Transcript of Hearing 1.18.13

7/28/2019 Transcript of Hearing 1.18.13

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IN THECOURTOFCOMMON PLEASOF LUZERNECOUNTY

PENNSYLVANIA

SUNANCE VACATIONS, INC.,Plaintiff,

ALBERTWHITEHEAD,Defendant

CIVIL ACTION

NO. 8006 of

TRANSCRIPTOF PROCEEDINGS

BEFORE:The Honorable Fred W. Pierantoni, III, J.

Courtroom No. 5LuzerneCounty Court House

200North River StreetWilkes-Barre, Pennsylvania 18711-1001Commencing Friday, January 1 8 t h , 201 2

APPEARANCES:

DONNAWALSH, Esq.ForThePlaintiff

MATTHEW J. CARMODY, Esq.For TheDefendant

2012

COPY


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INDEXTOWITNESSES

PLAINTIFF'SWITNESSES DIRECT CROSS REDIRECT RECROSS

Dennis Dean Cheng 11John M. Downs 38 John Dowd 42 44 _


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1 THE COURT: We have Plaintiffs petition,2 emergency petition for contempt sanctions and for3 order compelling compliancewith October 23rd, 20124 amended order. Correct?5 MS. WALSH: Thafs right, Your Honor.6 THE COURT: Letme just have the introduction7 ofcounsel for the record.8 MS. WALSH: Donna Walsh for Sundance9 Vacations, Your Honor.10 MR. CARMODY: Mat Carmody for the Defendant,11 AlbertWhitehead.12 THE COURT: AttorneyWalsh.13 MS. WALSH: Your Honor, we moved for sanctions14 as a result ofMr. Whitehead'swiiiflii failure to16 comply with Your Honor's October 23rd preliminary16 Injunction which barred him from in any way posting17 messages in any online forums relating to Sundance18 Vacations, and also compelled him to cooperate with19 Sundance Vacations In removing a page on Facebook20 called Boycott Sundance Vacations.21 By way ofbackground. Judge, there was an22 employment discrimination case that began in 200423 that resulted in a settlement agreement in February24 of 2007. Pursuant to that agreement Mr. Whitehead26 promised he would never again post In any fashion

1 We sent a draft letter to Mr. Whitehead's2 counsel asking that he send that letter to Facebook3 asking them to take down the page and theyhave4 blatantly refused todo that.5 THE COURT: Was that the November 1st letter6 attached toyour petition?7 MS. WALSH: Therewere two letters,Your8 Honor, October 24th and November 1st.9 THE COURT: Theywere prepared byyour office10 and not sent as far as you know?11 MS.WALSH: Correct, Your Honor.12 THE COURT: You maycontinue.13 MS. WALSH; So that's the first area in which14 there's been a violation ofYour Honor's order. In15 addition to that, Judge, Mr. Whitehead has refused16 to take any action to remove posts that he made on17 other Internet sites. For example, we'veconfirmed18 that he's posted on three blog spots using false19 names. We've confirmed that through discovery and20 Mr. Whitehead refuses to remove those posts.21 But the real kicker, Your Honor, is we've22 learned through discovery thatMr. Whitehead, after23 YourHonorordered him to stop posting, he began24 another false name. He began to administer the25 same BoycottSundance Vacations page using the

1 in any forumany messages in any way referencing2 Sundance Vacations.3 We filed this lawsuit in April of 20124 contending that he breached his obligations by5 administering a page on Facebook called Boycott6 Sundance Vacation, and we also brought a claim for7 tortious interference. Through the course of8 discovery we were able to confirm that Mr.9 Whitehead had administered the page using the false10 name John Flannagan, and that prompted us to move11 for a preliminary Injunction before Your Honor, and12 Your Honor entered, with the consent ofMr.13 Whitehead, the injunction on October 23rd again14 preventing him from posting -- prohibiting him from15 posting in any online forum and also requiring him16 to cooperatewith us in removing the Boycott17 Sundance Vacations page that he actively18 administered under the false name John Flannagan.19 Subsequent to that date, Your Honor, we20 discovered three things. First, Mr. Whitehead21 refuses and continues to refuse to cooperate with22 Sundance in removing the page. Your Honor clearly23 directed him onOctober 23rd that he is required to24 cooperate with Sundance to get the page down and he25 has refused.

1 false name Mary Smith. He did that fromOctober2 17th, 2012 continuing thereafter.3 We have witnesses here today that I would like4 to present thatwill verify and confirm thatMr.5 Whitehead is, in feet, Mary Smith; that he8 administered the Facebook page BoycottSundance7 Vacationsafter October 23rd, and that he continued8 to post messages on that page after that date in9 willful violation of the Court's order. So we have10 three witnesses, Your Honor, we would like to11 present testimony from concerning thesematters.12 THE COURT: Mr. Carmody.13 MR. CARMODY; Thank you. Your Honor. Just to14 try to address each issue that Plaintiffs counsel15 addressed. She mentioned In paragraph seven of her16 motion therewere three blogs that they found after17 the Court's order. These are the printouts of18 those blogs. As you could see, those blogs are19 March of '09, August of '09, and March of2010, two20 years afteryour October 2012 order. Those blogs21 on the last page will show that they were drafted22 or written by Dolores, who's been proven through23 discovery-24 THE COURT; Your position is these were25 before?

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1 MR. CARMODY: Correct. And those were by2 Doloreswho, discovery has shown, has been a3 display name that my client has used In thepast.4 Exhibit F of Plaintiff's motion shows that Dolores5 was a display name for [email protected], and6 for [email protected]. And ifyou look at7 Exhibit E ofthe motion, both8 [email protected] and [email protected] have9 both been deleted.

1 0 I'm not sure ifYour Honor is aware, but if1 1 you create an email account, goon the Internet and12 put a blog on the Internet, and subsequent to that13 you delete that email address, you can't go back14 and remove something from cyberspace. It's there15 permanently. Somy client has no ability to go16 back to a blog from 2009 and 2010 and remove them17 at this time.18 The next issue that Plaintiff's counsel has is19 with theBoycott page. As Your Honor isaware, we20 submitted an affidavit fromour client saying that21 he wasnot thecreator of that page, and because he22 is not the creatorof that page, he doesn't have23 the authority or the ability to take that down.24 THECOURT: Did you ever correspond with25 Facebook?

