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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, October 19, l993 Defendant. ------------------------------------ TRIAL BEFORE THE HONORABLE JOHN T. ELFVIN UNITED STATES DISTRICT COURT JUDGE APPEARANCES: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, New York 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording. Transcript produced by transcription service. P R O C E E D I N G S MR. OSTROWSKI: Good morning, Your Honor. I would like to make at this time a motion to dismiss the plaintiff's case. The plaintiff concluded their testimony on Saturday. Some of our witnesses have gone on out of order. I think this would be the appropriate time. I just simply ask that the Court dismiss the plaintiff's cause of action against the defendant for copyright infringement on the grounds of a complete failure of proof on every element necessary to prove infringement. Those being ownership, authorship, originality and registration. MR. KITCHEN: We would oppose the motion, Your Honor, and I guess there isn't much need to elaborate our position if that's going to be the substance of the defendant's argument at this stage. I know the Court did indicate that it was inclined to reserve decision on such a motion anyway. THE COURT: And that's what the Court will do at this point. Decision is reserved. All right. Continuing the direct examination of Mr. Armenia. You're still under oath, Mr. Armenia. (GREGORY J. ARMENIA, Defendant's Witness, Previously Sworn) CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Just to re-establish some continuity, I believe you -- I believe I asked you about the copyright notice that was on -- did you see the copyright notice that was on CARRS PDSI-004? A. Yes. Q. Okay. And do you remember what that said? A. I believe it said, copyrighted by -- THE COURT: Wait a minute. Wait a minute. You say, I believe. THE WITNESS: It said, copyrighted by Larry James. BY MR. OSTROWSKI: Q. Was there any copyright notice that was a joint copyright notice between Mr. James and Mr. Graham? A. Oh, I don't know about joint. Q. Okay. A. It always referred to as, copyrighted by Larry James for Night Owl's Computer Service. I don't know -- THE COURT: You would take that not to be joint, but to be one or the other, is that what you're saying? THE WITNESS: Yeah. I, I always looked at it as copyrighted -- THE COURT: What you're telling me is, what, that it's what you remember from seeing, that you would see a copyright which said the copyright was owned by Mr. James, or you would see another copyright which said it was owned by Night Owl. You never saw one that said, owned by James or Night Owl. THE WITNESS: No. THE COURT: Yeah. MR. OSTROWSKI: Your Honor, I'd like to ask the witness to step down to the computer so that we can clear this up by simply showing the notices on the screen and asking him questions about them. Come on down, Mr. Armenia. (Witness steps down.) BY MR. OSTROWSKI: Q. I'm showing you Plaintiff's Exhibit 5. Can you identify that, give us the brand number, the release number? A. That's Night Owl's PDSI-004. Q. Can you throw that into the CD Rom drive and, and get the opening menu up on the screen. Do you know what the execute command is on these programs? A. Yes. Q. Okay. What is that? A. Yes. It's night. Q. Okay. Could you execute the program using night, and get the opening menu screen, or -- A. Does anybody know what drive the CD Rom is on? Q. D. Okay. Now, what do you see -- what did you do, execute the program? A. Yes, I did. Q. And what happened? A. Up came a copyright notice. Q. Could you speak up and into the microphone? A. Up came a copyright notice, copyrighted -- Q. Could you just read that? A. -- April 16th, 1991 by Larry James and Richard Graham, written by Larry James. Q. Okay. What's the bottom line? A. Collaborated with Richard Graham. Q. Okay. Did you -- THE COURT: Excuse me. What was the bottom? THE WITNESS: Collaborated with Richard Graham. THE COURT: Written by James, in collaboration, is that what you're saying? THE WITNESS: It says, yeah, it says, written by Larry James, collaborated with Richard Graham. BY MR. OSTROWSKI: Q. Is that a separate line? A. Yes, separate line. Q. And did, were you in the presence of Mr. Graham when this copyright notice was displayed? A. Yes. Q. Okay. And can -- MR. KITCHEN: Excuse me. I missed the -- THE COURT: When and where? MR. KITCHEN: Well, I missed the verb, Your Honor. MR. OSTROWSKI: Displayed. THE COURT: Was he in the presence of Mr. Graham when he saw the copyright. MR. KITCHEN: Oh. When he saw. THE COURT: Is that, wasn't that the question? MR. OSTROWSKI: Well, actually, let me rephrase the question. BY MR. OSTROWSKI: Q. Did Mr. Graham look at this screen in your presence? A. Yes. Q. He saw it? It's like a, it's kind of a dumb lawyer's question, but I have to ask it. Did he see the screen? A. Yes. Q. Okay. And did he make any statements objecting to the copyright notice? THE COURT: Any statement? THE WITNESS: No. No, he didn't. BY MR. OSTROWSKI: Q. Okay. Can, can you take that CD Rom out, and can you identify that Exhibit by number and then the brand number? THE COURT: Want him to just read it? THE WITNESS: Yes. This is -- THE COURT: Is that what you want him to do, Mr. Ostrowski? Just read it? MR. OSTROWSKI: Yeah. I just want him to give us the -- THE COURT: You're not asking him whether he's seen it and can identify it separately? MR. OSTROWSKI: Not at this point. Plaintiff's Exhibit #6 marked for Identification) BY MR. OSTROWSKI: Q. Is that Plaintiff's Exhibit 6, right there? A. Yes. Q. And what's the brand release number? A. PDSI-004-1. Q. Okay. Could you execute that program to see if there's a copyright screen? Are you at some preliminary steps -- A. Yeah. I have to quit -- Q. -- of configuring the program and so on? A. I had to quit the original program I was in. Q. Okay. Just in the attempt to get the copyright screen notice up, perhaps, does anybody have any ideas on how to -- you can speak later. You've got to speak into the microphone. THE COURT: Can't you put the microphone up on top of the modem? MR. JAMES: It will come up on the exit screen. THE COURT: Do not testify, Mr. James, please. MR. OSTROWSKI: I just -- we're at a step here that's not important to the lawsuit, Your Honor. THE COURT: Well, I'm just wondering whether the microphone can be put up on top of the, what I call the modem, which means he would speak more directly into it, particularly if you bend it down a little bit. THE WITNESS: I'm sorry, Your Honor. THE COURT: Thank you. BY MR. OSTROWSKI: Q. Are you at the install feature? A. Yes. Q. And what happened after you installed? A. I got up on screen. It says PDSI-004-1. Q. Okay. Is there any copyright notice on that screen? A. No, there is not. Q. Okay. Can you see if there is a copyright notice on the exit screen, by just exiting out of the program, or escaping, or however you do it. A. Quitting. Yes. Q. Okay. And what is the -- could you read that entire copyright notice, please? A. Sure. Thank you for using the Night copyrighted C-1991 by Larry James for the Night Owl's -- for Night Owl's CD Rom Publisher. All rights reserved. Written by Larry James. Compuserve ID number 72667,3642. Q. Okay. Were you involved with Mr. Graham's business at the time this CD Rom was released? A. Yes, I was. Q. And how were you involved? A. As an associate. Q. I mean, specifically, what were your duties? A. I ran a local node for all local callers to the Night Owl's PBS and I was a Beta tester for the Night EXE. Q. What does Beta testing involve? A. Testing the code prior to being released on the CD, on the CD Rom's. Q. Now, what happened after you tested it, as far as the manufacturer is concerned? Are you familiar with Nimbus? A. Yes, I am. Q. And what did Nimbus do? A. Nimbus was the manufacturer that manufactures the CD Rom for Night Owl's Computer Service. Q. Okay. A. At the time I was there. Q. You tested this -- did you test this CD Rom before it was sent to Nimbus? A. Well, I didn't test the CD Rom. I tested the access program itself, separate off of the CD Rom. Q. When you say access program, does that also mean file retrieval program? A. Yes. File -- Q. Okay. A. File retrieval program, the Night EXE. Q. You tested the file retrieval before it was sent to the manufacturer? A. Yes, I did. Q. And in the process of testing it, would you see the exit screen with the copyright notice? A. Yes, I did. Q. Did Mr. Graham see the exit screen with the copyright notice? A. Yes, he did. Q. How many times? I'm saying, prior to being sent to the manufacturer, it being sent? A. I couldn't tell you how many times. I imagine as many times as -- THE COURT: Don't imagine. THE WITNESS: A lot. BY MR. OSTROWSKI: Q. Was it more than five? A. Yes. Q. More than 10? A. Yes. Q. Well, was it more than 30? A. That I couldn't say. Q. Okay. And did Mr. Graham make any objections to the copyright notice, to you? A. Yes, he did. Q. At what point? A. What do you mean, at what point? Q. Did he make objection to the copyright notice prior to it being sent to the manufacturer? A. I can't tell -- I don't think he made it prior to going to the manufacturer, no. Q. He did not? A. No. Q. Okay. Let's see. I don't think I have anything else at the computer. You can resume your seat. A. Thank you. (Witness resumes witness stand.) BY MR. OSTROWSKI: Q. What were the -- A. Can I ask a question to clarify something? Q. Not really. It's -- A. I wasn't sure if you meant -- when, if Richard made a comment about the copyright notice, did you mean the screen and what was on the screen, or specifically something about that copyright screen? Q. Are you saying you didn't understand my -- THE COURT: Did he make any comment? THE WITNESS: Pardon me? THE COURT: Did he make any comment? THE WITNESS: I don't know what you mean. I'm not sure about the question that I answered. BY MR. OSTROWSKI: Q. What I was asking you is, did he, the CD Rom had an exit screen with a copyright notice. What I asked you was, I believe, did he make any objection to that prior to that CD Rom being sent -- well, not the CD Rom, but the material being sent to the manufacturer to be made into it? A. No. Not at that time, no. Q. He did not? A. No. Q. Okay. Are you familiar with -- are you aware that -- well, it's the morning, Your Honor. Are you aware of the wholesale price that Richard was selling CD Rom's at around this time? We're talking about 1991. A. Yes. Q. And approximately what was the price? A. $159. THE COURT: Wholesale? THE WITNESS: Wholesale or retail? THE COURT: Wholesale. BY MR. OSTROWSKI: Q. I asked you wholesale? A. Wholesale is anywhere from $8 to $19 a disk. Q. Okay. And what was his retail price, or prices? A. Retail price was $159. Q. And do you have any personal knowledge of the volume of retail versus wholesale, or the percentage of his sales that were, each? A. Of each? Percentage of each sale? Q. What I'm asking you is, can you say, there was X % sold retail, or can you tell me how many dollars worth of retail were sold? A. I can give you a dollar, yeah, I can give you a dollar figure for retail. Q. Okay. Do you have an idea what the dollar figure was, either per week, per day, per month? A. Per day. Q. In 1991? A. In 1991 we would retail anywhere from $1,500 to $2,000 a day on retails alone. Q. Did Mr. Graham take in, take in any cash on these retail transactions? A. Only a couple times I actually seen a cash exchange. Q. Was that -- A. Mostly it was electronic -- Q. I'm sorry. A. -- or check. Q. Okay. Was, those couple of times you remember, was it a large amount of cash or -- A. No. It was relatively one disk and usually sold to a friend who walked in the door, and he just handed him cash for, a small amount for the disk. Q. Okay. Were there any -- were you aware of any cash transactions for wholesale sales? A. Only the ones where Rich would go out of town to, I believe it was Ohio, and I think in Pennsylvania, too. Q. Okay. Were you -- did -- were you with him on these trips? A. No. He asked me to go, and I just, I just never followed through in going with him. Q. Did he tell you what happened on these trips with regard to cash? A. He wanted me to go because he made cash transactions, and I guess for security, you know, two people being present, you know, less chance of something, you know, getting robbed, or something like that. Q. Okay. Now, do you recall, did Mr. Graham at some point discuss the copyright notice with you, either -- well, I guess I'm talking about the one you just saw, the one with just Larry James' name on it? A. Yes. Q. Okay. And what were the circum, what were the circumstances of that conversation? A. Richard had -- THE COURT: When was it? THE WITNESS: When was this? This was, I'd say, I'd say around September, October. MR. OSTROWSKI: Okay. THE COURT: Of what year? THE WITNESS: '91. BY MR. OSTROWSKI: Q. And did he -- THE COURT: Where was this? THE WITNESS: This was on the phone in his presence. We talked about it many times. THE COURT: You would hear his end of a telephone conversation? THE WITNESS: Pardon me? THE COURT: You would hear his end of a telephone -- THE WITNESS: No. We talked directly to each other. THE COURT: He was talking with you on the telephone? THE WITNESS: Yes. We talked to each other on the telephone, or it was in our presence, me and Rich talked face to face about it. THE COURT: Where would you be, where were you in September or October when such conversation went on? THE WITNESS: I was, oh, at Richard's house. You mean, where was I when we would talk about this? At Richard's house. THE COURT: You were at his office? THE WITNESS: Yes. His house is his office, and vice versa. THE COURT: Where was he? THE WITNESS: He was at his house and -- THE COURT: Oh, and you're talking by telephone? THE WITNESS: No. We -- I said I would make -- there would be several times, either by phone or by -- THE COURT: All right. We're trying to -- THE WITNESS: -- face to face. THE COURT: -- pinpoint things. Was there a first time that this occurred? THE WITNESS: Yes. THE COURT: When and where was that? THE WITNESS: That was on the phone. THE COURT: In that, what time period? THE WITNESS: I'd say October, September, October, somewhere around then. BY MR. OSTROWSKI: Q. And did Mr. Graham initiate this conversation, or did you? A. No. I did. Q. Okay. And how so? A. Richard was telling me about Larry James. He wasn't pleased with the fact that he put his Compuserve ID number on the copyright, and my question to him was, because Richard has always been telling me for maybe a good month before we even talked about the copyright, that the copyright was his. So my question to Richard was, well, why are you concerned about the, just concerned about the Compuserve ID number, you know, when Larry's copyright was in there. And I thought he should have, you know, been concerned about -- THE COURT: Well, tell what you say, not what you thought. THE WITNESS: I said, I said, you should be concerned about Larry's -- THE COURT: You said what? THE WITNESS: I said, you should be concerned about Larry's copyright on there if it's your program. THE COURT: Shouldn't be concerned? THE WITNESS: I said he should be. THE COURT: Should be concerned. THE WITNESS: He should be, yes. BY MR. OSTROWSKI: Q. Okay. And what did he say? A. He said he wasn't concerned about that. All he wanted out was the Compuserve ID number. Q. Okay. THE COURT: All he wanted out was what? THE WITNESS: The Compuserve ID number. He said that the Compuserve ID number was -- this is what he told me, that the Compuserve ID number, he was getting complaints from end users, or it was causing confusion. The distributors were telling him it's causing confusion because the Compuserve ID number was in there. THE COURT: I seem to be missing part of what you're saying. Copy served ID number? THE WITNESS: It's a Compuserve. Compuserve is an on-line service. THE COURT: What, what are you saying? THE WITNESS: Compuserve. MR. OSTROWSKI: Could you spell that? THE COURT: Compuserve. MR. OSTROWSKI: Could you spell that? THE WITNESS: C-O-M -- THE COURT: C-O-M-P-U-S -- THE WITNESS: -- P-U-S-E-R-V-E. BY MR. OSTROWSKI: Q. And what is, what is a Compuserve ID number? A. Compuserve is a on-line service and the number is simply your, a number given to you to identify you as who you are. Q. Okay. Could somebody reach -- A. A way they could reach you or identify, or get ahold of you, by your number. Q. Somebody could reach Mr. James by using his Compuserve ID number? A. Yes. Q. Okay. THE COURT: A marketing gizmo? THE WITNESS: I wouldn't say it's marketing. It's -- THE COURT: Somebody wants to buy it -- THE WITNESS: It's like a telephone number. THE COURT: -- knows how to get in touch with whoever's selling it. THE WITNESS: Yes. It's an electronic telephone number. BY MR. OSTROWSKI: Q. Or for, if somebody had a question about the program they could find out? A. Right. Q. Through the Compuserve ID number? A. Right. Q. Okay. A. Basically authors use it for support of their product. Q. Okay. Do you remember after you spoke with Mr. Graham about the copyright notice and the Compuserve ID number, do you remember when you had another conversation with him about this controversy that was significant, and if so, you could tell us when it was? A. About the -- Q. Basically what happened next between you and Mr. Graham with respect to this controversy? A. We had, you know, we had the same discussion several times. Q. Okay. A. It was the same discussion. And Rich told me just, you know, he wasn't concerned about Larry's copyright being in there, and it really never became an issue until prior to the pretrials of this case. Q. Okay. And how -- A. And that's when he, that's when he said he wanted the copyright out of there. Q. Okay. And can you identify approximately when that was? You came to the Court hearing in December of '91? A. Yes, I did. Q. Okay. And how close, these conversations were when with respect to the Court hearing? A. They were just prior to it. Q. Just prior? A. I'd say a couple weeks. Q. Okay. And what statements specifically did Mr. Graham make about Mr. James at that time? A. In what sense? Q. About the ownership of the copyright, or anything about Mr. James as a person, whatever? A. Oh, Richard was, I mean, it was just, he was constantly talking about Larry, was actually obsessed with Larry. Q. Well, what did he say? A. He just would not stop talking about Larry. Q. But specifically? A. Larry's stealing our program. Q. He said, Larry's stealing his program? A. Yeah. Larry's trying to steal my program. Q. And how many times did he say that, more than once? A. I couldn't even tell you. More than once, yes. Q. Okay. Did he use any other derogatory words about Mr. James, if you know what that means? A. What do you mean, in what sense? Q. Bad words, negative words? A. Oh, yes. Q. Well, give us what they are. A. Larry's a thief. I hate him. I can't believe he's trying to steal my program. I mean, he would go on and on. Q. Well, tell us. We need to know the words. A. Well, it got to the point where I didn't want to hear him anymore. It would go in one ear and out my other, and I wouldn't pay attention to him anymore. I got to the point where I didn't want to hear anything about Larry anymore. I was just sick and fed up hearing about him a hundred times. All that was talked about was Larry, and it was just -- Q. Okay. A. It got to the point where I didn't hear what Rich was saying about Larry. When, as soon as Larry came out, anything to do with Larry, I, I got to the point where I didn't want to hear it anymore. Q. Okay. A. And I made this point, I made it clear to Rich that I didn't want to hear about it either. Q. I understand. Now, you said, you mentioned the word thief and steal, that he used with reference to Mr. James, correct? A. Yes. Q. In your presence, did, did Mr. Graham use these words about Mr. James to any other person? A. Anyone who was around us in the room, yes. Q. Well, I need to know who, when -- A. His wife, his sons. Q. What words did he use to them? A. The same words and same -- Q. What words exactly? A. -- conversations. Q. We need to know the exact words. A. I hate Larry. I never trusted that black guy. Well, he didn't say black guy. Q. What did he say? A. You know, nigger. Q. How many times did he say nigger? A. Oh, I couldn't tell you that. MR. KITCHEN: I'll object, Your Honor. Now, you know, he's been trying for the last 15 questions to try and get all those derogatory terms out of this witness. He couldn't get it. So he thought he'd provide the words and put it into this witness' mouth. I object to the question. THE WITNESS: No. He didn't put nothing in my mouth. THE COURT: What's derogatory about that? MR. KITCHEN: About -- THE COURT: Black guy. MR. KITCHEN: Well, the last term I heard, Your Honor, was nigger. I think most people would regard that as derogatory. MR. OSTROWSKI: Well, I didn't mention that word. I didn't mention black guy either. THE WITNESS: Yeah. I said black guy. MR. OSTROWSKI: So you're way off base. THE WITNESS: And he didn't put any words in my mouth. MR. KITCHEN: Excuse me, Your Honor. But I wouldn't have stood up here, but for the fact that out of Mr. Ostrowski's mouth came the word nigger. MR. OSTROWSKI: Not first. THE WITNESS: No. MR. OSTROWSKI: No. No. MR. KITCHEN: Your Honor, I must respectfully disagree with what counsel and the witness are now saying. THE COURT: Well, if he's saying that Mr. Graham used that term with regard to Mr. James, that's in the evidence. MR. KITCHEN: Yes, it would be in the evidence properly, Your Honor, if it came from the witness. THE COURT: That's right. MR. KITCHEN: What I did is, I heard it first from Mr. Ostrowski. THE COURT: Well -- MR. KITCHEN: And I object to it being leading. MR. OSTROWSKI: He didn't object at the time. THE COURT: The question -- MR. KITCHEN: Your Honor, I was on my feet immediately thereafter. THE COURT: Your feet don't talk. MR. KITCHEN: Well, Your Honor, I was on my feet and at the microphone, and I was saying objection. THE COURT: You have a microphone on your table. All right. Just go ahead. BY MR. OSTROWSKI: Q. Okay. What other persons did, in your presence, did Mr. Graham speak to about Mr. James in a bad way, derogatory way, if any? A. Well, that's all I can recall right now, because most of the time I was with Rich was in his house, so it would be anyone who was in the household at the time. Q. Okay. I'm just asking you, from your own personal knowledge, you can't recall anyone else at this point? A. No. Q. Okay. Did Mr. Graham speak to you about the lawsuit here at that time, back in December '91 or thereabout, did he talk to you about the lawsuit? A. Did he talk to me about the lawsuit. THE COURT: Did you know there was a lawsuit? THE WITNESS: Oh, yes. THE COURT: How did you know? THE WITNESS: Well, I was, I was helping Rich build a case against Larry. MR. OSTROWSKI: Okay. THE COURT: So you heard, you heard about it from Mr. Graham? THE WITNESS: Yes. We -- THE COURT: That was the question. THE WITNESS: We discussed about, you know, getting a lawyer, pursuing this in Court. MR. OSTROWSKI: Okay. THE WITNESS: We actually made tapes of Larry and Ralph, and I think his name was Bob or Robert. THE COURT: When did he first talk about getting a lawyer and suing? THE WITNESS: It was in November, couldn't tell you a date, the exact date. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Did he, did Mr. Graham make comments about the likelihood of Mr. James being able to defend the lawsuit? A. Yeah. Yes. The hope -- Q. What did he say? A. The hopes were that Larry would -- THE COURT: Wait a minute. Wait. The hopes were? THE WITNESS: The hopes were -- THE COURT: What did he, no, you're saying something he said. THE WITNESS: He said, he said, this was his hopes, that Larry would not be able to afford to carry on this trial, or, this trial for any great length of time. BY MR. OSTROWSKI: Q. Why not? A. Because he didn't think that Larry could afford to pursue this in a Court. Q. Did he make any comments about Mr. James' smarts with regard to fighting a lawsuit? A. He thought Larry was very stupid, and he thought his lawyer, well, thought you were very stupid, too. THE COURT: Who? THE WITNESS: James, the lawyer. THE COURT: Yeah, but there's somebody, too. THE WITNESS: Pardon me? THE COURT: Someone else also. THE WITNESS: What do you mean, I don't know what you mean. There -- BY MR. OSTROWSKI: Q. Who else did he say was stupid? THE COURT: You used the word T-O-O, and I'm wondering what -- THE WITNESS: Too, meaning Larry and his lawyer. He thought they were a joke. THE COURT: Larry and his lawyer, who was his lawyer? MR. KITCHEN: I'll object. I'll object on the basis of relevance, Your Honor. It is -- THE COURT: Who was his lawyer? THE WITNESS: James. MR. OSTROWSKI: Your Honor -- THE COURT: James was his lawyer? THE WITNESS: Yes. THE COURT: James was his own lawyer? THE WITNESS: No, James, right here. MR. OSTROWSKI: Ostrowski. THE WITNESS: Ostrowski. MR. KITCHEN: Your Honor, I'll object on the grounds of relevancy. It's irrelevant whether or not Mr. Ostrowski is stupid. THE COURT: When did, well, excuse me. When did this occur? This is back in November? THE WITNESS: This is back when the, just when the proceedings started actually, and when -- THE COURT: When did it start? THE WITNESS: In December, I believe. THE COURT: All right. And when did he make any comments about Mr. James' lawyer? THE WITNESS: During the pretrials, I believe it was, hearings. Right after the first hearing. THE COURT: Oh, during the hearing. THE WITNESS: Yeah. Right after the first hearing was -- THE COURT: Right after the hearing. MR. OSTROWSKI: And in response to Mr. Kitchen, Your Honor, I have to say that after that hearing my client hired another lawyer with the same name, who is not stupid. BY MR. OSTROWSKI: Q. Okay. Now, let's move on. You said that -- okay. I believe you stated the other day that you're the one that actually made the recordings? A. Yes, I did. Q. If I -- Your Honor, I'd like to play Plaintiff's Exhibit 16. THE COURT: Why? MR. OSTROWSKI: 16, Your Honor. Not to refresh -- I'm not going to ask him about the contents. I'm simply going to ask him about -- THE COURT: Why do you want to play it? MR. OSTROWSKI: I want him to identify, to ask him about the break in the tape, Your Honor, that's already been played. THE COURT: Well, ask him about it. MR. KITCHEN: Your Honor, I'm going to object because there have been, there's been a lot of testimony already about the break in the tape, and I believe this witness has already testified the last time that he, he didn't observe any break in the tape or any break in the taping process, or any such thing. MR. OSTROWSKI: But I'd like to, I'd like him to -- THE COURT: Well, since, did you testify that way earlier, Mr. Armenia? THE WITNESS: Yes, I did. THE COURT: Since that time, have you listened to the tape? THE WITNESS: No, I have not. THE COURT: The question is why, now? MR. OSTROWSKI: I want him to listen and to verify. He's testified from memory. I want him to actually hear the tape and be able to state whether, it might refresh his -- THE COURT: It's so much more helpful to the Court and everything if in the interim Mr. Armenia had listened to it. But go ahead. MR. OSTROWSKI: Your Honor, I'm not going to play the entire tape. I have it iso -- THE COURT: I know you're not. But even that portion could have been played to him earlier so he could sit here and testify about it, but go ahead. What's the tape? MR. OSTROWSKI: This is -- THE WITNESS: 16 or 17. MR. OSTROWSKI: -- Plaintiff's Exhibit 16. THE WITNESS: Oh, I did, I did hear the tape. THE COURT: Wait a minute. Wait for a question. THE WITNESS: I did hear the break. THE COURT: Wait for a question, please. MR. OSTROWSKI: Naturally it's not plugged in. (Defendant's counsel plays Plaintiff's Exhibit 16) BY MR. OSTROWSKI: Q. Do you recall that conversation? A. Yes, I do. Q. Did you hear any break in the tape? A. No, I did not. Q. You did not. Let me play it again. A. Oh, did I hear this tape, this, in the tape. Yes, I heard a break in the tape. Q. You heard a break in the tape? A. Yes. THE COURT: How did you hear a break in the tape? THE WITNESS: I heard the break, the pause in the -- THE COURT: Pause in what? THE WITNESS: The pause in the tape, and the conversation. THE COURT: You mean a pause where there was no sound? THE WITNESS: No. It was a definite break in the tape, in the conversation on the tape. THE COURT: You mean you could hear something that indicated a physical break in the tape? THE