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Transcript of Hearing 1.18.13
Transcript of Hearing 1.18.13
OF LUZERNE COUNTY
PENNSYLVANIA
CIVIL ACTION
ALBERT WHITEHEAD,
Defendant
NO. 8006
of
2012
TRANSCRIPT OF PROCEEDINGS
BEFORE:
The Honorable Fred W. Pierantoni, III, J. Courtroom No. 5 Luzerne County Court House 200 North River Street Wilkes-Barre, Pennsylvania 18711-1001
COPY
INDEX TO WITNESSES
PLAINTIFF'S WITNESSES
DIRECT
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CROSS
REDIRECT
RECROSS
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John Dowd
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We sent a draft letter to Mr. Whitehead's counsel asking that he send that letter to Facebook
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order compelling compliance with October 23rd, 2012 amended order. Correct?
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MS. WALSH: Thafs right, Your Honor. THE COURT: Let me just have the introduction of counsel for the record. MS. WALSH: Donna Walsh for Sundance
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MS. WALSH: There were two letters, Your Honor, October 24th and November 1st. THE COURT: They were prepared by your office
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By way of background. Judge, there was an employment discrimination case that began in 2004
that resulted in a settlement agreement in February of 2007. Pursuant to that agreement Mr. Whitehead promised he would never again post In any fashion
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17th, 2012 continuing thereafter. We have witnesses here today that I would like
to present that will verify and confirm that Mr.
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We filed this lawsuit in April of 2012 contending that he breached his obligations by administering a page on Facebook called Boycott
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Whitehead is, in feet, Mary Smith; that he administered the Facebook page Boycott Sundance Vacations after October 23rd, and that he continued
to post messages on that page after that date in
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discovery we were able to confirm that Mr. Whitehead had administered the page using the false name John Flannagan, and that prompted us to move
for a preliminary Injunction before Your Honor, and
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Your Honor entered, with the consent of Mr. Whitehead, the injunction on October 23rd again preventing him from posting -- prohibiting him from
posting in any online forum and also requiring him
to cooperate with us in removing the Boycott
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Sundance Vacations page that he actively administered under the false name John Flannagan.
Subsequent to that date, Your Honor, we discovered three things. First, Mr. Whitehead refuses and continues to refuse to cooperate with Sundance in removing the page. Your Honor clearly
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the Court's order. These are the printouts of those blogs. As you could see, those blogs are March of '09, August of '09, and March of 2010, two
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directed him on October 23rd that he is required to cooperate with Sundance to get the page down and he
has refused.
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MR. CARMODY: Correct. And those were by Dolores who, discovery has shown, has been a display name that my client has used In the past.
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this down. Frankly, he would have been out of line. THE COURT: Out of an abundance of caution,
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Exhibit F of Plaintiff's motion shows that Dolores was a display name for JohnF712@hotmail.com, and
for trubbiinparadise@aol.coni. And if you look at
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THE COURT:
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put a blog on the Internet, and subsequent to that you delete that email address, you can't go back and remove something from cyberspace. It's there
permanently. So my client has no ability to go
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THE COURT:
Continue.
Third, the Plaintiff presents
MR. CARMODY:
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Exhibits G, H and I, and she claims that - the Plaintiff claims that these exhibits identify my client, the Defendant, as the current administrator of the Facebook page.
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he was not the creator of that page, and because he is not the creator of that page, he doesn't have
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not an administrator. It says nothing. It just shows that this was a Facebook name and he was
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factually, based upon my client's representations, for me to send a letter to Facebook stating facts or allegations that I knew not to be true and based upon my client's representations I knew not to be
true. Nothing in your court order ~ THE COURT: Part of the order from October
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23rd contains an entry that your client would cooperate with Sundance in directing Facebook to remove the Boycott Sundance Vacations page. Did
you undertake any attempt to contact Facebook by
your own letter?
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THE COURT: I could understand Mr. Canmody's concern about sending a letter to Facebook that may
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to get a sworn affidavit from our client saying that, Your Honor, I understand you made this part
of your order, but the fact is that he didn't
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THE COURT:
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We have discussed, not In great
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MR. CARMODY:
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THE COURT:
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A.