1 create it and therefore hedoesn't have the right2 or the authority to tell Facebookyou got to take3 this down. Frankly, hewould have been out of4 line.5 THE COURT: Out ofanabundance ofcaution,6 couldn't a letter have been sent?7 MR. CARMODY: We could send a letter if that's8 what you would like.9 THECOURT: I think If you sent a letter, even10 If Ithad no effect, at least youwould have11 complied more thoroughlywith the order.12 MR. CARMODY: Correct.13 THE COURT: Continue.14 MR. CARMODY: Third, the Plaintiff presents16 ExhibitsG, H and I, and she claims that-he16 Plaintiff claims that these exhibits identify my17 client, the Defendant, as the current administrator18 of the Facebook page.19 Ifyou takea look at these exhibits they20 don't say any of that. They identify a user name21 and they identify Facebook records, but they don't22 showwhat pages this person was on. Itdoesn't23 show~ it doesn't say he was an administratoror24 not an administrator. It says nothing. It just26 shows that thiswas a Facebook nameand he was

1 MR. CARMODY: No. I felt it was inappropriate2 for Plaintiffs counsel to send me a pre-drafted3 letter for me to sign and for me to send to4 Facebook. Ididn't think It was ethical onmy part5 tosubmit a letter that I knewnot to be true6 factually, based upon my client's representations,7 forme to send a letter to Facebook stating facts8 or allegations that I knew not to be trueand based9 uponmy client's representations I knew not to be10 true. Nothing in your court order ~11 THECOURT: Part of theorder from October12 23rd contains an entry that your client would13 cooperatewith Sundance in directing Facebook to14 remove the BoycottSundanceVacations page. Did15 you undertake any attempt to contact Facebook by16 yourown letter?17 MR . CARMODY: No. Respectfully, Your Honor,16 we disagreed with that portion of your order.19 THE COURT: You may disagreewith it, but it's20 anorder. Whatharmwould there have been tosend21 a letter?22 MR. CARMODY: The response to yourorderwas23 toget a sworn affidavit from our client saying24 that, Your Honor, I understand you made this part25 ofyour order, but the fact is that he didn't

1 logged in on Facebook. Itdoesn't say what pages2 hewas logged in on, andmost importantly,3 Plaintiff alleges in theirmotion that there were4 defamatory statementsmade, yet there isnot one6 defamatory statement made inany of the exhibits6 that they attached.7 Based on that, Your Honor, the motion lacks8 any evidence and, therefore, Plaintiff didn'tmeet9 their burden to sustain amotion for sanctions.10 THE COURT: You are prepared to offer11 testimony today?12 MS. WALSH: Yes, Your Honor.13 THE COURT: I could understand Mr. Canmody's14 concern about sending a letter to Facebook thatmay16 be composed byyour office, but if such a letter16 was forwarded to Facebook, would that solve the17 problem in any way for you?18 MS. WALSH: It would go toward solving the19 problem, Judge, but the real problem here is that20 Mr. Whitehead, once he's caught using one name, he21 Just changes his name. We caught him asJohn22 Flannagan so he became Mary Smith.23 THE COURT: Do you have any belief that he24 could direct Facebook to take any pagedown?25 MS. WALSH: I do,YourHonor, and wehave

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1 proofhere today that we'll establish that~ 1 University. Training there Included data management2 THE COURT: Did you discuss thatwith Mr. 2 analysis, computer networking, and advancedmathematics3 Carmody? 3 Q. Ca n you tell the Court, please, about your4 MR. CARMODY: We have discussed, not In great 4 work experience In the area of Information technology.5 detail, but we havediscusses It. 5 networking, and computer forensics?6 THE COURT: I will giveeverybody a 20-mlnute 6 A. Since about 1995 I've been employed In various7 recess todiscuss your differences. Ifthere still 7 positions that Indude themanagement, upkeep, development8 Is an Issue we'll come back and we'll take 8 ofcomputer Infrastructure. I have served asadvisorto9 testimony. 9 numerous Internet operations. I have served asHIPAA10 MS. WALSH: Thank you. Your Honor. 10 securityofficer formedical operations, and I have11 [Whereupon, after recess:] 11 performed forensic analysis for legal cases.12 THE COURT: I appreciate counsel's discussion 12 Q. Do you have any spedalized training In13 of thematter before coming back. 13 computer technology?14 MR. CARMODY: Your Honor, I spokewith my 14 A. I have attended numerous courses hosted by15 dient. In regards to your suggestion about 15 Access Data Corporation that makes forensic tools.16 submitting the letter to Facebook and requesting 16 Q. Your r^sum^ Identifies you as a security17 them to take the page down, he Is In agreement that 17 officer, that you served as security officer for a period of18 he would do that. I have exchanged that message 18 time in the go's at Clinical Laboratories. Can you describe19 with counsel. 19 that for the Court, please.20 THECOURT: Let's startwith that point. You 20 A. Part ofthat included the protection of health21 will send a letter on behalfof your client, your 21 information, data protection, and incident response and22 dlent will correspond with Facebook to undertake 22 Investigation.23 whatever he can. Understood? We'll have that done 23 Q. Did you have an opportunity to workwith law24 within five days. 24 enforcement?25 MR. CARMODY: Okay. 25 A. We have. As part of the HIPAA security

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THE COURT: AttorneyWalsh. 113

officer, as well as internal employee investigations, we2 MS . WALSH: Your Honor, we would call Dennis 2 worked with law enforcement.3 Cheng. YourHonor, If I could hand up a copy of 3 Q. Now you are the founder and you work at Two By4 our exhibits. 4 Two Solutions, correct?5 THE COURT: Proceed. 5 A. Correct.6 ..... 6 Q. What is the business ofTwo By Two Solutions?7 DENNISDEANCHENG, called as a witness on 7 A. Two By Two Solutions provides consulting8 behalf of the Plaintiff, having been duly sworn, 8 services for legal firms.9 was examined and testified as follows: 9 Q. How long have you worked in the field of10 10 information technologyworking In computer forensks?11 DIRECT EXAMNATION 11 A. Full-time since 1995.12 12 MS. WALSH: Your Honor, I'doffer Dennis Cheng13 BYMS.WALSH; 13 as an expert in the area of information technology.14 Q. Dennis, can you turn, please, to what's been 14 infrastructure and networking, as well as computer15 marked Exhibit R In the binder before you. 15 forensics.16 A. Sure. 16 THE COURT; Any voir dire, Mr. Carmody?17 Q. Can you tell us, please, whether that is a 17 18 true and correct copy of your curriculum vltae? 18 VORDIREEXAMNATION19 A. It is. 1920 Q. Canyou tell theCourt about your educational 20 BYMR. CftRMPPY?21 background, please. 21 Q. Mr. Cheng, we're here today -- a large bas is22 A. The relevant parts ofmy educational 22 of the daims here today are dealing with the Facebook23 background, I attended theUniversity ofMichigan Ann Arbor 23 website. What's your experiencewith Facebook In terms of24 for my undergraduate studying, among other things, computer 24 IT?25 science and advanced mathematics. Graduated Johns Hopkins 25 A. I am familiarwith Facebook's operation. Any