WITNESS: Yeah. It was -- MR. KITCHEN: Your Honor, I'm going to object to this testimony. The characterization of a break in the tape suggests that somehow Mr. Armenia is somehow qualified to, to speak with some expertise about technically what he has heard. He has heard nothing different than what the Court has heard or the rest of us have heard. THE COURT: Well, the Court needs help as to what is considered a break. MR. KITCHEN: Well, help from an expert, Your Honor, or -- MR. OSTROWSKI: I don't think this is a matter for expert testimony. These audio tapes have been around for years and years and years. THE COURT: Well, the Court has heard no break. BY MR. OSTROWSKI: Q. In listening to the tape, did you, were you, did you notice a point where Mr. Graham stopped in mid-sentence? A. Yes. Q. Okay. If I played the tape again, would you be able to remember what he had said after the break in the sentence? THE COURT: After or before? MR. KITCHEN: I'll object. MR. OSTROWSKI: After. MR. KITCHEN: I'll object to the characterization of a break. THE COURT: Well, I assume it was more important, if there's a break, it's more important what was said prior to the break, wasn't it? MR. OSTROWSKI: No, I don't believe so, Your Honor. There's -- it would be the break, excluding what happened after the break, or, you are correct, Your Honor, with respect to the continuation. We also don't know what was said prior to that. I would simply like to play the tape again and ask the witness if he remembers anything that was said in between the end and the -- end of the first interruption and the beginning of the -- THE COURT: Are you asking him whether there was a time when the tape was not rolling and some conversation was had? MR. OSTROWSKI: He's already stated, Your Honor, that -- THE COURT: Are you saying, are you asking him that? MR. OSTROWSKI: Not right now. He's already -- THE COURT: Well, I'm just wondering. What do you mean by a break, Mr. Armenia? THE WITNESS: A break can occur either by a power loss or -- THE COURT: Someone cutting off the power. THE WITNESS: Cutting off the power, which I know I did not do during the taping. Or a break can occur by simply pressing the record over an already, a tape that already has something on it, and you can hear a physical -- THE COURT: You mean record over it. THE WITNESS: Yes. You can hear a physical break, and there is a distinct noise that it makes, and a distinct sound. THE COURT: Who was running the tape on this occasion? THE WITNESS: I was. THE COURT: Did you interrupt the power intentionally? THE WITNESS: Nope. There was no interruptions at all, and I took very careful steps not to do that because -- THE COURT: There was no break. THE WITNESS: There was no break because I took very careful steps not to do that, because if you make the break you can hear it through the telephone line. THE COURT: Now, after the conversation had been recorded continuously and without any break or any interruption, someone in possession of the tape could, well, of course, they could record over it, couldn't they? THE WITNESS: Yes. You can record over it to -- but they will leave a distinct sound. THE COURT: Are you suggesting that that's what occurred in this case? THE WITNESS: That sounds like a definite -- THE COURT: Re-recording. THE WITNESS: -- re-recording over the tape. THE COURT: Recording over. THE WITNESS: Yes. MR. KITCHEN: I'll object, Your Honor. This person -- THE COURT: I'm just trying to pinpoint what it is the Court should be looking for. MR. KITCHEN: Yes, Your Honor, but if the Court is going to rely upon this, Mr. -- THE COURT: The Court is not going to rely on that. The Court is going to rely upon its own hearing. MR. KITCHEN: Well, my concern is, is that any of this testimony from this witness be accepted as essentially expert evidence as to what is on a tape or not on a tape, or whether it's been recorded over. THE COURT: I take it only to this point that if there is a break and Mr. Armenia says he hears a break, that Mr. Armenia had nothing to do with it. Isn't that your testimony? THE WITNESS: Yes, it is. MR. KITCHEN: Well, my, if I can address this, Your Honor, my concern is, is that this Court, together with Mr. Ostrowski, have asked this witness what would have or could have caused this break. And it is -- THE COURT: If there is one. MR. KITCHEN: If there is one. And this witness has given essentially one or two explanations for what amounts to a click or a noise on the tape, which may or may not constitute a break, even though it's been characterized as that. What I submit, Your Honor, is, those are hardly exhaustive of all the explanations for that otherwise unexplained sound on the tape. THE COURT: I assume you'll bring out those other possibilities on your further, on your examination of Mr. Armenia. MR. KITCHEN: Your Honor, I would, if this person were qualified to even, even suggest the first two. But -- THE WITNESS: I believe I am qualified, seeing I know how to run the -- THE COURT: Well, he says, one, it could be occasioned by a cutoff of the power, but he was running the machine and the power was not cut off, and the tape continued to roll, is that right, Mr. Armenia? THE WITNESS: Correct. THE COURT: All right. MR. KITCHEN: Well, now, Your Honor -- THE COURT: So if there is anything wrong with it, it could only come about, you're saying, through someone thereafter in possession of the tape re-recording something over what was there originally, is that right? THE WITNESS: Absolutely correct. MR. KITCHEN: Well, all right, now, Your Honor, we have elicited, the Court has elicited from him what essentially amounts to expert testimony as to what can or can't occur on audio tapes. THE COURT: That's not very expert. THE WITNESS: I think that's common knowledge. Anyone who runs a tape recorder. MR. KITCHEN: And, and this individual indicates that he essentially has the qualifications. He should be properly questioned to qualify him as an expert. THE COURT: It's not a matter of qualification. It's the situation, just to use it somewhat facetiously, where you can call the 10 year old child off the street and he can run all of this, but even beyond that, this Court and, this Court particularly, and many others who deal with tape recordings, know that these run through the machine and you can wipe something out by recording over it. You can wipe it off by putting it in a magnetic field, which will cause confusion among all those little pieces of iron that line up due to the magnetic field produced by the conversation, and so forth. It's a simple matter. MR. KITCHEN: Very well, Your Honor. THE COURT: So if someone were to take a tape which had a continuous telephone, continuous conversation on it, and at some mid-point put something on top of it, that would wipe out what had been there originally and would leave only what was newly placed there. MR. KITCHEN: Your Honor -- THE COURT: That's not expert. MR. KITCHEN: Then I would also ask the Court to take judicial notice of the fact that one can contact the surface of a tape with something like a -- THE COURT: One can what? MR. KITCHEN: One can contact the surface of a recording tape with something like a paper clip which might be magnetized because it was in a magnetized -- THE COURT: A magnetic field will disturb what is on the tape, that's right. THE WITNESS: And it also has a distinct sound. THE COURT: It would not, however, put -- MR. KITCHEN: Well -- THE COURT: It would not, however, put back into the tape any intelligible words, which I gather is what is said to have happened here, that somebody put some words on top of what had originally been recorded. I don't know if that's it, if I'm gauging that correctly or not. MR. KITCHEN: Well, Your Honor, I'm concerned about what the Court has heard here because what I have heard on the tape is essentially -- which has been characterized as a break, is a fraction of a second, like momentary click or interruption in the normal flow of the sound being heard. THE COURT: Did you hear -- excuse me, Mr. Armenia, did you hear a, quote, click, unquote? THE WITNESS: Let me think here. I didn't hear a click. THE COURT: No. I didn't either. MR. KITCHEN: Well, what I'm suggesting, Your Honor, is that the particular break occupies but a fraction of a section -- second of the recording time, and that if the Court assumes that the break indicates that everything after the break was essentially put on over previous recording, that the Court may be jumping to a conclusion, and that the apparent break may be nothing more than that, just a momentary interruption which might be a defect in the tape, or an erasing of a fraction of an inch. THE COURT: Well, I'm assuming that that is not at all the situation that's presented here without having a particular remembrance of what occurred after this supposed break. I am sure that Mr. James' voice comes into later portions of the tape. Consequently if someone having possession of the tape were going to monkey around with it by going to some particular point and recording some new statement on there which automatically wipes off what had been on there originally, it would be fairly impossible for him to put Mr. James' voice on. MR. KITCHEN: That would appear correct. THE COURT: That's my supposition, that in this point after this so-called break that we do have conversation by Mr. James. MR. KITCHEN: Well, does the Court agree that what it's heard is not an extensive blank space. It's heard essentially -- THE COURT: I don't hear any blank space, and I don't think that's any testimony about that. I'll listen to it more closely but what comes through to me, that if there is anything called a break, it consists of some new word or words being put on top of what Mr. Graham was saying so that Mr. Graham's normal talk seems to be abnormally truncated or cut off. I don't know. If someone were to do that and to re-record over it, they might well come into the middle of a word or into the middle of a sentence, the middle of a thought. But I don't know what's there, but -- does the defendant have some contention relative to this? MR. OSTROWSKI: Yes, Your Honor. Just a few more -- THE COURT: What is the defense contention? MR. OSTROWSKI: Well, the contention is that something was taken off of the tape by re-re -- by editing. THE COURT: And something obviously put back on in its place. Because we don't have a blank spot. MR. OSTROWSKI: Having listened to the tape -- THE COURT: We don't have a blank spot. MR. OSTROWSKI: There is a blank spot, yes. THE COURT: Of what, of any continuity? MR. OSTROWSKI: Well, there's a conversation which is interrupted in mid-sentence, and then it immediate -- THE COURT: Immediately. MR. OSTROWSKI: And then you hear -- THE COURT: It goes forward. MR. OSTROWSKI: Yeah. Then you hear all sorts of mechanical noises, and then you immediately hear the continuation. THE COURT: Well, what do you mean, what do you mean mechanical noises? MR. KITCHEN: Your Honor, I object to Mr. Ostrowski testifying. THE COURT: Wait a minute. What do you mean by mechanical noises? MR. OSTROWSKI: All I'm saying is, from my own experience in using tape recorders, when you stop and go -- THE COURT: You mean somebody banging on the microphone or drumming your finger, or playing with a bunch of keys, or what, what do you mean? MR. OSTROWSKI: I mean something with regard to the mechanics or motor of the machine going on and off. THE COURT: Mr. Armenia said it did not. MR. OSTROWSKI: I'd like to ask him further, a few further questions. THE COURT: You may. BY MR. OSTROWSKI: Q. During this conversation, did you press the stop button? A. Did I? Q. Yes. A. No. Q. Did the tape run out? In other words, did it end? A. No, it did not. Q. Did you have to replace the tape? A. No, we did not. Q. Showing you Plaintiff's 16, is that the tape you gave to, is that the original tape that you used? THE COURT: How would you know? BY MR. OSTROWSKI: Q. If you know. A. Well, I do use this brand tape, so I can tell you that. Q. Can you identify -- A. And I can also tell you -- Q. -- that as original? A. I can't tell you if it's an original, only by what I'm seeing here, that I do use this brand of tape, and it does look like my handwriting. I did write on all the tapes. All -- THE COURT: You didn't write on the tape. THE WITNESS: I wrote on the label here, and it looks like it is my handwriting. THE COURT: That's right. You wrote on the cassette, or reel. THE WITNESS: Right. Prior to handing these in to Mr. Kitchen, I wrote on -- THE COURT: While it's -- and what did you do after you had -- when did you write it on there? THE WITNESS: Prior to giving them to Mr. Kitchen. THE COURT: Pardon me? THE WITNESS: Prior to giving them to Mr. Kitchen. THE COURT: To who? THE WITNESS: Mr. Kitchen. MR. KITCHEN: Right here, Your Honor. THE COURT: Oh. Oh, yeah. When, when did you do that? There was a time when the recording was made. THE WITNESS: Right. THE COURT: You were at the machine. You were running it. THE WITNESS: Right. THE COURT: The cassette was in the machine. The tape was rolling. THE WITNESS: Right. THE COURT: The conversation came to an end. The machine was turned off. The cassette was lifted up. THE WITNESS: Yes. THE COURT: What happened? THE WITNESS: Well, we didn't take the cassette out. We played the, we played the cassette back. THE COURT: Immediately? THE WITNESS: Yes. THE COURT: Without taking it out of the machine? THE WITNESS: Yes. THE COURT: So you ran it all the way back to the start, and then both of you listened to it? THE WITNESS: All three of us did. THE COURT: Who was the third? THE WITNESS: Mr. Kitchen. THE COURT: Oh. Mr. Kitchen was there at the time the conversation was recorded? THE WITNESS: No. We called Mr. Kitchen on the phone and we played back the conversation through the phone line. THE COURT: Oh, I see. THE WITNESS: We all listened to it on the phones. THE COURT: So you called Mr. Kitchen and Mr. Kitchen was supposedly listening on the other end of the phone -- THE WITNESS: Right. THE COURT: -- while you and Mr. Graham at Mr. Graham's were playing the tape which you had run back, rewound, and then played it. THE WITNESS: Correct. THE COURT: How soon after the conversation did that occur? THE WITNESS: How soon after the conversation? THE COURT: Yeah. THE WITNESS: That we talked to Mr. Kitchen? THE COURT: Yes. THE WITNESS: And played it back to him? 0 THE COURT: Yes. MR. OSTROWSKI: Your Honor, I just -- THE COURT: Yes? MR. OSTROWSKI: I just realized I had a schedule problem. I'm late for my closing. My -- THE COURT: Was this the day of the closing? MR. OSTROWSKI: Yes, Your Honor. I -- THE COURT: You were supposed to leave five of 10:00. MR. OSTROWSKI: I may be in a little bit of trouble. I better sprint over there. THE COURT: All right. MR. OSTROWSKI: I just forgot because of the intensity of the examination. Might I be excused? THE COURT: All right. Yeah. You may be excused. Mr. Armenia, don't talk with anybody about this conversation till you're back in the witness chair. THE WITNESS: All right. (Recess taken) THE COURT: On the record. CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. Armenia, I'd ask you to listen to a portion of the tape, Plaintiff's Exhibit 16. (Plaintiff's Exhibit 16 played) BY MR. OSTROWSKI: Q. Now, can you describe what you just heard? A. A definite break in the tape. THE COURT: Where? Between what point? THE WITNESS: A break in the conversation, too. Richard was requesting whether Larry got paid for the, for writing for him. THE COURT: And what happens on the tape? THE WITNESS: Then there was a definite break to where you can hear a pushing of a button, someone actually pushing a button, and the only way to make that break is to push -- MR. KITCHEN: I'll object. THE COURT: Wait a minute. Wait a minute. What noise does the pushing of a button make? THE WITNESS: The -- you can hear the fiddling -- THE COURT: What? THE WITNESS: The fiddling. It doesn't have to make the click. THE COURT: Fiddling or a click? THE WITNESS: It doesn't have to make the click itself. THE COURT: If you broke off the current, you would have a click, wouldn't you? THE WITNESS: Not necessarily, no. THE COURT: You would have any, you wouldn't have any odds and ends of noise. You'd have either a -- you'd have a definite sound, wouldn't you? THE WITNESS: It's a definite lowering of the volume and just a fading of the voice, where you can hear. That means that a recorder button has been pushed. THE COURT: If you, for example, running the machine, which you weren't at this point, you're saying, pushed the button to cut off the power, you wouldn't hear any diminution of the voice. The tape wouldn't coast, would it? THE WITNESS: No. The tape would not coast. THE COURT: It just stops abruptly. THE WITNESS: It would stop abruptly. THE COURT: All right. And what do you hear here that leads you to think there's a break? THE WITNESS: I hear a distinct -- I'm very familiar with taping, and taping over tapes, and the hearing of the sound of -- THE COURT: My question is, what did you hear? THE WITNESS: I heard a pushing of a button, and I heard the tape fade out and fade back -- and fade -- THE COURT: It wouldn't fade out if it was just cut off with a switch, would it? THE WITNESS: No. THE COURT: No. So what does that mean to you? THE WITNESS: That means that someone tried recording over the tape. And recording has two purposes. You could either record something on there or -- THE COURT: Oh, I know the purposes of it. One, you can monkey with a tape, or you can re-use a tape. THE WITNESS: Right. BY MR. OSTROWSKI: Q. Okay. Now, you said, you stated that you listened to this tape just after it was made? A. Yes, I did. Q. Was that breaking noise on there? THE COURT: Wait a minute. When did you listen to it? THE WITNESS: Right after we, right after we taped it. THE COURT: When was that, when you were playing it for Mr. Kitchen? THE WITNESS: Yes. THE COURT: Well, how long after the tape was that? THE WITNESS: Actually we played it several times, so we heard it -- THE COURT: When was the first time? THE WITNESS: Right after, right after we taped it, we played it back for ourselves, and then -- THE COURT: Oh, you didn't mention that earlier. But you did it right away? THE WITNESS: We played it several times, yes. THE COURT: Wait a minute. I'm just worried about several times. The first time. You made the -- the telephone conversation and then you cut off the recording, is that right? THE WITNESS: Yes. THE COURT: And then you rewound the tape? THE WITNESS: Then we rewound the tape. THE COURT: No. You rewound the tape. THE WITNESS: I rewound the tape. THE COURT: Then what happened when? THE WITNESS: Then I played, I started playing back the tape. THE COURT: Immediately? THE WITNESS: Immediately. THE COURT: Where was Mr. Graham, if anywhere? THE WITNESS: He was right, right there beside me. THE COURT: He came from the telephone to where you were? THE WITNESS: Well, I was -- no, I was in the same room. We were in the same room taping it. THE COURT: And he came over to you where the recorder was? THE WITNESS: We were always standing by it, so he didn't have to really come or move or -- THE COURT: How far apart were you? THE WITNESS: Oh, about two feet. THE COURT: You were that distance apart while the telephone conversation was going on? THE WITNESS: Yes. THE COURT: All right. So, all right, go on. THE WITNESS: I was -- THE COURT: The conversation ended, you rewound the tape, then what? THE WITNESS: Then we played it back. THE COURT: You played it back, or did he play it? THE WITNESS: Yes. I played it back. Well, I meant we, as we both listened to it. THE COURT: Well, who's running the machine? THE WITNESS: I was. I played it back. We listened to it. We talked about -- THE COURT: Wait a minute. What did you hear when you played it back then? THE WITNESS: We heard the conversation. THE COURT: Not we. You don't know what he heard. THE WITNESS: Oh, well. THE COURT: You know what you heard. THE WITNESS: Yes. I heard the conversations. THE COURT: What was different about the conversation then as opposed to what it is now, if any? THE WITNESS: There was no break. THE COURT: What was different about it? THE WITNESS: There was no break in the tape at all. THE COURT: Well, what was, what was said -- something was said now, we've listened to it. What was on there when you heard it first? THE WITNESS: Oh, well, that I couldn't tell you because I didn't -- I don't know -- THE COURT: You don't remember. THE WITNESS: No, it's not that I don't remember. I don't, I don't know all that is on the tape or how much -- THE COURT: But at that particular portion. THE WITNESS: Oh, that particular portion. I couldn't really tell you because -- THE COURT: You don't remember. THE WITNESS: I do not remember. THE COURT: All right. Thank you. THE WITNESS: It was a very lengthy conversation. BY MR. OSTROWSKI: Q. But you did not hear the break the first time you played the original tape? A. No. There was never a break in the tape. THE COURT: And you're still talking about the break as being a definite noise and an abating, a slighting off of the volume of the speech? THE WITNESS: Yes. THE COURT: And then what happens after the break? THE WITNESS: Then there is the abruptness of a recording of a different conversation. It did not -- THE COURT: Different conversation? THE WITNESS: Yes. It did not pick up where it left off, had it have been an accident and you were -- THE COURT: That's your opinion. THE WITNESS: That is definitely my opinion. THE COURT: But are you testifying from what you remember the conversation to have been? THE WITNESS: I'm testifying to as what I'm hearing right here in the Court. THE COURT: Do you remember how the conversation went as you listened to it originally? THE WITNESS: Yes. That -- THE COURT: What was on there originally differing from what's on there now? THE WITNESS: I didn't hear anything, because it was short, I only heard a few words of the actual, what was said after the break, so I really don't know. THE COURT: No, no, no. Before the break. THE WITNESS: That was, that was -- THE COURT: You were listening in on the conversation, weren't you? THE WITNESS: Yes. That was part of the conversation. THE COURT: You were listening in on the conversation, as it was ongoing, weren't you? Both sides of it, or just -- THE WITNESS: No, I was not. THE COURT: Just Mr. Graham's? THE WITNESS: Just Mr. Graham. THE COURT: And it's only in this, Mr. Graham is speaking at this point of the supposed break. THE WITNESS: Yes. THE COURT: All right. So you heard, you were listening to Graham as the tape was being made. THE WITNESS: Correct. THE COURT: What did he say when, at that point, contrary to what you hear on the tape now? THE WITNESS: Well, I couldn't tell you that because there was a break. THE COURT: You don't know. THE WITNESS: There was a break in the tape. THE COURT: All right. But what's different? Break or not, what's different? THE WITNESS: The conversation was never completed. THE COURT: Well, what was it, what was it earlier? THE WITNESS: Oh, you mean what was said in that conver -- THE COURT: What has been erased, if anything? THE WITNESS: I could not actually tell you exactly what was erased. I could not tell you. The conversation was too lengthy. THE COURT: Was there anything significant at that point, to your recollection? THE WITNESS: No. Because I can't recollect it. THE COURT: All right. Thank you. BY MR. OSTROWSKI: Q. Now, you're in the business of selling CD Rom's? A. Yes, I am. Q. And how long have you been in that business? A. Ten months and about approximately 15 days. Q. Okay. And prior to that time were you involved in the CD Rom business, other than as an owner of a business? A. Outside of just being associated with Richard, no. Q. Well, you were associated with Richard in his business of selling CD Rom's? A. Yes. Q. Okay. How important is a file retrieval program in marketing and selling a CD Rom? MR. KITCHEN: Well, is this a general question? Again, we're asking Greg Armenia, the expert. Now he's an expert on CD's? MR. OSTROWSKI: Yeah. He is an expert. That's what he does for a living. THE COURT: He's not an expert on anything yet. MR. KITCHEN: Well, I -- THE COURT: I never put a stamp of a seal, or a seal of approval upon a person's head as an expert. I take it question by question. MR. KITCHEN: In that case, Your Honor, I object to the question because it calls for an opinion which relates to a generalization for the industry rather than his own assessment of his own importance to himself and his business. THE COURT: Sustained. BY MR. OSTROWSKI: Q. How important is the file retrieval program in marketing and selling your own CD Rom's? A. Very important. Q. I'm sorry? A. Very important. Q. Why? A. Well, there's over 5,000, anywhere from 5,000 to 6,000 and even greater files that are on a disk, and if a user is unable to retrieve those easily, they're reluctant to buy that or purchase that disk. Q. And were you familiar with the CD Rom market in 1990 and '91? A. 19 -- Q. 1990 and 1991. Who was selling, what they were selling, and so on? A. 1990 -- THE COURT: The answer is yes or no. THE WITNESS: No to 1990. THE COURT: You don't know 1990. THE WITNESS: No. No to 1990 and yes to 1991. BY MR. OSTROWSKI: Q. Okay. And are you, did you have a chance to use CD Rom's that were put out in 1991 by anyone other than Mr. Graham? A. No. Q. Okay. Now, when did you first meet Mr. Graham? A. I met Mr. Graham I believe it was in 1990. It was a casual conversation when he called me on the phone. THE COURT: He called you? THE WITNESS: Yes. MR. OSTROWSKI: Okay. THE WITNESS: And I was a user of his system. And I believe it was just, he wanted to say hello. And I was a very frequent user of his board, and was very much in support of it. And I think it was just, he just wanted to talk to me for no, you know, just outside of saying hello and -- THE COURT: He what? THE WITNESS: -- introduced himself and -- THE COURT: You were a user of them. He called you. THE WITNESS: Yeah. I used his system. I was a frequent user. THE COURT: Why did he call you? THE WITNESS: Like I said, I was, it was just to say hello. THE COURT: He called you because you were a user. THE WITNESS: Yes. THE COURT: To say hello. THE WITNESS: Yes. To, you know, introduce himself. There was no real reason why, outside of just being friendly. BY MR. OSTROWSKI: Q. Okay. Now, let me ask you. Please answer yes or no. Are you familiar with Mr. Graham's reputation from speaking with people about that reputation? A. About, about -- Q. Yes or no? A. Yes. Q. Mr. Graham's reputation? A. Yes. Q. And -- THE COURT: As to what? BY MR. OSTROWSKI: Q. As to his honesty, credibility and his business character. A. Yes. Q. Okay. And how many people have you spoken with about that reputation? A. A lot of people. Q. Okay. THE COURT: How many? THE WITNESS: I would say 20, 30. BY MR. OSTROWSKI: Q. Okay. Can you tell us some of the people you've spoken with? A. Mark Abacci. Q. How do you spell that, Mark -- A. M-A-R-K. I can't, I don't know how to spell his last name. Q. Okay. Abacci? A. Abacci. Q. Mark Abacci? A. Abacci. Q. Okay. I think there's an A. A. Yeah. It's an A, it begins with an A. Q. Okay. Anybody else? A. Faye Sharpe. Mike Shannon. Q. Who? A. Mike Shannon. Q. Okay. Okay. And there are other people? A. There are quite a few people, just about -- Q. Okay. And what is Mr. Graham's reputation with respect to honesty and business character? A. As a business, they didn't like dealing with him at all because of his dishonesty. THE COURT: What was the reputation? THE WITNESS: Very dishonest. BY MR. OSTROWSKI: Q. That's his reputation as a businessman? A. Yes. Q. Does he have any other -- are there any other things that are commonly said about his business reputation or honesty, other than that he's dishonest? A. Just the way he conducts business. Q. Well, could -- THE COURT: Excuse me? THE WITNESS: Just the way he conducts business. THE COURT: Like how? THE WITNESS: Like -- BY MR. OSTROWSKI: Q. Are there any -- okay. A. Like there would be, a dealer would call and request a price, and Rich would tell him -- MR. KITCHEN: Well, I'll object to the narrative that's obviously hearsay. This is not reputation. This is telling us specific -- THE COURT: Of course it's hearsay. It has to be. MR. KITCHEN: I understand that, Your Honor, but relating a specific incident -- THE COURT: The particulars of it, of course, are not important. MR. KITCHEN: Yes. And I object to the relation of the particulars to the Court. THE COURT: However, the particulars may be present to support a