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Text File | 1994-04-12 | 320KB | 5,866 lines

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - RICHARD E. GRAHAM, CASE NO. 91-CV-800 Plaintiff, Buffalo, New York -vs- November 24, 1994 9:24 a.m. LARRY E. JAMES, 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, NY 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 THE COURT: We're going to canvass a situation last night, Mr. Ostrowski, while you were doing ten other things, see if you rest. MR. OSTROWSKI: I did finish my appeal, Your Honor. THE COURT: That's good. MR. OSTROWSKI: The only thing I have as far as exhibits is Defendant's 7, 8 and 9 for identification are all various business certificates about which there was testimony. They're uncertified, which to me is simply a technical problem. If anybody wants them certified, I can certify them. THE COURT: Well, I know for some reason, two of them, 7 and 9, were offered earlier and objections were sustained. I don't know if it was on that basis or what. MR. OSTROWSKI: Well, that was so long ago, I recall there was something about certification and something about whether - - THE COURT: And you've been very - - you've been - - And you've been very busy in the interim and haven't been able to get to it. MR. KITCHEN: I thought the ground was relevancy, but I'm - - THE COURT: Relevancy, was that the objection? MR. KITCHEN: I'm not, I'm not absolutely sure, but I thought it was. THE COURT: Well, I didn't, I just noted objection. I didn't note it, note the particular objection. MR. OSTROWSKI: Well, I think - - My recollection is that I was unclear at the time what the nature of the objection was, and I believe that the ruling was that it would be put off pending further testimony. THE COURT: Well, in any event, in any event, you are now offering them, so we can proceed. MR. OSTROWSKI: Yes, seven, Defendant's 7 is - - THE COURT: They're all certificates of doing business. MR. OSTROWSKI: The first one by Ken Helinski and the second one by Ken Helinski and the third one by Richard Graham. I'd offer them in evidence. They - - It seems to me they've been identified by the, by Mr. Graham and Mr. Helinski, although my memory may be a little shaky on that, and if the sole objection is that they're not certified, I can certainly ask leave of the court to supply certified copies. THE COURT: Number seven is by whom? MR. OSTROWSKI: They're actually not in chronological order. THE COURT: Seven is what? MR. OSTROWSKI: Let me - - MR. KITCHEN: Well, we have no objection - - THE COURT: I have Plaintiff and another person - - MR. OSTROWSKI: Seven, Your Honor, is actually the latest one, - - THE COURT: November, 1990. MR. OSTROWSKI: Yes, Your Honor, by Richard Graham and Louis Manzi. THE COURT: Richard who? MR. OSTROWSKI: Richard Graham and Louis Manzi, and that's for CARRS with no periods. THE COURT: Oh, Richard Graham and Louis Manzi, Louis Manzi. MR. OSTROWSKI: That's for CARRS with no periods and two R's, and eight is - - THE COURT: By Helinski? MR. OSTROWSKI: Ken Helinski's amended certificate, which looks to be July 18th, '89. THE COURT: Excuse me, what's the date? MR. OSTROWSKI: July 18th, 1989. THE COURT: Yeah. MR. OSTROWSKI: Along with Louis - - I don't know, I don't know if this was intended to be Louis Manzi. I was confused, and I still am. To me it looks like K-A-I-N-Z. MR. KITCHEN: Yeah, that's what I - - That's what it looked like to me, Your Honor, and I - - MR. OSTROWSKI: And then nine, obviously I didn't do this in good order, nine is the earliest one. THE COURT: Well, Louis, I have Louis K. K-A-I-N-Z on that. MR. KITCHEN: Yes, that is correct. MR. OSTROWSKI: And I don't think the - - THE COURT: And a Kenneth Helinski. MR. OSTROWSKI: I don't think the testimony cleared this up either, unfortunately. MR. KITCHEN: Well, also, of course, there are signatures, Your Honor, on both of these, of this Louis whoever it is, and clearly the signature of Louis Manzi on Exhibit 7, I think even Mr. Ostrowski would agree is distinctly different from the signature of this Louis Kainz who is on 8 and on 9. And the only thing I would say is there are no signatures on the amended - - on No. 8. MR. OSTROWSKI: There's apparently no place for them either. THE COURT: All right. Seven is doing business as CARRS, without periods, eight is what? Doing business as what? MR. OSTROWSKI: Eight is - - MR. KITCHEN: Amended. MR. OSTROWSKI: - - computer assisted records retrieval system. THE COURT: Spelled out all the way? MR. OSTROWSKI: Yes, and in parentheses, Capital-C- period-A-period-R-period-R-period-S-period. THE COURT: So it has both the full name and the initials? MR. OSTROWSKI: Yes. And nine is a business certificate for partners for Computer Assisted Records Retrieval Systems--Capital-C-period-A-period - - THE COURT: Same thing. MR. OSTROWSKI: Same thing. MR. KITCHEN: We have no objection to seven because that was signed by Mr. Graham. He's indicated to me that as far as he's concerned, it's his signature. He has no basis for authenticating or saying anything about eight and nine. They neither bear his signature nor make any reference to him. MR. OSTROWSKI: Well, but I'm offering those on the basis of Mr. Helinski's testimony. THE COURT: What did he say? When did he testify? Before whom? MR. OSTROWSKI: Many weeks ago I believe that I handed him these - - THE COURT: Well, was he before - - MR. KITCHEN: I think just before Mr. Armenia, I believe. THE COURT: And where was Mr. Armenia? MR. KITCHEN: He was just before Mr. James. THE COURT: Oh, here's Helinski, Helinski, right? Helinski didn't say beans about any of them. MR. KITCHEN: Your Honor, I would object to Defendant's Exhibit 8 on the grounds that it bears no signature, much less - - Well, it isn't signed. It's notarized, but it's not signed. THE COURT: All right. I'll sustain the objection to 8 and 9 and without prejudice to your procuring and offering the certified copies of each. MR. OSTROWSKI: Thank you, Your Honor. The only other thing - - THE COURT: Seven is received. (Defendant's Exhibit No. 7 received into evidence.) MR. OSTROWSKI: The only thing, other thing I have, Your Honor, is I'd like to move to amend the pleadings to conform with the evidence in accordance with Rule 15 of - - THE COURT: In what regard? MR. OSTROWSKI: Well, specifically - - THE COURT: That's not just a broad brush stroke. MR. OSTROWSKI: Specifically to add the date of the registration of Defendant's Exhibit 1 as shown on Defendant's 17 to be February 20th, 1992 and also to include the registration number where the first two letters are somewhat difficult to read, but I believe they're TX3 - - THE COURT: Excuse me, what, what exhibit are you talking about? MR. OSTROWSKI: On Defendant's Exhibit 17, I'm moving to amend the counterclaim to include the registration number of TX3259813. THE COURT: That was February, 1992. Now 17(A) is the instruction sheet. MR. OSTROWSKI: Yes, Your Honor. THE COURT: The Certificate 17 has Mr. James' signature. MR. OSTROWSKI: I'd also - - With respect to the fact that numerous CD-ROM - - CD-ROMs were put into evidence, mainly by the Plaintiff, the dates of publication of those CD-ROMs are, by and large, after the date of our answer and counterclaim, which was - - THE COURT: What's the point of that? MR. OSTROWSKI: - - February 20th, 1992. I'm simply asking that the - - that our counterclaim be deemed to be amended to include a claim for infringement against all of the exhibits entered into evidence, which - - THE COURT: Be specific. MR. OSTROWSKI: As to the exhibits, Your Honor? THE COURT: Yeah. MR. OSTROWSKI: Could I have the - - THE COURT: I still have nothing. I have an offer of Defendant's Exhibit 17. MR. OSTROWSKI: Your Honor, I believe - - I thought that that had been received into evidence. THE COURT: You've offered it. I haven't taken any action on it yet, and I don't know if there's an objection. MR. OSTROWSKI: Well, I offered 17 and 17(A). I had thought they had been admitted. THE COURT: Oh, and 17(A)? MR. OSTROWSKI: Yes, Your Honor. MR. KITCHEN: Yeah, I think we did get past that, Your Honor. THE COURT: When? MR. KITCHEN: Last evening or when - - THE COURT: Oh, yes. It's right at the end. I did receive them both, correct. MR. KITCHEN: Right. MR. OSTROWSKI: Well, Your Honor, we're asking that the counterclaim be deemed amended to include a claim of infringement and breach of contract and with respect to Plaintiff's Exhibit 36, which is NOPV9, Plaintiff's Exhibit 32, which is PDSI004-1, Plaintiff's Exhibit 26, which is NOPV7, Plaintiff's Exhibit 27, which is NOPV8, Plaintiff's Exhibit 24, which is PDSI006-1, Plaintiff's Exhibit 40, PDSI - - THE COURT: Plaintiff's what? MR. OSTROWSKI: Plaintiff's Exhibit 40, which is - - THE COURT: 40? MR. OSTROWSKI: Yes, PDSI004-2, Plaintiff's Exhibit 34, which is PDSI006, Plaintiff's Exhibit 6, PDSI004-1, Plaintiff's Exhibit 25, which is NOPV6, Plaintiff's Exhibit 8, which is PDSI005, Plaintiff's Exhibit 39, which is PDSI004-1, and Plaintiff's Exhibit 7 is also PDSI004-1. And Defendant's Exhibit 18, which is a Daytime Express CD-ROM. I'd simply ask that the allegations of our counterclaim be deemed to include, to extend the causes of action therein for contract and infringement to all these exhibits - - MR. KITCHEN: Well, Your Honor - - MR. OSTROWSKI: - - and - - THE COURT: Now let me understand what you're doing. You want to amend your pleadings to include claims of infringement and claims of breach of contract, and then you have an enumeration of these thirteen exhibits. Are you wanting to amend your pleading to claim infringement of those thirteen exhibits? MR. OSTROWSKI: Yes, Your Honor. THE COURT: And what's the breach of contract? MR. OSTROWSKI: The breach of contract is that the Plaintiff and his corporation have failed to pay Mr. James in accordance with the agreement - - THE COURT: Isn't that in the case already? MR. OSTROWSKI: It's in the case, Your Honor. I just want to make it clear that we're making the claim for breach as to all of these exhibits, to continuing breach. THE COURT: Infringement? MR. OSTROWSKI: Well, it's both, Your Honor. THE COURT: Huh? MR. OSTROWSKI: It's both. THE COURT: Well, the contract - - What are you doing? You say that a contract related to a certain situation or time frame that existed between Mr. James and Mr. Graham, and you're claiming a breach of that contract. Now are you claiming an enlarged contract? MR. OSTROWSKI: Yes, Your Honor. THE COURT: To embrace all of these other thirteen exhibits - - MR. OSTROWSKI: Yes, Your Honor. THE COURT: - - and what happened in regard to them, and you're claiming a contract existed as to each and every of them and that that contract is breached? MR. OSTROWSKI: Yes, Your Honor. MR. KITCHEN: Well, first of all, Your Honor, I think it's preposterous to argue that if, even if the parties had a contract for this thousand dollars per version plus a dollar a disk, that if, in fact, after Mr. James left Mr. Graham's employ, or whatever, and Mr. Graham went out and hired different programmers, which he unquestionably did, one of whom is sitting right here in the courtroom and had previously testified, Mr. Swanson, and others and paid good money to have new programs done, that if, in fact, those programs infringe, which we strongly argue that it would not and I don't think the evidence supports that they were infringements, but even if they were infringements, Your Honor, the idea that then they would also be a breach of contract and notwithstanding that Mr. James had nothing to do with the writing of the new programs, that he would, therefore, be entitled, nevertheless, to a thousand dollars for each version plus a dollar a disk, I mean there's simply, there's simply no basis. Even if there were infringement, he would be entitled to some sort of damages, but I don't think the damages could or should be measured by a contract which obviously was no longer in force. THE COURT: Well, he's cutting two ways here, either they were infringed and there are damages due him on account of the infringement, or they were not infringed because they were covered by the contract and monies are owed to him under the contract, if I appreciate your situation. MR. OSTROWSKI: Yes. THE COURT: It's an either/or situation. MR. KITCHEN: Well, yes, but he's - - MR. OSTROWSKI: Yes, Your Honor, - - Well - - MR. KITCHEN: - - also asking the court to essentially conform pleadings to the proof. So I guess I'm arguing for the proof - - THE COURT: Yeah, I know, but as far as these two claims, breach of contract and infringement, they are opposite ends of the pole. If there was no contract, then, of course, you could claim infringement. If there was a contract, you can't claim infringement, but he's owed money. MR. KITCHEN: I have another objection, too. THE COURT: Isn't that right, Mr. Ostrowski? MR. OSTROWSKI: I haven't delved that deeply into it. I suppose - - THE COURT: It's your case. You're the one who's wanting to amend the pleadings to conform to this, and I just want to understand what you're doing. MR. OSTROWSKI: Well, I suppose what I'm, what I'm doing is I'm trying to preserve the damages element of the contract claim. It may be true that it's difficult to argue breach of contract with regard to the far reaches of the CD- ROMs published in 1993. However, short of looking, doing research into the law of damages and contract, I'm not prepared to say that that may not be part of the damages for a breach happening sometime before that, and I just want to make sure that my - - it's understood with the court that we're alleging damages for breach of contract for all of these subsequent CD-ROMs and I think that Mr. Kitchen is basically arguing the merits