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1 claims that wewill be talking abouthere today I've tested. 1 Q. Can a person have more than one persona on2 As you know, Facebook Is a public company, secretive. Even 2 Facebook, ormore thanone name on Facebook?3 within Facebook somebodycan't say this is exactly how it 3 A. In practice, yes.4 behaves because ofsomething called A. B. Testing, which I'm 4 Q. How does thatwork?5 happy to explain. 5 A. Ifs as simple as filling out another6 MR. CARMODY: I have noobjection to him as an 6 enrollment to create another account although it's7 expert 7 expressly forbidden in the Terms of Use.8 THE COURT: We'll recognize you as an expert, 8 Q. But ifspossible todo it?9 sir. Proceed. 9 A. Very possible.10 PY MSiWfttiSH' 10 Q. Were you able to reach any conclusions as to11 Q. Dennis, have you had an opportunity to examine 11 the locationof the person using the name marysmith4158?12 a page onFacebook called BoycottSundance Vacations? 12 A. Yes, all accesses from that user account13 A. I have. 13 originated from thesame IP address. I performed analysis14 Q. What Is that, please. 14 on that IPaddress and it was registered to Verizon as a15 A. It is a Facebook page apparently devoted to 16 consumer DSL.16 discussions of Sundance Vacations, and specifically devoted 16 Q. Dennis, I'm going to ask you to slow this down17 to stopping business with the organization. 17 a little bit.18 Q. Is that a page that's open to the public? 18 A. It was located In the metropolitan19 A. It is. 19 Philadelphia area.20 Q. Ifs viewable by members of the public? 20 Q. Thankyou. Ca n you show us, please, where in21 A. It is. 21 the Facebook records you see an IPaddress associated with22 Q. I'm going to ask you toturn to Exhibit H In 22 marysmith4158@hotmaii,com.23 the binder In front of you. As the certificate suggests. 23 A. Ifs in Exhibit H. There's no pagenumbers.24 these are records that were produced toSundance Vacations 24 though.25 by Facebook in response to our subpoena for information 25 Q. In Exhibit H, about halfofthe way through

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identifying the administrators of the Boycott page, and the 117

there's a reference [email protected] response identifies five different administrators for the 2 MS. WALSH: Your Honor, the exhibits are3 page, and the names would be Fran Wilson, Mary Smith, 3 printed in the binder that was handed up.4 marYsmithl2079 and marysmith4158, Nancy Vosicka, and Mark 4 THE COURT: Thank you.5 Adomo. 5 BYMS.WALSH;6 Before we get into those details, can you teO 6 Q. So Is the IP address Information for all of7 us, what are administrators of a Facebook page? 7 the marysmith4158 logins the same.8 A. A Facebook page Is a site on Facebook devoted 8 A. Yes.9 to a cause, a business or a group. Because of that there 9 Q. What research did you do to Identify the10 are individuals oruser accounts that are assigned as 10 person or persons associated with that IP address?

11 administrators. Soan administrator has elevated privileges 11A. We had, as I said, we have identified It as a

12 on that pageso that they can post, delete, manage, and 12 Verizon IP address. We happen to have a subpoena response13 otherwisemanipulate the operations ofthe page. 13 from Verizon, and cross-referring that IP address itwas14 Q. Are administrators basically the managers of 14 Indeed the IP address ofAlbert Whitehead.15 the page? 15 Q. Tell theCourtwhat an IP address is.16 A. Yes, they are. 16 A. An IP address is computer terminology that is17 Q, In this case there are five administrators. 17 used In networking that essentially operates much like a18 Is this common with Facebook thatmore than one person can 18 phone number where a publiccomputer endpoint has this19 serve as anadministrator? 19 address, so that it is used tobroker communications.20 A. There's nothing preventing that. 20 Q. Are IP addresses unique to the user, or can

21 Q. Doadministrators have theability topost 21 manydifferent users sharethe same IP address.

22 messages on a Facebookpage? 22 A. The IP address is usually restricted to one23 A. They have theability to post both as 23 location.24 themselves and as the page itself. They can useeither 24 Q. Who assigns IPaddresses?26 identity. 25 A. In the caseofsomething like homeDSL or

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1 residential services. It'sdoneby the ISP, or in this case 1 A. It is.2 Verizon. 2 Q. When did marysmith4158 register for a Facebook3 Q. So you've traced this IPaddress in theMary 3 account?4 Smith records toVerizon? 4 A, Itwas listed In the Facebook exhibit. First5 A. Correct. 6 use or registration?6 Q. You mentioned DSL or homeaccount, is that a 6 Q. When did she register fora Facebook account?7 common Internetservice that's provided to individuals? 7 A. Thafsat the endofthe records. Looks like8 A. Most civilians ormost regular people have 8 August 13th, 2012.9 residential service, so either by cable modem orDSL 9 Q, Help us put into context this individual using10 Q. If 1 have Internet access In my home, there 10 the nameMarySmith, when this individual logged on to the11 would be an IP addressassociatedwith my address? 11 Facebook account. We hada prelimnaryinjunction~a12 A. Correct. 12 hearing, I should say, on this case onOctober 19th. When13 Q. Did you reach any conclusion as to the IP 13 did the person using the namemarysmith4158 first logon to14 address that the person claiming to be Mary Smith used to 14 Facebook?15 logon toFacebook? 15 A. The first logon indicatedhere is November16 A. Yes, that IP address was, as I said, the one 16 16th, 2012.17 that was allocated toAlbertWhitehead. 17 Q. I'm sorry, is that the first logon? Not the18 Q. Can you identify for the record the number of 18 last logon.19 that IP address? 19 A. I apologize, this Is sort of in reverse order.20 A. It Is 72.78.191.60. 20 It should be, and It Is, October 17th, 2012. My apologies.21 Q. I'mgoing to ask you to turn to Exhibit I in 21 Q. So the first logon for Mary Smith is October22 the records before you. 22 17, 2012. What page are you referring to?23 MR. CARMODY; I'msorry, the IP address you 23 A. Marysmith4158 there is a section mid page it24 stated, what number was that? 24 says logout. It's the entry right above that.25 THE WITNESS: 72.78.191.60. 25 Q. Is that the first login formarysmlth4158?