generality. BY MR. OSTROWSKI: Q. Does he have any reputation with respect to how he treats his customers or business associates? THE COURT: Which? MR. OSTROWSKI: Take customers first. Well, scratch that. BY MR. OSTROWSKI: Q. Does he have a reputation with respect to how he treats his distributors? A. Oh, yes. Q. And what is that repu -- A. That's what I mean when I said business. Q. In general terms, what is that reputation? A. A very dishonest, cutthroat type of businesslike manner. MR. OSTROWSKI: No further questions. CROSS EXAMINATION BY MR. KITCHEN: Q. Okay. Now, you indicated there were 20 or 30 people that you talked to about Mr. Graham's reputation? A. Yes. Q. And you only gave us the name of three, Mark Abacci, Faye Sharpe and a Mark Shannon? A. Right. Q. Yes. Who else? A. I couldn't give you all 30 or 20 names, 20 or 30 names, but -- Q. Well, give me most of them. A. I couldn't. They're all distributors. Those are people that I know and talk to frequently, so I know them by name. I usually deal with companies. Q. Okay. Well, I mean, but you've talked to 20 or 30 actual individuals, right? A. Yes. Q. And when you talked to those individuals, you knew who you were talking to, right? A. Not really, no. Q. Oh, you mean you talked to people that you weren't even -- A. I talked to businesses. Q. Excuse me. Let me finish my question. You talked to people with regard to reputation of Mr. Graham without knowing even the names of the people that you talked to? A. At the time of talking to them, I'm sure I either identified myself and they knew my name, and I would know their name. Q. Okay. So you have forgotten the names of these 20 or 30 people, with the exception of these three? A. Yes, because I deal with them on a regular basis. Q. Well, not the because, just a yes or no on that. And so, all but those three, the identities, you have forgotten, of those people? A. I've forgotten their identities as persons, yes. Q. Right. A. As businesses, no. Q. But, but you, but you recall what specifically they said about Mr. Graham? A. Sure. They all said the same thing. Q. I see. And were you able to -- can you identify any of these 20 or 30 people by the company they work for rather than their names? A. Yes. Q. Who? A. CD Rom Source. THE COURT: CD Rom Stores? THE WITNESS: Source. Source. THE COURT: Is that a name of a company? THE WITNESS: That's the name of the company, yes. BY MR. KITCHEN: Q. Right. Okay. What else? The other companies? A. I couldn't give you the names right offhand. Q. All right. So you don't know -- A. Because I don't -- Q. You don't recall the other names of the other companies then? A. I don't recall them at this time, no. Q. Okay. Now, how many people did you talk to at CD Rom Source about Mr. Graham's reputation? A. One. Q. One. Okay. And is Mark Abacci, Faye Sharpe or Mark Shannon, are they associated at all with CD Rom Source? A. Are they associated with CD Rom Source? Q. Yes. Are they part of that company? A. Not that I know of. Q. Okay. So we have a total then of four people that you've talked to that we can identify either by name or by company that you've talked with about the, Mr. Graham's reputation, correct? A. Correct. Q. And we have another, anywhere from 15 to 25 that you've forgotten not only their identity but you've also forgotten the company that they're associated with, correct? A. No. I haven't forgotten them. I just don't recall them right at this time. Q. I see. Well, could you tell us what they are? A. I said I can't recall them at this time. Q. All right. Now, but you say you haven't forgotten them? A. No. Because it would require some, a lot more thought, and I could sit here, you know, if I thought more I can think of them. Q. How long do you think it would take? A. To think all 20, a long time. Q. Well, how about to think up another five? A. Let's see. Q. Time's up. Have you thought of any more? A. See. I didn't think you would want to wait. Q. Can't think of any more? A. Not off -- not right now I can't. Q. Right now. But you might think of them later? A. It could come to my memory later. Yes, it could. Q. I see. They're not in your memory now though? A. No, it's not. It's not in my memory now. Q. All right. Now, what, what kind of an outfit is CD Rom Source? A. What kind of an outfit? Q. Well, what do they do for a living? What do they make? What do they -- A. They sell CD Rom's and hardware. Q. Okay. Do they, do they publish them or do they just distribute them? A. That I'm not sure of. Q. Okay. Do they, do they distribute your CD Rom? A. Yes, they do. Q. Do they distribute Mr. Graham's CD Rom? A. At this point I'm not sure because I think they dropped his line. I'm not sure. Q. Well -- A. There was notice that they dropped his line. Q. Do you know for a fact that they at any time distributed his -- A. Oh, yes. They distributed Night Owl's, yes. Q. They did? A. Yes. Q. But you don't know if they distribute them now? A. No. I can't tell you now, but all's I know is that they notified that they are dropping their line. Whether they're, have finished selling out of Night Owl's or not, I don't know. Q. Do you know if they publish their own? A. No, I don't. Q. Okay. Who is Mark Abacci, what does he do? A. He's a distributor. Q. Do you know what company he's connected with? A. No, I don't. Q. Okay. So you don't distribute your, your disks through him? A. He did at one time, yes. Q. Oh, he did? A. Yes. Q. So you actually used his company to distribute your disk? A. I didn't use his company. He, he purchased my disk and sold my disk. I don't know what you mean by used my, used his company. Q. Well, is Mark Abacci then, you said he's a distributor. He's a distributor individually then? A. Yes. Q. All right. A. They're all individual companies or, no one -- Q. In other words, you don't know his business name? A. His business name? Oh, yes. The Market Place. Q. Okay. And do you know if the Market Place distributes your disk? A. They, to my knowledge they don't. They could purchase my disk through other -- Q. Do you know -- A. -- distributors. Q. -- whether or not the, the Market Place publishes, or distributes Mr. Graham's disk? A. I am told that he does. Personally I don't know because I don't buy CD Rom's, but from other people I just don't -- Q. So the answer is -- A. I heard he does. Q. -- you don't know? A. I heard he does, from Richard, and I heard he does, from another distributor of mine. Q. So the answer is, he does distribute -- A. Right. But I don't know personally. I don't have personal knowledge. Q. Who is Faye Sharpe? A. Faye Sharpe is a distributor. Q. And does she have a company name? A. Yes. Q. What's that? A. Trade Shows. Q. Trade Shows? A. Yes. Q. Does she distribute your disk? A. Yes, she does. Q. Do you know if she distributes Mr. Graham's disk? A. She told me she does. Q. And Mark Shannon is, he's another distributor? A. Yes. Q. Does he have a company name? A. His name's Mike Shannon. Q. Excuse me? A. Mike Shannon. Q. Oh, I'm sorry. Mike Shannon? A. Yes. Star Vector. Q. And it's called what? A. Star Vector Software. Q. And does Mr. Shannon's company distribute your disk? A. Yes, he does. Q. Do you know if he distributes Mr. Graham's disk? A. Yes, he does. Q. Now, all these other people, the 20 or 30 people, are they also distributors? A. Of my product? Q. No. Are they also distributors? A. Yes. Q. Of CD Rom disks? A. Yes. Q. Okay. So basically your reputation, the input you've gotten with regard to the reputation of Mr. Graham has been pretty much completely from distributors, is that true? A. Input about what? Q. You testified that you were aware of Mr. Graham's reputation, and you've gained that from talking to 20 or 30 people. And what I'm saying is that most all of the information you've gained about Mr. Graham's reputation then was from distributors, is that correct? A. Most, yes. Q. Right. Now, you said you met Mr. Graham on the phone back in 1990 when he called to say hello. When did you first physically meet Mr. Graham? A. Physically meet Mr. Graham. Q. You understand what I mean? A. Yes. Q. Face to face in roughly the same location? A. I'm trying to think when. I remember the incident very vividly, but I'm just trying to recall the time. It's very hard because it was years ago. It had to most likely be in, I can only give you an estimate, '91, and I couldn't even tell you when. Q. Some time in '91? A. I'd imagine. Q. You're not even aware of the season? A. I'm not even aware of the season because I, it's just, that's very far back. It could actually be in '90. So I really couldn't tell you. Q. Could have been in '90. Could have been in '91? A. Yeah. Q. Okay. How did you meet him? A. I really can't recall the incident why, but -- Q. Well, let me ask you a different -- A. -- he asked me to come stop by the house, and I remember stopping by the house, and I remember first seeing him, and I remember the first initial, of me meeting him, yes. It was very vivid because I was -- Q. Your first meeting was then at his house? A. Yes. Q. Where was his house? A. Where at his house? Q. Where was his house? A. 20 -- 219 Potomac Avenue. Q. Okay. Did you go there alone? A. No. I went there with my wife. Q. I see. Do you remember the day of the week? A. No, I don't. Q. Well, do you remember, were you employed at that time? A. No. I was a student. Q. Okay. Where were you a student? A. ECC. Q. And what was your, what were you taking at ECC? A. Criminal justice. Q. Okay. And did you complete that program? A. No, I didn't. Q. Okay. How long were you in the criminal justice program? A. Two years, two and a half years. Q. Okay. When did you start? A. Geez, I couldn't even tell you that either. Q. You don't know when you started? A. No. Q. Well, let me ask you, how old are you? A. 33. Q. I see. Are you going to school now? A. No, I'm not. Q. Are you employed now? A. Yes, I am. Q. Okay. Where are you employed? A. I'm self-employed. Q. Okay. Self-employed. When you first met Mr. Graham, was there anybody else present? A. My wife, I believe Richard's wife was there, too. THE COURT: Excuse me? THE WITNESS: And Richard's wife. BY MR. KITCHEN: Q. That was just the four of you? A. Stephen, Richard's son. Q. And how long a meeting was this first encounter? A. A few hours. We stayed there a few hours. Q. Okay. Have anything to eat? A. Actually I recall now why I went there. I bought a CD Rom drive from Richard. Q. You did? A. Yes. Q. Oh. And that's why you went there? A. Yes. Q. Was that to pay him for the CD Rom drive? A. Yes. Pick it up. I had to pick it up, and had to pay for it. Q. Okay. And how much did you pay him? A. I believe it was, I'm only estimating here. It was in the $200's. Q. All right. A. It was around $269, something like that. Q. Okay. Had you owned a CD Rom drive before this? A. No, no. Q. All right. Now, you were going, you went -- the criminal justice program, you were in that two and a half years continuously? A. Yes. Q. And that would include the summers then, as well? A. Yes. I did go to school in the summer. Yes. Q. Okay. You don't remember the particular course or courses you were taking when you first met him, do you? A. No. I couldn't tell you that. Q. I see. How soon after this initial -- well, strike that. If, if you went over there to pick up the drive and to pay him, is that what actually did occur? Did you pick up the drive and did you pay him? A. Yes. Q. All right. When was the next meeting with Richard? A. That I couldn't tell you. Q. Well, do you know if it occurred a couple of days later, a couple of weeks later, a couple months later? A. I couldn't really tell you that. Like I said, the only one that really did it was the first meeting. Any time I met Richard after that was just -- no, I couldn't tell you, you know, honestly. I don't know why you would even want to know. Q. Well, and during the meeting at which time you bought and paid for the -- A. Oh. Richard did come over. Q. -- CD Rom -- A. Richard came over to my house shortly after buying the, purchasing the Rom, because I had trouble installing it. Q. Are you just recalling that now? A. Yes. Q. All right. And -- A. As a matter of fact, I think it was, it was the day after. Richard came over. I had trouble installing the Rom. Q. Did he assist you in installing? A. Yes, he did. He assisted me. Q. And -- THE COURT: You had trouble selling the -- THE WITNESS: No. Installing it into my computer. THE COURT: Oh. THE WITNESS: Yes. I had -- BY MR. KITCHEN: Q. Was that your first CD Rom drive? A. Yes, it was. Q. Okay. And -- THE COURT: You must have telephoned him then, to tell him you were having trouble? THE WITNESS: Yes. BY MR. KITCHEN: Q. Okay. Was that within a day or two after the first meeting? A. It was very shortly after because when I installed it I ran into a problem that I didn't know how to solve. Q. I see. And where were living at the time? A. 80 West -- I mean 88 Delsan Court. Q. Where is that? A. Buffalo, New York. Q. And how long was he there when he came over? A. Pardon me. Q. How long was he there? A. An hour, two hours. He also installed some software on my, my computer. Q. Do you remember what software he installed? A. He installed a PC Board, parts of PC Board, PC Board Filer. He was going to, I was going to work on text files to help him on the CD Rom. Q. Did -- was anyone else there when he was there? A. Yes. My wife. Q. Okay. And that was it? A. That was it. Q. All right. Did you have any CD Rom disks to put on the CD Rom drive when you first got it? A. The only CD Rom's I ever ran on -- Q. The answer is no or yes? A. Well, what was the question again? Q. When you purchased the CD Rom drive, did you have any CD Rom's to put on the drive? A. Yes. Q. Okay. A. And the only CD Rom I could put on the drive was Night Owl's. Q. That's the only one you've ever put on that drive? A. On that particular drive, I'm trying to think what happened to that drive. Yes. On that, that particular drive, that's the only disk that ever ran on there was the Night Owl's. Q. Do you no longer have that CD Rom drive? A. I no longer have that CD Rom drive. Q. What happened to it? A. It died. Q. When did it die? A. I couldn't tell you that either. Q. What have you done with it then? A. I sold it. Q. I see. When did you sell it? A. I couldn't tell you that either. Q. And the CD Rom disk that you put on the CD Rom drive, how did you acquire that CD Rom disk? A. Rich gave them to me. Q. And he gave you one or two or -- A. He gave me whatever version was out at the time. Q. Okay. And what version of the CD Rom disk did you have? A. I had 3, 4, 5 and 5. 5 was just coming out, or came out later. Q. I see. And you got all three at the same time? A. No. No. Q. Well -- A. As they came out, he would give them to me. Q. When did he give you these particular disks? A. When they came out. Q. I see. A. Shortly after they came out. Q. And -- A. I would say two, two weeks after they came out. Q. And the earliest one you had was 3? A. The earliest one I had was 3. Q. And when did you get -- did you get each one at a different time, or did you get them all together at one time? A. I had them all at different times. Q. Okay. A. As they came out. They all came out -- Q. And if the first one was number 3, when did you receive that, in relation to -- A. When I received the drive. Q. I see. And so that was the current version at the time? A. I don't know if it was the current version, because I wasn't really sure if it was the current version or what. It was my first drive, first Rom, first, you know -- Q. Now, was that -- what did he charge you for the CD Rom disk? A. Nothing. Q. Okay. So he threw that in? A. It wasn't thrown in. The purpose for me having it was to run the CD, his CD. Q. The purpose? A. Right. Q. You mean, his purpose was to have you run his CD Rom disk? A. Right. Q. Why did he want you to run his CD Rom disk? A. Because the CD Rom was on-line for the PBS. I was running the, Night Owl's local nodes. I was handling all local calls for Night Owl's BBS. Q. Well, would you -- THE COURT: So you were engaged with his BBS? THE WITNESS: Yes. That's when I became engaged with, you're correct, running the BBS, in the local area only. BY MR. KITCHEN: Q. And that's why, and that's why he sold you the CD Rom drive and gave you the CD Rom disk? A. Right. Q. I see. And now, what was your function again? You'll have to explain a little of these terms. You were running all of the local nodes or something like that. Would you explain that? A. Yeah. The local node, local callers, Rich didn't want to, he was going to cut off all the local nodes, all the local callers to his BBS. Q. Would you explain to us what you mean by a local caller? A. Anyone calling in the 716 area code, calling in. Rich was going to cut them all off his board, and I said, instead of cutting them all off your board, I'll take them over on my -- I'll put up a board on my, in my house, and run the board over here, and I'll keep all your local callers over here. Q. And was there some sort of remuneration to be paid one way or the other in that regard? A. Paid in what -- no, there was no pay for it. He would pay for the phone line. If there was no donations to cover the phone cost, then he would make up, he made up the difference once. Actually there was I think one time we didn't, there was no donations to pay for the phone, the phone lines coming in, so he did pay the phone lines. But then -- Q. So let me ask you then. Did you use -- were your own phone lines used, or -- A. Yes. Q. -- were phone lines transferred or -- A. Yes. They were my phone lines. Q. Well, I just asked you essentially two questions. You answered both to, to them. A. Well, I only heard the one. I'm sorry. Q. All right. You used your phone line. Did you have more than one line at the time? A. At the time of when? Running, actually running the board? Q. When you, when you started running this board? A. When I started running the board, I -- we purchased another line. THE COURT: Who purchased it? THE WITNESS: I did. THE COURT: Was this BBS for the local callers Mr. Graham's or yours? THE WITNESS: It was for Mr. Graham's local callers. THE COURT: Was it his, still his? Did he cut his local callers off? THE WITNESS: Yes. What he did was, he cut all the local callers off. THE COURT: And then you were running the local callers BBS, and that local callers BBS, was that his or yours, or both? THE WITNESS: It was, it was both of ours. BY MR. KITCHEN: Q. And so, up until that time, how many phone lines did you have at your house? A. One -- oh, two. One for regular call, you know, voice calls, and one line for the BBS. Q. Oh, so you had a BBS before, then? A. No. I bought a line for the BBS. Q. All right. Let me repeat my earlier question. Up until then, you had one line at the house? A. One line. Q. I see. And after you took on this task of, of running the local nodes, as you put it, this, the new phone line, additional phone line is, was added, correct? A. Correct. Q. Okay. And then what would you do, when you got the phone bill you'd give it to Richard? A. No. No. He would just ask, he asked if I got any donations. I would tell him if I got donations or not. One time I didn't have donations to pay for the phone line, and Rich offered to pay for it. THE COURT: Donations. What do you mean donations. THE WITNESS: Donations. BBS's are set up that callers can have greater access if they donate to the system, you know, to support maintenance -- THE COURT: I see. THE WITNESS: -- and upkeep of the board. THE COURT: You would, you as the runner of the local callers BBS would be receiving their money. THE WITNESS: Yes. BY MR. KITCHEN: Q. Okay. So in other words then, the address of the BBS also changed, or was it still at Potomac? A. No. The address was at my house. Q. I see. And so the address -- THE COURT: It's not a physical address for BBS. THE WITNESS: No. We did post our address for the BBS. We did post it as knowledge to the users of where we were located. THE COURT: Did you get mail? THE WITNESS: Yes. We received checks. THE COURT: Regular mail, the United States Postal Service? THE WITNESS: Yes. Yes, we did. BY MR. KITCHEN: Q. And so, when you opened up the new phone line, then you also put in the new address so that people who called the Night Owl BBS from the area code 716 would be calling the number at your house and the BBS would show your address as the address of the BBS, is that correct? A. It depends on whose BBS you're talking about, because there were two, two Night Owl's BBS's. Q. Well, now, let me -- A. One local BBS and one, Richard's -- Q. Let me step back and let me ask the same question again slowly. Does that mean that when the people called from the 716 area that the Night Owl BBS, they got, they got your number at your computer? A. No. Q. And then the notice that came up on the screen as to your address was your home address, is that correct? A. That's incorrect. Q. Okay. Well, was this in fact called the Night Owl BBS? A. Yes. Q. Okay. And what number was given to local 716 callers? A. Well, they would -- no one would call me at first. It was, it wasn't the sense that they were calling me. They were calling Richard, Richard's home, and if they logged in as a 716 area code, they would get flagged down with a message saying, they would get flagged down with a message, and that message would be my telephone number, call this number for further access, which would be actually calling my house then. Q. Okay. And then what did they see when they called your, your house? A. They just seen the same opening screen. Actually it was different software, but it was the same opening screens, and the software was very similar so, you know, they felt right at home, or there was no real conflict there or anything. Q. But the notices that came up on the screen included your address? A. The notices that came up on what screen? Q. Well, all right. THE COURT: At your, at your -- THE WITNESS: Oh, at my BBS, yes. They were always, they were always -- when they called in to my BBS, they were, they knew they were on another system apart from Night Owl's. They got flagged down with a message, this is not for local calls. Call this number, you know, such and such, for local access, and yes, when they called my house there was, there was, not on the screen our address. Our address was posted in, in the bulletins where they belonged, you know, or a registration form, if someone was going to subscribe. BY MR. KITCHEN: Q. All right. Let me -- THE COURT: But when they got your BBS, they knew it was no longer Night Owl? THE WITNESS: No. It was Night Owl's. They knew they were part of Night Owl's. All the users knew that Night Owl's had a local node. THE COURT: On your BBS it was still Night Owl. THE WITNESS: Yes. It was still Night Owl's. BY MR. KITCHEN: Q. When a person using their computer and a modem called the BBS that was at your house, it was told to them that it was Night Owl, correct? A. Yes. It was told -- Q. Was there one of the screens that the, that such a user would be faced with that would have your address? A. Yes. Q. Okay. A. Not opening screens, bulletin screens. Q. Well, regardless. Somewhere in the process -- A. Somewhere on the system, yes. Q. -- if a user -- A. It's somewhere -- Q. -- would see -- A. It's in an area on the system where the, in the bulletins where, it's a BBS, and it's, it's a bulletin board system. And one of the bulletins was our registration form, who we were, why we're here, an explanation of why there was local nodes, why there was a -- Q. And the registration form would have your address on it? A. Yes. Q. And the registration form then was to be sent in to you? A. Yes. Q. And any money contributions were to go to you? A. Yes. Q. Okay. And you kept an accounting of these? A. An accounting of it? I kept every form, all the forms that, when people called in, yes. I -- Q. And you turned them over to Richard? A. No. Richard didn't want them. Q. I see. What did you do with them? THE COURT: The money or the calls? THE WITNESS: He didn't want anything. He didn't want the calls. He didn't want the money. Only thing he was concerned about, if I didn't get any donations, that he would support the line if I didn't get any donations, and there was only -- THE COURT: If you didn't get enough to support the line, he'd have to chip in. THE WITNESS: Right. Right. He, well, he didn't have to. He chose to. BY MR. KITCHEN: Q. Now, how many -- how long did you operate this BBS? A. Right up until August. Q. Well, how long did you -- THE COURT: August of what? THE WITNESS: August of -- oh, how long? BY MR. KITCHEN: Q. How long? How long? THE COURT: Wait a minute. I want to get what August we're talking about. THE WITNESS: Well, I can -- okay. That was August -- MR. KITCHEN: Well, yeah, but, Your Honor, I'd like him to answer the first question, which was the length of time. THE COURT: Well, I want him to complete his other answer. He said August, and I want to find August of what year. THE WITNESS: August of '91. THE COURT: Thank you. BY MR. KITCHEN: Q. And how long did you operate the BBS? A. I couldn't tell you how long. It was months. Q. Okay. Well, was it more than three years? A. No. Q. Was it more than two years? A. No, it was months. Q. Was it more than a year? A. No. Q. Was it -- A. How long did I -- Q. Was it -- A. -- operate a BBS in general? Q. No, no. We're talking about this BBS, the Night Owl BBS? A. It was only for a few months. Q. A few months? A. Yes. Q. Okay. A. I'd say -- Q. Was it more than six months? A. That I couldn't tell you. It's around there. Q. Was -- A. I couldn't tell you the actual months. Q. Well, can you tell with any certainty if it was more than three months? A. Yeah. I believe it was more than three months. Q. Can you tell with any certainty if it was more than six months? A. No, I can't. Q. Okay. Can you tell with any certainty whether it was more than 10 months? A. Ten months, yeah, it was definitely not more than 10 months. Q. All right. All right. Now, whatever number of months it was, the last month that you operated the BBS was August of 1991, correct? A. Pardon me? The last time I operated the BBS was in August of 1991? Q. The last month -- yes. A. I couldn't tell you the date, no. Q. The last month -- THE COURT: Are you sure about the month? THE WITNESS: Yes. I'm sure about the month. BY MR. KITCHEN: Q. So the last month you operated the BBS was August of 1991? A. August of 1991. Under Night Owl's. Q. Under Night Owl's? A. Yes. Q. That's correct. Okay. A. Well, actually, no, that's not true, because the BBS name changed, or the registration of the BBS name changed, and the BBS name changed itself, but all the callers were still notified that this is Night Owl's local nodes, until otherwise notified by Richard. In other words, I still assume the node is a Night Owl's node, even though we had a name change, and -- Q. What was the, what was the new name? A. The new name was Pier One Exchange. Q. And -- THE COURT: Peter One? THE WITNESS: Pier, P-I-E-R, One Exchange. THE COURT: Pier One. BY MR. KITCHEN: Q. And when did you start using the Pier One? A. When we got back from Florida. Me and my wife went on a trip to Florida, and we got back we had -- Q. And that would be when? A. In August. Q. Of 1991? A. Of 1991. Q. All right. So in other words, everything stayed the same except the name of the BBS? A. Correct. Q. And that change occurred in 1991 after you -- in August of 1991, when you and your wife came back from Florida? A. Yes. Q. All right. And anywhere from three months to 10 months before that was when you met and received the CD Rom drive and set up the Night Owl BBS with Richard, is that correct? A. Correct. Q. Okay. And, but you don't remember -- A. Well, not met. Q. But you don't remember what season of the year that was? A. What season, when I met Richard? Q. That's right. A. I believe that, I couldn't tell you the -- it had to be -- no, I couldn't because I would have to give you some type of month figure and I couldn't do that. I couldn't give you a season either. It's around -- Q. Okay. A. It's not farther back than, I'd say six months. I wouldn't say farther back than six months. THE COURT: Had you and your wife been visiting in Florida, or had you been down -- THE WITNESS: No. We just went down there for a vacation. THE COURT: Visited. THE WITNESS: To visit. THE COURT: Well, you went -- THE WITNESS: Oh, yes. Tourists. THE COURT: -- touring. You didn't go down on business. THE WITNESS: Yeah. That's how we came up with the name was that we were on the pier a lot. And I had to come back and I had to come up with a name, and that's how I