of the case. That's inappropriate. This is simply a motion to - - THE COURT: No, no, no, no, we're not doing that. I'm just trying to understand what you're saying, and I don't know whether you are just covering all bases, which I think you are trying to, by claiming infringement of all of these various representations and alternatively claiming that they were covered by a contract between Mr. James and Mr. Graham and, consequently, that contract has been breached by the non-payment. MR. OSTROWSKI: That's part - - THE COURT: The two don't exist together. It's an either/or, isn't it? MR. OSTROWSKI: Well, I don't necessarily see it that way. THE COURT: If Mr. James contractually allowed Mr. Graham to make sure of certain ideas which are embodied in one or more of these, then there is no infringement. And in that situation, Mr. Graham could well owe Mr. James some money. MR. OSTROWSKI: But there was a breach of the contract and - - THE COURT: Wait a minute, I'm talking about - - I'm not talking about a contract now. If there - - Well, I am, yeah. If there was a contract, then there can't be any infringement. There can be a breach of the contract as to any particular embodiment. MR. OSTROWSKI: I would disagree, Your Honor, respectfully. THE COURT: Why would - - how - - what would be your rationale for disagreeing, other than trying to bring in - - MR. OSTROWSKI: Because the - - THE COURT: - - trying to bring in everything you possibly can? MR. OSTROWSKI: No, and I do try to do that, but here the same act which breaches the contract, i.e. not paying the money and taking the copyright notice off and so on, is also a violation of the copyright law. It's the exact same discreet act which leads to two causes of action for the same act, and I certainly - - THE COURT: If Mr. Graham is contractually entitled to do it, then it's not infringement, but then he could owe money. If he was not contractually entitled to do it, then there would be infringement and he could owe money. MR. OSTROWSKI: But, again, Your Honor, I do not necessarily accept that analysis because we're asking for an injunction. We're not granting Mr. Graham any rights to simply keep using the program but pay us money. THE COURT: Oh, you're not asking for money for breach of contract? MR. OSTROWSKI: We are asking for money. We are asking for an injunction. We are asking for all remedies available at law. THE COURT: Now, if you proceed on the basis of there having been a contract, unless that contract has some temporal limitation which has now run out, really you're still in a situation of Mr. James having a contract with Mr. Graham who has obligations to Mr. James under the contract, and that would be an ongoing situation unless Mr. James has, because of certain breaches, said to Mr. Graham our contract is terminated. Then and from that point, you could have infringement. If there had not been a contract earlier, you could have infringement. MR. OSTROWSKI: Well, I think the contract has been breached and the contract has probably been terminated, but the obligation - - THE COURT: Well now you're throwing in that word probably. MR. OSTROWSKI: Well, short of sitting down with the transcript and researching case law and writing a brief, which I anticipate is what we're going to be doing. THE COURT: All right. So if I anticipate then what you're saying is that within this ambit of, quote, probably, unquote, you're saying there was a contract pursuant to which Mr. Graham was entitled to make use of Mr. James' ideas and in return for which he was obligated to pay Mr. James some money? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Mr. Graham breached that, and because of the breach, automatically somehow and without any precise notice to Mr. Graham from Mr. James, the contract came to an end. From and after that time any use by Mr. Graham of Mr. James' ideas would be infringement? MR. OSTROWSKI: Yes. I think it's come to a - - THE COURT: They can't co-exist, though, can they? MR. OSTROWSKI: I believe they can. I believe there's a continuing - - THE COURT: How can they co-exist? MR. OSTROWSKI: There's a continuing breach of contract. I mean if I buy a - - If I buy a tractor from somebody and say I'm gonna use this for farming. I'm gonna give you ten percent of my profits, and I, on the first year the profits are due, I don't pay and I say, you know, go to Haites, and I continue to use the tractor - - THE COURT: Oh, now you have - - MR. OSTROWSKI: - - there's a continuing - - THE COURT: Now you have Mr. Graham saying go to Haites and thereby abrogating his contractual responsibilities saying - - MR. OSTROWSKI: But not his - - THE COURT: You're saying there's no contract? MR. OSTROWSKI: But not his duty to account for the breach of contract, which is the profits that - - THE COURT: Oh, I know, but I'm thinking from that point forward. There wouldn't be any contract from that point forward because Mr. Graham had said no, there's no further contract. MR. KITCHEN: Could I address that analogy, Your Honor? MR. OSTROWSKI: But I think it's - - But he still has to account for the damages that he has caused. THE COURT: For the breach of contract? MR. OSTROWSKI: Yes. THE COURT: Yeah, not for infringement. MR. OSTROWSKI: But it's also for infringement and if - - THE COURT: No, no, it can't be, can it? He had - - MR. OSTROWSKI: Yes, because - - THE COURT: He had Mr. James' permission to use it. MR. OSTROWSKI: Subject to certain conditions - - THE COURT: Consequently - - Huh? MR. OSTROWSKI: Subject to certain conditions which, having failed - - having been breached, that permission ceased immediately, but his obligation to account for damages continues. THE COURT: But ceases immediately but not nunc pro tunc. MR. OSTROWSKI: Well, I don't - - I don't see the relevance of nunc pro tunc. All I'm saying is - - THE COURT: Well, sure because if you say the contract is voided and never was in being ab initio, then, of course, there could be infringement, but there could not be any claim for breach of contract. MR. OSTROWSKI: Well, - - THE COURT: Because there never was a contract then. MR. OSTROWSKI: No, it's certainly our position that there was a contract - - THE COURT: I understand that. MR. OSTROWSKI: - - and it was breached. THE COURT: I understand that. MR. OSTROWSKI: And the breach is continuing and we want damages for that continuing - - THE COURT: For breach of contract. MR. OSTROWSKI: And copyright. THE COURT: All right. Mr. Kitchen? MR. KITCHEN: Well, to use the tractor analogy, the suit against the person possessing the tractor might be for breach of contract and also it might be for replevin, for return of the - - THE COURT: Oh, sure. MR. KITCHEN: - - of the tractor. THE COURT: No question about that. MR. KITCHEN: And say that the person wrongfully holds the tractor, which is kind of somewhat equivalent to an infringement claim. But once the - - THE COURT: Well, I can recognize that. MR. KITCHEN: But once the Plaintiff does that, Your Honor, then they're essentially saying the contract is at an end - - THE COURT: This is not Mr. Graham but another Plaintiff. MR. KITCHEN: That's right. Once the Plaintiff - - Yeah, once the tractor owner says the contract is at an end and I want the return of my tractor, I mean he has to say those two things together. He can't say he's entitled to the return of his tractor and say that, oh, we have an ongoing contract because necessary to the ongoing contract is the quid pro quo of allowing continued possession of the tractor. THE COURT: Implicit with allowing the borrower to keep and run the tractor would be an implied contract? MR. KITCHEN: That's right. If he wants - - MR. OSTROWSKI: But we don't have our - - we don't have our tractor - - THE COURT: Wait a minute, I'm listening to Mr. Kitchen now. MR. OSTROWSKI: We don't have our tractor back - - THE COURT: Wait a minute. MR. KITCHEN: Well, yes, of course, but - - THE COURT: I'm listening to Mr. Kitchen's - - MR. KITCHEN: Well, essentially they do have their tractor back if they're saying that there's - - if it's infringement, then the contract has, obviously, come to an end. If he doesn't have the right to produce, then he's not getting anything for this supposedly contractual obligation to pay Mr. James any money. I mean they can't have it both ways, to get the money for breach of contract but now allow him or - - and essentially by saying he's infringed is the same as saying he's not allowed to, you know, do what he's supposedly paying the contractual amount for. THE COURT: That's right. MR. OSTROWSKI: Well, but he's continuing to use the program. We don't have the tractor back. In fact, we're barred from using our own program by the injunction. THE COURT: Consequently, you're in an infringement situation. MR. OSTROWSKI: I - - THE COURT: Mr. James is certainly not taking the position that there is, by implication or otherwise, any continuing contract whereby Mr. Graham is entitled to make use of Mr. James' ideas, is he? MR. OSTROWSKI: No. THE COURT: That's what I say. MR. OSTROWSKI: There's a continuing breach. THE COURT: Of what? MR. OSTROWSKI: Of a contract that once existed. THE COURT: No, there's no longer any contract, is there? MR. OSTROWSKI: The breach is continuing. THE COURT: Of what contract? MR. OSTROWSKI: The contract to license him to use - - THE COURT: You're saying the contract is - - the contract is ongoing. MR. OSTROWSKI: The breach is ongoing. The contract is terminated. THE COURT: Well, you can't have the breach just sitting there by itself. It's a breach of something. It's a breach of contract. MR. OSTROWSKI: If I steal somebody's wedding ring - - THE COURT: Wait a minute, wait a minute, now you don't - - MR. OSTROWSKI: I could have the wedding ring for twenty years - - THE COURT: You're outside - - Wait a minute. You're outside of a contract milieu now. MR. OSTROWSKI: We haven't gotten our tractor back. That's why the breach is continuing. That's why we want damages for the use of our tractor to continue - - THE COURT: You want infringement. If there's no longer any contract, you're entitled to infringement if Mr. James' rights are shown to exist. MR. OSTROWSKI: I'm unwilling to concede that both do not apply until such time as it's unnecessary - - THE COURT: Well, I'm not - - MR. OSTROWSKI: - - since the court accepts both of them. THE COURT: I'm not willing to have you amend your pleading to embrace both of them unless we get it somehow clarified. MR. OSTROWSKI: Well, I - - It's simply a motion to amend the pleadings which under Federal - - THE COURT: It has to be done - - It has to be done clearly, though, so Mr. Kitchen and I understand what you're doing, what you have brought into the case. MR. OSTROWSKI: I don't think it's a question that Mr. Kitchen doesn't understand what I'm doing. THE COURT: He's entitled to understand - - MR. OSTROWSKI: He doesn't - - THE COURT: He's entitled to understand and the court needs to know what you're doing. MR. OSTROWSKI: He doesn't agree with what I'm doing, which is that I'm - - THE COURT: And the court doesn't understand and, consequently, also doesn't agree with what you're doing. MR. OSTROWSKI: Mr. James and Mr. Graham had an agreement wherein Mr. Graham could use Mr. James' program - - THE COURT: If he paid - - MR. OSTROWSKI: - - as long as he accounts for the profits. THE COURT: Right. MR. OSTROWSKI: Mr. Graham breached the contract by not accounting for the profits - - THE COURT: True. MR. OSTROWSKI: - - and is continuing - - THE COURT: I understand, I understand the claim, yes. MR. OSTROWSKI: - - is continuing to breach - - THE COURT: All right. Now - - MR. OSTROWSKI: - - the contract. THE COURT: - - once Mr. Graham breached that, did the contract continue? MR. OSTROWSKI: No, I don't think it did. THE COURT: I didn't think it did either. Now, from and after - - So you would have a claim for the breach of contract up to that point and thereafter, without there being any contract, any use of Mr. James' ideas by Mr. Graham would constitute infringement for which, if proven, Mr. James could recover damages for infringement. MR. OSTROWSKI: Well, that I agree with, but I also think that there's a breach of contract which is continuing. THE COURT: Ongoing? MR. OSTROWSKI: The breach is ongoing. The contract - - THE COURT: How could it be ongoing if the contract has come to an end? MR. OSTROWSKI: Well, I can't think of any better example than the tractor example, wherein the guy stops to pay - - stops paying profits but continues to use the tractor. Now the replevin analogy does not apply. Yes, once the tractor is, whatever the verb is, seized back to the original owner, then, obviously, you can't say to the guy, where's my profits because he's gonna say I don't have the tractor anymore. Mr. Graham has the program. He's continuing to use it. He's continuing to profit from it and not accounting to Mr. James for the contractual rights that he has is a continuing breach, and I would simply ask the court to allow us to - - All this motion is about is that we are making certain allegations - - we are extending certain allegations to certain evidence received after the date which is, in fact, was released after the date of our counterclaim. We're certainly not asking for a ruling on the merits of this, which may be a novel theory. I don't know. I haven't sat down in the law library to research it, but it seems to me that it makes legal sense, and I'd ask - - THE COURT: All I need to know, and I think Mr. Kitchen's entitled to know, is whether you are claiming now that there is a continuing obligation on the part of Mr. Graham to make these contractual payments to Mr. James or whether you have shifted gears mid-stream saying that the contract no