? 18 A No. 19 Q How do you know that all these people stopped 20 working for Fax.com? 21 A Because they are not there anymore. 22 Q And the last time that you went to Fax.com -- 23 how do you know they are not there anymore? 24 A Well, the location closed down. 25 Q When did it close down? ABRAMS, MAH & KAHN 60 1 A I don't remember. You told me it closed down, 2 we moved or -- 3 Q You told me that -- I think your attorney 4 explained that it moved 5 A Uh-huh. 6 Q I didn't realize that it had closed down. 7 A Well, the location closed down. 8 Q When did that location close down? 9 A I don't know the date. 10 Q Did it close down at or about the same time 11 that Fax.com moved to the new location? 12 A I really don't know. 13 Q Okay. Do you know someone named Corey 14 Bogardus, last name spelled B-o-g-a-r-d-u-s? 15 MR. CASELLO: Hold on a second. 16 MR. LEUNG: Sure. 17 MR. CASELLO: I'm sitting here trying to be patient, 18 but I believe the scope of this deposition is the 19 identity of new entities that are faxing. Are we going 20 to go through every employee at Fax.com? And if so, how 21 is that possibly within the ambit of this deposition? 22 If you can explain it to me, I will sit here patiently 23 and listen, but I'm having a hard time understanding. 24 You've got all these people's identities that 25 you got here in the record. If they are faxing, then ABRAMS, MAH & KAHN 61 1 you can sue them. But how do these people's names have 2 anything to do with what the judge said we could talk 3 about here today? 4 MR. LEUNG: I can give you my best explanation. My 5 explanation is that these people are now working for new 6 entities that are in the business of fax broadcasting. 7 MR. CASELLO: Okay? Assume that's true. 8 MR. LEUNG: The new entities that Fax.com reportedly 9 split itself up into. 10 MR. CASELLO: Okay. 11 MR. HIMMELSTEIN: Which is the subject of the 12 deposition. 13 MR. CASELLO: The identity of the companies. You've 14 already got the identities of the companies that you're 15 asserting. You can ask this man are there any other 16 entities out there that you guys don't already know 17 about that you may want to include in this lawsuit. I 18 think that's perfectly permissible. But the identity of 19 entities you already know is not something we need to 20 waste time on. 21 If these are folks that you want to sue, 22 you've got their identity, do it, I can't stop you. If 23 you think they are violating the TCPA, then go ahead. 24 But I mean I'm trying to be patient here, but I don't 25 see how where Fax.com employees went has anything to do ABRAMS, MAH & KAHN 62 1 with what the judge opened up in terms of discovery 2 unless there are some entities you guys don't know 3 about. And certainly you can ask him about that. 4 MR. LEUNG: That's what we are trying to find out. 5 MR. HIMMELSTEIN: They are working upstairs doing 6 the same thing they were doing just under a different 7 name. There is a different name on the door and we're 8 going to make a record and establish that so we can 9 enjoin them from doing this. 10 MR. CASELLO: Okay. 11 MR. HIMMELSTEIN: And if Mr. Katz doesn't know and 12 he wants to testify to that, then I can't stop him. But 13 I find it hard to believe he doesn't know the same guys 14 working in his office are now working next door doing 15 exactly the same thing with exactly the same people. 16 MR. CASELLO: How does that identify the entity 17 though? 18 MR. HIMMELSTEIN: If you want to stipulate to the 19 truth of everything in the Wire.com article, maybe we 20 can shorten this deposition. 21 MR. CASELLO: No. All I'm saying is the purpose of 22 opening up the discovery was identity of new entities 23 that are faxing, which is what I understood the judge 24 said you were entitled to go into. And that's why I 25 brought Mr. Katz today and told him you have to answer ABRAMS, MAH & KAHN 63 1 any question you ask him about what he knows about 2 entities that are faxing. 