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MS . WALSH: For clarification. YourHonor, 121

A. Itappears to be, yes.2 there are two Mary Smiths associated, and it's the 2 Q. During what period of time do these records3 [email protected] that's associatedwith 3 show thatmarvsmith4158 was logging on to Facebook?4 this IP address. 4 A. According to these records fromOctober 17th,5 THE COURT: Is that correct, sir? 5 2012 through November 16th, 2012. I noted that the records6 THE WITNESS; Yes. 6 were generated on the 16th ofNovember, so ifs not to say7 THE COURT: Continue. 7 that it stopped at that point.8 BYMS.WALSH! 8 THE COURT: It stopped on that date?9 Q. Turn please to Exhibit I. 9 THE WITNESS: The records were generated-10 MS . WALSH: I will represent to the Court 10 obviously they couldn't go into the future, so it11 these are records that were subpoenaed from Verizon 11 was current asofgeneration.12 with regard to IP addresses associatedwith Mr. 12 THE COURT: Was there any check to see if13 Whitehead's residence. 13 theyre current today?14 14 MS. WALSH: That's in process, Your Honor.15 Q. Dennis, tell theCourt, please, what is the 15 THE COURT: So be It.16 last known IPaddress associated with Mr.Whitehead 16 MS. WALSH: Facebook is In California and as17 according to these records? 17 Your Honor18 A. The last known IP address as of the Verizon 18 THE COURT: Go ahead.1920

letter was 72.78.191.60.Q. Can you tell us, please,what page of the

1920 Q. Dennis, what on these records tells us that

21 exhibit you're referring to? 21 the recordsare printed only through 11/16/2012?22 A. It Is, I believe, the last page of the exhibit 22 A. At the head ofeach target page there is a23 and there's a table forAlbertWhitehead. 23 field calleddate range, and in this report it Indicates24 Q. Is thatthesame IPaddressassociated with 24 creation, so account creation toNovember 16th, 2012.25 marysmlth4158 In the Facebook records? 25 Q. Did you do an investigation to determine

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1 whethermarysm(th4158 postedmessageson the Boycott page 1 we'll go through specifically some of the examples?2 during this period of timefrom October 17, 2012 to November 2 A. Okay. Any one of these communications or3 16 , 2012. 3 messages that were identified as coming fromthe4 A. Yes, I did. 4 administrator, theyretime-stamped. So we compared the5 Q. Andwhat did you conclude? 5 time stampof thatmessage to thewindows of timebetween a6 A. I concluded that there were a numberof times 6 login and logout event, and eliminating periods of dme7 that we could provemarysmlth4158 did Indeed post to the 7 wherethereweremultiple parties logged In concurrently,we8 Boycott Sundance Vacation page. 8 could Identify periods of timewhereonlyMr. Whitehead was9 Q. There were other administrators. Were you 9 logged on.10 able to ruleout that theother administrators posted In 10 Q. Can you tell us, please, whatExhibit N11 lieu ofor InsteadofMary Smith? 11 represents, N as In Nancy?12 A. I did. 12 A. N Is summary data inputted from the Facebook13 Q. How could you determine that shewas the 13 response.14 exclusive poster ofmessages during this period? 14 Q. Does this show the particular administrator's16 A. We have comprehensive login and logout times 15 login and logout Information?16 for all theother users and sowe could Identify windows of 16 A, Itdoes.17 time wheremarysmith4158 was the only userwith 17 Q. Have you done anything to make this18 administrator privileges logged In toFacebuok. 18 presentation consistent with local timeas opposed to UTC19 Q. Let's go through some of those records. First 19 time?20 of all, I ask If you can Identify for the record what we 20 A, Yes, I directed and supervised the conversion21 have marfced as Exhibit M? 21 ofUTC timestamps to eastern localized time.22 A, These appear to be screen shots of posts to 22 Q. Why did you do that? Why did you make that23 the Boycott Sundance Vacations page. 23 conversion?24 Q. During what periodof time? 24 A. Because thescreen shots fromFacebook are25 A. This one, it appears to be November 5th, 2012. 25 displayed in eastern time, so just for the sake of simple

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Q. Did you do an investigation to analyze the IP 125

comparison and not having to know daylight savings rules, we2 da ta received from Facebook with respect to the 2 performed thatconversion.3 administrator appearing on these pages? 3 Q. So you're trying to compare apples to apples,4 A. I did. 4 correct?5 Q. First, can you tell the Courthow you can 5 A. Correct.6 Identify a message that wasposted by the administrator as 6 Q. Let's go back to Exhibit M and let's go7 opposed to a userof the site? 7 through someof these examples. There's a post on the8 A. The messages are the-he comments In this 8 bottomof the page from the Boycott Sundance Vacations9 ca se are identified with the name BoycottSundance Vacations 9 admnistrator datedNovember 9th, 2012 at4:43 p.m. Do you10 and happens to have the logo of the- dont know what you 10 see that on the first page ofExhibit M?11 call that, the red cross through Sundance Vacations. 11 A. I do.12 Q. Looks like it's theSundance Vacations name 12 Q, What can you tell us about the Identity of the13 with a cross through it? 13 administrators whowere logged on on November 9, 2012 at14 A. Uh-hum. 14 4:43 p.m.15 Q. Is that thesign that this post Is from an 15 A. I referenced the last page of the Facebook16 admnistrator as opposed toa user? 16 logs and, this is sorted by date and time, identified a17 A. Yes, It is. 17 windowoftime fromNovember 9th at 1:34 p.m. -- I'msorry.18 Q. You were telling us about the investigative 18 November 9th at4:21 p.m. until 9:41 p.m. where19 work that you did to determinewhether any particular 19 marysmth4158was logged in. I then compared other20 administrator post was made by marysmith4158 or one of the 20 admnistrators and see thatthe latest time In proximity to

21 other administrators. I wonder If you could walk us through 21 thatwas4:33. So any timeafter4:33until some period

22 what you did to make that determination? 22 after the 9th theonlyadmnistrator logged in was23 A. Okay. Should we speak toa specific post 23 marysmth4158.24 here, maybe the November 9th one? 24 Q. On November 9th at 4:43 p.m. theonly26 Q. Tell theCourt generallywhat you didand then 25 administrator logged onwasmarysmlth4158?



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1 A. Correct. 1 A. We ran tests and It Indicated that any single2 Q. Let's go to the third page in Exhibit M. 2 administrator had rights to take down thepage with3 There Is a reference there to a postmade by the Boycott 3 Immediateeffect.4 Sundance Vacations administratoron October 30, 2012 at 7:51 4 Q. Can you describe for theCourt, please, the5 a.m. Did you do any Investigation to determinewhether one 5 process bywhich an administrator can remove a Facebook6 ormore than oneadministrator for theBoycott page was 6 page?7 logged In on that date at that time? 7 A. Ifs fairly simple. There are either oneor8 A. Yes, I did. It Identified marysmlth4158 as 8 two steps. The firststep is to remove other administrators9 the sole loginatthat time. 9 from the page, and then under oneofthesettings pages for10 Q. Is that also apparent from the charts that are 10 thepage there Is a quick link to deletethe page, Ifs a11 In Exhibit N? 11 onedickdeal and two confirmations.12 A. Yes, I believe so. 12 Q. I ask you please to turn to Exhibit K and I13 Q. Can you explain that? 13 will askyou to Identify Exhibit K for theCourt, please.14 A. Forgiveme, this Is difficult to parse. There 14 A. Yes, this Is the page settings page that I15 Is a login event formarysmlth4158 on October 28th, and It 15 awkwardly described previously.16 stays logged In -- thafs the login formarysmlth4158. 16 Q. Is that the page that the administrator would17 During that time unti the 30th there was one MarkAdomo 17 go to In order to complete the process of removing a18 logged out on the 29th, but then we have the post on the 18 Facebook page?19 30th at 7:51 a.m., so by the process of elimination again, 19 A. Correct. At the bottom of the page there's a20 Itwas the only person that was logged on at that time. 20 bottom that says, save changes, and Immediately before that21 Q. So there was no other administrator logged on 21 there Is a section thatsays, delete page. One just has to22 on October 30 at 7:51 a.m. other than marysmith4158? 22 dick the link and then confirm the choice.23 A. Correct. 23 MS. WALSH: I will represent to theCourt the24 Q. Lefs go through one last example for October 24 information blacked out is thepersonal Information25 19 , 2012, which Is the date that we were here In court on 25 ofthe Facebook user that formed the basis for