longer existed and from and after that time there should be damages for infringement. MR. OSTROWSKI: I believe that both causes of action apply. THE COURT: I can't accept that. MR. OSTROWSKI: But I would ask the court not to rule on the merits of the theory - - THE COURT: I'll ask you - - I'll ask you to put - - I'll ask you to put it in writing. MR. OSTROWSKI: Well, would the court grant the motion to conform the - - THE COURT: I will not. I want something in writing and then I will - - Obviously, there's a great leniency by courts to allow amendments to conform, but I want to know exactly what it is, and I think at this juncture, the only way I can really get hold of that and the only way that Mr. Kitchen can know what ball game he's in now would be to have you put that in writing so we can examine it. MR. OSTROWSKI: Well, the only other thing I had then, Your Honor, was we had - - Mr. Kitchen and I had had some discussion that this trial, the evidence presented, had to end to end at some point or else, as Mr. Graham kept - - MR. KITCHEN: Hopefully. THE COURT: All right. Well, this bears upon that. Now, depending upon what you have now floated into the harbor as part of the lawsuit, Mr. Kitchen may or may not want to meet that with some proof, and he would be entitled to do it. MR. OSTROWSKI: Well, what I'm getting at, Your Honor, is somewhat different, which is that I think Mr. Kitchen and I, and I'd like to have a stipulation on this if I could, have agreed that whether it's NOPV9 or 10, - - MR. KITCHEN: I think NOPV9 was supposedly the one that you had decided you were going to cut things off at. MR. OSTROWSKI: Well I had decided? MR. KITCHEN: Well, you had indicated - - MR. OSTROWSKI: Well, I'm certainly not making - - Let me just say this, I'm certainly making a motion to conform the pleadings to the proof only up until the point, obviously, of the latest release that Mr. Kitchen brought into court in response to subpoena, which I believe is NOPV9, and I certainly - - THE COURT: Now these have exhibit numbers, do they not? MR. OSTROWSKI: I'm searching. I believe it's at the bottom of the pile. MR. KITCHEN: Yes, sir, and I believe - - THE COURT: NOPV9 twenty-one, Plaintiff 21. MR. OSTROWSKI: Our claim - - THE COURT: I'm confused on that. It says NOPV9 and a part of NOPV8. I don't know what that means. MR. KITCHEN: Your Honor - - THE COURT: That's a printout. MR. KITCHEN: Your Honor, Exhibit 21 is of the printout, and the actual CD-ROM - - THE COURT: Yeah, but as I say, I have that - - I have NOPV9 and then parentheses part on NOPV8. MR. KITCHEN: That would be 36, Your Honor, I believe, Plaintiff's 36. THE COURT: And NOPV8 is 27? MR. KITCHEN: Yes, sir, that's correct. I believe Plaintiff's Exhibit 36 is Night Owl's NOPV009 - - THE COURT: Right. MR. KITCHEN: - - the CD-ROM. MR. OSTROWSKI: Well, what I'm getting at, Your Honor, is that we're certainly asking that the two causes of action pending a brief on that point be extended to include everything up to Plaintiff's Exhibit 36, NOPV9 and nothing after that, and we certainly want to make it clear that regardless of the results of this proceeding, we don't want to be bound by any collateral estoppel in the sense that we have not litigated any, the ownership of any disks after NOPV9, and I believe that Mr. Kitchen and I essentially stipulated that that would be the case or else we would - - this trial would go on forever in the sense that Mr. Graham is continually releasing - - THE COURT: Seems, seems to be doing that anyway, but - - MR. KITCHEN: Well, there is a recognition, Your Honor, that the wheels of justice, moving slowly as they are, definitely are moving slower than the wheels of the computer software industry, and so that there is no way in a race between these two institutions that justice would win. That being - - THE COURT: Let me, let me just ask, does this litigation stop just as we're getting into NOPV9 or just after NOPV9? MR. OSTROWSKI: There's been proof - - THE COURT: Is NOPV9 in the litigation or out of it? MR. OSTROWSKI: It's in and that's the last of it. THE COURT: So that's the last of it? MR. KITCHEN: That would be the last. Now, I would argue against this motion because - - Well, for two reasons. Number one, among the various lists he named was PDSI004-1, which was Plaintiff's 6 or 7, there was a couple of examples of it, but in any event, our position on that would be those were disks that actually contained the retrieval system which had Mr. James' copyright notice on it. So, I don't know how that could be considered an infringement. It may be under the contract theory of this Defendant's case, but I don't think it would be under the infringement theory, and I don't know that the pleadings need to be conformed. As to the later ones, Your Honor, I would submit that at this juncture, there has been no adequate proof to tie in any of the later versions. THE COURT: Later than? MR. KITCHEN: Well, later than 4-1 - - Oh, excuse me, six on, I believe, of all, all the proof as indicated because the person who has written some of the later programs, particularly for I think it's 8 and 9, was Mr. Swanson, who testified, you know, about his program and how he came up with it and that it was distinctly different than previous versions. We had Professor Brown making this distinction that these later versions, the ones done by Brian Martin, which really were in PDSI006 on, were clearly different than what Mr. James' program was; and so if we're going to confirm the pleadings to the proof at this point, I would say the proof is inadequate to demonstrate, you know, what they're alleging. THE COURT: Well - - MR. OSTROWSKI: Your Honor - - THE COURT: - - and if we were playing this before a jury, I would have to make a decision on that at this juncture; but since we're not, I don't. Now, let me see, I have Plaintiff 24, which is PDSI6-1. Now that would be - - Your position is that that would not be - - that would not be shown by any of the evidence to tie into any liability to James? MR. KITCHEN: That's correct, Your Honor. THE COURT: But 006 might or not? MR. KITCHEN: 006 might, arguably, be such. As the court will recall, there was essentially some alteration made to Mr. - - the program Mr. James worked on, and it was then utilized in one or another of the versions, but that at some point in 006-1 we had the, you know, Mr. Graham had Brian Martin redo the program. MR. OSTROWSKI: Your Honor, Mr. Kitchen is a good enough lawyer to understand what a motion to amend the pleadings is, and he's obfuscating. He's arguing the merits of the lawsuit and wasting a lot of time, I believe. There's plenty of evidence that justifies this motion to amend. The fact that his copyright notice is on the disk, that particular disk, doesn't mean that there aren't various legal claims with respect to it. We're not arguing the merits of the lawsuit here, and I would ask you to not do that. MR. KITCHEN: Well - - MR. OSTROWSKI: I know that you know the difference between a motion to amend the pleadings and a motion for a directed verdict after the evidence is in or whatever. MR. KITCHEN: I think, though, the court should apply some fair analysis of the proof as it's gone in, rather than - - Unless Mr. Ostrowski's argument is purely that the court must be confined to viewing the evidence solely with respect to the extent that it supports Defendant's position in deciding this motion. You know, I don't know that that's the criteria. MR. OSTROWSKI: That is, in fact, the criteria. There's some evidence - - THE COURT: Well, but let me get back - - MR. OSTROWSKI: - - in the case to support our allegation. THE COURT: Let me get back to the matter of amending the pleadings to conform to the proof. Although I have a strong disposition to not considering that the two will fly at the same time, I will allow amendment of the pleading to state claims for breach of contract and for infringement. Mr. Ostrowski puts them in as jointly and separately. I don't believe they'll go forward in that way, but they can go in alternatively is the way I think they'll probably come out, but right now they're in for whatever way they get treated. Now, what I need to know is whether you, Mr. Kitchen, want to put in any further proof because, well, either as rebuttal normally or because of this amendment of the pleadings? MR. KITCHEN: We were planning to put in some rebuttal in any event, Your Honor. THE COURT: All right. And are you ready to go forward with that? MR. KITCHEN: Yes, sir. THE COURT: All right. MR. KITCHEN: We'll call Ann Graham. MR. OSTROWSKI: Offer of proof for this witness in the sense that I believe I'm entitled to know the general nature of any witnesses testimony. THE COURT: Why? MR. OSTROWSKI: I simply believe that under the rules of this court and the federal rules of civil procedure, I have informed Mr. Kitchen of my witnesses - - THE COURT: That's a matter of accommodation of one to the other. Now are you saying that Mr. Kitchen had promised to tell you in advance - - MR. OSTROWSKI: No. THE COURT: - - and now he's not going to? I didn't think so. No, I'm not going to impose that. MR. OSTROWSKI: Okay. THE COURT: Put your hand on the Bible, please. ANNA M. GRAHAM, PLAINTIFF'S REBUTTAL WITNESS, SWORN THE COURT: What is your name? THE WITNESS: Anna Graham. THE COURT: Ann - - Anna? THE WITNESS: Anna Graham. THE COURT: And do you use a middle initial? THE WITNESS: M. THE COURT: And where do you live? THE WITNESS: 1611 Faulkner-Stillwater Road in Jamestown, New York. THE COURT: All right. Take the witness chair, please. Speak right into the microphone. DIRECT EXAMINATION BY MR. KITCHEN: Q Mrs. Graham, you're the wife of Richard Graham, the Plaintiff in this action? A Yes, I am. Q How long have you been married? A Thirty and a half years. Q Okay. Where are you living now? A In Jamestown. Q How long have you lived there? A Since August of '92. Q Okay. And where did you live before August of '92? A 219 Potomac Avenue in Buffalo. Q Okay. Is that a house you owned? A Yes. Q Okay. How long did you live at 219 Potomac? A Maybe five years, but we had moved out one or two times. Q Uh-huh. Did you own the house for the whole five years? A Yes. Q Okay. Now you say you moved out? A Yes. Q When did you move out? A I believe it was the summer of 1988. We moved to South Carolina. Q And how long were you in South Carolina? A I'd say seven months. Q Okay. A About seven months. Q And when you moved back, where did you live? A We had rented a house at 77 Riverside Avenue in Riverside. Q Uh-huh. And how long did you live there? A Six months. Q And then where did you live after that? A We had moved back into our home at 219 Potomac. Q Now, are you acquainted with Larry James? A Yes, I am. Q How long have you known him? A I'd say maybe five years. Q Okay. And when did you first make his acquaintance? THE COURT: Five years ago. THE WITNESS: Five - - BY MR. KITCHEN: Q Well, okay, how did you first make his acquaintance? A Well, my husband met him through the computer system, and - - Q How did you meet him? A He came to the home one day. Q Okay. And that was about five years ago? A Yes. Q Okay. So this would be about what, the fall of 1988? THE COURT: Fall of when? THE WITNESS: I'd say yes. BY MR. KITCHEN: Q Okay. Well now actually you were in South Carolina then? A For '88. Q Right. A Yes. Q What would it have - - A No, '86, I believe we met. Q '86? A I believe we met Larry in '86 or '87. Q Okay. So, you saw him then at your home? A Yes. Q Do you remember which home you were at? A I believe it was 219 Potomac. Q Okay. But you had been in Potomac - - You first moved in there when did you say? A I believe it was '86. Q Okay. THE COURT: Eighty-six what? When he came there - - THE WITNESS: 1986 - - THE COURT: Excuse me, was it '86 when Mr. James came there or something else? THE WITNESS: Shortly after that. BY MR. KITCHEN: Q And during that time, 1986, whenever Mr. James showed up, was he there more than once? A For a period of what time? Q Back in '86 or about when you first met? A A few times, yes, he was there. Q Okay. How often did he come? A Not too often. I'd say maybe once a month. Q Okay. And what did he do when he was there? A They would talk computer talk. I just went about my business. I never really socialized too much. Q Was he there as long as six hours at a time? A Maybe once, but they were talking computer talk. Q Uh-huh. A Stuff I didn't understand. Q Was there, during that period, this '86 period, was there a time when he was coming six hours a day and as often as three to seven days a week? A No. Q Okay. After that initial meeting, was there a later time when you saw Larry James? A Now and again, yes. Q Uh-huh. A Like once a month maybe. Sometimes it would be three months at a time. Q Was there any time that you can recall when Larry was there more often? A Yes. Q Okay. When was that? A When he worked for my husband. Q Uh-huh, and when was that? A September - - I can't recall if it was '90 or '91. Q And did you - - What was he doing for your husband? A He was working for him doing programming work. Q Okay. THE COURT: He was what? THE WITNESS: Doing some programming. I'm sorry, I have a cold. BY MR. KITCHEN: Q What - - How often was he there? A Every day. Q And how long was he there for? A Well, up to six hours at times. I would leave at - - for work, and he'd still be there. Q Where did you work? A I worked at a shelter for the homeless. Q Okay. Do you know what Larry - - What did you observe Larry doing while he was - - A Sitting at the computer. Q And this would have been September - - A Yes. Q - - of '90 or '91 - - A Yes. Q - - as far as you recall? Okay. THE COURT: September of '90 or '91? THE WITNESS: Yes. BY