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THE COURT:
Q.
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computer technology?
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submitting the letter to Face book and requesting them to take the page down, he Is In agreement that
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Q.
THE COURT:
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A.
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enforcement?
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MR. CARMODY:
Okay.
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A.
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THE COURT:
Attorney Walsh.
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Q.
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A.
Q. A.
Correct.
What is the business of Two By Two Solutions? Two By Two Solutions provides consulting
.....
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Q.
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BY MS. WALSH;
DIRECT EXAMINATION
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A.
Full-time since 1995. MS. WALSH: Your Honor, I'd offer Dennis Cheng
as an expert in the area of information technology. infrastructure and networking, as well as computer
forensics.
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A. Q.
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VOIR DIRE EXAMINATION
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It is.
Can you tell the Court about your educational
BY MR. CftRMPPY?
Q. Mr. Cheng, we're here today -- a large basis
of the daims here today are dealing with the Facebook
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background, please.
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for my undergraduate studying, among other things, computer science and advanced mathematics. Graduated Johns Hopkins
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In practice, yes.
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We'll recognize you as an expert,
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enrollment to create another account^ although it's expressly forbidden in the Terms of Use.
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PY MSi WfttiSH'
Q. Dennis, have you had an opportunity to examine
a page on Facebook called Boycott Sundance Vacations?
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A.
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I have.
What Is that, please. It is a Facebook page apparently devoted to
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a little bit.
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Philadelphia area.
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the binder In front of you. As the certificate suggests. these are records that were produced to Sundance Vacations
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though.
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Q.
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on that page so that they can post, delete, manage, and otherwise manipulate the operations of the page.
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the page?
from Verizon, and cross-referring that IP address it was Indeed the IP address of Albert Whitehead.
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Q,
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Is this common with Facebook that more than one person can
serve as an administrator?
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location.
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account?
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A,
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Correct.
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use or registration?
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address that the person claiming to be Mary Smith used to logon to Facebook?
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16th, 2012.
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that was allocated to Albert Whitehead. Q. Can you identify for the record the number of
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last logon.
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that IP address?
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It Is 72.78.191.60.
I'm going to ask you to turn to Exhibit I in
It should be, and It Is, October 17th, 2012. My apologies. Q. So the first logon for Mary Smith is October
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THE COURT:
BY MS. WALSH!
Continue.
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THE COURT: It stopped on that date? THE WITNESS: The records were generated obviously they couldn't go into the future, so it was current as of generation. THE COURT: Was there any check to see if
they're current today?
Q. Turn please to Exhibit I. MS. WALSH: I will represent to the Court these are records that were subpoenaed from Verizon with regard to IP addresses associated with Mr.
Whitehead's residence.
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THE COURT:
Go ahead.
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Q.
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whether marysm(th4158 posted messages on the Boycott page during this period of time from October 17, 2012 to November
16, 2012.
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Yes, I did.
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And what did you conclude? I concluded that there were a number of times
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login and logout event, and eliminating periods of dme where there were multiple parties logged In concurrently, we
could Identify periods of time where only Mr. Whitehead was logged on.
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represents, N as In Nancy?
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response.
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It does.
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conversion?
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correct?
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I did.
First, can you tell the Court how you can
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Correct.
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I do.
What can you tell us about the Identity of the
with a cross through it? A. Q. Uh-hum. Is that the sign that this post Is from an
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logs and, this is sorted by date and time, identified a window of time from November 9th at 1:34 p.m. -- I'm sorry.
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Yes, It is.
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Q. You were telling us about the investigative work that you did to determine whether any particular administrator post was made by marysmith4158 or one of the
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other administrators. I wonder If you could walk us through what you did to make that determination?
A. Okay. Should we speak to a specific post
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Correct.
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administrator had rights to take down the page with Immediate effect.
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or more than one administrator for the Boycott page was logged In on that date at that time?
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from the page, and then under one of the settings pages for
the page there Is a quick link to delete the page, Ifs a one dick deal and two confirmations.
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Q.
In Exhibit N?