3 But we're talking about his former employees 4 and Fax.com former employees, and I would think the 5 scope should be ask him if there are any entities not 6 mentioned that he is aware of that are faxing that any 7 of his former employees went to work for. I think you 8 are entitled to ask those questions. 9 MR. HIMMELSTEIN: An junction, preliminary 10 injunction typically restrains the parties to the 11 litigation or named in the lawsuit, those acting in 12 concert with them. We are trying to establish that 13 these other people are continuing to act in concert with 14 Mr. Katz and are therefore subject to this injunction. 15 Now, he can deny anything that he doesn't 16 think is true, but that doesn't mean we can't ask, 17 "Isn't there this guy Eric Wilson who did own -- who 18 owns all the faxcasters now, who used to be your vice 19 president, and you're now doing business with him and 20 you're sending the faxes through him and he's located 21 right upstairs?" 22 I call that acting in concert, I want to make 23 an evidentiary record of that. 24 MR. CASELLO: Did you get him? 25 THE REPORTER: Yes. ABRAMS, MAH & KAHN 64 1 MR. CASELLO: Okay. That's not what the judge 2 opened up. The discovery for -- he just opened it as to 3 the identity of new entities. 4 MR. LEUNG: Let's call the judge and find out. 5 MR. CASELLO: Okay. Go ahead. 6 (Brief interruption in the proceedings.) 7 MR. HIMMELSTEIN: Okay. Before we do, are you 8 instructing him not to answer or are you just expressing 9 a concern? 10 MR. CASELLO: Right now I am expressing a concern. 11 (Counsel are speaking simultaneously.) 12 THE REPORTER: Wait a minute. 13 MR. HIMMELSTEIN: When you instruct not to answer, 14 we'll call the judge. 15 MR. CASELLO: We'll probably get there soon, so go 16 ahead. 17 Q BY MR. LEUNG: I think the last question was 18 do you know anyone named Corey Bogardus? 19 A No. 20 Q Okay. Do you know anyone named Brenda 21 Mooreland? 22 A The name is vaguely familiar. I'm not sure. 23 Q Do you remember the last time you talked to 24 her? 25 A I don't know if I did or not. The name seems ABRAMS, MAH & KAHN 65 1 familiar, that's about it. 2 Q Do you know someone named Anthony Bak, the 3 last name is spelled B-a-k? 4 A Yeah, he used to work at Fax.com. 5 Q Does Fax.com operate under a different name 6 now? 7 A No. 8 Q Okay. How many employees are there at Fax.com 9 now? 10 A I don't recall exactly how many are left. I 11 don't know. 12 Q Can you count them on one hand? 13 A I told you I can't recall. I don't know at 14 this point. 15 Q Okay. Do you know how many employees stopped 16 working at Fax.com as of this year? 17 A No. 18 Q You don't know? 19 A No idea. 20 Q Okay. Do you know anyone named Howard Lee, 21 L-e-e? 22 A Yeah, I know Howard Lee. 23 Q How do you know him? 24 A He used to work at Fax.com. 25 Q Do you know when he stopped working at ABRAMS, MAH & KAHN 66 1 Fax.com? 2 A No. 3 Q Do you know where he's working today? 4 A No. 5 Q Do you know if, in fact, he's working? 6 A I would have no idea. 7 Q Okay. Do you know anyone named Annie Garcia 8 or Ann Garcia? 9 A No. 10 Q Okay. Do you know anyone named Kelly 11 Rasmussen, her last name is spelled R-a-s-m-u-s-s-e-n? 12 A I know who Kelly is, yes. 13 Q How do you know Kelly? 14 A Kelly was an employee of Fax.com. 15 Q Does she work at Fax.com anymore? 16 A I don't believe so. I'm not sure though. 17 Q Okay. What's the basis of your belief that 18 Kelly no longer works at Fax.com? 19 A I just haven't seen her for a while, so I 20 don't know. 21 Q Okay. Could she still be working at Fax.com? 22 A Could be. 23 Q Okay. Do you know someone named Larry 24 Burnett, last name is spelled B-u-r-n-e-t-t? 25 A Yeah. ABRAMS, MAH & KAHN 67 1 Q How do you know Larry, Mr. Burnett? 2 A He's a South African friend of mine I've known 3 for years. 4 Q Did he work at Fax.com? 5 A Yes. 6 Q Does he still work at Fax.com? 7 A No. 8 Q Do you know where he works? 9 A No. 10 Q When is the last time you spoke with Larry 11 Burnett? 12 A Maybe three, four months ago maybe. 13 Q Do you know where he lives today? 