MR. KITCHEN: Q Did you overhear any conversations between Larry and your husband? A Not anything that made any sense to me that I understood. Q Did you ever hear any talk between the two of them about their payment arrangements or - - A No. Q Or how Larry was to be compensated for his work? A No. Q Did you and your husband talk about Larry at all - - Well, withdraw that. You and your husband have talked about this lawsuit, obviously? A Yes. Q Okay. Before that, on occasions when you and your husband would talk about Larry, did your husband use any derogatory language against Larry? A No. MR. OSTROWSKI: Objection, relevance. THE COURT: When was this? MR. KITCHEN: I didn't specify a time, Your Honor. THE COURT: All right, sustained. BY MR. KITCHEN: Q Well, since you've know Larry or known that your husband and Larry had any relationship - - Well, let me, let me be more limiting on that. Let's say that from the time that Larry began working for your husband, what, has your husband used any derogatory language toward Larry? A No, nothing. Q Even outside of Larry's presence? A No. Q Okay. Has he ever used any racial slurs or epithets about Larry? A No, never. Q Has anyone else in the family ever - - MR. OSTROWSKI: Objection to relevance. THE COURT: I'll allow it inasmuch as we allowed the other in. BY MR. KITCHEN: Q Okay. Anybody else in the family ever used any racial reference? A To Larry? Q No, not to Larry but either about Larry or about others of Larry's race? A Once. I did. Q And did your husband react at all to that? A Yes, he was very angry. Q Okay. What was his - - What did he - - What was he angry about? What did he say? A I made a comment about a person on the news, and I apologized for using the word to Larry because my husband does not talk like that, and he does not believe anyone around him associated with him should think in that manner. Q Okay. Now, are you acquainted with Greg Armenia? A Yes. Q Okay. When did you meet Greg Armenia? A It was September 2nd or maybe a day later. THE COURT: Of what year? BY MR. KITCHEN: Q Do you remember what year? A I don't know why I have the time mixed up, but it was '90 or '91. Same year - - THE COURT: Very precise about the day but you don't remember the year? THE WITNESS: No. THE COURT: Why is that? THE WITNESS: Because it was my birthday. THE COURT: I see. And you have a birthday every year, obviously. THE WITNESS: Yes, September 2nd every year. MR. KITCHEN: That's my mother's birthday also, by the way. BY MR. KITCHEN: Q But in any event, what made his visit memorable? MR. OSTROWSKI: I object - - THE WITNESS: Well, he gave me a gift, and I didn't know them. MR. OSTROWSKI: You're referring to a fact not in evidence in your question. MR. KITCHEN: Oh, I'm sorry. BY MR. KITCHEN: Q Where did you meet him? A At my home. Q Okay. He came over? A With his wife. Q Uh-huh. And you remember that because of what? A Because they had bought me a birthday gift, and I didn't know them. I thought it was very nice of them. Q Okay. And did you see Greg regularly after that? A Yes. Q What was Greg's relationship with your husband? A they would talk computer talk. Q Now, did you hear the use of any racial epithets or slurs when Greg Armenia was present? MR. OSTROWSKI: Objection, relevance. THE COURT: Sustained. MR. KITCHEN: Your Honor, there was testimony that this occurred. THE COURT: Is there testimony in the case about any racial slurs - - MR. KITCHEN: Oh, yeah. Oh yes, Mr. - - THE COURT: - - or any feelings arising out of racial considerations? I don't remember any. MR. KITCHEN: Direct, the direct testimony of - - THE COURT: Mr. James? MR. KITCHEN: No, of Mr. Armenia was, in fact, addressed to that quite specifically. Let me - - MR. OSTROWSKI: It's irrelevant, and it's a collateral matter that you cannot prove through extrinsic evidence. You're attacking the character of Mr. Armenia. Can't do it - - MR. KITCHEN: No, I'm not. MR. OSTROWSKI: - - through extrinsic evidence. MR. KITCHEN: No, I'm not attacking the character of Mr. Armenia, although it's certainly subject to attack. But what I'm doing is I didn't elicit evidence from Mr. Armenia about racial epithets in the Graham household. It was Mr. Ostrowski's questions which elicited that evidence. This is direct evidence in opposition, to contradict that evidence elicited by Mr. Ostrowski. MR. OSTROWSKI: But then you'd have to ask with respect to what Mr. Graham said, not Mr. Armenia. MR. KITCHEN: I didn't ask what Mr. - - MR. OSTROWSKI: He's not being sued. MR. KITCHEN: I didn't ask what Mr. Armenia said. I asked whether there was - - she had heard any racial slurs or epithets uttered in the presence of Mr. Armenia. MR. OSTROWSKI: By who? MR. KITCHEN: By, by anyone. MR. OSTROWSKI: Well, then I object unless it's by Mr. Graham. That's the issue. THE COURT: Mr. Kitchen says that there was evidence about this in the case in Mr. Armenia's direct examination, is that what you're saying? MR. KITCHEN: Yes, sir, and I, if given just a minute, I can - - THE COURT: Who, now who called him in? Mr. Ostrowski did. MR. KITCHEN: Yes. It was right after Mr. Helinski. It occurred on October 15th, 1993. Testimony began at 11:05 that morning, and at that point, the testimony - - at some point later, the testimony of Greg Armenia was suspended and picked up again. THE COURT: Then we had Professor Brown. MR. KITCHEN: Yes. THE COURT: And Armenia came back on on October 19 in the morning. MR. KITCHEN: Oh, okay. THE COURT: Is that right? MR. KITCHEN: Yes, sir, I'm looking through my notes. Yes, sir, on October 19th, direct was continued and yes, Mr. Armenia testified that Richard Graham was obsessed with Larry James - - THE COURT: All right, I see it here. Shortly before the December, 1991 court hearing, Plaintiff was concerned re C/R, what would that be? Anyway, Plaintiff was obsessed with Defendant stealing Plaintiff's programs. Defendant was a thief. Armenia became sick of Plaintiff's complaints in front of Plaintiff's wife and son, quote, black guy, unquote, quote, nigger, unquote. Doesn't remember everybody to whom Plaintiff made such comments. I'll allow it. BY MR. KITCHEN: Q When Greg Armenia was around, did you hear anybody making any racial references? A Greg Armenia used the word black. MR. OSTROWSKI: I object. This is exactly what I'm trying to avoid, Your Honor. It's not in rebuttal. He's attacking the character, and the reason why I raised the issue, Your Honor, is that Mr. Kitchen asked Mr. Armenia about this. He's attacking the character of Mr. Armenia through this witness. THE COURT: What do you mean Mr. Kitchen asked him about it? All I've looked to this far has been your examination of Mr. Armenia. MR. OSTROWSKI: I concede, Your Honor, that a question as to whether Mr. Graham said this in the presence of his wife is perfectly proper. That's not what was asked. Mr. Graham - - Mr. Kitchen is trying to - - THE COURT: This is in the presence of Mrs. Graham and Mr. Armenia, if I understand the question properly. MR. OSTROWSKI: Yes, Your Honor, but the question is did anybody say anything. That's an improper question. He's trying to impeach Mr. Armenia through a collateral act - - THE COURT: I'll allow it. MR. OSTROWSKI: - - impeaching his character by extrinsic evidence. THE COURT: We're not worried about Mr. Armenia's character. I'll allow it. BY MR. KITCHEN: Q Okay. Would you continue with your answer? A I've heard Greg Armenia use the word black. MR. OSTROWSKI: I object as not responsive to the question. Without some reference as to when - - THE COURT: What is the - - excuse me, what is the question you're answering, Mrs. Graham? THE WITNESS: If I heard anybody use any racial slurs or something to that matter. THE COURT: All right. So you heard him use some and now the question, obviously, did you hear anyone else use it? THE WITNESS: No. BY MR. KITCHEN: Q Did you ever hear your husband use that term? A No. Q Did you ever hear your husband refer to Larry James as a thief? A No. Q Did you ever hear your husband say that he hated Larry James? A No. MR. OSTROWSKI: I object to all of this as irrelevant. THE COURT: You have a continuing objection. BY MR. KITCHEN: Q And did you ever hear your husband say that he never trusted that black guy, referring to Larry James? A No. Q Okay. And did you ever - - Well, did you hear Greg Armenia make any other statements about Larry James? MR. OSTROWSKI: Objection to relevance and extrinsic evidence. THE COURT: Be more particular. BY MR. KITCHEN: Q Well, did he make any comments about whether or not he trusted Larry James? MR. OSTROWSKI: Objection to relevance. THE COURT: This is whether Mr. Armenia did? MR. KITCHEN: Yes. MR. OSTROWSKI: Objection to relevance and collateral. THE COURT: I'll sustain the objection. MR. KITCHEN: Well, Your Honor, if I could be heard momentarily. THE COURT: Well, I don't know why it's important whether Mr. Armenia trusted Mr. James. MR. KITCHEN: Well, I suppose it is because, Your Honor, Mr. Armenia was kind of, placed himself in a unique position. At the beginning of this dispute, he presumably was on the side of my client, Richard Graham, and essentially assisted, encouraged, promoted this very litigation which brought us to this courtroom. Then at some point subsequent to the hearing on the preliminary injunction, Mr. Armenia apparently testified that he had conversations with Larry James and that he had reached some sort of conclusion in his own mind that, in fact, he should - - he was on the wrong side or that sort of thing. THE COURT: The only thing that bothers me about Mr. Armenia in this connection would be these references to the glitch on the tape, and Mr. Armenia was up to his armpits in everything concerning the tape. Consequently, I'll allow it. BY MR. KITCHEN: Q Okay. Did Mr. Armenia say anything about, else about Larry James? A Well, at the mere mention of Larry James' name, Greg Armenia would go into a violent rage and my husband and I didn't understand that because he didn't even know Larry James. THE COURT: Wait a minute, we don't know what you understand. If somebody said something, that's one thing, but what is in your mind is a different thing. BY MR. KITCHEN: Q Well - - A Well, he didn't know Larry James. THE COURT: Who didn't? THE WITNESS: Greg Armenia. THE COURT: How do you know? THE WITNESS: Cause he admitted that to us and they'd never met as far as I knew. MR. OSTROWSKI: I object to the hearsay as to - - THE COURT: Well, that carries no weight to the court. MR. KITCHEN: No further questions. THE COURT: Anything, Mr. Ostrowski. MR. OSTROWSKI: I have no questions, Your Honor. Well - - THE COURT: Thank you, Mrs. Graham. MR. OSTROWSKI: Could I just have one moment? THE COURT: Thank you, Mrs. Graham. MR. OSTROWSKI: No questions. MR. KITCHEN: I will call Philip Swanson. PHILIP SWANSON, PLAINTIFF'S REBUTTAL WITNESS, SWORN THE COURT: You are? THE WITNESS: Philip Swanson. THE COURT: And your middle initial? THE WITNESS: C. THE COURT: And we have your address, so we're all right. DIRECT EXAMINATION BY MR. KITCHEN: Q Mr. Swanson, you were present in the courtroom yesterday, right? A Yes. THE COURT: You were present in the courtroom at one point when you were referred to as being Mr. Graham's programmer, is that right? THE WITNESS: Yes, Your Honor. THE COURT: Are you? THE WITNESS: As - - I don't know if I'm implying, you know, employee or contract, yes, I program for Mr. Graham. THE COURT: Thank you. BY MR. KITCHEN: Q And were you present when the Defendant's counsel had to deliver essentially a, what is now Plaintiff's Exhibit 68 - - THE COURT: Six what? MR. KITCHEN: Six-eight, Your Honor. BY MR. KITCHEN: Q - - which is a, ostensibly the program which we understand now was submitted with the copyright notice and it's the retrieval program that was in its, in its usable form was on the pier 1 disk? A Yes, I was. Q Let me show you that. That's the one you looked at, right? A Yes, it is. Q Now, did you have occasion to compare it with Plaintiff's 18? A I'm not sure what Plaintiff's 18 is. Q Okay. I show you Plaintiff's 18. Did you make a comparison there? A Between these two? Q Yes. A No. I had compared the - - that one. Q All right. A Okay. Are - - THE COURT: What is that one? MR. KITCHEN: That one is going to have a label on it, Your Honor. I believe the next number would be - - THE COURT: Afraid we're into 71. THE WITNESS: Oh - - THE COURT: Wait a minute, wait a minute, please. (Document was marked Exhibit 71 for identification.) BY MR. KITCHEN: Q Showing you Plaintiff's Exhibit 71 - - A If I may - - THE COURT: Wait a minute, just wait for a question. BY MR. KITCHEN: Q Did you make the comparison with Plaintiff's 71? A Yes, I did. Q Okay. And did you want - - THE COURT: Between 68 and 71? THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q Okay. And did you also make any reference to Plaintiff's 18 at the same time? A Yes, I did. I had just - - I had looked at Plaintiff's 18 versus 68 briefly. Q Okay. Now, were you acquainted with what the source of these source codes were or where they fit into this scheme of things here? A Yes, I was. Q What was your understanding? A Plaintiff's 71 is the code that Richard Graham had sent off and received back from the copyright office. Plaintiff's 68 is the code that Mr. James applied, I believe brought in yesterday morning, and that's his Apollo retrieval code. Q Okay. And what's Plaintiff's 18 do you understand? THE COURT: Apollo? Is there some relationship between Pier 1 and Apollo? MR. KITCHEN: Yes, Your Honor. I think the testimony had already - - THE COURT: Cause I had Pier 1 noted on there. MR. KITCHEN: Yes. I think the testimony already established that this is the - - this is the program which Larry James, the Defendant, provided to