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Q. Can you explain that? A. Forgive me, this Is difficult to parse. There
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During that time unti the 30th there was one Mark Adomo
logged out on the 29th, but then we have the post on the
Facebook page?
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A.
bottom that says, save changes, and Immediately before that there Is a section that says, delete page. One just has to dick the link and then confirm the choice. MS. WALSH: I will represent to the Court the information blacked out is the personal Information of the Facebook user that formed the basis for
on October 30 at 7:51 a.m. other than marysmith4158? A. Q. Correct. Lefs go through one last example for October
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turn to the 19th page, which I apologize, the pages are not appropriately numbered, but the 19th page of Exhibit M. I
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BY MS. WAkSH:
Q. How long would It take an administrator to
ask If you can see a post there dated October 19, 2012 at
9:53 a.m. on the bottom of the page?
Yes, I do.
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whether one or more than one of the administrators was logged on to Facebook on that date at that time? A. My determination was that only marysmlth4158
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other examples that would show us that marysmith4158, which is associated with Mr. Whitehead, was the only administrator
logged on making posts during the period covered by the
Facebook records?
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you?
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believe the title of It Is the Sundance Vacations Sweepstakes versus Do Not Call.
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Correct.
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Q. And R?
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R Is ~
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Q. I apologize, Exhibit 0?
A. 0 is Sundance Vacations Complaints and
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Exhibit E and tell us what are the screen names that appear
on Exhibit 6?
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Q.
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Yes. After my analysis, yes. Can you tell the Court briefly what you did In
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in here that identifies the true owner of these biogs. Q. A, I ask you please to turn to Exhibit F? Yes. MS. WALSH; I will represent to the Court that
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include the term Beware Sundance and Sundance Vac. Do you see that?
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I do, yes.
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A. Q.
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Prior to the order. So noted. I
Move on to another area.
THE COURT:
have them here.
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yes.
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Q.
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it's tnjbbilnparadlse@aol.com.
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Yes.
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Yes.
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those posts?
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I believe he does.
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I do.
MS. WALSH: No further questions.
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THE COURT: Thank you. Cross. MR. CARMODY: Your Honor, without my dlent
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received last month, and additional documents that we received today, I don't believe I would have any appropriate cross-examination questions for Mr.
Cheng, and with that -- so I have no
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They are.
Viewable by the public?
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THE COURT:
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They are.
Do you have an opinion as to whether Mr.
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and If they still have that login and password they could login and destroy the page. Lefs Just say that that Information is no longer available. I
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this period?
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Yes.
Do those posts remain viewable by the public?
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They do.
Do you have an opinion as to whether Mr.
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THE COURT:
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I do.
What Is your opinion? My opinion Is that he does have that ability.
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Q.
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her sister when she was 16 years of age and she had a daughter by Mr. Whitehead.
DIRECT EXAMINATION
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BY MS. WALSH:
Q. Can you please state your full name for the
record.
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of Pennsylvania.
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IS
Pennsylvania, and that his wife is Ruth Martin with a maiden name of Adomo. It was my understanding that the Facebook
page was registered to a Mark Adomo, which Is his wife's
maiden name.
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person as
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2nd by telephone --
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hearsay.
MS. WALSH:
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Q.
witness' investigative steps were. I intend to ask him about family and reputationai information which
falls within an exception to the Hearsay Rule, and
I plan to ask about the witness' expression of her
state of mind.
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individuals whose names are associated with the Facebook page Boycott Sundance Vacations, or did your investigation
show something else?
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Q. A.
What did you determine from Mr. Harris? That he was not
MR. CARMODY: Objection.
THE WITNESS: -did not give permission to
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Q.
THE COURT:
questions?
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No, Your Honor. Mr. Carmody, any questions? No, Your Honor.
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CROSS EXAMINATION
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JOHN DOWD. called as a witness on behalf of
BY MR. CARMODY;
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of Sundance Vacations?
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Yes.
PIRECT EXAMIWAHQN
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business locations?
BY MS. WALSH:
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Vacations?
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Where are they located? One In New Jersey, one In King of Prussia,
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Vacations?
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A. Q.
Since 1991. Just briefly, can you tel the Court the
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Sundance Vacations, in your position as president, have you become aware of complaints about Sundance Vacations?