came up with the Pier, because we were always on the pier, so I called it Pier. BY MR. KITCHEN: Q. How long were you in Florida? A. A week, a week to 10 days, at the most. Q. Okay. School was in a break during that period of time? A. I believe I was out of the summer class. I only went to one session of the summer class. Q. Okay. A. I don't think I ever went to the two sessions. Q. All right. This, this particular BBS, the new number that, that Richard had you set up for the BBS, what was that phone number? A. Oh, I couldn't tell you. Q. You couldn't? A. No. Q. Well, now, did you keep the same phone number after you switched to Pier One? A. That I couldn't even tell you. There were name, there were number changes and -- Q. Do you still operate -- A. -- I'm not sure if we're carrying the same number or not. Q. Do you still operate a BBS? A. Yes. Q. How many lines do you have now? A. Two lines in the BBS. Q. Okay. So you've added one more line? A. Correct. Q. Well, did you change the old line then? A. I really couldn't tell you if we changed the number. I know numbers have changed, and I can't tell you per se if we have changed the number, but I couldn't even tell you what the number was, first off, when Night Owl's -- Q. Is your BBS currently called Pier One? A. No. It's called the Pier Exchange. THE COURT: What's it called? THE WITNESS: The Pier Exchange. THE COURT: F-A-I-R? THE WITNESS: No. P-I-E-R Exchange. BY MR. KITCHEN: Q. And when did that name change occur? A. That took place, I'd say, let's see, January -- March or April, somewhere around there. THE COURT: Of '92? THE WITNESS: '93. BY MR. KITCHEN: Q. So your BBS then was in continuous operation as Pier One from August 1991 until January of 1993, when the name was changed to the Pier Exchange, is that correct? A. That's pretty accurate, I'd imagine. Q. But with the same phone numbers? A. Oh, that I couldn't tell you, about the same phone numbers. I couldn't tell you about the phone numbers. Q. What are the current phone numbers? A. 3130, 02 -- see, I don't even know the other line's number, because I just never call it, and I don't refer to it. It's 0293 or something like that. Q. I see. Just four, four digits in each number? A. Well, 875. Q. 875. Okay. Since Mr. Graham gave you that first disk to go with the CD Rom drive, and that first disk was PDSI-003, do you know whether or not that was the, the current release when you got that? A. No. I couldn't tell you. Q. So there might have been later releases out? A. That he didn't give me, yes. I didn't always have the latest release on my BBS at first. Q. Why? THE COURT: Was it a 003 that he gave to you? THE WITNESS: Yeah. He gave them all to me. As long as -- he gave them all to me. BY MR. KITCHEN: Q. But the first one he gave you was the 003? A. Right. I believe that was the first one, yes. THE COURT: What do you mean, I believe? THE WITNESS: Well, it was the first disk he gave me, yes. THE COURT: The first one he gave to you was a 003. THE WITNESS: Yes. BY MR. KITCHEN: Q. Okay. Do you know how much later he gave you the next disk? A. No, I don't. Q. Why was the name changed on the BBS from Night Owl to Pier One, in August 1991? A. Because Richard was hinting that he was going to close down the local nodes, and seeing that I was -- he was hinting to me that he wanted to close down the local nodes. THE COURT: Well, he had already done that by shifting it to you. THE WITNESS: Well, yeah, in a sense, yes, he did. But he was, and in essence trying to tell me that he was, he didn't want me to run the board anymore and cater to the local nodes. BY MR. KITCHEN: Q. What did he say to you? THE COURT: Well, what he wanted to do was to get his name off it, since he didn't want to run the locals. Is that why he changed the name? THE WITNESS: No. I changed the name because I thought -- see, the software was registered in Richard's name, and I thought, you know, if Richard said, you know, Greg, I don't want you to keep the local nodes up anymore, you know, I'd have to shut them down. But I felt he was going to do this. MR. KITCHEN: But I'm going to object to this as not responsive, other than -- THE COURT: No. Go ahead. BY MR. KITCHEN: Q. Did Mr. Graham -- did you and Mr. Graham have a conversation which resulted in this decision to change from Night Owl to Pier One? A. Did me and Richard consult in it, or talk about it? No. I just did it. Q. Okay. So you did not tell Richard that you were making this change? A. No. Q. Okay. And did there come a time when Richard found out that you had changed the name -- A. Yes. Q. -- from Night Owl to Pier One? A. Yes. Q. And when did he find out? A. I think it was the day or the day after I put it up, the board, changed the board. Someone had told him there was a name change on my board and wanted, was inquiring why. Richard called me and said, you know, why did you change the name. Q. I see. And what did you say to Richard? A. I said, well, Rich, I said, I told him that, you know, you've been hinting to close down the local nodes, and I, you know, was afraid that you were going to say -- you were going to do it, and it was his software and I couldn't tell him, you know, don't do that, you know, so I went and registered the software in my name, and because I'm not going to take down the local nodes, because the people had donated money. And I was very successful as a donating board and people were donating money into the board, and I felt, my reason behind it was because I did not want, I was giving those people a service, and they were told that this was the Night Owl's local nodes, and that -- Q. This is what you told Richard? A. Yes. Q. Yes. Okay. A. And this is what I told him. I told him that I felt that you were going to close down the local nodes, and you've been hinting about it, and to protect the interest of these people who have been supporting his board since I put it up, I've registered the software in my name and put it up under my name. So if you don't want me to continue supporting you as Night Owl's, I told him I would stop using your name on our board entirely. THE COURT: Well, you had already changed. THE WITNESS: Well, I changed the name but I, like I said, we still continued Richard -- THE COURT: He says, why did you change it. THE WITNESS: Right. Richard said, why did I change the name of the software and the name of the BBS. But, even though there was a distinct name change, we still supported Night Owl's, and we still called it Night Owl's local node, even though the name of the board was Pier One Exchange. BY MR. KITCHEN: Q. Okay. Now, where did the name Pier One come from? A. Just, Pier One is just a name, Pier One. Q. Okay. Is that like a business name, business assumed name? A. That was our business name, too. Pier One Exchange, yes. Q. When you say our, you're meaning who? A. Me, mine. No, nothing in plural. Q. I see. This -- and, and did you, did you file a certificate of assumed name with the Erie County Clerk's Office? A. D/B/A, yes. Q. Okay. And you did that before you changed the name on the board? A. No, no. The board was just a hobby. I didn't have a business name at the time I put up the board. Q. And, and when did you file the business name? A. Hmm, that's a good question. I don't know, but I'm sure my D/B/A has the date right on it. Q. I expect that it does. You don't know though when you filed it? A. Offhand, no, I couldn't tell you exactly when I went in there and got a D/B/A. Q. Do you know what year you got it? A. I believe it had to be in '91 or, let's see, I started -- no, it might have been '92. It might have been in '92. Q. Now, these amounts, did you charge anything for people to be registered with the, with your BBS? A. We didn't charge them. We asked for donations. We didn't charge people. They always had free access to the board. It's on a donation basis. If you want more access or favors or -- Q. What, what advantage then would a person have for registering? MR. OSTROWSKI: Object to the relevance? THE COURT: Pardon me? MR. OSTROWSKI: I object to the relevance. THE COURT: Well, it won't -- I'd like to hear it. Go ahead. THE WITNESS: They'd get more access time, more download time, bytes, more -- that's about it. That's all you can do in a board. BY MR. KITCHEN: Q. Okay. But it didn't cost anybody anything to register? A. No. It don't. It doesn't cost you nothing to register. No. Q. I see. So a person could send in the registration and send in nothing and they would still be registered? A. Well, you just call the board and you register automatically. Q. Oh. So, in other words, anybody who calls the board is a registered user? A. Yes. They're all considered registered users, yes. Q. I see. So then, you said something earlier about, if you wanted more time you got registered. Obviously if you never called at all, you didn't get any time. A. That's a -- THE COURT: Wait for the question, please. Finish the question. BY MR. KITCHEN: Q. Well, obviously, if you called the board -- didn't call the board at all, you didn't get any time on the board, right? A. Well, of course. MR. OSTROWSKI: I object on the grounds of relevance, and it's beyond, way beyond the scope of direct. THE COURT: Well, it's hard to tell. I'll allow it. BY MR. KITCHEN: Q. Is -- was there a difference between somebody just calling the board and using it and somebody who, who registered? A. They're all registered. Someone who subscribes -- Q. Ah. A. -- or donates to the board, there's two ways of calling it. But register is everyone. Q. Does a person -- then, so we have people, everybody is registered? A. Right. Q. So a registration is not the big thing. It is -- A. As long as you pass the callback door and verification -- Q. Excuse me, please. It is subscribing that is the, the important difference, correct? A. Donating, subscribing, same thing. Q. Okay. So a donor, subscriber, do they have a different status on the board than just somebody who doesn't? A. They just get more time -- Q. Ah. A. -- allowed on the board a day. Q. So they get more? A. Right. Q. Okay. A. They get more. Q. And how much would a subscriber have to pay? A. At that time, or now, or when are you asking? Q. I'm talking about then. A. Then, I think it was like, I'm only guessing now because I can't remember, $10 or $15. Q. All right. And to be a subscriber, you had to send in $10 or $15? A. Yes. Q. And it was, it was a particular sum, you just can't remember whether it was $10 or $15? A. Right. Q. Correct? A. Right. Q. All right. THE COURT: How did you limit others access to your bulletin board? THE WITNESS: Well, there's, the board is very configurable. You can have different security levels, and if someone was to spread -- THE COURT: So I couldn't just break in to your board. THE WITNESS: No. They're very tight. THE COURT: You have to have a code or something? THE WITNESS: Yes. You'd have to, you'd have to have someone's password that had higher security or something actually to break into the board. BY MR. KITCHEN: Q. And when somebody would send in this subscription fee, that would be -- also have a sales tax on it, too, correct? A. No. They're donations. We don't, we don't -- strictly for the upkeep and maintenance of the board. We accept them as donations. Q. Well, in other words, you didn't charge any sales tax? A. No. Q. But in fact, when somebody sent in a subscription, unless they sent in the required fee, be it $10 or $15, they weren't subscribed, were they? A. They were all registered users of the board. I don't know what you mean subscribers. Q. No, no. That's not what I asked. We've already established what the difference is between somebody who's registered, which is anybody who calls the board, and somebody who subscribes, which is somebody who sends it in with a fee, isn't that correct? A. No. That's why, that's why when you said subscription, I put on the end of it donations, because you keep, you keep referring it -- Q. I understand what words you put on there, but I'm asking -- THE COURT: Wait a minute. One at a time, please. BY MR. KITCHEN: Q. But I'm asking you, and we've already established there is a difference between anybody who calls in, anybody who calls in is a registered user, and there's a difference between that and a person who is a subscriber, correct, and the subscriber sends in the, sends in the money and the form, correct? A. Well, they're all subscribers. Q. Is that correct or not? A. That's not correct. Q. So now, everybody is a subscriber? A. Everyone is a subscriber. Q. So anybody who calls in is a subscriber? A. Yes. Q. I see. Now, you said that subscribers before had additional access, additional time on the BBS, didn't you say that? A. Donators, yes. I always put the word donators. Q. Oh, now it's donators. A. When you say subscriber, I say donators. Q. Okay. So now there's another class of person called -- A. No, not another one. I always, from the beginning, I put on the end of it, donation. THE COURT: Mr. Armenia, will you please wait for the question -- THE WITNESS: Okay. THE COURT: -- to be finished, and then Mr. Kitchen will wait for you to finish your answer. BY MR. KITCHEN: Q. So now the class of people who get the extra time are the donators? A. No, not now. That's what I said earlier. Q. I mean now, in terms of your testimony. But I'm talking about back in August 1991, when you first became Pier One, you had donators then who would get extra time? A. Yes. Q. And they would have to pay a fee to do that, wouldn't they? A. They would donate a fee. Q. All right. A. They don't have to pay a -- no one has to pay anything. Q. And that, that fee, that was the $10 or $15 fee? A. Right. Q. And would they also have to send in a form? A. I don't think at first we had a form. I don't think we were that -- Q. At first, meaning when? A. When we first put up the BBS, I don't think we were that formal. Q. Well, we're not at the first, we're at the time in August 1991 when you changed it to Pier One. A. Right. We really weren't pay. We really weren't a pay board or donating board at first at all. It was totally free. Q. Okay. But we're not talking about at first. We're talking in August of 1991 when you were Pier One. A. I think August of 1991 is when we -- no, actually it was a little before that, we started taking, you know, asking for donations, actually. Q. So, you -- so, let me -- A. Rich, Rich was always asking for donations. Q. All right. Let me stop you. A. The thing was, he wasn't getting them. Q. Let me stop you again then. So basically you didn't start accepting donations until you became Pier One in 1991, is that correct? A. No, no. That's not correct. Q. So you had been accepting donations before? A. Yes. Q. All right. And a person who donated got something for it. They got additional access? A. Yes. Q. Okay. And you weren't registered as any non-profit organization, were you? A. No. Q. Okay. You weren't incorporated, were you? A. No. Q. And you weren't registered with the Department of State as a charity, were you? A. No. Q. Okay. And you weren't charging any sales tax? A. No. Q. Were you registered with the Department of Taxation for the collection of sales tax? A. No. Q. So you weren't collecting any sales tax for the -- A. No. It wasn't a business, I don't think, either, a business. I don't even think I had my D/B/A then. Q. How many donations did you get? A. Not many. Q. Well, how many is not many? A. Well, I'd say, well, we were happy when we got one a month, that would pay the phone bill, so -- Q. Okay. So $10 or $15 came in once per month? A. Yes. Q. And that was the gross on your, on your BBS? A. Right. That or -- Q. And that was during August of 1991? A. Pardon me? Q. That was during August of 1991? A. Correct. Q. And you've operated that BBS continuously since? A. Operated a BBS continuously since, yes. Q. And you still have people who are in a special category known as donors? A. Oh, yes. Q. Or donators? A. Oh, yes. Q. And the donators get extra access? A. Yes. Q. And it's still not a business? A. The BBS? Q. Right. A. It's twofold. It is a support for my product, and it's a twofold business. It's part business, part not. Q. Well, how about just the one fold that takes care of the, acts just as a BBS? A. What about it? Q. Well, I mean, that's still in the same status it was in August of 1991? A. What do you mean, same status? Q. Well, it's still not a business? A. Oh, the BBS itself? Q. Yes. A. Like I said, it has two parts, two parts -- Q. It's still not a business? A. Well, the BBS itself is not a business, no. It's a hobby. Q. That's what I mean. And the BBS itself still collects donations? A. Yes. Q. Still doesn't collect sales tax? A. Not on donations, no. Q. And it's not incorporated? A. No. You don't incorporate BBS's. Q. And -- A. Unless, I guess, you're making money off it. Q. Well, regardless. Your BBS, at least, is not incorporated? A. Well, I don't know any that are, except for -- Q. Well, regardless of -- A. -- some real big ones. Q. Regardless of whether you know any or not, yours is not, right? A. Okay. No. Q. And, and the -- okay. Now, was there any correspondence or paper, papers or documents that changed hands during any of this thing that went on with the BBS in the transfer of the BBS to you? A. There was no transfer of the BBS. Nothing was transferred to me. Q. Well, now, as a matter of fact, the, they put up a notice on the screen at Night Owl for local users accessing Night Owl that they should call your number and access your BBS, correct? A. Correct. Q. And did that continue after the, after you switched to Pier One? A. Yes. Q. Okay. And how long did that continue? A. That continued as long as I was with Richard. Q. And how long was that? A. Up until December. Q. Up until December. THE COURT: December of what? THE WITNESS: '91. BY MR. KITCHEN: Q. Okay. So from August '91 through December of, sometime in December of '91, you were getting referrals from Night Owl to Pier One BBS? A. I wasn't getting referrals. They had no choice. Q. Well, regardless of whether they had a choice or not. A. Well, I don't know. You use the word referrals, and I don't look at the word referrals as, they weren't being referred to me. That, when they called there, they were, they said, this is where you call, period. THE COURT: But they could decide not to follow up and not to call. THE WITNESS: Right. They couldn't call the other one though. THE COURT: Yeah. THE WITNESS: They would be locked out of, of, the, Rich called them the out of state nodes. BY MR. KITCHEN: Q. Now, during the time, and we're not sure whether it's anywhere from three months to 10 months, that you were operating the BBS that was still called Night Owl, how often would you and Richard meet together? A. Not often. We talked regularly every day. Q. You talked daily on the phone? A. Yes. Q. Okay. A. Extensively. Q. Pardon me? A. Extensive talking. Q. Extensively. And, and did you meet at all physically during that period of time? A. Oh, I couldn't tell you that. I'm sure I had gone over to his house quite a few times, and oh, yes, I've gone over there many times. He's come over to my house a couple times, too. Q. Okay. And did that change at all when your BBS switched from Pier One -- excuse me, from Night Owl to Pier One in August of 1991? A. No. Nothing changed at all when I changed the name, because I told Rich why I changed the name, and he understood because he knew he, he was talking about it, shutting the board down, and he knew why, I told him why I did it, and he understood. And so we just, it was nothing. Q. Okay. Well, what I, all I'm asking is, was there any change in the frequency of your physical meetings after -- A. No. No change in -- Q. Well, let me finish the question. A. Okay. I'm sorry. THE COURT: Listen for the end of the question. Then you can answer. THE WITNESS: Okay. BY MR. KITCHEN: Q. Was there any change in the number or frequency of physical meetings that you had with Richard after August 1991? A. No. They increased. Q. No, there was no change. They increased, is what you're telling us? A. No. There -- no, there was no change, negatively. There was a positive change. I mean, we always got closer and closer. Q. So the answer to the question -- A. Right up until December. Q. So the answer to the question, was there a change in the frequency of meeting with Richard after August '91 is yes? A. Yes. I would say yes then, if it's that general. Q. And that increase was how, or that change was how? A. We got closer. Q. I see. A. As time went on, we got closer and closer and closer, where we started going out to dinner, him and my wife and his wife and Stephen. You know, we were over his house frequently. Q. How frequently? A. Frequently. Q. How frequently? A. Once, twice a week. Q. And were, were all these occasions of you being over to the house social, or were they related at all to business dealings between the two of you? A. First, they were all social, until -- up until November is when, some time in November is when I actually started going over the house for strictly business, during the day. I mean -- THE COURT: This is November of '91? THE WITNESS: Yeah. November of '91. BY MR. KITCHEN: Q. And prior to that time, your contacts have been principally social, you said? A. Yes. Q. And did they generally involve a foursome, you and your wife and Richard and his wife? A. Yes. Q. So were they generally evening encounters? A. Yeah. Well, evening or, it could be day, evening, whenever. Q. Well, I suppose it could be the middle of the night, too. But I mean, what, what was it, was it day, was it evening? A. It could have been either one, whatever. It could have been any and all of them. Q. Well, were you otherwise occupied at all during a day? A. Well, it depended on whether I had class or whether I didn't, or whether -- Q. Was your wife working at the time? A. My wife works different hours. Her schedule always is, you know, she works days, nights, evenings, whatever. Q. What kind of work was she doing at the time? A. She's a nurse. Q. Okay. And in November, what, what occurred that, you said it became more business oriented? A. Rich wanted me to work for him and, full time, you know, outside of just giving him advice, and he would, you know, advising him or helping him out or just doing little things he would ask me to do. Like, you know, I was more than glad to help him. Q. That's how he -- A. Well, he wanted me to work full time as sales and marketing, head of sales and marketing for the Night Owl's Computer Service. Q. Well, up until that time, had you been working for him in some part time capacity? A. Only for the BBS or helping out his local nodes, that's it. Q. Okay. There was no -- A. And then advice. Q. And there was no arrangement of pay or remuneration -- A. No, not -- no. Q. -- with regard to that -- A. No. Q. -- particular status of yours? A. No. Q. Okay. But in November he wanted to employ you full time in what capacity? A. As sales and marketing -- well, he didn't want to do it in November or, I think it was December, late November, December. But he didn't want to do it then. I offered to come early. He wanted me to start in January. But I quit my job. Q. Well, excuse me. Let me stop you for a minute here. As to employment and want to. First of all, did there come a time when you began being full time employed by Richard? A. Oh, full time, paid full time employee? Q. Now, listen carefully. Paid or unpaid, was there a time when you began to be a full time employee of Richard Graham? A. Yes. Q. All right. And when was that? A. Around November, December 1991. Q. It was in one of those months? A. Well, it started somewhere in there, yeah. Q. And -- A. I only was there for about a month, so I -- Q. But you're sure it was not before the 1st of November? A. It could have been a few days before that. It could have, somewhere around a month, so I'm not so sure what actual day I didn't, I stopped going -- Q. So it could have been October? A. No. It couldn't have been October, no. Q. I see. That's the month that comes before November. A. Right. Q. So if it, so it could not have been before November 1st? A. I mean, we're talking days here, if anything. You know, if you're getting into November, we're talking days or a week or -- Q. Yes. I realize, Mr. Armenia, but we're talking months here also, and I'm trying to find out which month it occurred in, and you -- A. When what occurred in? Q. You said it couldn't have occurred in October. Do I take -- A. No. It did not occur in October. It was -- Q. So it would have been some time in November? A. Some time November, or it could have been December. I don't even know when I left, actual date I stopped going to Richard's. I know it was in December. Q. All right. But -- A. I couldn't tell you the date even. Q. Well, do you remember -- A. I don't know why you're emphasizing the dates. I don't remember them. Q. Do you -- THE COURT: We want to find out how good your memory is. BY MR. KITCHEN: Q. Do you remember how long -- A. Dates I'm not good at. Conversations, very good. Q. Do you remember how long you were a full time employee of Richard Graham? MR. OSTROWSKI: Asked and answered. THE COURT: He may answer. THE WITNESS: I may answer? THE COURT: You may. If you can. THE WITNESS: How long was I a full time employee? BY MR. KITCHEN: Q. Yes. A. Around a month. Q. Around one month? A. Yes. Q. Okay. MR. OSTROWSKI: Asked and answered. THE COURT: This is cross examination, Mr. Ostrowski. BY MR. KITCHEN: Q. And do you remember when your, when that was terminated, when your employment was terminated? A. I was never terminated. Q. I see. Well, let's use, let's use a different term. Do you remember when your employment full time with Richard Graham came to an end? A. I remember it, yes. Q. All right. And when was that? A. I can't tell you the exact date. I can tell you it was in December. THE COURT: About when? THE WITNESS: About December. BY MR. KITCHEN: Q. About December? A. Yes. Q. Well, let's -- let me ask you this. Was it, do you remember whether it was before or after Christmas? A. It was definitely before Christmas. Q. Okay. Do you remember it in connection with any other event? A. In connection with an event, outside of -- I remember the last day that I seen Richard, up until -- Q. Well, what day was that? A. I can't tell you the day. If you're looking for an exact date of anything in 1991, I cannot give you that. Q. Well, do you remember being here in this courtroom in December of -- A. I -- yes. I remember being -- Q. Let me finish. THE COURT: Wait a minute. Wait for the question, please. BY MR. KITCHEN: Q. Do you remember being in this courtroom in December 1991? A. I wasn't in this courtroom, no. Q. You've never been in this courtroom before, this trial? A. I had to wait out in the hallway. Q. I see. A. I had to wait out there. Q. And you never entered the courtroom once? A. Well, if I entered the courtroom, it wasn't to be present within the hearing. They wouldn't let me in. You guys didn't want me to come in there. Q. All right. So you were waiting outside? A. Right. Q. All right. Was that just on one occasion? A. No. I was here twice. Q. Different days? A. Different days. Q. Okay. A. Same whatever was going on, pretrial. Q. How far, how far apart were the days, do you recall? A. Oh, I couldn't tell you that. Q. All right. Do you know whether both days were in December 1991? A. I couldn't tell you that either. Q. Do you remember whether -- A. Right around there though. THE COURT: Wait a minute. You have great trouble listening to the question before you start your answer. BY MR. KITCHEN: Q. Do you remember whether one day was the date of hearing, taking of testimony, and whether another day was something else that occurred here? A. I don't know what exactly occurred here because I wasn't in, in here -- Q. All right. A. -- to know what occurred. Q. You indicated at one, at one point earlier in your testimony that when you showed up you were told that you had to wait outside? A. Right. Q. And do you remember that was, if that was the first time you came here or the second time you came here, that you were told that? A. That was both times that I came here. Q. So on both occasions you came in to the courtroom and were told that you had to wait outside? A. Right. Q. Now, in relation to either one of those two days at which, during which you came to Court, okay, in December of 1991, can you tell us how either or both of those dates relates to the day on which you were no longer working for Richard Graham? A. There was a day when Chuck Morgan appeared at Rich's house while we were conducting business, actually was there -- Q. No. Let me stop you a second because I'm, I realize that you have a difficulty with dates, and so we have established one thing that is clear, that on one or two dates in December 1991 you appeared in this courtroom, so we have that as an event that you recall, correct? A. First off, I do not have a problem with dates. You are talking back in 1991, and I did not write down and write a diary and make, attempt to remember dates to be specific. Q. Mr. Armenia, that's all very interesting, but we're trying to pin down some dates in 1991. A. I can't give you dates. Q. That's why I'm asking the -- A. I can only give you months. Q. Mr. Armenia, that's why I'm -- A. I can't give you a date. Q. That's why I'm asking the questions. I'm trying -- A. I'm telling you I can't give you the date. Q. Mr. Armenia, I am trying to establish whether your employment with Richard Graham came to an end before you appeared in Court and, or after you appeared at Court? A. It was, I can tell you that. I can tell you, I can't tell you the date, but I can answer that question for you, if you just ask more direct questions. Q. Please do. A. It was after. Q. Okay. So the, your employment came to an end after the Court appearance? A. Yes. Q. And do you remember that -- A. The first initial pretrials, whatever they were. Q. -- if that was -- and do you remember if that was the first Court appearance here or the second Court appearance here? A. If I was here, I'm not sure, I'm not sure what you're asking me now. THE COURT: You were here twice, you said. THE WITNESS: Right. THE COURT: One came before the other. THE WITNESS: Right. THE COURT: He's asking when the later one was. THE WITNESS: I can't give you a date. BY MR. KITCHEN: Q. I'm not asking for a date. Right now you have said that your employment with Richard Graham came to an end after your appearance in Court. I'm asking you whether it came after your first appearance in Court or whether it came after your second appearance in Court. THE COURT: Not in Court, but at Court. BY MR. KITCHEN: Q. Or at Court. A. At Court. It would be the second time. Q. All right. So you appeared twice at Court and then after that the termination, or rather the employment came to an end? A. I wouldn't say right after the Court, but after -- Q. After that? A. After, after that. Q. After that. All right. Now, that was along the lines of my next question, which is, about how long after your appearance or appearances in Court did your employment come to an end? A. I can't tell you. Q. Okay. And where were you when your, when you knew that your employment was at an end? A. When I knew I was going to -- Q. No, not when, where? A. Where was I when I -- Q. Yes. A. -- knew I wasn't going to be working for Night Owl's anymore? Q. That's correct. A. I was at Richard's house. Q. Okay. And who else was there? A. Chuck Morgan. Q. Okay. And -- A. And his wife. Q. And Chuck Morgan's wife? A. No, Richard's wife and -- Q. Richard's wife. A. -- Richard's son. Q. Okay. Now, is the reason that you -- is the reason that you knew that you were not going to be working for Richard Graham anymore the result of some conversation or other occurrence which occurred at that time when you were there? A. As soon as I seen, when I arrived -- Q. Excuse me. That was a yes or no question. A. I didn't think it was a yes or no question. Q. The question was, did your knowledge that the employment with Richard Graham was coming, was going to end, did that arise as a result of some conversation or other happening which occurred there at Richard's house? A. As some, can you describe that again? As some what? Q. As the result of a conversation or other happening which occurred then and there at Richard's house? A. No conversation or happening, no. Q. Okay. Then what occurred which caused you to believe that? A. The presence alone of Chuck Morgan. Q. I see. THE COURT: Why was that? THE WITNESS: Because Chuck Morgan, Rich had told me that Chuck Morgan was going to be a witness in this case. In turn, I questioned Rich and said, well, Rich, how is he going to be a witness? He wasn't here through any of, anything that has been going on, the proceedings or anything we were doing, and Rich got very angry with me and said, Chuck was here from the beginning. And he walked away. And so when I knew Chuck showed up, you know, weeks later Chuck all of a sudden shows up at the house, and that was after a lot of other facts had come out, and contrary to the, to what Rich had told me through this case, I was under, I don't know if I should make the statement in the Court, I don't even want, I don't know if I should, maybe, you know, it's my opinion, I guess, so I shouldn't say it. BY MR. KITCHEN: Q. Well, let me, let me ask you specifically. Did Richard at any time during that meeting say, you are no longer my employee, or, I'm firing you, or words to that effect? A. No. Q. And at any time during that conversation did you say to Richard, I quit, I'm out of here, I'm gone? A. No. Q. All right. Did you have any communication after that particular meeting with Richard in which you indicated that you had quit? A. No. Not really. No. Come to think of it, we never discussed that. Q. Did -- now, in looking at that, did your employment come to an end because you quit? A. Yes. Q. All right. And the day you quit is the day of that particular occasion when Chuck Morgan was there? A. Yes. Q. Okay. What had been your job -- THE COURT: Whenever you hit a point that you can break. MR. KITCHEN: I'll break here, Judge. THE COURT: All right. When do you want to come back? MR. KITCHEN: 1:30. THE COURT: All right. 1:30. (Lunch recess taken) THE COURT: On the record. CONTINUED CROSS EXAMINATION BY MR. KITCHEN: Q. Mr. Armenia, when, before, before you knew Mr. Graham, and before he got together with you and transferred this BBS node to you, did you own a computer? THE COURT: Did what? BY MR. KITCHEN: Q. Did you own a computer? A. Yes. Q. Okay. What kind of a computer? A. I owned, how many? I owned more than one, so do you want both? Q. Yeah, if you had more -- A. A Tandy 1000 and a Packard Bell. Q. Okay. Was one newer than the other? A. Well, one was newer than the other, yes. Q. All right. A. But I didn't own them at the same time. Q. Oh, okay. And when did you get the Packard Bell? A. I couldn't give you a date. Q. Okay. A. I do have the receipt though, and I'm sure the date is on it. Q. Did you bring that with you? A. No. Q. Okay. When you were, when you were setting up this BBS, or when Mr. Graham was transferring the node to you, which computer did you use for the BBS? A. Packard Bell. Q. Okay. THE COURT: What? THE WITNESS: Packard Bell 386. BY MR. KITCHEN: Q. It's a 386? A. Yes. Q. And about how long had you had it before you set it up for the BBS? A. That one I had something like five months. Q. Five months? A. Yeah. Q. And you owned it prior to, prior to actually setting up the BBS? A. Oh, how long -- no. Yeah. I owned it prior to setting up the BBS, but how long I owned it, I couldn't tell you that. Q. Okay. But that's not where the five months is then? A. Pardon me? Q. That's not where the five months comes in. I mean -- A. No. Q. -- did you own the computer five months before -- A. I owned it five months before it died, crashed. Q. Oh, okay. Now, you were -- THE COURT: You mean, after you took it over, then it went for five months and died? THE WITNESS: Yeah. I'd say five or six months, yes. THE COURT: Yeah. THE WITNESS: And it died. BY MR. KITCHEN: Q. Okay. And the computer itself died? A. Yeah. The hard drive did. Q. Oh, the CD Rom hard drive? A. No. The hard drive itself. Q. Oh. A. Not the CD Rom. Q. The hard drive in your Packard Bell? A. Right. Q. Okay. And were you operating the BBS when the hard drive died? A. Yes. Q. Were you operating under the Night Owl name or were you operating under the Pier One name? A. That I couldn't tell you. Q. All right. A. When, where that fit in, or where it died. Q. Okay. Well, I'm trying to -- THE WITNESS: Oh, I'm sorry, Your Honor. THE COURT: I'm just wondering what the noise is. THE WITNESS: That was the cup. THE COURT: Oh. THE WITNESS: I'm sorry. BY MR. KITCHEN: Q. I'm trying to establish how close in time you purchased that Packard Bell from the time that, that Richard Graham set you up with that BBS? A. Oh, I had the computer before the BBS was up. Q. Yes, we know the sequence because you testified to that. A. Right. But I couldn't tell you how long I had the Packard Bell before the BBS was up. Q. Okay. Where did you buy the Packard Bell? A. That one I believe at either Pace or BJ's. Q. Okay. And you were a student at the time, right? A. Yes. Q. Okay. So you weren't working? A. No. Q. How did you pay for it? A. That was bought by the sale of my other computer, and -- Q. The Tandy 1000? A. Yes. And -- Q. And some other money? A. Yeah. I'm trying to think exactly where I got it from. Gee, I really can't even recall. Q. Could you have gotten it from your wife? A. My wife, yes. Probably. Q. Okay. All right. Is it possible that you might have gotten it out of your wife's bank account? A. No, no. Q. Did you borrow any money from Richard Graham? A. Yes, I did. Q. Okay. How much did you borrow? A. $1,200. Q. And was that to, was that to pay for the computer? A. That was to pay for the second computer I bought. I bought another Packard Bell when the first one died. Q. Oh. So you said before you had owned two computers, a Tandy 1000 and a Packard Bell? A. Right. Q. Now you're saying you owned three computers? A. Well, there were two Packard Bells and one Tandy. Q. So we have a total of three computers? A. A total of three computers. Q. Okay. THE COURT: But not all at the same time. THE WITNESS: No. None of them were at the same time. BY MR. KITCHEN: Q. All right. A. The Packard Bell I still had, but it sat on the side for quite a long time because it took like a year to get it fixed. Q. Well, now, you said the hard drive died? A. Right. Q. And you replaced then the entire computer? A. Right. Q. Okay. With a new Packard Bell? A. A new Packard Bell. Q. Another 386? A. Another 386. Q. Okay. A. And at that time I was working for my dad. Q. You were working for your dad when the computer died? A. Yeah. That's when I was working for my dad. Q. I see. And how long had the BBS been running on the old computer? A. I couldn't tell you. It wasn't -- I couldn't tell you how long the BBS was running on the computer itself. Q. Well, now, you said that Richard had come over and installed your CD Rom drive and also installed some software? A. Yes. Q. That was on your old Packard Bell or on your new Packard Bell? A. The first one. Q. Okay. And was it still under warranty when it died? A. Yes, it was. Q. Okay. So the warranty was how long? A. I think it was a year. Q. Okay. So it was less than a year before it died? A. Yes. Q. All right. So when the first Packard Bell CD -- excuse me, when its hard drive died, then you, you did all the transferring of everything over to your new Packard Bell yourself? A. Yes. Q. Okay. You had had back-ups and everything else? A. Yeah. Entire -- well, actually I just backed it up right before it died. I just had gotten a fresh back-up right off it, yes. Q. Okay. Where did you get the new Packard Bell? A. BJ's or Pace, one or the other, and the reason I say that, one or the other, is because I've bought Packard Bells from both of them, and I don't know which ones I bought from where or what. Q. Okay. And you, again, you don't recall when you bought the new Packard Bell? A. Not the specific day or month even, I couldn't even tell you. I just know when it died and I bought, and it was replaced right away. Actually the Packard Bell was, that I replaced it with wasn't mine. It was my dad's that I was setting up for his business. THE COURT: The one that died was your father's? THE WITNESS: Yeah. The one that died was my dad's, and I was setting it up for his business, and I was in the process of actually setting up his computer for his business when my computer started running funny. So I backed up my computer, and when I turned off my computer it never turned on again. I was trying to -- trying to find out the noise that it was making. And it never started up again. So I left my dad's computer, because the board was down, to sustain the board, I backed, I restored everything onto my, onto the, my dad's computer and -- BY MR. KITCHEN: Q. I thought your dad's computer was the one that died? A. No. No. My dad's was a brand new computer that I was setting up for his work. Mine died. Q. I see. A. And I had his computer and was working on it -- THE COURT: A moment ago you had said that the Packard Bell that had died was your father's, and that's not right. THE WITNESS: No, no, no, no. The Packard Bell that died was mine. But when my Packard Bell died, I was, I had my dad's there that I was working on, setting it up for him, for his business. So when mine died, instead of continuing working on it and setting up his, I restored my BBS to the original computer I bought for my dad. BY MR. KITCHEN: Q. I see. A. All right. Then, that's where Rich came in and I said, I had to replace my -- now I had two choices. I got a computer that's dead, and I got -- my dad was waiting for his computer, and I'm using it for the BBS in the meantime to, you know, keep the lines open, and I had to go out and buy another computer. That's where I went and took, I think it was $1,600 or $1,700 out of mine and my wife's savings, and -- THE COURT: Out of your savings? THE WITNESS: Mine and my wife's, yes. And took the money out of the savings, bought a computer, and I didn't tell my wife about it because I knew she'd get mad at me. So I asked Rich if I could borrow $1,200 to put back into our account so she wouldn't know that I put the money down on a new computer. BY MR. KITCHEN: Q. So the time that Mr. Graham lent you the $1,200 would have been at about that the computer died? A. It was, yeah, it was that next day or within a 24 hour period I went and got the other computer. Q. All right. And do you remember whether at that time you had become the Pier One computer or whether you were still Night Owl, that you switched everything over to the new computer on? A. It had nothing to do with switching the computers, changing Night Owl's to -- it had absolutely nothing to do with the computer crashing or -- Q. No. I guess what I'm asking, what I'm asking though is that at that time was the BBS Night Owl BBS or Pier One BBS? A. That I really couldn't tell you. It was an insignificant really time of the name changing. It really was insignificant. Q. Now, how long did you have your father's computer there? A. Oh, I had it a couple days. Q. Had -- was Richard at all involved with your father's computer? A. Yeah. We worked on it together. We -- I was installing the network there, and I got, I needed some help and Rich came and helped us out, yes. Q. Okay. And was that, was that before or after your, your own computer had died? A. That was after my computer died because the fact that I had a computer there was the fact that I replaced the computer with another Packard Bell. Q. So correct me if I'm wrong here, but as I understand it then, you first began the BBS with your first Packard Bell computer? A. Right. It was on my first Packard Bell, yes. Q. And that first Packard Bell computer was in fact your second computer, your first, your actual first one being the Tandy 1000? A. Right. Correct. Q. Okay. So your first Packard Bell at some point, we know not when, actually died? A. Right. Q. And you happened to have your father's Packard Bell computer present? A. Yes. Q. And so you transferred or restored all the back-ups onto your father's hard drive in his computer? A. Correct. Q. And then you went and purchased another computer, using funds from your, your and your wife's savings account? A. Yes. Q. And then within a very short time thereafter you secured a loan from Mr. Graham to essentially replace at least $1,200 of the money? A. Right. Right. Q. And, and then at some point did you transfer all the material that was on your father's computer over to your new computer? A. No. I don't know what you mean, transferred my father's stuff onto mine. THE COURT: You're putting the material into your father's computer after yours had died, and you got a new computer. THE WITNESS: Right. I got -- THE COURT: Did you take it off your father's computer? THE WITNESS: There was nothing to take off. THE COURT: Oh, I thought you said you had put something on it. THE WITNESS: I had to set it up, set it up for the business. THE COURT: So you did set it up. THE WITNESS: Right. I had -- THE COURT: You hadn't input anything yet. THE WITNESS: No. There was, it was just a bought computer with -- BY MR. KITCHEN: Q. Didn't you testify that when your computer died you restored your back-ups onto your father's computer? A. Correct. Q. So your father's computer was then loaded with all the programs necessary to sustain the BBS, correct? A. Yes. Q. And in fact you did operate the BBS for some period of time using your father's computer? A. Yes. Well, actually it became my computer. I just bought another one and replaced his with another one. Q. Oh. A. They were both two brand new computers bought days apart. Q. So in other words, the brand new one we're talking about that you then purchased, you simply gave that one to your father? A. Yes. When I got another, when I bought another new one, I just, I didn't give him, I didn't take the one that I bought originally for him, I bought the same exact thing. I just left mine, you know, the one there that I originally bought for him, and used, and used the other one. I'm not going to go through the -- THE COURT: The one that you had originally purchased for him you had inloaded some material, and you got another new one, so you gave the new one to your father -- THE WITNESS: Right. THE COURT: -- and kept the old one -- THE WITNESS: Yes. THE COURT: -- into which you had put material. THE WITNESS: Correct. BY MR. KITCHEN: Q. By the way, what happened to the Tandy 1000? A. Oh, I sold it to a good friend of mine. Q. Who did you sell it to? A. Carolyn Majeski. Q. Carolyn? A. Majeski. Q. Majeski. Okay. How much did you get for that? A. $2,000. Q. For a Tandy 1000? A. Yes. It was fully loaded. That was the monitor, printer, everything, the whole set-up. Q. Do you recall how long you ran the BBS on the brand new computer? A. That ran until well after I left Night Owl's, until I replaced that computer. Q. Now, you indicated that you worked for Mr. Graham for some period of time full time? A. Yes. Q. And, and it began some time around the beginning of November and ended some time in December, but before Christmas? A. Yes. Q. And you indicated that it terminated, or it ended after a meeting, or at, essentially, you made up your mind to quit, at a meeting at Mr. Graham's house? A. I came to a conclusion that I wasn't going to work there anymore. Q. Okay. A. There was no meeting. Q. All right. What, what took place that caused you to decide to quit? A. Like I said before, just the fact that Mr. Morgan showed up and was playing an active role in the business at that time. Q. Did you know Mr. Morgan? A. I knew him casually through Richard, yes. Q. Okay. And how many times had you seen him before? A. I would say maybe three, four times. Q. Okay. And did you object to Mr. Morgan being there? A. Yes, I did, very much so. Q. Okay. Why did you object to Mr. Morgan being there? A. Because I didn't think he was there for legitimate reasons. Q. What reasons did you think Mr. Morgan was there for? A. Specifically to become a witness in this case. Q. And why didn't you think it was a legitimate reason? A. Because I had a discussion with Richard, and Richard told me that Chuck Morgan was going to be a witness in this case, and I said, well, how's Chuck, who I was in turn, involved with Rich preparing this case to come here, and I asked Rich, well, how does he fit into this as a witness, what could he possibly be a witness for, seeing that I was here and in contact with Rich throughout this whole entire ordeal, that there was no Chuck Morgan. And I wanted to know how Chuck fit into it. And Rich would not disclose that to me -- Q. Did -- MR. OSTROWSKI: Object to interrupting the witness. THE COURT: Pardon me? MR. OSTROWSKI: I object to interrupting the witness. THE WITNESS: And Rich would not disclose that to me, and so he got really frustrated and angry with me and said, well, Chuck was here from the beginning anyways, I don't, you know, he didn't want to talk to me about it anymore. So a good week, a week, week and a half went by, and all of a sudden Chuck was on, you know, within the house before I even got, I got there at 9:00 o'clock in the morning, Chuck was already there. And he was there the entire day. Nothing was told to me why he was here, except for the only thing that was in my mind was of my conversation of Chuck being a witness in this case. BY MR. KITCHEN: Q. Now, you had met Chuck before this occasion? A. Yes. Q. And you met him where, at Richard's? A. Yes. Q. And about how many times? A. About three, four times. Q. And why was Chuck there before? A. Just social visit. Q. Did you have the impression that Chuck and Richard were friends? A. Oh, yeah. They were friends. Q. Did you have the impression that Chuck and Richard had a common interest in computers and CD Roms and the like? A. Well, they had a common interest in computers, but as far as CD Roms goes, Chuck didn't want anything to do with, anything to do with CD Roms. Q. Chuck, you say, didn't want anything to do? A. No. Rick kept, Rich kept asking him -- Q. You were there when, when Chuck Morgan said he didn't want anything to do with CD Roms? A. Yes. Q. Okay. When did that occur? A. That occurred in, some time in the summer. Q. Right. THE COURT: Of what year? THE WITNESS: Of '91. BY MR. KITCHEN: Q. Now, this was a conversation some time in the summer of '91 at Richard's? A. Yes. Q. And you and Chuck Morgan and Richard were there? A. Yes. Q. Just the three of you? A. No. There were, his whole family was there. Always the family was almost always in the house. Q. Okay. A. Somebody. Q. And there was some conversation during which Chuck said he didn't want anything to do with CD Roms? A. Yeah. Rich kept asking him to, you know, try to sell his disks over here, or he mentioned a place here, you know, and Rich was trying to show him that it's real simple to sell disks, and Chuck didn't want anything to do with it. He said, it's not my bag. Q. All right. A. I'm not really a salesman. And stuff like that. Q. Well, was Chuck essentially turning down a request for a sales position, or was he saying that he didn't want anything, any association with the CD Rom? A. Well, he didn't have any association with the CD Rom or the business. Rich was trying to get him involved in it, and he didn't want it. Q. Well, are you telling us that somehow Chuck Morgan had some sort of phobia or aversion to CD Roms in general? A. No, no. He just didn't want to have anything to do with the business of the CD Rom or handling them in any way. THE COURT: This particular business? THE WITNESS: Pardon me? THE COURT: This particular business, or any business having -- THE WITNESS: Oh, that I -- THE COURT: Wait a minute. This business or any business. THE WITNESS: No. He just was -- THE COURT: Pardon me. You just won't listen to the question, will you? THE WITNESS: Oh, I'm sorry. I'm sorry. THE COURT: This particular business or any business having to do with CD Roms? THE WITNESS: Well, I would say just this business because we never talked about any other CD Roms. There was never any other mention of any other CD Roms. You know, Night Owl's only dealt with Night Owl CD Roms. BY MR. KITCHEN: Q. So you don't know whether or not Chuck Morgan actually is or is not in the business of selling other people's CD Roms? A. I don't know if Chuck was in the business of selling anyone's CD Roms. I know at the time back then Chuck did not sell anybody's CD Roms and he did not want to sell Richard's CD Rom. Yes, that I knew. Q. Now, you indicated that you had made up your mind and you quit and you never came back on that meeting in December with, when you were there and Richard was there and Chuck was there, correct? A. Yes. Q. And that some time a week and a half later, Chuck was over at Richard's house spending a lot of time? A. Well, he was just there the entire day, and that's the last day I -- I never showed up again after that. Q. Well, but didn't you just testify earlier that he, he, he was, like a week and a half later, he was there all the time? A. Well, he came and spent the whole day there, yes. Q. And that was a week and a half after that meeting in December at which you decided you were no longer going to work? A. No. I didn't decide then. I decided I was no longer going to work when Chuck actually showed up, when Chuck actually showed up at his house for, and was there partaking in business matters, unannounced to me. It was just a surprise to me. When I walked in the house, Chuck was there. Q. I see. Do you know how long Chuck had been in Richard's house before you arrived? A. No. Because I arrived around 9:00 o'clock, 9:30, and Chuck had already been there. Rich was up, and they were talking. Q. We talking morning or evening? A. In the morning. Q. Okay. And how long were you there? A. I was there till 6:00 o'clock at night and Chuck was still there. Q. Okay. THE COURT: Well, did Morgan's presence and involvement put your nose out of joint, so to speak? THE WITNESS: No. I have other business, and I finished out my day doing what I was always there to do, and I just knew why he was there, and I didn't agree with it, and I wanted nothing to do with it, from that point on. And I had come to a conclusion, which I was trying to do, and that was the final act that I decided not to associate myself with Richard or Night Owl's anymore. BY MR. KITCHEN: Q. Were, were all three of you there for, continuously for that period of time, from about 9:30 until -- A. Yes. Q. -- 6:00 o'clock in the evening? A. Yes. Q. Okay. And during, other than what you've related to us, during that nine or, let's say eight and a half hours or so, was there any other discussion amongst the three of you? A. In relation to what? Q. In relation to anything? A. There was a lot of discussion. I mean -- Q. What was the discussion about? A. Discussion about is the direction sales and marketing should go. Basically a lot of it was just chit-chat. A lot of it was about the case, and it wasn't really directly with me. I just went about my business. Most of the discussion was between Richard and Chuck, and I actually only butted in only once into their conversation the entire day. Q. So were you listening in on their conversation during the rest of the time? A. Well, we all were in the same actually room. It wasn't a question of listening in. We all were, you know, within five feet from each other. Q. And this, to what extent did you take part in the conversation? You said you only butted in a couple of times? A. Well, they were talking about the direction that the business would take, as far as sales and marketing, and I had previously, me and my wife had sat down, and we went over a list of job descriptions that I was going to give to Richard that day, that I thought I should be doing. Q. Well, regardless, I'm really asking about what took place that day. A. Well, this was, this was the conversation. I'm just giving you the -- Q. So you told then Richard that you and your wife had sat down, come up with a list or job description, and you presented this to Richard? A. Right. Q. Okay. A. And this was what I interjected into this conversation. Q. And was that in writing you had come up with this job description? A. Well, yeah, it was in writing. Yes, it was. Q. Okay. All right. And do you have a copy of that? A. No, I don't. THE COURT: Whose job description? THE WITNESS: My job description. What it should entail and what I should -- THE COURT: At Rich -- at Graham's? THE WITNESS: At Night Owl's, yes. THE COURT: Yeah. BY MR. KITCHEN: Q. All right. Now, you had had no previous job description in this job? A. No. I was doing just about, you know, sales and marketing. Actually I really, that's what I was, we agreed that I would be doing, and my contention was that I was just handling phone orders, sending out a FAX, and just doing little things, outside of advising Rich, you know, how to conduct business. I was just basically doing, you know, taking orders and filling out orders and shipping, and that