14 A No. 15 Q Do you know someone named Natalie Cerrini, her 16 last name is spelled C-e-r-r-i-n-i? 17 A Yeah, I heard that name. 18 Q Do you know in what context you heard that 19 name? 20 A I think she used to work at Fax.com. 21 Q Does she still work at Fax.com? 22 A I don't believe so. 23 Q When was the last time you spoke to her? 24 A I don't think I've ever spoken to her. 25 Q Do you know someone named Shane Miller? ABRAMS, MAH & KAHN 68 1 A No. 2 Q Do you know anyone named Samantha Omar? 3 A That's not familiar. 4 Q I'm sorry? 5 A No, I don't know who she is. 6 Q Okay. Do you know someone named Frank 7 Frappier, the last name is spelled F-r-a-p-p-i-e-r? 8 A Yeah. 9 Q How do you know Mr. Frappier? 10 A He used to work -- he worked -- he either 11 works at Fax.com or used to work there. 12 Q Okay. Do you know how long he worked there? 13 A No. 14 Q Do you know when he started? 15 A No. 16 Q Do you know where he's working today? 17 A I don't know. 18 Q Do you remember the last time you spoke to 19 him? 20 A I don't know. I don't recall the last time I 21 spoke to him. 22 Q Was it this year? 23 A Could have been. 24 Q Okay. Do you know someone named Jeremy 25 Barnett, B-a-r-n-e-t-t? ABRAMS, MAH & KAHN 69 1 A Jeremy, yeah. I don't know. 2 Q What was the last part you said? 3 A Jeremy, I think he works for Fax.com or he 4 used to work for Fax.com. 5 Q Okay. Can you be sure one way or the other 6 whether he's working for Fax.com? 7 A I couldn't be sure right now. 8 (A discussion was held off the record.) 9 Q BY MR. LEUNG: I didn't understand your 10 answer. Do you know someone named Jeremy Barnett? 11 A Yes. 12 Q Does he work at Fax.com? 13 A I can't be sure if he is still working there 14 or not. 15 Q The last time you were at Fax.com, the old 16 office, who did you see there? 17 A I really don't remember. I don't remember 18 when I was last there. 19 Q I think you mentioned earlier maybe you were 20 there six or seven months ago. 21 A Could have been. 22 Q Okay. And the last time that you were at the 23 new Fax.com location in Costa Mesa, do you remember who 24 you saw there? 25 A No. I was there after hours, so I don't think ABRAMS, MAH & KAHN 70 1 anybody was there. 2 Q You're not sure if there was anybody there? 3 A I don't think so. 4 Q You don't think so? 5 A No. 6 Q What were doing there after hours? 7 A I went to see if there was any mail. 8 Q Anything else? 9 A No. 10 Q Do you know someone named Christina Gonzales, 11 the last name is spelled G-o-n-z-a-l-e-s? 12 A No. 13 Q Do you know someone named Dan Sharkey, the 14 last name is spelled S-h-a-r-k-e-y? 15 A No. 16 Q Do you know someone named Stan Gibson? 17 A No. 18 Q Do you know someone named Jimmy Horvat, the 19 last name is spelled H-o-r-v-a-t? 20 A Yeah. 21 Q How do you know Mr. Horvat? 22 A Jimmy used to work for Fax.com. 23 Q Do you know when he started at Fax.com? 24 A No. 25 Q Do you know when he stopped working at ABRAMS, MAH & KAHN 71 1 Fax.com? 2 A No idea. 3 Q Was it sometime this year? 4 A Could have been. 5 Q Okay. Do you know why any of these people 6 would leave Fax.com, why they left Fax.com? 7 A No idea. 8 Q Okay. Do you remember the last time you spoke 9 with Mr. Horvat? 10 A No idea. 11 Q Okay. Any time this year? 12 A (No audible response.) 13 Q For any of the people we've talked about so 14 far -- I realize this is a pretty big list -- do you 15 remember whether they quit or were fired or laid off; do 16 you know anything about the circumstances under which 17 they stopped working at Fax.com? 18 A Probably a combination of all. That's when 19 people normally stop working, they either quit, fired, 20 do something else. 21 Q Has Fax.com laid off any employees within the 22 last year? 23 A What do you mean "laid off"? 24 Q I mean that they were asked not to come to 25 work at Fax.com anymore until further notice. ABRAMS, MAH & KAHN 72 1 A I don't believe that happened. 2 Q Were there any employees at Fax.com that were 3 let go because of the downsizing? 4 A Probably, but I don't know, I wasn't involved. 