Greg Armenia and was included on the Pier 1 disk. It's noted as the Apollo 3 file retrieval program or wording similar to that. It has Apollo 3 in it, but this occurred in February - - This was based on their arrangement with Mr. Armenia in February of '92. THE COURT: All right. Go ahead. Go ahead. BY MR. KITCHEN: Q And first of all, were they similar? A Yes. Q Okay. And when I say they, you're comparing 68 with the other - - A With 71. Q Okay. Is essentially 71 and 18 virtually the same or what? A Yes. Yeah, they're very similar. Q But - - THE COURT: Now we've gone from similar to very similar. THE WITNESS: They're similar. THE COURT: Now you've backed off to similar. THE WITNESS: Well, I can go very similar if you want. They are very similar. THE COURT: I don't want. I just need to understand what you're saying. THE WITNESS: They are very similar. BY MR. KITCHEN: Q Well, what similarities did you note? A Okay. We're talking about between 78 and - - or 71 and 68? Q Yes. A The - - There are strips of code that are virtually identical. The routine names are listed and the listing in the same order, same variable names, same method. In two cases, I found identical misspellings in the two codes. THE COURT: Now you said that these are similar. Now, are you saying in those aspects, they are the same or merely similar? THE WITNESS: They're the same. THE COURT: That's all right. THE WITNESS: They're not identical, but they're close. THE COURT: Oh, there's a difference in your mind between same and identical? THE WITNESS: Yes, there is. THE COURT: We have gradations of identical, same, very similar and similar. Is that a step down the scale? THE WITNESS: Let me clarify. Maybe I'm not - - I'm obviously not making myself clear. The two codes, 68 and 71, although not identical, are - - they're one step off it. I'd say they're very similar. Yes, same and identical, yeah, you're right same and identical should be the same term. THE COURT: The same. BY MR. KITCHEN: Q Can you give us some specific examples of the similarity or sameness - - A Sure. THE COURT: In those areas he's talked about? MR. KITCHEN: Yes, sir. THE WITNESS: Yes. Okay, a couple routines - - THE COURT: Where are we? THE WITNESS: There are - - THE COURT: Where are we? THE WITNESS: Plaintiff's 68 and Plaintiff - - THE COURT: Well, I know, but you were - - different parts of it, right? THE WITNESS: Yes, in - - THE COURT: Strings of beads and so forth? THE WITNESS: In each of the two exhibits, there's several routines that are named the same, copyit, viewzip, DOS, unzipit. Copyit, which appears on page 17 of Plaintiff's 71 and - - okay, I don't have a page number for page 68 because it's not numbered, - - THE COURT: Are some numbered and some not? THE WITNESS: All of Plaintiff's 71 is numbered and none of - - and none of Plaintiff's 68 is numbered. THE COURT: There are a number of sheets which are, what, stapled together? THE WITNESS: That's correct. They're just - - 68 is just loose. MR. KITCHEN: In fact, they're loose, Your Honor. They're not even stapled. THE COURT: Well, there's a stapler right over the numbering machine there if you'll use that. MR. KITCHEN: Not adequate, Your Honor. This is a biggie. THE COURT: All right, get the biggie. THE WITNESS: Can I continue? THE COURT: Wait a minute. No, wait a minute, let's get it stapled together first. You'll find this operates better if you use a steady, strong - - Thank you, Mr. Seito. BY MR. KITCHEN: Q Let me - - Before you get to the specifics here - - THE COURT: This all led up to they are not numbered, so we have a number of sheets. So, just to know where you are, if you want me to know, we're going to have to talk about the fifth sheet or the seventh sheet or something like that if it can be done like that. MR. KITCHEN: Maybe a minute could be taken and just put some numbers on these. THE COURT: Numbers that would be very good. BY MR. KITCHEN: Q Mr. Swanson, just, you know, a few background questions because when you testified earlier in this case, you - - When you testified earlier in this case, you made a number of comparisons and you pointed out similarities and differences between programs. Do you recall that? A Yes. Q Okay. And, in fact, in some questioning, and a good deal of it came from Mr. Ostrowski, you were asked to make comparisons of similar functions, and you were asked to even quantify those. In some cases, you were able to say fifty percent or thirty percent or something like that. A That's correct. Q The - - Now, when you talk about similarity between Plaintiff's 71 and Plaintiff's 68, are we talking about that kind of similarity? A No. As you said, the former dealt with functional similarity. They were similar routines, doing the same thing. These are similar certainly in the function. They're also similar in the actual verbiage used. You know, this is, this is too much of a coincidence for just being similar functional. They're - - THE COURT: What do you mean by that? THE WITNESS: For a programmer to go through - - THE COURT: You saying there was copying by somebody? THE WITNESS: Yes. BY MR. KITCHEN: Q Okay. Can you give us some examples of that? A Okay. I picked out a couple routines. The copyit routine which appears on page 17 of - - THE COURT: Copyit? THE WITNESS: Yes, copyit, one word. That's on page 17 of Plaintiff's 71, and it also appears on page 27 of Plaintiff 68. Okay, apart from - - there is a Plaintiff's 68 had a thing where he was checking for a little variable called ROM, he threw that in there, and yeah, and there were just a few lines dealing with a case statement. He was checking some of the character, characters he was being copied. Other than those, this is the same routine. The verbiage is the same. The tab style's the same. It appears on the same - - The routines appear in the same order throughout the printout. The routines are named identically. BY MR. KITCHEN: Q Now, again going back to what you said before when you were comparing programs and you found them functionally similar, in some cases you said, well, this was out of necessity. There's only so many ways to skin a cat - - A Right. Q - - maybe more than one, but - - A Right. Q Okay. But in this case, the similarity you just noticed in the copyit routine, would this, by the way, be a module? THE COURT: Would this be what? MR. KITCHEN: A module? THE WITNESS: The copyit - - The copyit routine is a function order routine. BY MR. KITCHEN: Q Okay, all right. Is this copyit function or copyit routine, is the similarity dictated by necessity in this case? A Not to this extent, not at all. Q Okay. Now - - THE COURT: To what extent is it? THE WITNESS: The purpose of the routine is to copy one file - - THE COURT: To what extent? You said not to this extent. THE WITNESS: These functions or these, yeah, functions are similar in that not only - - THE COURT: We're back to similar. THE WITNESS: Okay. These functions are identical in the sense that not only do they have duplicate functionality, they're also, they're also, they were typed in the same way, the names, you know, all the little variable names that you use, which, you know, you make those up as you go. THE COURT: Nomenclature and arrangement? THE WITNESS: Yes, yes. BY MR. KITCHEN: Q Now, would you say that that whoever wrote the second one, whichever it was, would have had to have seen the actual source code of the first one? A Yes, definite. Q It would not have been - - THE COURT: Which is the later one? THE WITNESS: My understanding is - - THE COURT: Do you know? THE WITNESS: My understanding - - THE COURT: No, I can't take your understanding. MR. KITCHEN: Okay. THE COURT: You don't know. MR. KITCHEN: Your Honor, I think we've established that 68 would be the later one. It was certainly copyrighted later. THE COURT: I don't have any date on either, so I don't know. Do you have any input on that, or do you care to stay out of it? It's all right, you don't - - MR. OSTROWSKI: I don't really - - THE COURT: - - have to volunteer anything. MR. OSTROWSKI: - - really - - I don't really remember. I - - THE COURT: I was just wondering if there was any agreement on anything. MR. OSTROWSKI: I take exception to - - Well, no, I don't have any comment on that. THE COURT: Of course you do and you'll bring that out in due course. BY MR. KITCHEN: Q So, did you notice any others? You mentioned copyit. Have you seen others? A Yes, there are several routines which differ only in some of the cosmetic screening. The routines, the routine is the same. THE COURT: Cosmetic stringing, is that what you said? THE WITNESS: In the - - THE COURT: Is that what you said? MR. KITCHEN: Did you use the word stringing? THE WITNESS: I don't even remember what I said. MR. KITCHEN: I think you used the word screening. THE COURT: Screening? THE WITNESS: Screening. Yeah, the - - BY MR. KITCHEN: Q What do you mean by screening? How something shows on the screen? A How it looks on the screen. Q Okay. A There were minor changes in that. Otherwise, we've got-- Q How minor? A Okay, about two, three - - Okay, well I've got 01 DOS routine here in front of me. I set the cursor type, in Plaintiff's 68, you set the cursor type on or off, and that's a one line, and in Plaintiff's 71, you use the routine getch, get-CH, which just gets a character from the keyboard. In Plaintiff's 68, you use a routine, the homemade routine, which get key, which also gets a character from the keyboard. Otherwise, they're identical. Q You mean the whole rest of the routine is identical? A That's correct. Q Now, is that identical in the sense of a matter of necessity, or would one who did the second one have to have seen the first one in its source code form? A My - - The conclusion I made after studying these several routines addresses that issue. Could I - - Could I read that concluding paragraph? Q Sure. A Okay. These - - THE COURT: You mean you've written something out? THE WITNESS: Yes, I wrote - - THE COURT: Don't - - You can't speak without that or - - THE WITNESS: I can speak without it. I want to make sure I address it succinctly and I don't - - This is a place where you don't want to put your foot in your mouth, and I don't want to - - I'd prefer to - - THE COURT: Well, it depends. Some people want you to put your foot in your mouth, and others don't. THE WITNESS: You call it. Can I read, can I read the paragraph? MR. KITCHEN: I don't want him to put his foot in his mouth, Judge. THE COURT: I don't know. Show it to, show it to Mr. Ostrowski first. BY MR. KITCHEN: Q You, by the way now, the notes you're referring to, you have in your hand is that a yellow letter-size pad, lined pad? A Yes. Q And when did you make those notes? A Yesterday, here in court. Q Okay, while you were reviewing these documents? A Yes. Q Okay. And these are the notes that are the product of your analysis? A That's correct. Q And you wrote out a conclusion as well? A That's correct. Q Okay. And would you feel that to be able to render a proper opinion, that you'd like to refresh, or rather, you know, read what you have already prepared? THE COURT: You don't trust yourself to fly solo? THE WITNESS: I would prefer - - I - - No, I'd rather not. You know, I can, I can read it and I feel confident. I am just very worried about putting a verb or something out of place and having my meaning misconstrued. I know what I mean and I'm firm about my conclusions. I'm a little nervous about the importance of it. MR. KITCHEN: I realize, Your Honor, that traditions of American Jurisprudence is that everybody should remember everything, but - - and be able to - - THE COURT: If they do, they're G-D liars. MR. KITCHEN: That's true. But I think we need to respect a person who thinks with pad and pencil in hand and wants to be able to refer to it and use it as long as it's not - - THE COURT: Although the preferable way is to bring out of the person's memory everything you can get that way and then resort to something that's been written to see if it, one, refreshes his recollection, and if it doesn't, sometimes fall back to the document itself. MR. KITCHEN: Well, here, though, we're talking about recollection as between just yesterday and today. THE COURT: Which is why I wanted Mr. Ostrowski to see it. Perhaps he will have no objection to it. If he does, then we'll follow the regular pattern. MR. OSTROWSKI: I have no objection if the witness is unable to - - THE COURT: All right, give it an exhibit number. MR. OSTROWSKI: - - to remember what - - THE COURT: Oh, if he doesn't remember? MR. OSTROWSKI: Yeah, if he's unable - - THE COURT: You want us to show first he doesn't remember? MR. OSTROWSKI: Yes. THE WITNESS: I can go either way. I can go either way. THE COURT: Well, there we are, he can go either way, so we fly without the notes. This is 72? MR. KITCHEN: Plaintiff's 72, Your Honor. (Document was marked Plaintiff's Exhibit 72 for identification.) BY MR. KITCHEN: Q Okay. Let me ask some questions with regard to your conclusion. Did you notice anything about the order in which the routines of the same name appear? A Yes, I did. The routine - - The routines appear printed in the same order in either printout, and that doesn't impact functionality or anything. That's - - Q Now, if you're putting together a program in the C- language, how critical is it that you put one routine ahead of another routine? A It's not critical, doesn't matter. Q Well, obviously a program will call the various routines at different times as the program progresses, right? A That's correct. There's one exception. The main routine has to appear first. Beyond that, doesn't matter. Q Okay. So the fact that a specific routine, like say like the copyit routine, for example, it wouldn't matter if that were second or fiftieth? A