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thepreliminary injunction hearing. I askyou, Dennis, to 129

printing this page.2 turn to the 19th page, which I apologize, the pages are not 2 BY MS.WAkSH:3 appropriately numbered, but the 19th page ofExhibit M . I 3 Q. How long would It take an administrator to4 ask If you can see a post there dated October 19 , 2012 at 4 remove a Facebook page?5 9:53 a.m. on the bottom of the page? 5 A. Being generous with mouse skills and time, I6 Yes, I do. 6 would say less than a minute.7 Q. Is that a post thatwas made by theBoycott 7 Q. What Information or resources would a user8 Sundance Vacations administrator? 8 need to have todelete a page?9 A. Itwas. 9 A. A computer and a working login.10 Q. Did you do an investigation to determine 10 Q. Mr. Whitehead daims in papers filed in this11 whether one or more than one of the administrators was 11 court that only creators can delete a Facebook page; is that12 logged on to Facebook on that date at that time? 12 accurate?13 A. My determination was that only marysmlth4158 13 A. That is not accurate.14 was logged In atthat time. 14 Q. Did you also perform an investigation to15 Q. We've gone through some examples. Are there 15 determine whether Mr. Whitehead posted messages on other16 other examples that would show us that marysmith4158, which 16 Internet sites thatmade reference to SundanceVacations,17 is associated with Mr. Whitehead, was the only administrator 17 that Is aside from theBoycott page?18 logged on making posts during the period covered by the 18 A. I did.19 Facebook records? 19 Q. What did you condude?20 A. I'msure of it. 20 A. I conduded that there are a number of Wo g21 Q. Who has the ability to remove a Facebook page? 21 spot sites that are actively referenced by theBoycott22 A. An administrator of that page. 22 Sundance Vacations Facebook page that are, like I said.23 Q. Is it sufficient for one administrator to take 23 actively referred to. I think there are threeof them.24 down the page, or do all of the administrators need to join 24 Q. Can you Identify for theCourt, please, what25 together todo that? 25 we have marked as Exhibits P, Q and R in the binder before



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1 you? 1 Q. You concluded that independently based onyour2 A, P Is a printout of one ofthese pages, I 2 investigation, connect?3 believe the titleof It Is the Sundance Vacations 3 A. Correct.4 Sweepstakes versus DoNot Call. 4 Q. I ask you to turn briefly to Exhibit E of the5 Q. Ca n you tell uswhat ExhibitQ Is? 5 binder In frontof you, and I represent to the Court that6 A. Q Is another one of these blog spot pages 6 Exhibit E Is the response thatwe received fromAOL tothe7 titled Sundance Vacation Manipulations. 7 subpoena that was served seeking screen name and account8 Q. And R? 8 information for AlbertWhitehead.9 A. R Is ~ 9 Dennis, can you turn please to page six of10 Q. I apologize, Exhibit 0? 10 Exhibit E and tell us what are the screen names that appear11 A. 0 is Sundance Vacations Complaints and 11 on Exhibit 6?12 Cancellation Procedures blog spot page. 12 A. Would you like me to read them all?13 Q. Are Exhibits 0, P and Q reflective ofonline 13 Q. Lefs see If we can cut through this. What is14 posts made by Mr. Whitehead? 14 an AOL screen name and how Is It used?15 A. Yes. Aftermy analysis, yes. 15 A. In AOL there is a master account and from that16 Q. Can you tell the Court briefly what you did In 16 one can createmultiple identities. The properuse of It Is17 terms of youranalysis to Identify Mr. Whitehead as the 17 sort of a family mightwant to get an email address forthe18 authorof these biogs? 18 wifeand the kids. In this instance one can make numerous19 A. All three biogs have their publicly facing 19 Identities thatwould have capabilities of both sending and20 identification, or the person whos responsible for this are 20 receiving email and communicating via InstantMessenger,21 false names. I believe there's a Google response somewhere 21 among other things.22 in here that identifies the true owner of these biogs. 22 Q. Would a person with an AOL account, would23 Q. I askyou please to turn to Exhibit F? 23 theirAOL email address include their chosen screen name?24 A, Yes. 24 A. They could send and receiveemail. For25 MS. WALSH; I will represent to the Court that 25 example this Deserie account, Deserie@aol,comwould be a

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this Is a response that we received fromGoogle In 133

valid email address.2 response to a subpoena that was served for records 2 Q. Thescreen names associated with Mr. Whitehead3 Identifying theauthor of three biogs. Including 3 include the term Beware Sundance and Sundance Vac. Do you4 SundancevacatlonsCCP, Nasklewlcz2.blog.spot, and 4 see that?5 Sundancevacatfonsmanlpulatlon. 5 A. I do, yes.6 6 Q. What does that mean? Does thatmean that Mr.7 Q. What do these records tell you about the email 7 Whitehead Is sending and receiving emails using the account8 address associated with the Individual who posted on the 8 [email protected] [email protected]?9 three biogs that 1 mentioned. 9 A. Very well could have, yes,10 MR . CARMODY: Your Honor, we already 10 Q. Does he also have theability to communicate

11 essentially admitted thismorning that my client 11 online through Instantmessaging using these screensname?

12 did author these three biogs back In 2009 and 12 A. Yes. Or did.13 2010 -- 13 Q. Do theAOL records show the IP address14 THECOURT: Prior tothe order. So noted. I 14 associated with Mr. Whitehead.15 have themhere. Move on to another area. 15 A. There are a number of IP addresses listed but.16 MS. WALSH: Thank you. Your Honor. 16 yes.17 WLMS.WAUSH= 17 Q. Do you see an IP address in these that you've18 Q. For the record, please, can you tell the Court 18 seen before In the Facebook records or theVerizon records?19 the email address thafsassociatedwith these biogs? 19 A. I have.20 A. Ifs a misspelling but in English translation 20 Q. What is that?21 it's [email protected]. 21

A. Our familiar 72.78.191.60.22 Q. Thafs a service associated with Mr. 22 Q. During what period of time, did Mr.Whitehead23 Whitehead, correct, pursuant to the stipulation we've Just 23 use that IP address?24 heard? 24 A. As late as November5th, I believe, and as25 A. Yes. 25 early as it has to beAugustof 2012.