5 Q Do you know whether Fax.com helped these 6 people who left to find new jobs? 7 A I don't know if they did or didn't. 8 Q How did you find out that all these people 9 left Fax.com? 10 A I just heard through conversation. 11 Q Does that concern you, that all these people 12 left Fax.com? 13 A Not really. 14 Q Why is that? 15 A Well, read the document. 16 Q Which document is that? 17 A All the lawsuits probably scared them off. 18 Q Do you know someone named Allen Hennessey, the 19 last name is spelled H-e-n-n-e-s-s-e-y? 20 A No. 21 Q Do you know someone named Frank Montoya? 22 A No. 23 Q Do you know someone named Vernon Butler? 24 A No. 25 Q Do you know someone named John Harris? ABRAMS, MAH & KAHN 73 1 A No. 2 Q Do you know someone named Leo Johnson? 3 A No. 4 Q Do you know someone named Randy Thomason? 5 A Yes. 6 Q How do you know Mr. Thomason? 7 A Randy worked for Fax.com. 8 Q Do you know how long he worked for Fax.com? 9 A No. 10 Q Do you know when he left Fax.com? 11 A No. 12 Q Do you know where he's working today? 13 A No. 14 Q Do you remember the last time you spoke with 15 Mr. Thomason? 16 A No. 17 Q Do you know the circumstances under which he 18 left Fax.com? 19 A No, I don't. 20 Q Do you know whether he was laid off or let go? 21 A I don't know. 22 Q Do you know someone named Keanne Kraft, Keanne 23 is spelled K-e-a-n-n-e, Kraft is spelled K-r-a-f-t? 24 A Yes, I know who she is. 25 Q How do you know her? ABRAMS, MAH & KAHN 74 1 A Keanne used to work for Fax.com or still works 2 for Fax.com, I'm not sure. 3 Q How can you be certain that some people work 4 for Fax.com and some people still do not? 5 A I'm not certain on anything in terms of 6 whether they do or they don't. 7 Q Is it your practice usually to not keep track 8 of whether employees come and go at Fax.com -- 9 A I've been out of the country most of this 10 year. 11 Q Who has been running Fax.com in your absence? 12 A For the most part, probably Eric's been 13 running the day to day. 14 Q Who else has been running it? 15 A I'd say Eric is really the one in charge. 16 Q Were you running any aspects of Fax.com while 17 you were out of the country? 18 A Not really. 19 Q What do you mean by "not really"? 20 A I would talk to Eric from time to time, he'd 21 ask me some advice on certain things, but that was about 22 it. 23 Q Do you know someone named Ryan Madarin, the 24 last name is spelled M-a-d-a-r-i-n? 25 A No. ABRAMS, MAH & KAHN 75 1 Q Do you know someone named Craig Peterson? 2 A No. 3 Q Okay. Do you know someone named Joe Garson? 4 A Yes, I know Joe. 5 Q How do you know Mr. Garson? 6 A I met him a few years ago through a friend. 7 Q Do you remember which friend you met him 8 through? 9 A No. 10 Q Do you know how many years ago it was that you 11 met him for the first time? 12 A I don't know exactly, no. 13 Q Did you have any sort of business 14 relationships with Mr. Garson? 15 A No. 16 Q Do you still keep in contact with Mr. Garson? 17 A I speak to him occasionally. 18 Q When was the last time you spoke to him? 19 A I don't know exactly. Maybe this year 20 sometime. 21 Q Do you remember what you spoke to him about? 22 A I think we spoke about skiing. 23 Q Skiing? 24 A Yeah, snow skiing. 25 Q Did you ever talk to him about Fax.com? ABRAMS, MAH & KAHN 76 1 A No. 2 Q Did you ever talk to him about fax 3 broadcasting? 4 A No. 5 Q Did you ever talk to him about setting up a 6 new company to buy faxcasters? 7 A No. 8 Q Did you ever talk to him about setting up a 9 new company to buy super faxcasters? 10 A No. 11 Q Do you understand what I'm talking about when 12 I say "super faxcasters"? 13 A Just what you asked me earlier. 14 Q Which was? 15 A The difference between a faxcaster and a super 16 faxcaster. 17 Q What's the difference? 18 A I didn't think there was a difference. 19 Q So you've heard the term super faxcaster 20 before? 21 A I haven't heard that term before. You brought 22 it up for the first time earlier. 23 Q Okay. Do you know where Joe Garson lives? 24 A No. 25 Q Do you know if he lives in California? ABRAMS, MAH & KAHN 77 1 A I don't know where he lives. 