That's correct. Q That's totally arbitrary with the programmer? A Yes, it is. Q And what conclusion would you reach if you saw source code in which the routine to the same name appear in the same order in the same - - in the two different programs? A One was lifted from the other. Q Okay. Did you notice anything about the, any particular misspellings in the programs? A Yes, I did. I noticed two cases in which there are identical misspellings appearing in the same places in both of the codes. Q What word? A Implemented was misspelled in the main line. It was spelled I-M-P-L-I-M-E-N-T-E-D. Q Uh-huh. A Later one, okay, later on there was a misspelling of configuration. It was spelled without the "T". Q And was is misspelled the same way in both programs? A Misspelled same way both. Q Well, how - - what did you conclude from that? A You - - Well, what I concluded was that you just too, or whoever, you know, just took the one set of code, and they had a straight copy of it, and they just, they just doctored it up a little bit, and they missed this misspelling. Q Now, we have heard a variety of words that have been essentially come out of thin air, one of them was, for example, this word copyit, was a name. Is the use of the word implemented or the use of the word configuration, they weren't used in that kind of funny name sense, were they? A No. The implement, implemented and configuration appear in text which will be printed to the screen. They are not routine names. Q Okay. Would you say that these two codes are virtually identical? A Yes, I would. THE COURT: Are what? MR. KITCHEN: Virtually identical. THE COURT: Now we have virtually identical. MR. KITCHEN: Right. Could you - - THE COURT: This is a step - - MR. KITCHEN: Somebody ought to come up with a scale, Your Honor, and be able to put all these terms on so we could - - BY MR. KITCHEN: Q Okay. Let's say that they were both written by the same person but at different times. Would it be feasible that a person could write the one and set it aside, not refer to it at all and then write the second one at a later time, let's say months later - - A No. Q - - and come up with that same similarity? A No, not feasible. Q Would you say he'd have to have the first version right at his elbow to - - A He sure would. Q Did you notice a routine in there called viewzip? A You zip? Q Viewzip, V-I-E-W - - A Yeah. Q - - Z-I-P? A Yes. Q What did you notice about Viewzip? A Okay. You've got that on the notes there. In any routine I - - Okay, in any routine I looked at in here, the routines were, they're virtually the same. There was just a little minor difference, you know, a little screening difference, okay. No, in viewzip - - let me just limit it to viewzip so I don't, you know, stick my foot in my mouth here. Yeah, the two viewzips were the same. You know, there may have been like a minor screening difference, you know, the functionality, the naming, the method, the tab style, you know, the format, how he does his little braces and stuff, they're the same. Q All right. Let me ask you, too, that at various places in both of these source codes, some of the lines begin with a couple of slashes. A Yes. Q The same slash - - A Those are comment lines. Q - - that we'd see on a - - THE COURT: They're what? THE WITNESS: Comment lines. They - - A leading double forward slash denotes that this is a comment line. The computer doesn't read it. It's just for humans. BY MR. KITCHEN: Q By the way, the slash is the same as the slash or stroke we find on a typewriter, right? A Yes. Q Regular forward-type slash? A There's a fore-slash and a back-slash, but yeah, yes. Q But in this case, it's two forward slashes? A Yes. Q What effect does this have when you run a source code through the compiler that has these two forward slashes at the beginning of the line? A They don't pay attention to those, those lines. Those are commented out. They don't appear in the - - Q You say, commented out. In other words, ignored? A Yes. Q Okay. Why would a person have something in there that the compiler would ignore? A Well, two reasons spring to mind. One is you want to write something that humans can read. You know, well this is, here's a little paragraph telling what I'm going to do in this following block of code. Another one is during the course of development, you'll go through and, you know, you'll try some lines and well, these lines didn't work quite right. I don't want to throw them away and have to recreate them, so I'll just comment them out right now and, you know, then if I, my other solution doesn't work, I can come back and adapt. Q Okay. So, effectively, they're like notations to the program? A Yes. Q And they have no, they have no functional effect when they're put through the compiler? A That's correct. Q They don't result in any executable code that ends up running the program then, right? A That's correct. Q Okay. Did you find incidents in which these comments were identical between the two? A There - - Commented lines only appeared in Plaintiff's 71 but not in Plaintiff's 68. Q Uh-huh. So, the removal of these comments would have absolutely no effect on the actual operation of the program then? A That's correct. Q So the fact that those are different is meaningless in terms of its function? A Yes. THE COURT: Are you making some assumption as to which was the earlier of the two? MR. KITCHEN: Yes, Your Honor. THE COURT: I'm asking the witness. THE WITNESS: Yes, I am. THE COURT: Which is the earlier? THE WITNESS: The earlier is Plaintiff's 71. BY MR. KITCHEN: Q Now, you mentioned that a person who programs sometimes has a line in there and then they fool around and they take it out so they put in a couple of slash marks. Why would they, let's say, put in a couple of slash marks rather than just deleting the line altogether? A During, okay, during the course of development - - Q Uh-huh. A - - you'd keep in there in case you want to get it back and change it. Are you talking about before or after development? Q That's what I mean. A Okay. Q So, essentially, you try something and then you - - A It doesn't work, yeah, you might want to hang it - - keep it hanging around in case - - THE COURT: What do you mean by development? THE WITNESS: During the process of writing the code and testing the code. BY MR. KITCHEN: Q I take it then that during what you call the development, this involves writing the code, compiling it, seeing if it runs, going back to the drawing board, so to speak, and doing some more changes and then back again? A That's right. Q Is this done quite a bit during the programming development process? A Yes. Q Okay. Well, once you have finished the program and you're happy with it, okay, reasonably so, would there be a tendency to go back and do something to these lines with the double slashes in front? A They should really be stripped out. They don't play any part, and the code is cleaner, you know, you want a professional product. Q So, if you found two programs, such as 68 and 71, and one of them had a bunch of these little lines with some slashes in front and the other was almost the same but had eliminated those or didn't have those lines with the double slashes, would you have any conclusion as to what, which one came first? A Yes, I would. Q Which one would have come first? A Plaintiff's 71 came first. It's got the comments and they're stripped in Plaintiff's 68. Q Did you also notice a routine called DOS? A Yes. THE COURT: Called what? MR. KITCHEN: DOS. THE COURT: D-O-S? MR. KITCHEN: D-O-S, yes. This is not to be confused with the program called DOS. BY MR. KITCHEN: Q What did you notice about that? A They were the same. There was maybe one used like - - They were the same. I think there was like one or two lines where, you know, you did, like you set some screening in Plaintiff's 68 that weren't in 71. Otherwise, they're the same animal. Q And, again, not of - - not just of functionality required by necessity or that sort of thing but one came from the other? A These are identical other than the one or two lines that, you know, change the screening. Q Okay. And how about a routine called INT INSTALL? A Right, yeah, those, again, those are the same. There may have been a line in there for screening. Otherwise that's - - they are the same, identical. MR. KITCHEN: Okay. No further - - Oh, excuse me just a second. BY MR. KITCHEN: Q Mr. Swanson, I've handed you No. forty - - Plaintiff's 49 there, and I don't know if you've seen that very recently, but have you seen it before? A I've seen this before. Q Okay. And I'll just ask you if by looking through it it refreshes your recollection as to how this one compared with this 68, 71? A Yes, it does. THE COURT: It does what? THE WITNESS: It refreshes my recollection. This is - - This is similar - - Okay, 49 is similar to 68, but it's, it's not identical. BY MR. KITCHEN: Q And do you know who wrote 49? A This - - No, I don't. This looks like Brian's stuff. I would, I would guess Brian. THE COURT: Looks like what? Looks like what? THE WITNESS: It looks like Brian Martin's. BY MR. KITCHEN: Q You had previously seen some source code which you understood had been written by Brian Martin and you testified about earlier? A That's correct. Q Okay. And is the similarity that you refer to with forty - - between 49 and the 68 or 71, is this a different kind of similarity than what we were just talking about between 68 and 71/ A Yes, it is. This is more a similarity of functionality. This is not a, you know, one was copied from the other kind of deal. MR. KITCHEN: Okay. All right. No further questions, Your Honor. CROSS EXAMINATION BY MR. OSTROWSKI: Q Mr. Swanson, how many hours or minutes did you spend looking at Plaintiff's Exhibit 68? A Oh, I was paging through it for probably two, three hours, call it two. Q Now that's not nearly enough to properly analyze a complex program, is it? A Yes, it is. Q It is? Q When you say analyze, how complete an analysis do you want? I had enough analysis to be sure of my conclusions. Q Were you sure of your conclusion before you started your work? A No. Q What was your mission, should you decide to accept it, as stated by Mr. Kitchen? A To compare and contrast the two codes. Q Did you know why they wanted you to do that? A It's related to the, you know, related to the lawsuit, you know. Someone was - - No, no, I just - - THE COURT: I think the question is do you know in advance what opinion the Plaintiff and Mr. Kitchen might want you to come up with? THE WITNESS: No, I did not. THE COURT: Thank you. BY MR. OSTROWSKI: Q In the discussions with either Mr. Kitchen or Mr. Graham about this assignment, did the name Greg Armenia come up? A No, no, not that I recall, no. Q Did the name Pier 1 come up? A I don't think so. No, there wasn't, there wasn't really a lot of discussion, you know. Q For all you know, your testimony this morning has done grave harm to your client, Mr. Graham, is that what you're saying? A No, I don't, I don't suspect it has. Q Do you believe it's helped your client or hurt your client? A I believe - - MR. KITCHEN: I'll object to that, Your Honor. THE COURT: What's the objection? MR. KITCHEN: Asking to conclude whether this is helpful or hurtful. THE COURT: Oh, he may answer. THE WITNESS: I believe now it's helpful. BY MR. OSTROWSKI: Q Why do you believe that? A Since I was, you know, since I completed the examination, I now understand that the copyright, the copyrighted code was Rich's and the Apollo code was Larry's, and the examination showed that Plaintiff's 71 was copied from - - or the - - okay, I'm not sure but the Apollo code was copied from the copyrighted code. Q Well, the Plaintiff's 68 says Larry James right on it, right? A Yes. Q And Plaintiff's 71 has Night Owl's on it? A Yes. Q On page one. now, in those two or three hours that you said you looked at Plaintiff's 68, did you do everything necessary to compare one program to another? A You mean did I completely compare them, every character in both? Q I'm asking you if you did everything necessary to compare one to the other. A As far as my conclusions, as far as the conclusions I made, yes, I did. I didn't go beyond that. You know, to compare them. Q So, there's nothing else you could have done to do a better job in comparing these two programs, right? A I could always spend more time on it, you know, you can always put more time - - Q Well, what would you have done if you'd spent more time on it? A I didn't need to do, you know, I could have gone through and gathered additional evidence to support the conclusions. You know, I had sufficient evidence. I thought I was just - - Q Oh, I see. So you know what the conclusion would have been prior to looking for that evidence? A No. After I had looked some, then the conclusion became apparent. At that point in time, I could have gone on and sought additional evidence, you know, well let's, you know, get more and more, but, hey, I had enough. Q What you're saying is that based on a little evidence, you formed a conclusion and that you know that had you sought out a large amount of evidence, you would have reached the same conclusion, am I understanding you correctly? Please. MR. KITCHEN: I'll object. MR. OSTROWSKI: It's an improper objection. THE COURT: Make a legal objection without a speech. MR. KITCHEN: I object to the mischaracterization - - THE COURT: Mischaracterization is allowed by a cross examiner. BY MR. OSTROWSKI: Q Do you understand my question? A Could you say it again, please? Q I believe that you've stated, and I'm paraphrasing, that you looked at some evidence and you formed a conclusion, and had you looked for a lot more evidence, that simply would have supported the same conclusion that you