was it. Q. Was that what was understood to be your role when you first were employed by him? A. No. I told Rich that it was actually understood that I was going to handle sales and marketing, which I was doing when I wasn't even working for Rich full time, where Rich would call me up at home and say, Greg, you know, I sold some disks for $7 a disk, you know, when I had already showed him how -- we built up a distributor's pricing list. I had broken it down to percentages. And Rich, I told Rich how to conduct himself on the phone as a salesman. I tried helping him to learn how to deal with people because apparently I thought at the time he was having a problem dealing with people and they were taking advantage of him on the phone. So I helped him in that aspect, and then -- what was exactly the question that you wanted? Q. I believe my question was to find out what was your understanding what your job was when you began? A. My job was, when I began was strictly to be in sales and marketing, but Rich at one time when we sat down and, at dinner, we were talking, me and my wife and him, Rich said he wanted me to learn all, everything about the business, that he was going to make me a partner and stuff like that. I said, you know, I would, I'd be willing to learn any part of the business that you want me to learn. And I left it at that. But it still was, I still was supposed to carry a title of head of sales and marketing, which he did put on flyers and stuff and sent out and FAX'd and people got to know me by name. And I did deal with some people on the phone, as far as pricing and stuff like that went. But it wasn't of, it was to no avail because when I would leave Rich would turn around and go around and make sales while I wasn't there. And then he would call me and say, you know, I sold this guy some disks and I sold him such and such a quantity at $10 a disk. And right after we went over all the pricing and created all the lists and everything, and I just couldn't understand why. And I don't even know why he bothered telling me, to tell you the truth, because I got upset that -- Q. You got upset? A. Well, you know, not upset, to the point of just, you know, couldn't understand why we would go, work over this thing all day long, then get a phone call and then, you know, and not stick to the prices we set. It made no sense. Only upset in the sense that I didn't understand. Not of any anger or anything towards Rich. Q. What prices had you set for the disks? A. They were, they were considerably higher than what Rich was selling the disks for. Q. Well, what were they? A. I can only give you an estimate. I couldn't give you the exact figures that I figured out, that we sat down to figure out. That day they ranged from, I could tell you, from 10 disks, which this was, I remember this, the one bracket was 10 disks for $30 apiece, and we got up to as far as a thousand disks where we said, call for negotiating prices. So I can give you the two extremes that we did have on there. And everything was broken down in between those, those figures. Q. Well, how low did it go on the chart? A. Down to 10 disks. Q. How low -- A. It was either 10 disks -- Q. How low did the price go on the chart? A. Above, it would have been 500 quantity, and I believe that was at, I'm only estimating this, but it was in the teens, in the high teens. Nothing fell below that. Q. Now, that was what version? A. That was, he was coming out with, I believe, version 5 then. Yeah. Q. Version 5? A. Yeah. Q. Okay. When, when Richard made these deals on his own, did he frequently sell at below those listed costs? A. Depends on the quantity. He has sold, you know, down to $7 a disk I've seen him sell at. Q. Well, let me ask you this. You were, you apparently had some disputes over the prices that Richard was negotiating agreements at, correct? A. Right. Q. And was your dispute because Richard's price that he actually sold them for was somewhat less than what you had had on the chart? A. Yes. Q. Okay. THE COURT: Were you to get a share of the profit of the business? THE WITNESS: Well, I don't -- we didn't really discuss it. Rich had said he was going to make me a partner. THE COURT: Did you expect that you would get a percentage of the business? THE WITNESS: I didn't expect a percentage of the business. THE COURT: Why then would you worry about the price he was selling it at? THE WITNESS: Because it was just a terrible price to be selling that quality of a disk on the market. It was just -- THE COURT: Watching out for his good. THE WITNESS: Yes. BY MR. KITCHEN: Q. Was it a high quality disk? A. Yes. Q. Okay. The -- A. Compared to what was on the market. Q. Okay. Now, what was your rate of pay or remuneration for working for Richard? A. There was no rate of pay. Q. There was no rate of pay? A. No. Q. All right. You were working for free? A. Yes. Q. Okay. And you said before this was full time employment? A. Yes. Q. So you were working 40 hours a week or more? A. More, I'd say, because I went home and we'd still get on the phone and talk and discuss and so, I would say more than 40 hours a week. Q. Okay. And what did you get out of this? A. Well, I didn't want anything out of it. I wanted -- THE COURT: What did you get out of it? THE WITNESS: I didn't get anything out of it. BY MR. KITCHEN: Q. Well, was there -- A. I was supposed to, I was supposed to go on the books in January. THE COURT: As? THE WITNESS: As head of marketing and sales, but Rich also promised -- THE COURT: On a salary? THE WITNESS: -- a partnership. THE COURT: On a salary? THE WITNESS: We never did talk the salary. THE COURT: Were you to go on the books on a salary? THE WITNESS: We never did discuss actual pay. THE COURT: What was your expectation? THE WITNESS: A decent salary. THE COURT: A salary. THE WITNESS: That's what I expected, yes. THE COURT: All right. THE WITNESS: We never really did discuss what the pay would be. BY MR. KITCHEN: Q. So you expected to get paid for your time? A. Oh, yes. Q. Well, this month or so you worked for him, was that in exchange for anything else? A. No. Q. You got nothing out of it? A. No. Q. Okay. Incidentally, you said you borrowed $1,200. Did you ever pay that back? A. Yes. Q. Okay. A. I paid some of it back. Q. And how much did you pay back? A. I believe it was $600. Q. And when did you pay that? A. A little at a time. Q. I see. From when to when? A. Actually it was about, I think I gave him two payments. Q. I see. And two payments were when and when? A. Oh, I couldn't tell you exactly the dates of the payments, but they -- Q. Tell me the -- A. -- while I was working for -- Q. Tell me the month. A. They were while I was working for my father. Q. Tell me the month. A. Had to be in October. Q. And so, was one payment $300, and another payment $300? A. Yes. Q. So you still owe Richard $600? A. Not according to Richard. Q. Well, how about according to you? A. Well, I believed I did, yes. Q. Okay. And your two payments, were both of those in October? A. Yes. Q. Okay. Within a few days of each other? A. A few days, no. I wouldn't say a few days. Q. They were stretched out over a period of time? A. Yeah. Stretched out between my paychecks. Q. Stretched out what? A. Between my paychecks. I gave, I just turned over my paychecks. Q. Okay. Your paychecks from your father? A. Right. Q. All right. Well, you were working for your father at the same time that you were working for Richard? A. No. I quit, I gave my two week notice to my dad -- not to my dad, but to who the boss was running the, running the insurance agency, who was my boss. I gave him a two week notice. And when my two week notice was up I told him I was going to work for Night Owl's. Q. Okay. So essentially then, the money that you borrowed would have been borrowed some time before you left your father's employment? A. Yes. Q. Because you paid back two payments then? A. Yes. Q. Okay. And you left your father's employment, I think you said in October? A. As soon as I started working for Rich. It was, I think the week went by and that Monday I started going to Rich. Q. Okay. Now, when you started working full time for Richard, were you still running the BBS under the Night Owl name? Was that before you switched it over to Pier One? A. Oh, no. That was under, that was under Pier One. Q. Okay. Did you tell Richard that you were switching it to Pier One? A. Like I said before, no. Richard didn't know until, I think actually within 24 hours of me prior, switching the node, Richard was notified and called me up right away and asked me what was wrong, what was the problem. And that's when I told him, you know, about him making hints about him shutting down the local nodes and that I heard that he might do it, and to secure the interest of the people who did donate to the system, which would have been terrible for me to, you know, the thing was, Rich was very jealous of the board. It was very successful. The message bases were very successful. There was activity on the board and participation was very successful. And he never seen that on his board, and he didn't like it, and he got really jealous about it. Q. When the, when the board changed over to Pier One, did that limit access then to people who had previously been Night Owl subscribers? A. No. But when my system died and the hard drive died, that's when I said, gee, this free, this free hobby is really costing me, and I said, we're going to limit the people that call the board, their time. Where it used to be a totally free open board, you can do anything you want, you can run up time to, you know, it was like two hours on line, you know, really something ridiculous, and the lines were always busy, and eventually it had beat up my system. And I said, gee, this is too costly. So when the board did crash, then I re-evaluated, seeing that it was so costly I couldn't really afford the crashing of the board, that I started taking donations to over, you know, make up for the differences of the maintenance or what might ever go wrong with the board in the future. Q. Okay. But the question is, how did that change the access by people who had already been paid subscribers of Night Owl? A. Oh, nothing. Oh, nothing. Richard had paid subscribers that were local that came on to my -- that he sent over here, that didn't pay a dime and got full access, and they stayed continually on the board, with full access. Q. And they stayed continually even though they were, even though you were Pier One? A. Oh, yes. And like I said, even though I was under the name Pier One, it was still Pier One Exchange, but it was the Night Owl's local nodes, quote, unquote. Q. Now, you indicated that you didn't know how long it was Pier One before it became the Pier Exchange? A. Right. Q. Why did you change from Pier One to the Pier Exchange? A. Pier One to Pier Exchange, well, because when we started publishing the Roms, when we started publishing CD Roms, we became into a, we entered into an international market, and in that international market Pier One Imports holds a trademark on the term Pier One, which we were notified that, that they owned the trademark on that, which we, you know, we changed our name, you know, according to a name they were, they agreed upon that we could change it to. But that was just our ignorance and not knowing anything about trademarks or inter -- once you -- they told us that as long as we stayed local with that name it was fine, but in an international market that we would have to change it, and we honored their trademark, and there was absolutely no problem with that. Q. Okay. A few questions on this taping thing. When you operated the tape recorder at Richard's to record these telephone conversations, where were you located physically in the house? A. Right in the dining room. Q. Okay. Was that on both occasions you were in exactly the same place? A. No. I wasn't, there was only one, one taping of, in Richard's house, period. Q. Okay. So you remember only doing one tape? A. Right. In Richard's house. There were, other taping were from within my house. Rich called, and it was a three way conversation. I didn't have three way call and Rich had three way call, and he would call. He had, what's his name -- Q. Well, how about number 16, Plaintiff's 16, which is the one that was played for you earlier that has the gap on it, for the break? A. What about it? Q. Where was that one done? A. That was the very first one. That was the one played at Richard's house. That was the very first taping. Q. And that was actually done at Richard's house? A. Yes. Q. Okay. And you said you did it in the dining room? A. Yes. Q. Where was the tape recorder? A. On the -- where was the tape recorder? Q. Yes. A. It was right on the counter top. Q. Okay. Was it anywhere near the microwave? A. No. The microwave's over in the other corner. Q. Okay. A. The counter comes out in between the two rooms, like divide, it's like a divider between the kitchen and the dining room. Q. Okay. You said that this particular Plaintiff's 16 appeared to be the tape that you purchased and had your handwriting on it, right? A. I'd have to see it again to say yes. Q. Okay. A. I believe that is my writing. I believe I know my writing. Q. What did you do after these tapes were made, with those tapes? A. We played them back. Q. And after that, then what? THE COURT: Now, the second one, what do you mean, you played that back? THE WITNESS: What do you mean, the second one? THE COURT: Well, you were at your house, he was at his house. There's three people one the -- THE WITNESS: Oh, the second one. We -- I can play the tape back over the phone line. THE COURT: Did you? THE WITNESS: Yes, I did. THE COURT: Just the two way conversation. THE WITNESS: Yes. THE COURT: You and Mr. -- THE WITNESS: Yes. THE COURT: -- Graham. All right. BY MR. KITCHEN: Q. And then, after that, when did you next hear those tapes played? A. The next time -- which tape? See, you've got to ask me specifically. You say tapes, because different ones were played back differently. Q. Next, when did you next hear either tape played? A. After playing them back, when we played them back to you, when we called you and played them back to you. Q. All right. THE COURT: Did you make, or do you know of anyone else making any copies of either of these tapes? THE WITNESS: No. We didn't make -- I didn't make any copies of the tapes. THE COURT: It could be easily done. THE WITNESS: Oh, yes. BY MR. KITCHEN: Q. And, and when did you then next hear them played? A. I don't believe I heard them played -- I believe we played them one more time, or parts of them, in your office. Q. Okay. You were present in my office? A. Yes. Q. With whom? A. Richard. Q. Okay. And you brought those tapes to my office? A. Richard did, yes. Q. And gave those tapes to me? A. Yes. Richard gave them to you. Q. All right. Weren't they actually, hadn't they actually been in your possession? A. They, they were only in my possession during the tapings of the two at my house. The one was left at Richard's house, and I brought the tape over to Richard's and then we left them all there. THE COURT: When? THE WITNESS: Probably the day -- I'm only guessing, the day right after. THE COURT: I'm bothered about this, quote, probably, unquote. THE WITNESS: Well, because it could have -- THE COURT: Do you remember? THE WITNESS: I know I didn't bring it over that night. We did play back the tapes, but I didn't rush it over to Richard's house that night, so I would say the next day I went in that I brought them over to Rich's. BY MR. KITCHEN: Q. Well, how soon after that, the tapings, did you, were you in my office? A. How soon? I don't know, because I couldn't tell you that. It was whenever Rich said we were going to your office, we went to the office. Q. Oh. A. I can't remember exactly. Q. You don't remember if it was days, weeks, months? A. No, no. Q. Could have been anytime? A. I don't know. You've got, you've got, I'm sure your secretary keeps records or something. If you need that date, I'm sure you've got it. THE COURT: You're testifying. He's not. THE WITNESS: Well, if you want a date, he has it. I don't have it. THE COURT: You don't have it. That's all we're asking. Do you know? THE WITNESS: No. BY MR. KITCHEN: Q. Now, do you know if Larry James has heard these tapes prior to this trial? A. I -- MR. OSTROWSKI: Objection to relevance. THE COURT: He may ask. He may answer. THE WITNESS: Did Larry hear the tapes? I believe Larry did hear the tapes. THE COURT: Excuse me? THE WITNESS: I believe he did. THE COURT: When was that? THE WITNESS: I don't know. THE COURT: How would you, why are you saying you think he did? THE WITNESS: Because I believe they made mention that -- THE COURT: Who made mention? THE WITNESS: Larry made mention that the tapes had to be turned over to him. THE COURT: When was that? THE WITNESS: I don't know. THE COURT: Approximately when? THE WITNESS: Some time during this trial. THE COURT: Before the hearing, or before the trial? THE WITNESS: I, I really couldn't tell you exactly when. THE COURT: You were here twice during the hearing, right? THE WITNESS: Right. THE COURT: Was it before then? THE WITNESS: I really couldn't tell you when. I just knew that they were supposed to be turned over. THE COURT: They were supposed to be turned over. THE WITNESS: Right. I don't know if they actually got the tapes turned over, or actually listened to the tapes. But I'm only making the assumption that they -- THE COURT: What was to be turned over? THE WITNESS: The tapes. THE COURT: The tapes, or copies? THE WITNESS: That I don't know. THE COURT: What would you expect it to be? That's a silly question, I know, but -- THE WITNESS: I'd imagine copies. I don't know. THE COURT: You wouldn't expect Mr. Night or his attorney to turn over the originals, would you? THE WITNESS: I don't think so. THE COURT: You wouldn't. If you were in his situation you wouldn't. THE WITNESS: I wouldn't want to give tapes to somebody to -- no. I wouldn't want to give tapes. BY MR. KITCHEN: Q. Why not? A. Because they can be altered. Q. Have you had conversations with Larry James about this case? A. Nothing more than the basics of this case. Q. Is the answer yes then? A. Yes. Q. Okay. And during the course of these various conversations, has he indicated that he's heard what's on the tapes? A. I can't say that, no. Q. Has he ever indicated to you that he hadn't heard any, hadn't heard the tapes yet? A. No. Q. Just, he made no mention of whether he heard them or not? A. No mention. I can't recall any mention. Q. Now, you indicated you had first met Larry James at Richard Graham's, is that correct? A. Yes. Q. You had known Larry before that? A. I only knew Larry by name, but through Richard, not as, never met him in person. Q. And this occurred, you said, some time in the summer of 1991? A. Yes. Q. And at that time you said that you were in the process of testing or Beta testing a program that Larry had supposedly written? A. Yes. Q. And how did you go about this Beta testing? A. Well, I was, I got a copy from Rich. He gave me the initial copying, and I would -- do you want to know how I went about get -- how I got the program, or how did I go about Beta testing it? Q. How you went about Beta testing? A. Well, we, we would download the copy. Then me and Rich would go over the program. We would go through it together on the phone. He would show me things that it did, and how it worked, and then I would go, and then I would play with it on my own and see if I could find any bugs in it, or any suggestions I could suggest on how to improve it, you know, make my suggestions. Q. And you indicated that you had the source code, too? A. Well, the source code was in the, contained in the archive, yes. THE COURT: In what? THE WITNESS: In the archive, the compressed file that they store them in. BY MR. KITCHEN: Q. And how did you acquire the copy of the source code and program? A. From Richard. Q. Okay. But I mean, physically how was it done? A. Download. Either I downloaded it or Rich would upload it. And then on one occasion Rich sent me over to Larry's board to download it once from his board. Q. Now, when you say download, do you mean like over a modem and -- A. Yes. Q. -- into your computer? A. Yes. Q. All right. So, when you were testing the program then, you also had occasion to review the source code? A. No. I never, I never looked at the source code because I know nothing about source code, and it was irrelevant to me. It was just there. Q. Do you know anything about programming? A. Now, I do and I've learned quite a bit. I don't program, but I learned quite a bit about the basics of programming. Q. Okay. Are you acquainted with any particular programming languages that you use? A. No, I don't write in the languages. I'm just familiar with programming languages in general, what they are. Nothing, I can't write the languages myself, don't -- Q. Well, can you read them? A. No, I can't read the languages at all. Q. Okay. So the source code would have been meaningless to you, even if you had a copy? A. Yes. It's totally meaningless to me, right. Q. Do you happen to know whether the version you were doing Beta testing on was written, in what particular language it was written? A. It was written in C plus plus. Q. Okay. How do you know that? A. Because you can view it without, you actually don't even need the, you don't need the -- even though a programmer could look at the codes and tell you it's C plus plus, I couldn't do that, but I can look at the, with a hex editor, and I could view the actual EXE file, and in the EXE file is a header that says C plus plus, it's been compiled by C plus plus. So I don't have to look at the codes to know it was, it's a C plus plus program. Plus the way it functions, if it's very fast, it's C plus plus. Q. You could tell by the speed that it was a C plus plus program? A. Yes. C plus is a very, very fast, very good smooth operating program. Q. So even before you saw the notation in the, in the execute file, you, you figured out that it was a C program, because of its speed? A. No. I got to learn that later on as I, I became more knowledgeable. Q. Okay. So the speed was no clue to you at the time? A. No. Not at the time, no. Q. And you assumed it was C solely because of what you saw in the execute program when you -- A. Oh, yes. Q. -- did a hex dump? A. Yeah. The hex viewing is a positive identification of the file. Q. Now, you indicated that your first version was produced in January of 1993, of your CD Rom? A. Right. Q. And I think when you were here before we had asked whether you would bring your CD Roms with you. Did you bring them? A. Yes. Q. Oh, okay. Could we see those? A. Sure. MR. KITCHEN: I would like to report on the record that, and give an opportunity for Mr. Ostrowski to confirm or deny the fact that the original tapes were the ones who were turned over to Mr. Ostrowski and were in his possession for some period of time. THE COURT: You kept no copy? MR. KITCHEN: I kept no copy, Your Honor. MR. OSTROWSKI: Well, no. I can't confirm that. I don't really know -- THE COURT: How would you know whether it's a copy or not? MR. OSTROWSKI: I don't know what you're talking about. MR. KITCHEN: Well, if Mr. Ostrowski is now representing to the Court, as an officer of the Court, that he doesn't know anything about what I'm talking about, that tapes were turned over to him -- MR. OSTROWSKI: You gave me tapes. THE COURT: He's not saying the tapes were turned over. MR. OSTROWSKI: You gave me tapes. THE COURT: You're pressing the point that the originals were turned over, and I'm just saying, how would he know whether it was original or not. MR. KITCHEN: Well, in that case, Your Honor, then to establish this with any reliability, we're going to actually have to have both attorneys testifying under oath. THE COURT: Plus it would seem to me rather odd that an attorney in your position would let go of evidence without keeping a copy, but maybe you did. MR. OSTROWSKI: I received tapes, Your Honor. My recollection is that I played them. They -- I had difficulty hearing them. And I have no idea whether they're originals or not. It strikes me very odd that, A, they would be difficult to hear if they were originals, and B, Mr. Kitchen would -- THE COURT: Why? Why? MR. OSTROWSKI: It just strikes me to common sense as that a copy would be harder to hear. An original would be -- THE COURT: Well, harder, yeah, but that's all relative. Now, the harder can be more obtuse than the original, but the original can still be difficult to hear. MR. OSTROWSKI: I had great difficulty hearing -- this is many months ago, but I had great difficulty hearing them. I have no difficulty at all hearing the tapes that are in evidence. I always assumed those were originals, but I don't know. MR. KITCHEN: Well, is Mr. -- THE COURT: You got some tapes. MR. OSTROWSKI: A long time ago. THE COURT: And are these, Plaintiff's 16 and 17 the ones that you got? MR. OSTROWSKI: I don't think so. I believe those -- THE COURT: Where are yours? MR. OSTROWSKI: I believe I gave them to Mr. James to listen to. I think he -- THE COURT: Does he have them? MR. OSTROWSKI: I think he still has them, Your Honor. I -- THE COURT: You think he still has them? MR. OSTROWSKI: I think he does. I passed them to him because they're our property, Your Honor. They're discovery material. MR. KITCHEN: Well -- THE COURT: They're what? MR. OSTROWSKI: They were acquired during discovery. THE COURT: I thought you said Government materials. MR. OSTROWSKI: No. I said -- I assume that it's like a, you know, somebody sends you a photocopy of a discovery document. I know that's more or less -- THE COURT: Well, then, my basic assumption, Mr. Kitchen said no, the originals went to you. MR. OSTROWSKI: That's news to me. THE COURT: You gave them to Mr. James. You don't know what happened to them. And yet somehow Plaintiff's 16 and Plaintiff's 17 are in evidence. MR. OSTROWSKI: Well, in any event, Your Honor, those, if I'm not mistaken, those tapes were brought to Court by Mr. Kitchen under Subpoena, were they not? MR. KITCHEN: Well, yes, yes, they were. And now -- THE COURT: How did you get those? MR. KITCHEN: Now that Mr. Ostrowski has raised it, I realize, actually Mr. Ostrowski has had these tapes, I believe these tapes, for a period of time during this trial. THE COURT: Plaintiff's 16 and Plaintiff's 17. MR. OSTROWSKI: After, after they were brought to Court and admitted into evidence. MR. KITCHEN: After they were brought to Court and admitted to evidence, but before they were fully played. THE COURT: But, did you bring them to Court? MR. KITCHEN: Yes, sir. THE COURT: So you didn't give them to Mr. Ostrowski. MR. KITCHEN: No. During discovery then -- THE COURT: So there was a copy made. MR. KITCHEN: There was a copy made that was -- THE COURT: Turned over. MR. KITCHEN: Right. That would have been quite some time ago. MR. OSTROWSKI: Several months ago. MR. KITCHEN: Sure. THE COURT: This is what I suppose would be normalcy, that you wouldn't let go of the originals. MR. KITCHEN: Yes. That would be. THE COURT: You would turn over a copy. MR. OSTROWSKI: And I should say that although I have taken those overnight a couple of times, they've remained in my custody. THE COURT: The copies. MR. OSTROWSKI: Whatever is in evidence. The -- THE COURT: Well, you saw, you had these in your custody? MR. OSTROWSKI: Yes. In other words, I did not, they have not left my custody. I took them back to my office or home to listen to them. THE COURT: You did. MR. OSTROWSKI: And then brought them back to Court. MR. KITCHEN: My concern, Your Honor, is that the direct testimony elicited from this particular witness raises a question as to whether one of the tapes has been altered. Okay. THE COURT: Well, Mr. Ostrowski is pressing that, that it has been. MR. KITCHEN: Well, based on the -- THE COURT: And this is what bothers me. If they were in his possession, Mr. James' possession for a while, I don't know. MR. KITCHEN: Your Honor, my concern is the fact that the testimony of this witness has been that almost immediately after they were recorded, they were played over the phone to me, and then were subsequently played in my office. That would, that would theoretically make me a witness as to whether or not what I heard in my office or over the phone is any different from what we're hearing today. THE COURT: I wouldn't expect you to remember the minutia of it. MR. KITCHEN: Well, yes, but someone can make a mountain out of a minutia, Your Honor, and that appears to be what's being the defendant's strategy. That being