2 Q How do you get in touch with Joe Garson when 3 you want to? 4 A I call him on the telephone. 5 Q Okay. Do you know any other companies that 6 Eric Wilson owns or operates? 7 A No. 8 Q Have you heard of the company called Database 9 Logistics? 10 A No. 11 Q Do you know whether Eric Wilson owns this 12 company or not? 13 A I have no idea. 14 Q Do you know who Robert Battaglia is, the last 15 name is spelled B-a-t-t-a-g-l-i-a? 16 A No. 17 Q Do you know who Dennis Habgood is, the last 18 name is spelled H-a-b-g-o-o-d? 19 A I've heard of Dennis, yeah. I know Dennis, 20 yes. 21 Q How do you know Dennis? 22 A Dennis, I believe, worked at Fax.com. 23 Q Does he still work at Fax.com? 24 A I don't think so. 25 Q Do you know what he did at Fax.com? ABRAMS, MAH & KAHN 78 1 A He was something technical from what I can 2 gather. 3 Q When you say "something technical," what do 4 you mean? 5 A I really don't know. I never handled that 6 part of the business. 7 Q Which part of the business are you talking 8 about? 9 A The technical part. 10 Q At Fax.com, is it called the technical side of 11 the business? 12 A That's what I call it. 13 Q I'm sorry, because I'm unclear how your 14 company is run. What do you mean by technical side of 15 the business, what would fall into -- 16 A I guess technical is anything to do with 17 computers. 18 Q Okay. 19 A Phones, that type of thing. 20 Q Okay. 21 A Electronic equipment. 22 Q Do you know who else was involved in the 23 technical side of the business at Fax.com? 24 A Eric Wilson was the one that used to handle 25 that. ABRAMS, MAH & KAHN 79 1 Q Anyone else? 2 A No, I think he was the one. 3 Q That was it, just those two? 4 A Well, Eric may have had people working in his 5 department. I'm not sure who they were. 6 Q Okay. What are the other sides of Fax.com 7 aside from the technical side? 8 A There was a sales department. 9 Q Who handled or ran the sales department? 10 A There was Jeff Dupree was our V.P. of sales 11 for a time. 12 Q Does he still work at Fax.com? 13 A No, I think he left. 14 Q Who runs it today, the sales department at 15 Fax.com I mean? 16 A There is no longer a sales department at 17 Fax.com really. 18 Q Okay. Who does the sales at Fax.com? 19 A I'm not sure who does it right now. There's a 20 few of us left, we just take care of it. 21 Q Who is the "few of us left" at Fax.com? 22 A Myself and Eric. 23 Q Am I correct in understanding that there are 24 only two employees left at Fax.com -- 25 A There are some others. I don't know who they ABRAMS, MAH & KAHN 80 1 are, I've been away for a long time. There's probably a 2 bunch of other people there. As I said, Eric would 3 probably know who they were. 4 Q Okay. Do you know where Jeff Dupree is 5 working today? 6 A No. 7 Q Do you know why he left? 8 A No. 9 Q Do you know the circumstances under which he 10 left? 11 A No. 12 Q Do you know whether he left this year or not? 13 A I don't know. I don't know if he left this 14 year or not. 15 (To Mr. Casello.) Are we going to go through 16 every single person who worked at Fax.com? It could be 17 500 people. 18 MR. CASELLO: Hold on a second. Are we getting 19 close to being done with the list? 20 MR. LEUNG: I don't think so. I'd have to check my 21 notes. 22 MR. CASELLO: Because if you have like a list, what 23 we can do is show it to him and say "Of these people, 24 who is still there?" 25 MR. LEUNG: I'm sorry, it's intertwined with my ABRAMS, MAH & KAHN 81 1 notes. 2 MR. HIMMELSTEIN: Let's take a one-minute break here 3 and he can check his notes and then he'll respond to the 4 question. 5 THE WITNESS: I mean, in five years -- 6 MR. HIMMELSTEIN: We're not asking about everybody 7 that worked at Fax.com. 8 MR. LEUNG: Right. 9 (Brief interruption in the proceedings.) 10 MR. CASELLO: While you are looking, I'm going to 11 visit the boys' room. 12 (A recess was taken.) 13 Q BY MR. LEUNG: Do you know someone named Shari 14 Odenheimer, Shari is spelled S-h-a-r-i, Odenheimer -- 15 A Yes. 16 Q How do you know her? 17 A She was an attorney of ours. 18 Q When did she stop being your attorney? 