reached based on the, some evidence? A I fully expect that. Q Without looking at all the evidence? A That's correct. Q Okay. Specifically, what could you have done if you'd spent more time analyzing 68? A I could have looked at additional routines. I could have - - Well, if I had a week to do it, I could have made a VTOC that - - THE COURT: Made what? BY MR. OSTROWSKI: Q What's a VTOC? A Visual Table of Contents. It's an acronym, and it denotes order in which the routines are called and what routines support other routines. Q Why would you do that? Isn't that a waste of time? A Yeah, it is. You seem to want, you know, more stuff. You know, you seem to want - - Q Why would you do that, though if you had a week, instead of just going to the beach, for example? A If I had - - If I had a week to kill, I could do it just to mount up more evidence. I, you know, I already have sufficient evidence, you know, if you want lots more, that's, you know, that's what we're shooting for here with more time. Q And if you did, if you did the VTOC, of course, it would confirm the conclusion you'd already reached? A Yes. Q So, in other words, if you did a week work, it would have confirmed the conclusion of two or three hours worth of work? A Yes. Q Okay. What's the purpose of a VTOC? A It tells you the order in which routines are called. It tells you which routines support other routines. Q Is that like an organizational flow chart? A It's similar, yes. Q Okay. And you didn't do that? A That's correct. Q Did you do a parameter list? A No, I don't do those. Q Could I see your notes? A I don't have them. Q When you say you don't do a parameter list, what does that mean? A I'm not in the practice of doing parameter lists. Q Can you do a parameter list? A Sure. Q But you did not do one with respect to Plaintiff's 68? A Formal one, no. I looked at the, you know, the function signatures when they came in, and they were the same. I suppose I could have written it out, but why? Q Well, what is a parameter list? A It is a list of the parameters that accompany a function call. When you call this routine, you're gonna have to give it some kind of variables. Yeah, you give it some - - Q Parameters. A A parameter list - - THE COURT: Parameters are the same as variables? THE WITNESS: Yes. THE COURT: Not the same as outer limits or no can dos? THE WITNESS: Yes. They're a special type of variable. BY MR. OSTROWSKI: Q Do you know what the parameter list is for INT VIEW 3 on Plaintiff's 68? A I think it's INT VIEW 3 VOID. You'll see it on that one as just an opening and closing parentheses, same thing, though. Q How about INT SET AREAS? A Most of the - - Most of those functions were passing void argument lists, so I'd assume it would be an INT SET AREAS VOID. Q INT SET AREAS VOID, and where would that be located? A That would be in the function signature. At the top of the routine, you'll see INT-space-SET AREA is the routine name, and you don't have to say void, you can just give it an opening and closing parentheses, and that's, that means that there's nothing here. Q Well aren't you saying that a parameter list is just a name of the module? A No, the parameter list - - Okay, a parameter list is a list of the variables or the parameter list is a list of the parameters you have to pass to the function. It's - - So it includes more than just the name. THE COURT: That you have to what? THE WITNESS: You have to give the function. BY MR. OSTROWSKI: Q Did you do on Plaintiff's 68 an analysis of the modules together with each module's relationships to other modules in the program? A I did some, yes. Q Do you have any notes on that? A Not in front of me. Q Do you have any notes anywhere? A You hold them in your hand. No. Q You don't have any notes on that? A As far as their relationship, their calling order, one to another, no. Q Does that anything to do with the visual table of contents? A Yeah, that's what a VTOC would show. Q Okay. With respect to source codes, did you compare the - - Well, strike that. Okay. Now, what is the name of the function to bring up the category screen and the program for 71, I think? A Well, I can find it on 68. Q Well, no, I'm asking on 71. Here it is. A DIR, DIR brings up the category listing. Q And how does it do that? A Do you happen to have on those - - Okay. Do you happen to have on the notes which page it is? Okay, here we go. Okay, we save some of our screen information. We start, we just started to print out the screen to the, you know, to the screen. We clear the screen off. We clear all the garbage. We open up a little area on the screen that we're going to be writing to. We set color. Q What page is that? A That's page 8 in Plaintiff 71. I don't know what - - Oh, hang on here - - and that's on page seven in Plaintiff 68. Q Okay. Is there a function in 68 that does that, that brings up the screen, the category screen? A Well, that's what the routine is going to do. It's gotta bring it up somehow. Q Are you saying there's only one way to do it? A No. Yeah, some of these - - Well, can I do an aside or not? Q Well, I'm asking, is there more than one way to do it, to bring up the category screen? A Yes, there is. Q And how many ways are there? A Limited by the imagination. Q Is there a function in Plaintiff's 68 that brings up the category screen? A Yes, you show a category screen in here, so it's gotta be brought up somewhere. Q Can you - - Do you know where it is in there? A It's DIR. Q Okay. And does that - - How does that work? A Okay. You save your text info, start to write your screen, you open the, okay, you open a window, start to write to it. Interesting thing about the DIR from 71 and the DIR from 68, a certain few critical routines were more extensively doctored, and this happens to be one of them. Q In which exhibit are they - - Did you say doctored? A Yes, I did. Q What does doctored mean? A It means that the code from Plaintiff's 71 was copied to make 68 and made minor changes to it, some areas more extensive than others. Q Well, what is the change in - - Did you call that DIR in Plaintiff's 68? A Yes. Q Okay. What change did you find so interesting, even though it was minor? A There was, okay, there was more that was different in this one. Okay, let's see, let's check it. Okay, the loop where he does his FGET where you're reading into file, that's different. The first part of the routines are identical. There's added code, and there's a change of method was added to this. The second DIR routine is - - or, excuse me, the DIR routine on Plaintiff 68 is longer than the routine in Plaintiff, what was it, 71. There's more code. Q How much more? A Let me flip the pages here. About three more pages. Q Three more pages? A Uh-huh. THE COURT: Uh-huh? BY MR. OSTROWSKI: Q It's a very long routine, isn't it? A Yes. Pardon me? Q That's a very long addition, isn't it? A Yeah, it is. You shouldn't write routines that long, in my opinion, anyway. Q Well, nor should you answer questions that were not asked. A Point taken. Q What do you think of Plaintiff's 68, by the way, as a program? A I assume it does the job it was written to do. Q Do you think it was written by a novice? A Not a raw novice. Not a professional or not a high- quality either. I'd put him somewhere in the middle. Q Do you think that program is worth very much as a program? A Sure it is. It's what we're - - That's what we're deciding, yeah. Q How long was DIR in Plaintiff's 71? A About a page, little more than a page. Q And in Plaintiff's 68, it's four pages? A Yeah, there are about another three pages there, so I'd - - that's one - - Q And this is the program you said was pretty much the same program? A Pretty much the same program, not the same function in this, you know, the DIR function has been significantly changed. Q And the DIR function is a significant program, isn't it? A It's a function, not a program. Q Well, that's quibbling. I mean a function is a program of a type, isn't it? A I could stretch for that, sure. Q Okay. So you're saying there's three additional pages of source code in 68? A In this routine, yes. Q And presumably those source code are doing something? A Presumably. Q What are they doing? A They're managing the category listing screen, or they're managing input and processing of data from the category listing screen. Q Now that category listing screen, is that the opening screen that the user sees in using the program? A No. That's after you pull up the listing, you know, after you pull up a specific category. Q It's the second screen? A Yes. Q Say if you pick communications - - A That's correct. Q - - that's what you get? A Right. Q And then at that point in the program, the user's about to make some very important decisions with respect to picking a particular type of program and unzipping it and so on? A That's correct. Q And that's a very important part of the program, isn't it? A That's an essential element. Q And this is all the stuff that this three extra pages are instructing the computer to do, right? A No, that's doing one part of it. That's managing the - - That's managing how the screen looks and what you do to a specific input. After you get your input to actually process it, you're going to other supporting routines. Q Okay. Mr. Swanson, would it be possible that a developer of a program would list functions in an order for references to where they are so that he could locate them if he didn't have comments? A Referent again, please? I - - Are you asking would a - - THE COURT: Let him repeat it. MR. OSTROWSKI: Could I just have a second, Your Honor? No further questions. I have no further questions. THE COURT: Anything, Mr. Kitchen? MR. KITCHEN: Nothing, Your Honor. THE COURT: Thank you, Mr. Swanson. (Witness excused.) THE COURT: Any further evidence? MR. KITCHEN: Yes. I would call Richard Graham. Actually, Your Honor, I think I'd prefer to have Mr. Graham start down here at the computer. We have a little demonstration. This is - - Well, maybe we can, I don't know. And I know we've spent a lot of time on the computer, and so I want to keep it fairly brief, but we have now two computers, and it will allow us to actually show both programs that have just been testified to by Mr. Swanson in their operating function, and have - - THE COURT: All right. First let me swear Mr. Graham in as a witness. RICHARD GRAHAM, PLAINTIFF, SWORN THE COURT: All right. We have your name and address. You may proceed. We have it. DIRECT EXAMINATION BY MR. KITCHEN: Q You've started up both computers, and maybe you could tell me which we've got where. We have a computer on the right and Plaintiff's Exhibit 58, which is version - - THE COURT: Five-eight, six-eight? MR. KITCHEN: Five-eight, five-eight, Your Honor, which is the entitled Pier Shareware Disk No. 2. THE COURT: Is on the left? MR. KITCHEN: Right. That is on the right, Your Honor. THE COURT: Correct? MR. KITCHEN: Is on the right, Your Honor. THE COURT: It's on the right, correct. MR. KITCHEN: On the right, correct. We got one on the left yet? And on the left we're going to put in Plaintiff's 8, which is Night Owl's PDSI005. And, by the way, I understand if, subject to correction, that the PDSI005 carries the program which was written by Larry James for Night Owl, and - - THE COURT: Pardon me? THE WITNESS: That's the DOS on both CD-ROM's. MR. KITCHEN: And that the Pier 1 disk No. 2 carries the program written by Mr. James, the source code of which was in Plaintiff's 68. THE COURT: If speaking, speak into the microphone. BY MR. KITCHEN: Q Now, could you tell us what you have just done to get us to our present position? A I'm setting both disks up to install them and I'm now at the first command line to enter my data. Q All right. Now, what screen is this, if we could identify it, do you have a name you use yourself in referring to this particular screen? A This is the installation screen. Q Okay. And it's on both programs? A Both programs. Q Okay. Now, asking you to make comparisons from a user's point of view, could you call the court's attention to what you consider to be similarities? A Well, they're totally different in these areas here. THE COURT: The window? THE WITNESS: The window itself is totally the same. The only thing is he's changed it here. He's changed the environment set. THE COURT: You're looking to an upper window on the right hand screen. The right hand one is which, Mr. Kitchen? MR. KITCHEN: That's the Pier 2, which we believe corresponds to Plaintiff's 68. THE COURT: All right. THE WITNESS: Now I'll pick the default for both drives. No I get the same screen, identical. Here's where I have to pick my CD-ROM drive letters. BY MR. KITCHEN: Q Now, you said you'll take the default on both and you just pressed enter on both keyboards, right? A Yes, I did. Q And that gave you a line, an added line and another question on each side, right? A Yes, it did. Q And are the language of the questions the same? THE COURT: No. You mean down at the bottom? THE WITNESS: Yes, it's the same, second line. THE COURT: Oh, I see, in the window. MR. KITCHEN: Right. THE WITNESS: Yes. THE COURT: I was looking at the bottom of the screen. BY MR. KITCHEN: Q So, what do we do now? A We would pick our drive letter. Q Okay. A On this one is Z, ours is D. Q That's arbitrary with the computer owner, right? I mean, he gets to pick what he calls his CD-ROM drive, right? A Yes. Q Okay. All right. A And the fourth line is where the text record files are located at. This line is a little different. Q What does the line on the left read? A The line on the left reads area containing your DIR text files. Q What does the computer on the right read? A DIR text file area. Q Okay. Are they essentially asking the same question? A