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1 Q. Just so the record Is dear, thedates of use 1 A. Yes.2 would be apparent fromthe IP session logs that are Induded 2 Q. What Is that opinion?3 in Exhibit E, correct? 3 A. My opinion Is that he has Indeed posted on4 A. Numerous ones, yes. 4 other sites other than Facebook.5 Q. There's been an allegation that once an S Q. Do those posts remain viewable by the public?6 Individual makes a post on a blog that that cant be 6 A. They do.7 removed; is that accurate? 7 Q. Does Mr. Whitehead have the ability to remove8 A. No, that's not accurate. 8 those posts?9 Q. Can you tell us what an individual would need 9 A. I believe he does.

10 to do In order totake down a post he or shemade in a post 10 Q. Do you give theseopinionswithin a reasonable11 such as this? 11 degreewith professional certainty?12 A. We arespedficaliy speaking to blog spot. 12 A. I do.13 Although the email address might no longer be valid, the 13 MS. WALSH: No further questions.14 account Is separate and exduslve of the email address. So 14 THE COURT: Thank you. Cross.15 If the credentials for thataccountare still available, one 15 MR. CARMODY: Your Honor, wthout my dlent16 could login and destroy the post. Alternatively, if the 16 having a similar expert to reviewdocuments thatwe17 account credentials are no longer available, one could 17 received last month, and additional documents that18 request the host of the blog to take It down providing 18 we received today, I don't believe I would have any19 adequate proof of ownership. 19 appropriatecross-examination questions for Mr.20 Q. Inyour experience, does it usually work to 20 Cheng, and with that -- so I have no21 ask a blog to be taken down? 21 cross-examination. I would ask If Plaintiff's22 A. I've seen It done, yes. 22 counsel-re you going tosubmitadditional23 Q. The blog spots that we have identified, which 23 wtnesses?24 ar e Exhibits 0, P and Q, are those visible on the Internet 2 4 MS. WALSH: Yes. Twovery brief witnesses.25 today? 25 Your Honor.

35 371 A. They are. 1 THE COURT: Let me ask you. You believe that2 Q. Viewable by the public? 2 an Individual can have a page or post removed.3 A. They are. 3 THEWITNESS: Yes.4 Q. Do you have anopinion as to whether Mr. 4 THE COURT: Other than theadministrator?5 Whitehead administered the Boycott page on Facebook under 5 THE WITNESS: Speclflcally speaking to the6 the page marysmlth4158 after October 23, 20X2? 6 blog spots, yes.7 A. I do. 7 THE COURT: How would that be done? What8 Q. What is your opinion? 8 would an individual have todo?9 A. My opinion Is that AlbertWhitehead did 9 THEWITNESS: They have a login and password,10 administer the Boycott Sundance Vacations page under the 10 and If they still have that login and password they11 marysmlth4158 alias. 11 could login and destroy the page. Lefs Just say12 Q. Did he also post messages on Facebook during 12 that that Information is no longer available. I13 this period? 13 believe that the individual or the Court could14 A. Yes. 14 request, wth proper documentation, the takedown of15 Q. Do those posts remain viewable by the public? 15 those pages.16 A. They do. 16 THE COURT: Anyone want to follow up? Call17 Q, Do youhave an opinion as towhether Mr. 17 your nextwtness. Anyone plan torecall this18 Whitehead has the ability to remove the Boycott Sundance 18 wtness?19 Vacations page? 19 MS.WALSH: Not at the present time.20 A. I do. 20 THE COURT: Sir, you are free to stay or21 Q. What Is your opinion? 21 leave, whatever your schedule dictates.22 A. My opinion Is that he does have that ability. 22 MS. WALSH; We call Joe Downs.23 Q. Do you have an opinion as towhether Mr. 2324 Whiteheadauthored messages on other Internet sites that are 24 2BSEPH M. POWNS, called as a witness on beh alf25 disparaging of Sundance Vacations? 25 of thePlaintiff, having been duly sworn, was

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1 examined and testified asfollows: 1 her sisterwhen she was 16 years ofage and she had a2 - 2 daughter by Mr. Whitehead.3 DIRECTEXAMINATION 3 Q. Did you doanything to investigate the4 4 Identity of the other Individuals associatedwith the5 BY MS. WALSH: 5 Facebook page, and Iwill go through them one by one. Mark6 Q. Can you pleasestate your full name for the 6 Adomo. Were you able to, through your investigative7 record. 7 efforts, locate an individual named Mark Adomowho Is8 A. Joseph M. Downs, D-o-w-n-s. 8 affiliated with the Facebook page?9 Q. What Is your occupation, sir? 9 A. Yes, ma'am, I was.10 A. 1 am a licensed private detective in theState 10 Q. Were you able to confirm that Mark Adomo Is11 ofPennsylvania. 11 the administrator, is the poster, ordid your investigation12 Q. Can you describe yourwork background, please. 12 prove fruitless in that regard?13 A. Yes. 1 spent almost 25 years with the Federal 13 A. I learned that Mark Adomo is actually Mark14 Bureau of Investigation. Prior to that I spent 14 years in 14 Martin who resides at76 VillageDrive in Shanksvilie,15 the Philadelphia police department serving as a highway IS Pennsylvania, and that hiswife is Ruth Martinwith a maiden16 patrol officer, detective for the District Attorney, and 16 name ofAdomo. Itwas my understanding that the Facebook17 also a street sergeant. 17 pagewas registered to a MarkAdomo, which Is his wife's18 Q. Did you do anything to investigate to 18 maiden name.19 determine whether theadministrator, orI should say, the 19 Q. Is there an individual named Mark Adomo based20 person Identified as an administrator of the Facebook page 20 on your Investigation, or is that a conglomerationofother21 going by the name Nancy Vosicka, whether she has any 21 names?22 connection to that page? 22 A. Weil, I believe that MarkAdomo Is thesame23 A. Yes. I spoke to Miss Vosicka on January the 23 person as24 2nd by telephone -- 24 MR. CARMODY; Objection.25 MR. CARMODY: Your Honor, I object to the 25 THE COURT: Sustained. Calls for conjecture.