19 A I don't remember exactly when they stopped 20 representing us. 21 Q Was this in conjunction with David Felsenthal? 22 A She worked with David, yeah. David would 23 know. 24 Q Do you remember when she first became 25 Fax.com's attorney? ABRAMS, MAH & KAHN 82 1 A No. 2 Q Since she stopped working for Fax.com, has she 3 done any sort of work for you? 4 A No. 5 Q Okay. Do you know someone name Tanya Parks? 6 A No. 7 Q I'm sorry? 8 A No, I don't. 9 Q You don't. Okay. 10 Do you know someone named Dan Freeman? 11 A No. 12 Q Do you know someone named Leanne Joslyn, 13 Leanne is spelled L-e-a-n-n-e, Joslyn is spelled 14 J-o-s-l-y-n? 15 A No. 16 Q Do you know someone named Ken Hayes, 17 H-a-y-e-s? 18 A No. 19 Q Do you know someone named Eric Zuleta, 20 Z-u-l-e-t-a? 21 A No, I don't. 22 Q Do you know someone named Christine Lumia, 23 L-u-m-i-a? 24 A No. 25 Q And you don't know anyone named Robert ABRAMS, MAH & KAHN 83 1 Battagliz; is that right? 2 A No. 3 Q Do you know someone named Daryl Smiley, 4 S-m-i-l-e-y? 5 A Daryl? Yes, I know Daryl Smiley. 6 Q How do you know him? 7 A Daryl used to work -- works at Fax.com or used 8 to work there. 9 Q Do you know whether or not he works at 10 Fax.com? 11 A I don't know if he does or doesn't anymore. 12 Q Do you know someone named Laura Smiley? 13 A Yes. 14 Q All right. How do you know her? 15 A Laura used to work at Fax.com or still, she 16 may still be there. I knew her from Fax.com days. 17 Q Okay. Do you know someone named Ryan Martin? 18 A No. 19 Q Okay. Have you heard of a company called 20 Patriot Communications? 21 A Yes, I've heard of Patriot Communications. 22 Q How have you heard about them? 23 A I think we used to do business with them a 24 while back. 25 Q Do you know anyone who worked -- do you know ABRAMS, MAH & KAHN 84 1 anyone who works at Patriot Communications or has worked 2 at Patriot Communications? 3 A I don't really remember names. I don't 4 remember who we used to speak to there. 5 Q Do you remember what sort of business Fax.com 6 had with Patriot Communications? 7 A No, I just know we used to do some business 8 with them. I can't remember exactly -- I don't remember 9 exactly what it was though. 10 Q Do you know what it is that they do? 11 A No. 12 Q Do you think it would be related to fax 13 broadcasting? 14 A I don't think they were a competitor, if 15 that's what your question is. I don't think they were. 16 Q Do you think they were doing work for Fax.com? 17 A I think they could have been. 18 Q Okay. Do you know when they stopped working 19 for Fax.com? 20 A No. 21 Q Do you know who Dennis Holt is? 22 A No, I can't recall. 23 Q Do you know someone named Doug Livingston? 24 A Yeah, that name seems familiar. 25 Q Do you know how you might know Doug ABRAMS, MAH & KAHN 85 1 Livingston? 2 A I think he could have been a contact at 3 Patriot. 4 Q Okay. I think I may have asked you this, but 5 do you know someone named Richard Lamarre, 6 L-a-m-a-r-r-e? 7 A No. 8 Q Okay. Do you know a company called Marketing 9 Source One or Marketing Source One, Incorporated? 10 A No. 11 Q Do you know a company called Wholesale LD, 12 Incorporated? 13 A No. 14 Q Do you know someone named Gregory Serber, the 15 last name is spelled S-e-r-b-e-r? 16 A No. 17 Q Do you know someone named -- I think you 18 mentioned this -- do you know someone named Neil Lipsky? 19 A Yeah, that name is familiar. 20 Q How do you know that name? 21 A I think he was a client of ours a number of 22 years ago or still could be a client, I don't know. 23 Q So you're unsure whether he's a past client or 24 an actual present client? 25 A Yeah, I'm not sure if he's still with us, but ABRAMS, MAH & KAHN 86 1 that name is familiar to me. 2 Q Did he do work for Fax.com? 3 A I don't know if he did work or he was a 4 client, I just recognize the name. 5 Q Do you know what kind of work he might have 6 done for Fax.com? 7 A No. 8 Q Do you know a company called Inbound Calls, 9 Incorporated? 10 A I've heard that name as well, yeah. 11 Q Do you know who owns that company or owned 12 that company? 