the case then, I have to at least at this point raise the issue that they weren't completely only in my possession or in the witness' possession. The suggestion has been is that at least for some time they might have been in my client's possession, but they've also been in Mr. Ostrowski's possession, before hearing them in completion. THE COURT: If this were a criminal case, which it isn't, we'd have a great problem about chain of custody. MR. KITCHEN: Yes, Your Honor, but that's not the case here. These are a little looser. And I'm -- THE COURT: But much is being made now of whether or not these are true copies or doctored copies, or at least one of them. MR. KITCHEN: Well, one of the things that might, might be raised, of course, is if we had, if we had the copies that were admittedly prepared and submitted to the other side several months ago. I guess the question would be whether those copies matched the originals. THE COURT: At least that would show that if there's any assertion of doctoring after that point, the copy would not reflect that doctoring. MR. KITCHEN: That would seem to be the case, Your Honor. THE COURT: So if you want to test that, all you have to do is regurgitate the tapes you have. MR. OSTROWSKI: I'll try to bring those tapes in, Your Honor. MR. KITCHEN: By the way, this is, it is our contention that these tapes are not doctored, and we think we have some testimony which we will offer ultimately in rebuttal, that I think will offer some explanation for the, for the apparent glitch in the tape. But in any event, I'm not buying into this doctoring thing by raising these issues. THE COURT: There were some times during the conversation when I sitting here and naively listening to it thought perhaps Mr. James had died. Of course, he was very tired at the moment, but long stretches go on without anything being said. MR. KITCHEN: Okay. I'll -- is it all right if I open these, Mr. Armenia? THE WITNESS: $39 apiece. THE COURT: Have they been marked? MR. KITCHEN: Well, no, but I didn't want to mark them on shrink wrap that then I was going to have to strip off. THE COURT: Are they shrink wrapped? MR. KITCHEN: Yes. THE WITNESS: Yes, they are. THE COURT: Why are they shrink wrapped. Are these things you're selling? THE WITNESS: Yes. THE COURT: Yes? THE WITNESS: Yes. THE COURT: What's the price? THE WITNESS: $39. BY MR. KITCHEN: Q. Is $39 what they sell for? A. Yes. Q. Is that what you sell them for? A. That's what they sell for. Q. Well, what -- THE COURT: Do you do the shrink wrapping? THE WITNESS: No, that's the manufacturer that does the shrink wrapping. THE COURT: So the manufacturer cuts the disk and puts it in the jewel case and shrink wraps it. THE WITNESS: Correct. BY MR. KITCHEN: Q. Do you retail these yourself directly? A. Yes. Q. And you sell them for $39? A. Correct. Q. You don't sell them for anything less, do you? A. Depends. Q. Well, depends on what? A. On whether we have sysop specials. We have specials every run. Q. Okay. Like what do they sell on special? A. $29. Q. $29? A. Yes. Q. That's your special? A. For a sysop, yes. Q. Oh. Well, what if I'm not a sysop. What if I'm a regular person? A. It's $39. Q. Well, what if I want to buy more than one? A. Well, then we sell quantity. Q. Well, no, no. What if I want to buy version 1 and version 2? A. Oh, we sell the sets. We have set specials, too. Q. Oh, okay. Well, how much do they sell for for a set? A. $59. Q. For a set of? A. Three. Q. Three? A. Yes. Q. Okay. So that's a little under $20 apiece? A. Yes. Q. Okay. Do they sell anywhere else cheaper than that? A. I don't think there's too many people sell them as cheap as I do. Q. Okay. THE COURT: You're opening it, I see. MR. KITCHEN: Yeah. Now, is it all right if I open it? THE WITNESS: Sure. THE COURT: Why do you, what are you going to do with it? Play it or what? MR. KITCHEN: Well, first of all -- THE COURT: Otherwise, you can just put the sticker on the shrink wrap. MR. KITCHEN: You're absolutely right, but it is my intention to play them, Your Honor. But I better mark them first or we'll lose all track. Judge, could you perhaps tell me what my last number is? THE COURT: Well, I wish I could say it was your last number, but the last number you've used is 56. MR. KITCHEN: 56 was, Your Honor? THE COURT: 56 has been used, yes. (Plaintiff's Exhibits 57, 58 and 59 were marked for Identification.) MR. KITCHEN: So that these will be 57, 58 and 59, and they'll be three CD Roms that belong to Mr. Armenia. MR. OSTROWSKI: I thought you were buying those, Mr. Kitchen. MR. KITCHEN: No. Not if I can help it. THE COURT: It will be part of the cost of the case. We'll take a brief recess while you're doing all this work. About 10 minutes. (Short recess taken) THE COURT: On the record. BY MR. KITCHEN: Q. Did you ever register your own, the name or trademark of your own disk? A. Which disk? THE COURT: Of anything? THE WITNESS: Did I register it in what sense? BY MR. KITCHEN: Q. The trademark? A. No, I haven't. THE COURT: You never have? THE WITNESS: No, I haven't. BY MR. KITCHEN: Q. Okay. Have you, have you nevertheless used the abbreviation for trademark to suggest to others that the name of your disk was trademarked? A. No. It's to suggest that it is our trademark, period. Q. Excuse me? A. It's to suggest that it is our trademark. Q. Okay. A. Period. But we never made reference that it's registered. Q. Well, didn't you use the abbreviation (TM)? A. Yes. Q. All right. And indicating that it is your registered trademark? A. No. Indicating that it is our trademark, not registered. Q. Oh, okay. A. Maybe you're not familiar with the law, but you can use a TM next to anything that is, you claim as your trademark, as long as there is no one using that as a trademark. Q. Had you had any -- in other words, your belief is that you can use the TM abbreviation the same way you would use a copyright abbreviation? A. Yes, it is. Q. And one doesn't need to register it to have any right to use that? A. No. That ask you if you are using it prior to registering. There's two, two ways of registering it. One is if you are already in the use of using the trademark, or if you are planning on using it as a trademark in the future. So it is applicable just like it is applied in both ways. THE COURT: Just like what? THE WITNESS: It's applied just like a copyright notice. BY MR. KITCHEN: Q. Did -- A. It could be registered or not registered. Q. Did you ever make any effort to register the name of your disk? A. Yes. Q. And did you in fact register it? A. No. We're still in the process of registering it. Q. What name are you -- THE COURT: Some what? THE WITNESS: We're in the process of registering it. THE COURT: Oh. BY MR. KITCHEN: Q. What trade name or trademark are you registering? A. The Pier Shareware. Q. Okay. The Pier One -- THE COURT: The Pier what? Pier what? THE WITNESS: The Pier One -- no, not the Pier One. The Pier Shareware. MR. KITCHEN: The Judge had another question. THE COURT: The Pier Shareware. THE WITNESS: Yes. BY MR. KITCHEN: Q. Did you attempt to register Pier One at all? A. No, I didn't. (Plaintiff's Exhibits 60 and 61 marked for Identification.) Q. Okay. I've marked two Plaintiff's Exhibits, Exhibit 60 and Exhibit 61. I'll show them to the witness. Do you recognize Plaintiff's 60 and 61? Is that a yes or a no? A. I'm going to read it first, to make sure that nothing's been altered. If I wrote this, yes, I will -- let me please finish reading it. Q. My question though is whether you recognize it? A. I will let you know that after I'm done reading it. Yes, I do. Q. And when have you seen those Exhibits or the contents of them before? A. Those were posted in the Rhyme Echo Mail. THE COURT: Both what? THE WITNESS: These were messages posted in the Rhyme Electronic Mail that's sent through computers, mailing system. BY MR. KITCHEN: Q. And is that, is that an electronic mail that is accessible by other people? A. Yes. Q. And so anybody could read these? A. Anybody in the Echo system, yes. Q. And in fact, you wrote those particular Exhibits? A. Well, I wrote, I responded to them. I didn't write them all, no. THE COURT: Meaning you received them and answered them? THE WITNESS: I received them and answered in the messages, yes. THE COURT: They both, neither one of them is an answer, both of them are incoming items? THE WITNESS: Both of them were quotes. He's quoting me from an incoming, he's quoting the incoming, and I'm responding to the incoming message, all in one page. THE COURT: I see. BY MR. KITCHEN: Q. Okay. So -- THE COURT: Each one then is an inquiry and an answer. THE WITNESS: Yes. BY MR. KITCHEN: Q. So were these -- THE COURT: And it was your response? THE WITNESS: Yes. It's my response. BY MR. KITCHEN: Q. So in fact, these were written by you? A. My responses were written by me, yes. Q. Well, let's just show you 60, and could you tell me which part of 60 was your response, as opposed to what wasn't written by you? A. You don't seem to know. Want me to show you? This entire paragraph. This entire bottom paragraph. THE COURT: There are four paragraphs and you're pointing to the fourth of those, which is the largest -- five paragraphs. The fourth one, which is the largest of the paragraphs on the page. THE WITNESS: Correct. THE COURT: Is that Plaintiff's 60? And -- THE WITNESS: Yes. BY MR. KITCHEN: Q. Okay. So the upper portion you did not write? A. Right. Q. And the portion at the bottom you did not write either? A. The portion of the bottom is my tag line. I don't write it. It just automatically appears at the bottom of a message that I, that is left on my system. Q. How about the second page? A. Oh, I didn't see the second page. This is a message that I left, too. THE COURT: Second page you wrote also? THE WITNESS: Yes -- no, well, half and half again. The inquiry and the -- THE COURT: Seemingly three paragraphs. The first two you wrote, or first one, or what? THE WITNESS: There's really two paragraphs. It's a header. THE COURT: And then there's some sort of a sign-off. THE WITNESS: And a footer. THE COURT: Is that what you call that bottom? THE WITNESS: That's a footer and that's a header. And there's two paragraphs. He wrote -- THE COURT: You wrote the two paragraphs? THE WITNESS: I wrote one, the second paragraph. THE COURT: You wrote the second paragraph. THE WITNESS: Second paragraph. BY MR. KITCHEN: Q. On Plaintiff's 61, if you look at that and tell us which portion of this was written by you. THE COURT: If any. THE WITNESS: Okay. There's four paragraphs on here. Once again a header and a footer. I wrote two last paragraphs in between the footer and the header. THE COURT: One being a two line paragraph and the other being a three line paragraph. THE WITNESS: Correct. MR. KITCHEN: With the Court's permission I'll write, I'll just put some little marks here to indicate the portions. I've done this on 60 and 61 to also indicate what was the part written by Mr. Armenia, assuming that's correct. BY MR. KITCHEN: Q. Then I'm showing you 62. You recognize that? A. No. I didn't write any of this so -- THE COURT: Do you recognize it? THE WITNESS: Yes, I do recognize it. THE COURT: Again, is that electronic mail? THE WITNESS: Yes, it is. THE COURT: One page or -- THE WITNESS: One page. BY MR. KITCHEN: Q. Have you seen it before? A. Yes, I have. Q. Where did you see it? A. In the Rhyme Echo Mail. THE COURT: Excuse me? THE WITNESS: Rhyme Echo Mail. BY MR. KITCHEN: Q. And how did you have occasion to notice it or see it? MR. OSTROWSKI: Objection to relevance. THE COURT: He may answer. THE WITNESS: What was the question again? BY MR. KITCHEN: Q. How did you have occasion to see it? A. The Echo form is on my board. Q. Is that your name at the top? A. No, it's not. Q. How do you spell your first name? A. Oh, there's two messages here. The second one has -- Q. My question was, how do you spell your name? A. A-R-M-E-N-I-A. Greg, G-R-E-G. Q. All right. Is that your name at the top of that? A. No, it's not at the top. Q. Okay. Hang on. Let me -- A. And once again, that's not my writing. That's someone quoting me and -- Q. You say there's two messages -- A. Yes. Q. -- on that sheet. The second message, is that your name at the head of the second message? A. Yes, it is. Q. And did you write that second message at all? A. In the context of this message, no, because the entire message is quoted from another message, so the original message is not here. You are not presenting me with the original message. Q. Well, I'm -- did you write any of the words that are on that piece of paper? A. Well, I'm not -- I don't think I should speculate whether I wrote any of the words at all because the message is not the original message itself, so why should you even present it. It's not even the original message. Q. Well, that's interesting, but my question to you is, have you had an opportunity to read Exhibit 62? A. No. Once I seen the quotes, I just didn't think it was valid, valid for you to even show me. That's not the original message. Why should I even bother sifting through it? Q. Well, why don't you take a look at it and see if you can find any of those words that are written by you. A. I remember a conversation along those lines, but once again, because it's not an original I'm not going to attest to this as mine entirely. This is my message. Q. Well, the second message does in fact say, from Greg Armenia, doesn't it? A. It's, like I said, it's a quote from another message. It's not the original message. Regardless who signed it, it's not the original, so, it's only electronic mail. Anyone could alter that. It's just a text file. I'm not even going to -- Q. Well, I understand the basis -- A. I don't even want to sift through it. I don't think it's -- Q. Well, what you want to do is not maybe quite as important as answering the questions though. You -- it has a date on here, does it not? Let me -- the second message has a date on it, correct? A. Yes. Q. And, and then below that it says, to Ian Singer? A. Yes. Q. Do you know Ian Singer? A. In the nets, yes. THE COURT: Speak into the microphone. THE WITNESS: In the Rhyme Echo Mail, yes. In the nets. BY MR. KITCHEN: Q. Okay. And then it says, from Greg Armenia? A. Yes, it does. Q. Okay. And on that date there, that 2/24/93, did you send a message to Ian Singer? A. Like I said, it's not an original message. I can't say I sent this message to Ian. If you could present an original to me, and I'll look at that and work from that, but if you can't give me an original, it's been altered already, so -- Q. Well, let me ask you this. How do you input messages to the Rhyme Echo Mail? A. What do you mean, how do you input them? You type them. Q. You type them? A. Yes. Q. And they appear where? A. In Rhyme, in whatever Echo form you're in. Q. Do they appear on your screen when you're typing it in? A. Yes. Q. So the original form of the message then is in electronic form on your computer, correct? A. Yes. Q. And then it's sent into the Echo Mail in similar electronic form, correct? A. Yes. Q. Is it possible that Echo Mail, including this message, could go back and forth and never be reduced to paper? A. Oh, yes. Q. Okay. A. No stulemer (sic) to put that on paper. Q. Well, if somebody wants to make a little more permanent record of this, is it appropriate to put it on paper? A. If you want a permanent record, yes. Q. Okay. Do you recall whether or not you sent a message to Ian Singer on February 24, 1993? A. I do not recall it, no, but I don't recall the message, no. Q. Okay. You've had an opportunity to read the content of the message? A. I just read about two sentences of it, and once I seen all, and then I looked down and seen all the quotes, and I recognized that it wasn't an original, so I didn't even bother reading the rest. It's not an original. Q. Well, why don't you -- original, copy, whatever it is, read it anyway, please. A. Okay. I can, I can safely say that according to these quotes, these are correct. These are -- whether these have been changed or not, I can't attest to his, his statement, but I can, I can say that I actually wrote this part of the quote that says my name next to it. Q. All right. When you -- A. But not this part up here. Q. Why you say your name next to it, are you talking about the capital G, capital A on the little -- A. Yeah, but there's a capital G next to all of them, so don't -- Q. So you've been quoted accurately in this message? A. In these three paragraphs. Q. Okay. A. The last three paragraphs. Q. What about the first paragraph? What is that? That's also got the GA's next to it also. A. That's not by me. That's, that's by somebody else. See the quotations around this? Q. Yes. A. But I can't attest to what he said. Q. Okay. A. And this, see, it's got my initials there, and it's, and it's, like I said, it's not an original. Q. Well, it does have your initials there, and the other paragraphs have your initials also. A. Right. Q. So I'm wondering how you differentiate -- A. But it's a quote from another -- it's a quote from the original. It's a quote from an original. Doesn't - - this is not an original. Any time you see a message with all this next to it, it's not an original. Q. Okay. So the pencil marks I put here on Plaintiff's 62 then -- A. Right. I'll attest to that, that is, that is my writing. Q. All right. A. But as far as what is joined with it, I can't, I can't say that that's an original and that's what was sent to me. Q. By the way, who is Ian Singer? THE COURT: Who is what? BY MR. KITCHEN: Q. Ian Singer? A. He's a distributor of Night Owl's. Q. Who is Richard Dennis? A. Richard Dennis is just an end user. THE COURT: Just what? THE WITNESS: An end user. BY MR. KITCHEN: Q. Showing you Plaintiff's 64, I'll ask if you recognize that? A. Again, you got, you got Richard Dennis quoting another message. Actually part, it looks like part of the same message that you just showed me. Q. Is there any part of this message on Plaintiff's 64 that was authored by you? A. None of it. Q. Okay. A. Authored by me? He actually quoted some, some of the parts out of that one, not you, but Richard Dennis did. Q. All right. But you had indicated in previous examples that only a portion of the material appearing on the message was by you, even though it said there was a message from you. In other words, it included both the inquiry and the response, correct? A. Right. Q. Is this the same format; it includes an inquiry and a response? A. No. This is totally different. He's quoting a message such as that message, and it's, he's writing it to me, and he's quoting from other messages, and he's commenting about, about the quotes. Q. Is he accurately quoting the, the other messages? A. I would have to compare it word for word by the other one. If these statements can be found in here word for word, then it would be accurate. Q. Well, the -- and if it were, then they would be your words, right? A. The quote would be my words. Nothing else said in here would be mine. Q. Okay. But my question to you really here is that the quoted portion, which I assume is the part with the little hyphen and the "greater than" symbol, right? A. Right. Q. Then, are those your words? A. They're the same, if they are the same words that are in there. And like I said, he's quoting another message that is not in its entirety. Q. I understand that. A. So I don't, I can't say that. And even that message, I don't know if it's in its entirety because it's not the original. Q. Well, I guess what I'm asking you though is -- A. Because you can quote and take -- when you're quoting a message you only can, you can take whatever you want out of the message. You don't have, you're not quoting the entire message. So I can't tell you if these, if this is, this is obviously not an entire quote. It's been taken already out of context. Q. It may be partial, Mr. Armenia, but the question is, are the words yours? A. Yes. The, these words in the quotes are mine. Q. All right. A. Okay? If they don't conflict to the original, which we don't have. Q. Well, do you recognize anything -- A. I recognize the conversation, yes. Q. All right. Have you, have you said anything that's in, in, after these quote marks in Plaintiff's 64 that you really didn't say? A. Like I said, it's taken out of context. All the context of this message isn't here. I don't know, and you have not put in front of me the original. Q. Whether it is -- A. So I don't know what you want from me. Q. I want you to identify what are your own words. Do you recognize these as -- A. I recognize the -- Q. -- statements you made? A. -- conversation. Q. Yes. A. And the entire conversation is not here. That's all I know. Q. Do you recognize that this portion of the conversation is what you said? A. I recognize, like I said before, that it is a conversation I recall. Q. Is there any portion in this quoted material in number 64 that would, that you would not have said? A. I can't imagine me not saying something like that. Like I said, I don't have the surrounding context of everything it was said in, so I really don't, I don't even recall the conversation. So I can't say -- Q. You don't recall this conversation? A. I recall the conversation. Q. You don't recall what you said in the conversation? A. I don't -- well, see, it's broken up. It stops and there's nothing else there. It's like the meat of it isn't there, and then you showed me the other one, which is not an original, so I don't have the entire message before me. Q. So you don't recall whether you actually said these things in Plaintiff's 64? A. I recall a conversation about that, yes. Q. But you don't recall whether you actually said this in Plaintiff's 64? A. I don't recall whether I actually said that -- well, I know I didn't say it in that type of context, but then again, that is not my message. That is not from me. That's a quote from an original or -- yeah, it had to be from an original, looks like, but it's only parts of the quote. So it's not the entire message that was sent. Q. But you don't know whether or not it's an accurate quotation? A. Well, it would help if you had the entire message there and you read it all in context. Q. Now, these Exhibits 57, 58 and 59, let me show you those. Are those your three versions that you have published? A. Yes, they are. Q. And 57 is version 1. 58 is version 2. 59 is version 3, is that correct? A. Correct. Q. All right. And when did you publish version 1? A. January 1993. Q. And where did you obtain the material to go onto Exhibit 57? A. Where did I obtain the material? Q. Yes. A. What do you mean, the files in themselves? Q. Right. The files, the programs, what? A. From authors. Uploaded my BBS. Downloaded from other systems. Q. Were you a subscriber to the ASP organization? A. Yes. Q. And when did you subscribe to them? A. Geez, I couldn't tell you that. I've been subscribing to them for a long time. Q. Well, had you subscribed to them while you were running a BBS? A. Yes. Q. Were you a subscriber to them when you were running the Night Owl BBS? A. I don't think I was. Q. Do you remember when you were first a subscriber to ASP? A. No. I could probably call them and ask them. Q. To publish ASP software or shareware, do you have to be a subscriber? A. Yes. Q. Did you become a subscriber before you started the BBS in your own name of Pier One? A. What do you mean, in my own name? Q. Well, the name Pier One on your BBS, that was the first name you had for that BBS -- A. Did I publish a disk? Q. -- after the Night Owl BBS, correct? A. You're asking me if I published a disk under the name of the BBS? Q. Didn't ask you anything about a disk. Asked you whether when you first changed the name from Night Owl BBS to the Pier One BBS, whether you were an ASP subscriber? A. Like I said before, I don't know. It's the same question you just asked me. Q. And later on you became, you changed the name again to the Pier Exchange? A. Yes. Q. And were you an ASP subscriber then? A. I was an ASP subscriber then. I had to have been because that was the latter and I, I've been for some time, and I just don't know when. I could have been under Pier One. I don't know. You mean Pier One or Night Owl's, you talking about Pier One Night Owl's -- there's three names you're talking about. Q. That's right. A. Night Owl's, Pier One, and the Pier Exchange. Q. Right. A. You're talking about from Pier One to -- oh, under Pier One was I an ASP, a member, or under Night Owl's BBS? Q. I asked you a series of questions that involved your operation as Night Owl BBS, your operation as Pier One BBS and your operation as -- A. Okay. Q. -- the Pier Exchange BBS. A. Yes. Under Pier One we were, we were under ASP. Q. Okay. A. It's Night Owl's I could not tell you. Q. And you were when you began the Pier One BBS? A. Yes. Q. All right. Now, the -- A. Or shortly thereafter. Q. All right. Did you get any of the material on your version 1 off of anybody else's CD Rom disk? A. Absolutely not. I have the most unique CD Rom on the market. It is the most current shareware CD Rom's ever published. Matter of fact, none of the files have ever been published, particularly Pier One, none of the files have ever been published on a CD Rom, period. I had the most unique and most current shareware CD Rom on the market. Q. Please. I'm sure there will be an opportunity for a commercial later, but -- A. Well, it's not a commercial. You want to know how distinct -- you asked the question. Q. No, no, no. I asked you a specific question, and you answered the question, and now I'm ready to ask another question. A. But you didn't let me finish answering my question. Q. No. A. You interrupted me. Q. You wanted to, you wanted to finish your own statement. A. You wanted to know, and I was going to give you -- you were hinting around to where I got my files from. Q. I asked you a yes or no question. A. Well, I thought it required a full -- MR. KITCHEN: I ask the Court to direct the witness to respond to the question. THE COURT: Listen to the question. Answer the question only. BY MR. KITCHEN: Q. Where did you get the retrieval system for the version 1? A. Larry James wrote it. Q. And did you specifically ask him to write it? A. I asked him if he would write it. Q. All right. And when did you ask him? A. That was around February or March. Q. Of? A. Of 1992. Q. Well, let me ask you, after you left Mr. Graham's employ in December 1991, did you have any contact after then with Larry James? A. When I left? Not until, till just when I told you, February, March, when I called him to ask him -- Q. February, March of 1992? A. Right. Q. All right. There was no contact between the December -- well, excuse me. There was no contact after December 1992 with Larry James until you called him to write a retrieval system? A. Correct. Q. All right. And had you had any contact with Larry James after the time Larry James left Mr. Graham's employ through the end of 1991? A. No. Q. When you, why did you call Larry James to write a retrieval program for you? A. Well, because I believed that an injustice was done to him and I wanted to give him an opportunity to be put back on the Rom, which I felt I was definitely a part in aiding Richard in his case against him. So I apologized to him, and I wanted to make, if I could make anything better for him, I wanted to give him an opportunity. Q. So the first thing you did when you called him was apologize? A. First thing I did, yes. Q. Okay. A. Oh, the first thing I did was introduce myself, talked to him a little more, and then I proceeded to apologize. Q. You say you introduced yourself. You had actually met him before, correct? A. Yes, I had. Q. How much contact had you had with him? A. Very little. Very little. He came, he was only in the house for about five minutes. He had to run. He was, he was running the taxi. He had a little laptop which he was writing. He walked into the house, put it right down on the counter and was writing codes right while we were talking, and -- Q. Do you remember him saying anything during that encounter? A. Saying anything? Q. Yes. A. No. Richard introduced me to him, and he said, that's Larry James, the one who writes the retrieval, and he was writing the codes as we were talking, and he was, I was watching him, and I was fascinated at, incredible, typing skills were just incredible. And to watch him write codes as fluently, or more fluently than I had ever seen anyone type English was incredible. So I was just watching him run through the codes, typing in codes, and then he did something, and then he executed the program and fired it up and he was showing us what he did. So it was very