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hearsay. 141

Rephraseyour question.2 MS. WALSH: I believe It fits within an 2 BYMS.WALSH:3 exception, Judge. I would liketo askwhat this 3 Q. To summarize, sir, were you able to locate any4 witness' investigative steps were. I intend to ask 4 Individuals, any real, live, in-person Individuals that5 him about family and reputationai information which 5 share the nameof the administrator-trike that.6 falls within an exception to the Hearsay Rule, and 6 Were you able to locate the real live7 I plan to askabout thewitness' expression of her 7 individuals whose names are associated with the Facebook8 state ofmind. 8 page BoycottSundance Vacations, or did your investigation9 So none of the information is being offered 9 show something else?10 for the truth of thematter asserted, I Just want 10 A. Yes, ma'am, the answer Is yes to your former11 to get into this witness' investigative steps. 11 question. I did locate a Richard Harris and I did speak to12 And, as I said, the information about family and 12 him.13 reputationai background which fails within the 13 Q. What did you determine from Mr . Harris?14 exclusion under P.A. Rule ofEvidence 80319. 14 A. That he was not 15 THE COURT: Objection is sustained. Move on IS MR. CARMODY: Objection.16 to anotherarea. 16 THEWITNESS: -didnot give permission to17 BY MS. WALSH: 17 anyone to use his18 Q. Were you able to track down a Nancy Vosicka 18 THE COURT: Sustained. Stricken. Anyother19 with a linkto the Facebook page? 19 questions?20 A. Yes, ma'am, I was. 20 MS. WALSH: No, Your Honor.21 Q. Was~does Nancy Vosicka have any connection 21 THE COURT: Mr. Carmody, any questions?22 or relationshipwith AlbertWhitehead? 22 MR. CARMODY: No,YourHonor.23 A. Yes, ma'am, she does. 23 THE COURT: Counsel approach. Off the record.24 Q. What is that relationship? 24 [Whereupon, anoff-record discussion occurred25 A. About 40 years ago Mr.Whitehead Impregnated 25 atsidebar, afterwhich a short recess was taken.]

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1 THE COURT: Continue, please,AttorneyWalsh. 12 MS. WALSH: YourHonor, we call John Dowd. 2 CROSS EXAMINATION3 3 4 JOHN DOWD. called as a witness on behalfof 4 BYMR. CARMODY;5 the Plaintiff, having been duly sworn, was examined 5 Q. Mr. Dowd, you said you're the president, CEO6 and testified as follows: 6 ofSundance Vacations?7 7 A. Yes.8 PIRECT EXAMIWAHQN 8 Q. How many stores does that Indude, or how many9 9 business locations?10 BYMS.WALSH: 10 A. Currently there are four sales locations.11 Q. John,what is your relationship with Sundance 11 Q. Where are they located?12 Vacations? 12 A. One In New Jersey, one In King ofPrussia,13 A. Owner and president. 13 Pennsylvania, one in Harrisburg, and one In Illinois.14 Q. How long have you been associated with the 14 Q. How long have you been president of Sundance15 business ofSundance Vacations? 15 Vacations?16 A. Since 1991. 16 A. Since It started In '91.17 Q. Just briefly, can you tel the Court the 17 Q. In the last 20-plus years as president of18 business thatSundance Vacations is In? 18 SundanceVacations, in your position as president, have you19 A. Marketing sales ofwholesale vacations. 19 become awareof complaints about Sundance Vacations?20 Q. Did you have an opportunity to investigate 20 MS, WALSH: Objection, Your Honor. Itexceeds21 whether the persons whoare identified as Facebook 21 the scopeofdirect. Ifs not relevant toany22 administrators, whether they were ever customers ofSundance 22 Issue~23 Vacations oraffiliatedwith the company In any way? 23 THE COURT: Overruled. Ifyou can answer,24 A. We checked our databases, which we keep 24 sir.25 extensive databases, and five people that are administrators 26 THE WITNESS: Again, please

43 451 of the page have never had any contactwithour company, 1 BY MR. CARMOPY:2 never received any marketing calls, have never visited any 2 Q. In your role aspresident ofSundance ever the3 of our locations, never purchased anyofourproducts. 3 last 20 years, have you received complaints about Sundance4 Q. How has theBoycott page affected the business 4 Vacations service or products?5 ofSundance Vacations? 6 A. Aswith any business, our business is not6 A. Ifs the single worse thing that's happened to 6 perfect. We've had complaints from legitimate customers7 our business since we started it. Ifs costus millions of 7 from time to time.8 dollars over the past few years. We laid off overa hundred 8 Q. Areyou aware of any local television9 people as a result of problems caused by this page. People 9 reporting that's been shownon television regarding10 believe what they see on the Internet. They think that 10 complaintsabout SundanceVacations?11 stuff is credible. 11

A. I am not.12 Q, What is the relief that you are asking this 12 Q. Are you awareof any newspaper ads that have13 Court for? 13 beenwritten from aggrieved customers of SundanceVacations?14 A. Mr.Whitehead signed an agreementnot to do 14 A. I am not.15 this in a federal court case In '07 and he continues to do 15 Q. So, as you sit here today, the only complaints16 It since then. I don't knowwhat hewill listen to. I 16 you're familiar with areones thatwere submtted personally17 don't know what language he listens to. He hasn't listened 17 toyou?18 to your order to date. I don't knowwhat we could do to 18 A. That's a broad question. I don't want to say19 force himtostop other thanJail time. 19 thewrong thing.20 MR. CARMODY: Objection. 20 Q. Let mebackup. You said you were aware of

21 THE COURT: Sustained.21 past complaints fromcustomers. How did you become aware of

22 MS.WALSH: Thank you. No other questions. 22 those complaints?23 THE COURT : Mr. Carmody, any questions for Mr. 23 A. We have a large customer service department24 Dowd? 24 that fields calls for anybody thatmight have any Issues25 MR. CARMODY: Yes, YourHonor. 25 regarding any contactwith our company. They could have a

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1 problem with a vacation they've taken. 1 Whitehead Is In contemptof 2 Q. How would you have been notified? 2 THE COURT; Mr. Carmody, are you offering any3 A. I'm not necessarily notified ofevery 3 testimony, sir?4 complaint Manycomplaints are handled by the peoplewhodo 4 MR. CARMODY: No, YourHonor. AsI6 that everyday. 5 represented to this Court, based on my client's6 Q. But you're not awareofany news programs on 6 health, he has not appeared for any of these7 television that have broadcasted stories about Sundance 7 hearings.8 Vacations? 8 THE COURT: III come back to yourargument9 A. I am not. 9 Let me come back toMs. Walsh. Go ahead.10 Q, And you're notaware ofany newspaper ads that 10 MR. CARMODY: Yes, YourHonor.11 have been written aseditorials regarding complaints about 11 MS. WALSH: Your Honor, we'd ask for a finding12 Sundance Vacations? 12 based on the unrebutted expert evidence thatwe've13 A. There was an op-ed piece in the Philadelphia 13 entered today. Weask first. Your Honor, I'd14 paper some timeago. Theywere customers. This was not an 14 move for theadmission of Exhibits A through R15 op-ed. 15 which are In the binder thatwas handed upearlier16 Q. Whowas the author of that? 16 today.17 A. I don't recall. 17 THE COURT: Any objection, Mr. Carmody?18 Q. Do you know the whatwas the synopsis of 18 MR. CARMODY; No objection.19 that story? 19 THE COURT; So moved. We admit all exhibits20 A. I would say on balance it was just 20 In that binder. Go ahead.21 Informative. Itwas neutral. Someone had just investigated 21 MS. WALSH; We'd askYourHonor for a finding22 their Interactions with the business and published what they 22 thatMr. Whitehead is In contempt ofYour Honor's23 found. I don't recall the specifics. 23 October 23rd, 2012 order by, first of all.24 Q. Did that article involve complaints about 24 continuing toadministertheBoycott Sundance25 Sundance Vacations services? 26 Vacations page underthe nameMary Smith 4158 after