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A. Q.
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whether the persons who are identified as Facebook administrators, whether they were ever customers of Sundance Vacations or affiliated with the company In any way?
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sir.
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of the page have never had any contact with our company,
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BY MR. CARMOPY:
Q. In your role as president of Sundance ever the
never received any marketing calls, have never visited any of our locations, never purchased any of our products.
Q. How has the Boycott page affected the business
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of Sundance Vacations?
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our business since we started it. Ifs cost us millions of dollars over the past few years. We laid off over a hundred people as a result of problems caused by this page. People believe what they see on the Internet. They think that
stuff is credible.
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I am not.
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Court for?
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that fields calls for anybody that might have any Issues
regarding any contact with our company. They could have a
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Whitehead Is In contempt of
THE COURT ;
testimony, sir? MR. CARMODY: No, Your Honor. As I
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complaint Many complaints are handled by the people who do that everyday.
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I am not.
And you're not aware of any newspaper ads that
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that story?
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MS. WALSH; We'd ask Your Honor for a finding that Mr. Whitehead is In contempt of Your Honor's
October 23rd, 2012 order by, first of all.
their Interactions with the business and published what they found. I don't recall the specifics. Q. Did that article involve complaints about
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I don't recall.
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the entry of the October 23rd order. We'd also ask for a finding that Mr. Whitehead
Is In contempt of this Oourt's order by refusing to
cooperate with Sundance Vacations In asking Facebook to take down the Boycott Sundance
Vacations page.
Q.
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posts that he made on other pages using pseudonyms containing messages disparaging of Sundance
Vacations.
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A. Q.
No, because there have been none. Did they reference any newspaper ads
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Vacations page pursuant to the method that was outlined In evidence here today, and we ask that Your Honor give a date certain to do that or face a certain consequence, which would be a term of
conditional Imprisonment until he complies, or In
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THE COURT; Anything else. Attorney Walsh? MS. WALSH; Just to summarize. Judge. We'd ask the Court to enter an order finding that Mr.
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back to this Court repeatedly for relief. Respectfully, Judge, we had an agreement in 2007 and Mr. Whitehead has continually failed to
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complaints of Plaintiff.
THE COURT: Anything else, counsel?
MS. WALSH: Very briefly, Your Honor.
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live up to It. When we found out that he was posing as John Flannagan we came to the Court and
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produced by Facebook and Yahoo and Google for weeks now. There was nothing new presented today from
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any of those entities. With regard to the order, we respectfully disagree. We need a finding of contempt by this Court and an appropriate entry of an order of
sanctions Just to enforce the agreement, to enforce
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enter an order with appropriate sanctions and appropriate teeth just to prevent us from having to come back here again.
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Your Honor's order, and to prevent us from having to come back here today. THE COURT:
say?
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were certain documents that were not provided to me until 10:00 this morning, so I did not have the
appropriate amount of time to review it or consult
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The last half of Ms. Walsh's argument, we have agreed at the outset before testimony was taken
today that the Defendant was going to submit a
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this whole case is this Facebook page, the Boycott page. This letter that you've already ordered my
client to submit within five days should clean up any issues that the Plaintiff has, assuming their
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compelling compliance with the October 23rd, 2012 amended order, and after evidentiary hearing on same along with counsel, the order will be as
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follows:
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found in contempt of court, the order dated October 23rd, 2012. Number two. Defendant shall send a
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here today, a lot of these exhibits, specifically the exhibits regarding at what time a person made a
post, one of the administrators, these are
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defendant shall undertake efforts to personally remove the Boycott page from Facebook and/or any other platforms within three days of the date of this order. Number four, failure of Defendant to
comply with the above-stated will result in a sanction of $250 per day thereafter. Number five,
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that certain testimony was not correct, or in the event he Is willing to spend money on an expert of
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13 of 13 sheets
COPY
Page 50 to 53 of S3
CERTIFICATION
accurately in the notes of testimony taken by me on the proceedings of the above matter, and that this is a true and correct transcript of the same.
isitDanklfl. @oJi
Daniel J. Coll, Official Court Reporter