brief, but it was very fast. Q. Do you recall what, do you recall what programming language he was writing in? A. I believe it was to this day C plus plus, according to what -- I didn't know back then, but now I can -- I did recognize it and can remember what I seen back then and CC plus plus now, and know that it was the same code. Q. Do you know whether what he was writing was his first C plus plus program for Mr. Graham or whether it was updating or revising or improving an earlier C plus plus program? A. Well, if I recall the conversations between Rich were, were about, Larry was telling him what he was doing and what direction he was going in and -- Q. What did he tell you he was doing? A. What did he tell me I was doing? He wasn't talking to me, he was talking to Richard. Q. Oh, I'm sorry. What did he say? A. That's just what he said. He was talking about, I couldn't get in the specifics, but he was in general talking about the program and what he was doing. At the time, you got to understand, I, at that time I really did not know what a retrieval did or total functions or anything. It was, it was way over my head at the time, so I was just generally getting what was said. Nothing was, basically I was just sitting there listening, just trying to learn as much as I could. Q. Well, when this encounter occurred, was this before or after you were doing some Beta testing of a file retrieval system? A. That was before. Q. So did you -- well, do you know that, whether or not the program that he was working on that day that you first met him was in fact ultimately the program you ended up Beta testing? A. Oh, yeah. It was definitely, definitely the same program. Q. About how long after that first encounter did you finally have a program to, that you did Beta testing on? A. I couldn't even tell you that. Q. When you did the Beta testing, by the way, you said you were essentially testing it, trying to find out if there were any bugs or problems? A. Correct. Q. Did you find any bugs or problems? A. Just little things. It was mainly, I liked -- I was trying to interject my thoughts of what the colors of the program should look like, how they should blend together, actual bugs, no, I didn't really know what to look for. I was, like I said, I was new at this and I was just trying to give it my best go. So I really didn't know what to look for. Q. Do you know whether the program supported monochrome monitors? A. No. I couldn't tell you that. Q. Do you know what version that particular program was used on in the PDSI series of the Night Owl CD Rom disks? A. No. I couldn't tell you what any of the Beta versions and when they actually, which one got accepted onto the Rom. Q. Oh, so you worked on Beta testing more than one version? A. Yes. Q. Oh. How many different versions did you Beta test? A. Gee, I don't know. I mean, I had a lot of Beta versions, a lot of Beta versions. Any time the codes were changed and given to Richard, they were given to me, so even though there were many Betas, they may have only appeared on one disk. The Betas just kept going up and eventually it goes onto a disk, but I was still getting Beta codes constantly, even after it appeared on a disk. Q. Does the one that you originally Beta tested, did that eventually end up on a CD Rom disk? A. Well, I would imagine one of the Betas that I eventually worked with ended up -- eventually one had to make it onto the Rom or else there would be nothing on the Rom. Q. But you, you don't know which -- A. It had to be. I mean, it's an assumption that has to be. Q. Did you Beta test any of the programs that were prepared by anyone else for Mr. Graham? A. Did I Beta test -- pardon me? Q. Did you Beta test any other programs that were prepared by anybody other than Larry James for Richard Graham? A. No. Not for Richard Graham. Q. All right. Now, going back to the time when you contacted him in February of 1992, you said you apologized to him? A. Yes, I did. Q. What did you say to him? A. I said that I was sorry that I never took time to hear his side of the story, it was out of my character. I explained to him that I never had any reason personally to ever doubt Richard's word, but it's still not in my character, and I can't explain why, why I did it. I apologized, and I proceeded to go on and tell Larry about my hopes at that time to someday publish a CD Rom, and that if I did and I could swing it together and get the support I needed and get all the hardware I needed and pull all my resources together, if I was able to do it, if he would want to be the author of our access program. And he said he would. I said, would this be a problem, you rewriting the program, would it be a problem with the Court's restraint on you from using the access program. He said he would rewrite another version for me. So he said that would be no problem. Q. So when you had this conversation you were aware that there was some sort of impediment from the Court that might prevent him from utilizing a particular program? A. Yes. I was told that he couldn't use the access program he had, or had written for Night Owl's. He couldn't use it for, said he couldn't sell it or he couldn't use it. But he said he could rewrite another one. And then he was concerned about, well, if he rewrites another one, does it function in the same way that Richard's does, using headers, because you, Richard claimed that this was something so-called, quote, unquote, secret technology or something, and Larry said that that header had absolutely nothing to do with pointing to the files and that it was something he utilized only because he wanted to at a particular time, but he said it wasn't absolutely necessary and he can, he did not have to put that in the Rom, and I was, I was happy because I didn't know where this case was going at the time. I had no idea where this case was going. Q. Did you discuss with him some means of remuneration for his writing of this program? A. Discuss -- pardon me? Q. Were you going to pay him for it? A. Oh, yes. Oh, yes. Q. And did you strike a bargain as to -- A. Yes, I did. Q. -- what you were going to pay for it? A. Yes. Q. Okay. And what was that? A. $1,000 for the initial use of the program and $1 a disk, per disk. THE COURT: Per what? THE WITNESS: Per CD Rom that it appears on. BY MR. KITCHEN: Q. Okay. And were these terms proposed by you or were they proposed by Mr. James? A. Larry said that the same deal that he gave to Rich he'd give to me, and I said that was, that was fine. Q. Okay. And this was going to be $1,000 for each version? A. At the time I -- it was not clear to me. Larry has recently, when Pier Two came out, I was under the impression that I was going to pay the $1,000 right up front and I wouldn't have to pay that $1,000 again. Q. That you would not have to pay the $1,000 again? A. Right. Q. Okay. A. That was my impression. Q. So it was a one time payment? A. I thought it was but Larry -- Q. Now, what would you get in -- MR. OSTROWSKI: I object to interrupting the witness. THE COURT: Yes. You interrupted the answer. Larry thought -- THE WITNESS: Larry, when Pier Two was coming out, Larry, you know, we sat down and we talked and we discussed stuff, and then he told me that -- we were talking about what I owed him still, and -- MR. KITCHEN: Well, Your Honor, I don't want to interrupt, but he's going into now version 2 and that sort of thing, and I'm not sure we're through with version 1 yet. THE COURT: I think it's not responsive at this point. BY MR. KITCHEN: Q. All right. Okay. When the -- and did you in fact pay him $1,000? A. Yes. Q. Okay. When did you pay that to him? A. I paid him a portion of it in cash and the other portion in CD Roms. Q. Another portion in CD Roms? A. Yes. Q. Well, how much did you give him cash? A. Gee, I'd have to go look up my records to see what that was. I can't remember offhand. Q. You have no idea at all? A. No. Because I gave him several, I gave him several checks. Q. Oh, well -- A. So I'd have to total it up. Q. Several checks. So in other words you didn't give him a single lump sum and the cash portion was not a single sum? A. No. Because he knew, he knew I was in, to start a CD Rom, we agreed that I wouldn't have to pay the initial -- actually I think he only wanted 10% and I think I gave him 20%. Q. So you gave him $200? A. Yeah. At the initial, first check, I think it was $200. Q. All right. And then you gave him some additional payments? A. Yes. Q. Do you remember approximately how many payments you gave him? A. No, I don't. Like I said, I'd have to check my records for that. Q. Well, was it more than, was it more than 10 payments, more than 15 payments? A. I can't tell you how many payments I got because I don't, I don't recall them. I pay a tremendous amount of payments out to people, and I can't tell you how many payments I made to Larry, in specific. I have a record of them all. I have a record of disks that I've given him as -- Q. I appreciate that. Approximately when did you pay him the $200? A. Before I pressed the disk. Q. Yes. And you pressed the disk in, when, January of 1993, right? A. Yes. Q. And you ordered this, you asked him to produce this retrieval system in February of 1992, right? A. Correct. Q. So during that 11 month period, approximately when did you pay the $200? A. That I'm not sure. I would imagine it was towards, maybe getting closer to the pressing, when I was, actually knew that I was going to, first I had to know if I was going to pull this all together. I mean, like I said, it was, it was a hope -- Q. So the $200 payment was like the end of 1992, beginning of 1993 was about when you paid that? A. Right. It would definitely would have had to -- Q. And that was the first payment? A. Yes. Q. And then there were other cash payments? A. Yes. Q. Now, were the other payments made after the, the version was released? A. Yes. Q. Okay. And were the -- now, you have no recollection then above $200 what additional cash you paid to him? A. Oh, I know I paid more cash to him. It's just that I can't tell you how many, I just can't give you these figures. You're asking me figures I cannot give you off the top of my head. I mean, it's kind of ridiculous. Q. Well, and you have no idea of even approximations at this point? A. No. I'd have to, I'd have to check the books. Q. I see. A. I don't. Because he gets royalty, too, so he got the $1 a disk, too, plus he got -- Q. Now, what is the royalty for? A. The dollar a disk. Q. Yes. What does that, what does that pay for? A. It gives him money that, that he wants per disk. Q. Okay. A. I mean, it's royalties. Q. All right. And -- A. For me to use his program on, it's his program, on my CD Rom. That's what it's given me. Q. All right. And is he required to provide any additional follow-up or support for the dollar a disk? A. He would. I never asked him to. Q. But what was the arrangement? A. That he would. Q. All right. So the dollar a disk was dependent upon his continuing to support the program he provided? A. No, no. The dollar a disk was a done deal and he would support the product. Q. Did you have this agreement in writing at all? A. No. It was a verbal agreement that I would, was more than willing to stand up to. Q. Okay. A. And actually there was the signing of a brief contract stating that, that there would be an initial payment for the software, and there wasn't a full blown contract with -- Q. But some written agreement signed by the both of you? A. Yes. It was just a written agreement, handwritten, just a little typed, the initial one was a little typed -- he had, inside of his program, his Beta program, he had an agreement doc which he asked me to sign that and send it back to him. I FAX'd it back to him. I signed it and sent it back to him. Q. Okay. Do you have a copy of that? A. Yeah, at home. Q. And approximately when was that agreement signed? A. Oh, geez. I believe that contract was signed right before I was going to release the Rom. When I was sure about the deal, I sent him the check. It was all done like, when I was sure I was going to release the Rom I told Larry that, I'm going to release the Rom. I gave him a deadline. I said, it's a go. We're going to make it. And it's going to be pressed. And then Larry said, okay, can you sign the agreement. I said, sure, no problem, I understand. And I signed the agreement and I FAX'd it back to him, and shortly after that I sent him a check, before the pressing of the disk. Q. Okay. So this would have been in about January of 1993? A. No. It had to be before January because the disk was pressed on the 3rd. Q. Of January? A. Yes. Q. Okay. So -- A. It was released on the 3rd. Q. So we're probably talking December 1992? A. Yes. Q. Okay. A. In that time frame. Q. Now, you also indicated that part of that $1,000 was paid off by giving him CD Roms? A. Yes. Q. And was that in your written agreement that you signed? A. No. That was just, I mean, CD Roms are worth money, so he just accepted them as -- Q. Okay. But he was under no -- A. -- cash. Q. -- obligation to accept those as money? A. No, no. That was his prerogative. Q. Okay. And how many CD Roms did you give him? A. Oh, I couldn't give you a total. Quite a bit. Q. Well, more than, more than a thousand? A. No. Q. More than a hundred? A. Yeah. I'd say more than a hundred. Q. More than 500? A. No. Q. More than 200? A. It could be close to 200. I don't know. I'd have to actually sit down and dig up all the records. Q. More than 300? A. Like I said, I couldn't say that. I know it's over a hundred. Q. More than 400? A. I guess I'm not getting -- I can't say it's more than 400. Q. Okay. You can't say whether or not it's more than 400? A. No. Q. Okay. But it's definitely less than 500? A. I would imagine it's less than 500, yes. That's a lot of disks. Q. And you also imagine it's more than 100? A. Yeah. I would imagine it's over a hundred. Q. Okay. Somewhere between 100 and 400 -- or, excuse me, 100 and 500? A. Maybe you can ask Larry. Maybe he knows. I don't know. Q. But you don't. Okay. A. I deal with a lot of disks. Q. When did you -- please. A. You're asking me -- Q. When did you give him those disks? A. Release of one -- Q. Well, let me stop you a second because then I want to ask you, was this version 1 disks that you gave him? A. Yes. Q. All right. Now, back to my previous question. When did you give him these disks? A. I can't tell you the date I gave Larry the disks. Q. Well, when -- A. It was a day I wasn't busy. He asked for some disks. Q. All right. Please, please. If you don't know, that's okay. But let me establish that you couldn't have given him any before January 3, 1993, is that correct? A. Unless the disks were in my possession by then, it would have been totally impossible. Q. Well, all right. Mr. Armenia, I'm sorry, but you're -- I, maybe I've misunderstood, but I was under the impression that your previous testimony was that the disks were pressed or originally manufactured January 3, 1993. Now, am I all wrong on that? A. No. They were actually -- you're wrong. They were actually pressed in December. I did not receive the disks until January. So they were in, they were in, at the plant being pressed, which was a two week process. Q. Well, okay, but I mean, did these disks go anywhere else from the plant? A. No. They'd come right to me. Q. I mean, did all of them come to you? A. Yes. Q. Okay. So then, any distribution whatsoever of these disks had to have occurred on or after January 3, 1993? A. I would imagine -- well, I can't give you the -- Q. Well, please. I -- A. It could be January 1st or 2nd. Q. Oh, all right. A. It was in January. Q. All right. A. The disk was not released till January. Q. Early part of January? A. Right. Q. And probably not the 1st because of the holiday, right? A. Well, no, it wasn't the 1st, but I remember, it was right -- Q. Maybe it was the 2nd? A. It was, I think, right after the holidays that it came out. Q. Whatever. And it was after then then that you actually gave him these disks in a quantity somewhere more than 100 or less than 500, correct? A. Yes. Q. Did you give it to him in one lump sum of disks? A. No. First I only gave him five disks and then I gave him, geez, I can't remember if it was 60 disks, or something like that. And then I'd give him a box here and there. Q. When was -- A. He uses them. He sells them. Q. When was the last time you gave him CD Rom disks, version 1? A. I can't tell you that. You're asking me questions that are going back to January, and I just can't answer these questions. Q. Not necessarily. Did you give him any last month? A. Pardon me? Q. Did you give him any last month, in September? A. Any last what? Q. Month? A. No. Q. How about this month? A. No. Q. How about August? A. Oh, Pier One, did I give him Pier One? Q. All we're talking about right now is CD Rom version 1? A. Right. Q. Did you give him any in this month? A. Yes. Q. Of version 1? A. Yes. Q. How many did you give him this month? A. I would say close to 30. Q. And how much in September, how many in September? A. Oh, I couldn't tell you. Q. How many in August? A. I can't tell you. Q. All right. Now, when's the last time you gave him cash for writing that retrieval? A. I couldn't tell you the last time I gave him a check. I think it was somewhere around three months ago. Q. Okay. And was that intended to be part of the $1,000 or was that intended to be part of the royalty? A. That was part of the royalties. Q. And how many of version 1 have you sold? A. I couldn't even tell you that. Q. Well, how many -- A. I don't even think I would tell you that. Q. How many of version 1 have you produced? A. I don't even think I would tell you that. Q. Why not? A. Because I don't think it's relevant to this case at all, what I do as a business and what my business does. MR. OSTROWSKI: Objection. Relevance. MR. KITCHEN: Well, I will ask the Court to direct the witness to answer the question on how many he's produced of these. THE COURT: What's the basis for your refusal to answer, Mr. Armenia? THE WITNESS: Well, I just don't think that it's, that it's part of their business. I don't know. He's a competitor of mine. He wants to know what my, what type of business I'm doing. THE COURT: It's a business secret, as far as you're concerned? THE WITNESS: Well, I don't like to disclose my -- THE COURT: Is it a business secret then? THE WITNESS: Yes, it is. THE COURT: All right. I'll sustain the objection. BY MR. KITCHEN: Q. Are you fully paid up with Larry at this time? A. No, I'm not. Q. Okay. How much do you still owe him? A. I believe a few hundred dollars. Q. And is that for royalty or is that for the initial $1,000? A. Both, probably. Q. All right. A. A chunk of both. Q. Okay. So you still haven't -- all right. Now, you have a version 2. When did that come out? A. I believe in May, I think in May it came out. Q. And did you ask Larry to write a retrieval for that, too? A. Well, it's the same retrieval. It didn't change. Q. All right. Let -- A. There was an update to it, but it didn't change. Q. Let me backtrack for just a second. You said you asked him to write the retrieval back in February of 1992. How, how long before you saw the first version of his program that he wrote for you? A. It wasn't till very, I would say in, in November. Not -- yeah, late November, December. Q. All right. A. Where I got a Beta -- THE COURT: I have a housekeeping matter. Is version 2 Plaintiff's Exhibit 58? MR. KITCHEN: Yes, Your Honor. THE WITNESS: It was a Beta version. BY MR. KITCHEN: Q. Okay. When did he first give you a Beta version? A. That was when I first seen a Beta version. Q. And that was in November? A. Yeah. Somewhere in November, December. Q. All right. Now, between February and November, did you have any communication with Larry James? A. Between when? Q. Between February and November of 1992, did you have any communication with Larry James? A. I'd imagine so. Q. Well, do you recall having any conversations with him or talk to him or write to him or vice versa or anything, between February of '92 when you asked him to produce it, and November '92 when he gave you a Beta version? A. Did I talk to him more about it? Q. Did you have any communication with him? A. Yes. Q. Did you talk to the man? A. Yes, I did. Q. Okay. And what was the subject of your discussions, was it the program? A. Always the program. What I wanted. Q. Did he show you anything before November as to what he was working on or what it would look like? A. No, no. Q. Did he give you any progress reports during that period of time to indicate how far he was along in preparing that program? A. Yes. He always told me he was, it was, he was working on it, and it was coming along. Q. Did he give you any indications as to when you should expect to see a Beta version of the program to actually run? A. No. He just, he just presented it to me, and I ran it, and then it was just a matter of me giving him the okay to give me the final version and sign the contract. Everything was fine for the Beta version. I couldn't find anything wrong with it. Q. Now, since the retrieval system is only one part on that disk, what about the rest of the disk? Were you in the process of collecting material to put on the version 1? A. Of course. I had a year to collect it all. Q. All right. Which part was ready first? MR. OSTROWSKI: Objection to relevance. THE WITNESS: My -- THE COURT: He may answer. THE WITNESS: My disk was ready first. BY MR. KITCHEN: Q. In other words, the files were ready before the retrieval systems? A. Right. Q. All right. The -- after you published the first disk, I think I had asked you whether you asked him to produce a version for -- a version 2. Did you use the same -- MR. OSTROWSKI: Asked and answered. MR. KITCHEN: Well, let me strike that. BY MR. KITCHEN: Q. Did you use the same retrieval system on version 2 as you used on version 1? MR. OSTROWSKI: Asked and answered. MR. KITCHEN: Well -- MR. OSTROWSKI: It's an objection. THE COURT: He may answer. THE WITNESS: Yes, I did, but there had to be an update change because there was a new version of the compress that came out that the program needed to be updated. BY MR. KITCHEN: Q. Are you saying that essentially that the version 1, version 2 and version 3 aren't really just three versions, or what? A. They're not three versions? Q. Yeah. A. What do you mean? Q. Well, I mean that there's more than three versions, that there's some intermediate version that might bear the same number or version number of one or the other but it's different in content? A. No. Pier One and Two are the same retrieval, period. Q. No, no. A. Like I said, there was only an update made to the compression being used. Q. Oh, okay. A. The retrieval stayed the same. Pier Three is an entirely new retrieval written by another company. THE COURT: Which is version 3? MR. KITCHEN: That would be number 59, Your Honor. THE WITNESS: 59 is written by another company. BY MR. KITCHEN: Q. Who wrote the retrieval system on 59? A. This was written by Robosoft Systems. Q. Robosoft? A. Robosoft Systems, yes. Q. Okay. Was that written for you as a custom program, or was that more of an off the shelf retrieval program? A. That's a, definitely a custom program just for my disk. Q. Okay. You contacted them and asked them to produce a retrieval system for you? A. Yes, I did. Q. All right. The, the -- are you saying the only -- now, is there any difference in content between version 1 and version 2, that is to say, all the files that you included on those two disks? A. Oh, yeah. They're totally different. Q. All right. But the only difference between the retrievals is the inclusion, or update, of one of the compression programs? A. Yes. That internal compression that it used, yes. Q. Now, we have previously in this courtroom heard about compression in the programs such as PK-Zip? A. Yes. Q. Is that what you mean by a compression program? A. Yes. The routines and the codes had to be updated to the new version. Q. And in fact was it the PK Zip compression program which had to be updated? A. The PK Zip had to be updated? Q. That's my question. A. Or the PK Zip was updated, and this had to be compatible with it. Q. I see. So in other words, the PK Zip, or rather actually the PK Unzip program on version 1 is different from the PK Unzip program on version 2? A. correct. Q. All right. Is that the only difference between the retrievals? A. Yes. Q. Okay. Now, for version 2, were you obligated then to pay another $1,000 to Larry James? A. Yes. Q. Okay. And you in fact did pay another $1,000 to Larry James? A. No. Q. You did not? A. Not cash, no. Q. Okay. A. I wasn't aware of this agreement with Larry. Like I said, at the beginning I thought it was $1,000 per disk and that I would -- not per disk, but $1,000, and I wouldn't have to pay that anymore. It was like a one time fee. But Larry explained to me that it was $1,000 per disk and which terms I agreed to start paying the $1,000 per disk after that point. Q. When did he inform you of this error? A. Right before the release of Pier Two. Q. And when was that? A. That was in, that was in May. Q. You're -- it was in May? A. Yes. Q. Okay. And was this part of the agreement that you had signed? A. It wasn't -- well, I can't say it was or it wasn't because it was obviously a misunderstanding of the communications between me and Larry. Q. I'm asking you if it was in the written document? A. No, not to my knowledge, it wasn't. It wasn't that type of an agreement. Q. Did you read it and look for it and see if it was there? A. Yeah. I looked for it. Even reread it and looked for it after we had this discussion. And no, I couldn't see it in that agreement at all. But Larry said he thought that we had communicated it and we sure didn't, at least in my opinion we didn't, but it was nothing that we couldn't out. THE COURT: You were willing to go along with his version? THE WITNESS: Yeah. It was nothing that we didn't work out. BY MR. KITCHEN: Q. Do you believe that Mr. James may have misled you with regard to what the, what the agreement really was? A. I can't say that. I can't say that. No, I can't say that. Q. Now, you have a version 3. When was that released? A. That was released, oh, dates, dates, dates, I believe it was released in September, late September. Q. Just last month? A. Just recently. Just recently. Q. And did you have any discussions with Mr. James as to whether or not he was going to be writing the, or supplying the retrieval program for that? A. No. I didn't have any discussions with him, no. Q. Okay. A. I asked him if he had any updates for me or anything and he said no. And I had already been looking and soliciting for programmers, because I told Larry, I wasn't aware of the $1,000 a disk for two disks, and I thought, if I would have known that up front, I would have reconsidered paying that initial money per disk, because it seemed like a lot of money to me. Q. By the way, have you paid him any royalties for version 2? A. Yes. Q. And that was in cash? A. Yes. Q. Okay. And when -- A. And disks. Q. How much have you paid him for royalties for version 2? A. I couldn't tell you. I'd have to open up books and look at it. Q. Okay. And how many version 2 disks have you given him? A. That I couldn't tell you either. Q. Well, again, is it more than 100? A. I couldn't tell you. You know, you keep asking figures. I really don't know. Q. Well -- A. You got me hemming and hawing. I don't know the figures that I gave the guy. Q. Now, listen. Mr. Armenia, I understand some people have more of a memory for figures than other people, but very often people who lack that facility still have a general idea, which is why I'm trying to put it within a range. THE COURT: All right. Without this generalization, we must move toward a point of recess. MR. KITCHEN: It's okay with me. THE COURT: Just come to a point when you can break MR. KITCHEN: I'll break now, Your Honor. THE COURT: All right. Now, you're tied up tomorrow so we're back in business 9:00 o'clock on Thursday. MR. KITCHEN: Yes, sir. I would ask Mr. Armenia, since we have a two day break, that when he returns, if he -- THE COURT: One day break. MR. KITCHEN: Excuse me. One day break. Yes, sir. That when he returns he bring along the written contract between himself and Mr. James. Would that be possible, Mr. Armenia? THE WITNESS: Sure. MR. KITCHEN: Okay. THE COURT: Thank you. 9:00 o'clock Thursday, which is the 21st. (Trial adjourned at 4:15 p.m. to 10-21-93) 155 I N D E X Witness Dir Cross Redir Recr Gregory J. Armenia 157 215 Exhibit Ident. Evidence Plaintiff's: (Identified by Mr. Armenia) 6 PDSI-004-1 161