13 A No. 14 Q Do you know anyone who was a part of that 15 company? 16 A No. 17 Q Do you know someone named Gary Anzaroot? 18 A That name sounds familiar. I think -- didn't 19 you mention him earlier maybe? 20 Q I mentioned the company Anzaroot and Miller. 21 A Okay. That's what it is. Yeah, I've heard of 22 that name as well. 23 Q So you've heard of both the company and the 24 name? 25 A I heard Gary, when you said Gary, from before ABRAMS, MAH & KAHN 87 1 when you mentioned it. 2 Q Okay. 3 A Yeah. 4 Q Do you know Gary Anzaroot? 5 A I think I know who he is, yeah. 6 Q How do you know him? 7 A I think we have done business with him before. 8 I can't remember exactly how or what, but the name just 9 seems familiar when you mentioned it with that first 10 name Gary. 11 Q Do you know what sort of business you did with 12 Gary Anzaroot? 13 A No, I don't remember. 14 Q Do you know Allen -- do you know a person 15 named Allen Miller? 16 A No. 17 Q Okay. Do you know whether or not Anzaroot and 18 Miller, Incorporated has ever done any sort of work for 19 Fax.com? 20 A I really don't know. The name just seems 21 familiar, Gary Anzaroot. 22 Q Have you heard of a company called U.S., open 23 parens, Voice, close parens, Mail and Fax Service? 24 A No. 25 Q Okay. Do you know someone named Eric Brenner? ABRAMS, MAH & KAHN 88 1 A No. 2 Q Do you know a company called -- we actually 3 went over this already. 4 Do you know a company called Biltong Guy, 5 Incorporated, Biltong is spelled B-i-l-t-o-n-g, Guy is a 6 separate word? 7 A Yeah, I know Biltong Guy. 8 Q How do you know Biltong Guy? 9 A It was my friend Larry's company. 10 Q Larry who? 11 A Larry -- his name is Larry Burnett. 12 Q Okay. Was there anyone else that was involved 13 with that company? 14 A No. Well, I don't know. I mean -- 15 Q Okay. Do you know who worked for that 16 company? 17 A I assume Larry did. 18 Q Yeah. Do you know anyone who -- I think maybe 19 my last question to you was unclear, I think my last 20 question to you -- two questions ago. It was unclear to 21 me. 22 Do you know who owns Biltong Guy? 23 A No, I have no idea who owns it. 24 Q Do you know -- I think you mentioned before 25 that Larry owns at least part of it? ABRAMS, MAH & KAHN 89 1 A The reason I mentioned Larry is because I used 2 to buy biltong from him. That's the reason I know that. 3 Q When was the last time you bought biltong from 4 Larry? 5 A Probably nine, 10 months ago, 12 months ago. 6 Q When was the last time you spoke with Larry 7 Burnett? 8 A I don't remember. 9 Q Was it sometime this year? 10 A Yeah, it was definitely this year, he was a 11 friend of mine. 12 Q Okay. Does he still work at Fax.com? 13 A I don't believe so, no. 14 Q Okay. Do you know where Biltong was located? 15 A No. 16 Q What does Eric Wilson do at Fax.com? 17 A He's -- Eric is the technical guy, he handles 18 all the technical parts of our business. 19 Q When you have conversations with him about the 20 business -- let me withdraw that. 21 Did you talk with Eric at all about the 22 downsizing of Fax.com? 23 A Yeah, we discussed a lot of things, I mean we 24 talked about everything. 25 Q Okay. Did you talk about the downsizing at ABRAMS, MAH & KAHN 90 1 Fax.com? 2 A We may have. 3 Q Did you talk about -- do you remember when 4 that conversation occurred? 5 A No, I don't remember. 6 Q When did the downsizing at Fax.com occur? 7 A I think it was just a natural attrition versus 8 some master plan. 9 Q Do you remember the last -- do you remember 10 when the last conversation you had with Eric Wilson was 11 about the downsizing at Fax.com? 12 A No, I don't remember. I don't remember every 13 conversation I've had with him. 14 Q When you say natural attrition, does that 15 include Fax.com laying people off or firing people or 16 outsourcing any other functions that it previously did 17 before? 18 A No, not necessarily. 19 Q What does it mean to you? 20 A Attrition is basically Fax.com has lost a lot 21 of its business in the last year because of all the 22 lawsuits. 23