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A. I don't recall. 149

the entry ofthe October 23rd order.2 Q. You testified that because ofMr. Whitehead 2 We'd also ask for a finding that Mr. Whitehead3 your business has suffered tremendously? 3 Is In contempt of this Oourt's order by refusing to4 A. Ithas. 4 cooperatewith Sundance Vacations In asking5 Q. How do you know that to be true? 5 Facebook to take down the Boycott Sundance6 A. When customers ask to have refunds for travel 6 Vacations page.7 packages they purchased because they've seen theBoycott 7 Finally, we'd ask for a finding that Mr.8 Su ndance p ag e and have Interacted with him. We have gotten 8 Whitehead Is In contempt for refusing to remove9 letters fromcustomers saying they wanted to obtain refunds 9 posts that hemadeon other pages using pseudonyms10 that were written byAlbertWhitehead. 10 containingmessages disparaging ofSundance

11 Q. Did these customers, did they Identify news11 Vacations.

12 stories that they sawontelevision regarding Sundance 12 We'd askYour Honor that Mr. Whiteheadbe13 Vacationsservices? 13 compelled tosend a letter toFacebook requesting14 A. No, because there have been none. 14 that the page be taken down. We'd ask that Your16 Q. Did they reference any newspaper ads 15 Honor compel him to remove theBoycott Sundance16 concerning services ofSundance? 16 Vacationspage pursuant to themethod that was17 A. The newspaper article you are referring to I 17 outlined In evidence here today, and weask that18 believe was seven or eight years ago, so Ifsnot recent 18 Your Honor give a date certain to do thator face a19 history. ' 19 certain consequence, which would be a termof20 MR. CARMODY: That's aH I have. 20 conditional Imprisonment until he complies, or In21 THE COURT: Any redirect? 21 the alternative a daily fine of $500 perdayuntil22 MS. WALSH: No, YourHonor. 22 he compOes.23 THE COURT; Anything else. Attorney Walsh? 23 Finally, YourHonor, we'd ask that Mr.24 MS. WALSH; Just tosummarize. Judge. We'd 24 Whitehead becompelled to reimburseSundance25 ask theCourt toenter anorder finding thatMr. 25 Vacations for the costs and fees Incurred In coming



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1 back to thisCourt repeatedly for relief.2 Respectfully, Judge, we had an agreement in3 2007 and Mr. Whitehead has continually failed to4 live up to It. When we found out that hewas5 posing asJohn Flannaganwe came to the Court and6 asked for relief, and Mr. Whiteheadconceded that7 reliefwasappropriate. And now it's been8 established through the evidence today that he9 defied thatorder. He's broken his own promise yet10 again.11 We ask that Your Honor impose an order or12 enter an orderwith appropriate sanctions and13 appropriate teeth just to prevent us from having to14 come back here again.16 THE COURT: Attorney Carmody, we'll hear from16 you, sir.17 MR. CARMODY: Thank you, Your Honor.18 The last half ofMs. Walsh's argument, we have19 agreed at the outset before testimony was taken20 today that the Defendantwas going to submit a21 letterwithin five days. The meat and potatoes of22 this whole case is this Facebookpage, the Boycott23 page. This letter that you've already ordered my24 client to submit within five days should clean up25 any issues that the Plaintiff has, assuming their

1 complaints of Plaintiff.2 THE COURT: Anything else, counsel?3 MS. WALSH: Very briefly, Your Honor.4 The Defendant has had the documents that were5 produced by Facebook and Yahoo and Google forweeks6 now. There was nothing new presented today from7 anyof those entities.8 With regard to the order, we respectfully9 disagree. We need a finding of contempt by this10 Court and an appropriate entry of anorder of11 sanctionsJust to enforce the agreement, toenforce12 Your Honor's order, and to prevent us from having13 to come back here today.14 THE COURT: Mr. Carmody, anything you want to16 say?16 MR. CARMODY: That'sJust not correct. There17 were certain documents that were not provided tome18 until 10:00 thismorning, so I did not have the19 appropriate amount of time to review it orconsult20 withmy client on his thoughts of those documents.21 THE COURT: In accordancewith the Plaintiffs22 emergency petition for contempt sanctions and order23 compelling compliance with the October 23rd, 201224 amended order, and after evidentiary hearing on25 same alongwith counsel, the orderwill be as

511 allegations are correct that he is the2 administrator or he has the authority or capability3 todo it, that this letter should be sufficient to4 take the page down, thereby addressing any concerns5 and needs thePlaintiff may have.6 In regards to the testimony that was presented7 here today, a lot of these exhibits, specifically8 the exhibits regarding atwhat time a person made a9 post, one of the administrators, these are10 documents. Your Honor, that I just received when we11 came up before you. I did not have appropriate12 time to review that. I would ask that any further13 order beyond compelling the letterwithin five14 days, Iwould ask that the Court holds off or gives16 the Defendant an extension of time to, number one,16 lookat these newdocuments. Number two, get a17 copy of the transcript so that Imay present that18 tomy client. And that In the event he believes19 that certain testimony was not correct, or in the20 event he Is willing to spend money on anexpert of21 his own, that he maywant to rebut certain22 allegations.23 At the end of the day I believe that your24 order to submit this letter within five days should25 dean up most of orshould address mostof the

531 follows: Number one. DefendantAlbertWhitehead is2 found in contempt of court, the orderdated October3 23rd, 2012. Number two. Defendant shall send a4 letter to Facebookwithin five days requesting5 removal of the Boycott page In accordancewith the6 October 23rd, 2012 court order. Number three, the7 defendant shall undertake efforts to personally8 remove the Boycott page from Facebook and/or any9 other platforms within three days of the date of10 this order. Number four, failure of Defendant to11 comply with the above-stated will result in a12 sanction of$250 per day thereafter. Number five,13 Defendant shall reimburse Plaintiff for counsel14 fees and filing costs associatedwith this16 Plaintiff's Emergency Petition and hearing this16 date. Six, Defendant shall comply with this and17 all previous court orders.18 That will conclude the proceeding. I thank19 both counsel for their presentations. Thank you.20 MS. WALSH: Thank you, YourHonor.21 MR. CARMODY: Thankyou. Your Honor.22 [Whereupon, the proceeding wasconcluded.]23

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CERTIFICATION

I HEREBYCERTIFY that the proceedings are contained fully andaccurately in the notes of testimony taken by me on the proceedings of the abovematter, and that this is a true and correct transcript of the same.

isitDanklfl. @oJiDaniel J. Coll,Official Court Reporter

Documents

Transcript of Hearing 1.18.13