Yes, sir. Q All right. Okay. Would you respond accordingly? A They both already know that the default drive that what I picked was Z, so that one I just hit enter. Same way with this one. Q Okay. A Now it asks me my monitor type, color or monochrome. You pick here M or C. They're both color, so I'll pick C on this one and C on this one. Q Now, what's happened now? A On the other one he added a - - Q On the one on the left? A On the left hand side. Q Okay. A On the - - That's the Night Owl disk, it was another line to add your preferred file management program. His doesn't do it. His is done internal. It automatically does it because it ends up in a config. file the same way that it does on the Night Owl. Q Okay. And by the way, what is the product of an installation on this thing? What is the - - The installation module - - You don't have to go through this every time you start this thing up, do you? A No, sir. Q You just do it the first time you're starting it up? A Yes. Q All right. And once you've started it up, you don't have to install it again? A No. Q Okay. And why? Does the program write a file so you don't have to go through this routine again? A It writes a file called CFG with an extension CFG. Q Okay. And that you understand to be containing the answers to these questions so it doesn't have to ask them again? A Yes, the night execute looks for that file and configures to that file. Q Now, after we install these at some later time, could we actually say look at what these config. files - - A Yes, we can. Q - - or CFG files look like? A Yes, we can. Q Okay. We'll do that later, but you're asked a specific question on the left one, so what are you gonna put in? A I'm just gonna hit enter. Q Okay. A Then we get down to the next line, which is identical to his. Enter yes to accept, no, change it, cancel, or quit. Q Okay. A We'll accept it, yes. Accept it, yes. Then it says update AUTOEXEC.BAT. I'll say no. Q They both say that? A Yes, they do, identical. I'll say no on this one. Q Okay. A And this one says it couldn't write the NIGHT.CFG file. Q Okay. THE COURT: This one is which one? THE WITNESS: The Night Owl. So I'll hit enter and it dropped me back to DOS. BY MR. KITCHEN: Q Okay. What happened on the left one that it couldn't write the NIGHT.CFG file? A I might have hit, I might have configured it wrong, but it said Z drive, and it looks like it is a Z drive for the CD-ROM. Try it once more. Now this one here - - THE COURT: Which is this one here? THE WITNESS: This is the Night Owl disk, PDSI005. BY MR. KITCHEN: Q On the left? A On the left. It dropped to DOS. It's finished the install. Now you have to type install. Q Meanwhile, on the right, we're looking at what? A We're looking at the screen, but he put on automatic command - - Q Okay, but what's on the screen right now? A The main menu. Q All right. So how did it get from the end of the install to the main menu? A Cause after he dropped the screen like this one here, he has another program that runs install. THE COURT: This one here on the left? THE WITNESS: The one on the left has the same command this has, install. All he does is make it manual - - or automatic instead of dropping it down. This used to be automatic. THE COURT: You're just saying he, you're from time-to-time - - THE WITNESS: Larry James. THE COURT: - - referring to the right? THE WITNESS: Larry James, right. THE COURT: I know, but when you say he, then you're using it in a connection with one of these screens, you're talking about the screen on the right? THE WITNESS: Yes, sir. BY MR. KITCHEN: Q All right. So you made a few extra character strokes on your keyboard on the left? A Yes, sir. Q And now are we at comparable place as to the one on the right? A Right. Q Okay. So, - - THE COURT: The one on the right, you mean correct? We've got to avoid the word right. THE WITNESS: Correct. MR. KITCHEN: The one on the right side. THE COURT: When you mean correct. THE WITNESS: Correct. MR. KITCHEN: Yes, okay, correct, yes, that's right. BY MR. KITCHEN: Q Okay. Now, are we looking at what's been referred to in the past as the main menu or the main screen? A Yes, sir. Q Okay. And could you point out similarities or differences between these two? A The one on the right has two extra commands in it, and, of course, it's got a copyright screen on it now. Q You mean a copyright notice? A Copyright notice, and it's got a clock and plus it's got a PSR. The one on the left has a free memory that this one doesn't have. THE COURT: This one is which? THE WITNESS: The one on the left, the PDSI005. THE COURT: Yeah, but you had pointed to the right saying this one doesn't have. THE WITNESS: This one doesn't have the free memory, right. THE COURT: I know, but you've got to avoid this one and so forth. The right and left and when you're agreeing with something, it's correct, not right. THE WITNESS: Yes, sir. BY MR. KITCHEN: Q All right. Now I do notice there's a difference between, in terms of numbers. MR. OSTROWSKI: I object to counsel testifying. THE COURT: He may answer - - He may ask. BY MR. KITCHEN: Q Is that a difference? A Yes, it is. Q And how do you select the program on the left? A Program on the left, you could pick a category. Q All right. How do you pick it? A By number. Q And on the right, how do you pick a category? A By arrow key down, up or down, cross. Q Okay. All right. Well let's take the next step, pick the same category for each. All right. Now we're looking at, I guess, what in the past we referred to as a category screen or something, and we've picked the particular category of communication, is that correct? A I picked communications on the program on the left, and I hit animation on the one on the right. Q Uh-huh. All right. Could you point out similarities or differences between these two screens? A The top lines are the same except for the middle - - Oh, they're the same except for the different name of the program and the version number. Top two lines are the same. Q And how about the functions or directions in this? A On the one on the right, you have to hit your alternate to do your extract, your DOS, your view. This one here you have to hit enter before you - - THE COURT: This one here is what? THE WITNESS: The one on the left you have to hit the enter key before you would see them commands. BY MR. KITCHEN: Q All right. Well, let's - - What do you want to do with these that we could show? A The one on the left, now I have the same commands. Q All right. So you hit enter on the one on the left and it opened up a red window in the middle of the screen, correct? A Yes, it did. Q And with the one on the right, you don't have to do that or - - A No, sir, you don't. Q Okay. Now, what might you want to do with the one on the left? Which program are we looking at right now? A 315 mouse.zip. Q Okay. What would we want to do, like extract it or something or what? A I'd like to Alternate-V it. Q Okay. A Which means view the file - - or no, I don't hit alternate. It's just the V on this one. Q All right. So you hit V and you're - - A I hit V. On this computer on the right, I would hit Alternate-V. Q Okay. THE COURT: Why on the left do we have the word implode, I-M-P-L-O-D-E? THE WITNESS: Implode, that's how the - - that was in a zip file. It was taken apart by PKUNZIP. That's what it, the method it used to unzip that file. THE COURT: I think of imploding as being something that explodes inwardly rather than outwardly. Zipping is an opening, and I would think of imploding as being comparable more to closing, but I'm wrong, is that correct? THE WITNESS: Zipping is taking and making the zip file. PKUNZIP unzips the file. This just unzip. THE COURT: So imploding's the same as zipping? THE WITNESS: Yes, sir, it was imploded. Otherwise, that was zipped. BY MR. KITCHEN: Q You had an extra step on the left because you had the window, but then you hit the V and on the right, you hit the alternate-V and it did it, right? A Yes. Q All right. So are we looking at the same thing? Actually, could you back out on one of these so that we're kind of on the same category because you're on communication on the left and you're on animation on the right and - - A Communications. Okay, there's communications. Q Okay. A You're not going to find the same program I don't think. Q Oh, all right. But at least we're in the same category, communications? A We're in the same, same, right. Q And we're doing a view. Now what would be the purpose of this view, by the way in either of these programs? A In both these programs, you would be able to read your documentations inside these files. Q Are there any documentations on either of these? A Yes, there is, on both of them. Q Okay, let's take a - - THE COURT: Is the word on the right hand screen, D-E-F-L-A-T, the same connotation as implode on the left? It's like deflate without the E. THE WITNESS: They use deflate, explode, unexplode. THE COURT: Are they the same - - THE WITNESS: Yes. THE COURT: - - the same meaning? THE WITNESS: Close to the same meaning, yes. THE COURT: Same functional meaning? THE WITNESS: Yes, sir. MR. KITCHEN: All right. THE COURT: You still say yes, sir. Now, do you mean almost or what? Before you were nagging with me and saying almost, now you're saying yes. THE WITNESS: That's something PKUNZIP does. I have no idea what there is - - I know they explode them, they implode them. I have no idea, to tell you the truth, what they mean. I have no idea what they mean. That's the other person's program. THE COURT: To the extent you understand it, they're comparable? THE WITNESS: Yes, sir. BY MR. KITCHEN: Q Now you testified that the purpose of the view is to take a look at the documentation file. Now, before you do this, is there any indication that there are documentation files on either of these, and if there are, could you tell us how you know they're documentation files? A Yes, on the one on the right hand side there's a read me, there's a file underscore, ID, DIZ, all of these on the right hand side are read files. Q Okay. A The one on the left hand side is a telex menu. You may be able to read that. And a 315 mouse.dot, that is also a documentation with a view on both. Q Okay. And is the clue in the name itself? A Yes. Q Okay. You haven't seen these files and programs before, have you? A I may have seen the one on the left. Q But you don't recall seeing? A No, I don't. Q Okay. Well, okay, let's take a look at the documentation on the one on the left. What do we have to do to do that? A Hit enter, arrow down to the and hit enter over the file. Q How about the one on the right, same thing? A Same thing. Q Okay. So you move the bar down and you hit enter? A Right, same thing comes up, file B in red. Q All right. A And now you're into looking at the inside of the files, which you can see both screens are almost identical. Q I take it a user would find this useful because he might just want to read about the program before he bothers to run it or anything? A Yes. Q Okay. A Got the same commands in here, the same screens, everything. Q Okay. THE COURT: Why do you say they're the same? To my untutored eye, they look quite different. THE WITNESS: Well, different in text. This is a text file we're looking at. THE COURT: So the texts are different? THE WITNESS: Right. Here is the name of - - THE COURT: Here on the right you're pointing? THE WITNESS: Here on the right is the Pier disk that he says is above here now. THE COURT: It just has on the left you have Night Owl? THE WITNESS: Yes, sir, and here are the version number. THE COURT: And different version numbers, obviously. THE WITNESS: Different version. Page, that says page count and the percentage of how far into the page you're going. It counts five percentage if you're paging down. THE COURT: What I was referring to is being to my mind, my eye quite dissimilar is the whole text that it occupies most of the screen? THE WITNESS: That's different. That's all different. If we had the same text file here that we were reading, it would be identical. MR. KITCHEN: Okay. THE WITNESS: Except for also you have a clock here. You have free memory or free disk space over here. THE COURT: If we had the same text file, we'd have them the same? THE WITNESS: Yes, sir, you would. THE COURT: We don't have the same text file? THE WITNESS: No, sir, we don't. They're two different - - THE COURT: Why don't you have the same text file? THE WITNESS: They're two totally different programs. Well - - THE COURT: You could get the same text file up on each of them, you're implying? THE WITNESS: Yes, sir, if I took this disk out of here and switched over. THE COURT: Oh, of course, of course. THE WITNESS: Yes. MR. KITCHEN: Well, where does the text - - THE COURT: The disk is driving the machine - - MR. KITCHEN: Where does the - - THE COURT: Is that right? THE WITNESS: The disk, right, yes. THE COURT: Yeah. BY MR. KITCHEN: Q Where does the text come from? A The text is in the zip file. Q Does it have anything to do with the retrieval system? A No, it does not. Q Okay. It's coming from one of these shareware programs that are on your disk? A From inside the zip file, yes. Q Okay. A If that zip file, if there wasn't nothing in there, you wouldn't be reading nothing. You'd see a blank screen. Q Okay. Is it possible that there may be some shareware programs on the Pier 1 disk which might be identical to some of the ones that are on one of your Night Owl disks? A The only way I could find that out is by searching the disk. Q Okay. But these are all shareware programs anyway, right? A Yes. Q Or most of them? Okay. So they're pretty much - - I mean some of them were as available to Greg Armenia when he did Pier 1 as they were to you, right? A Yes, that's true. Q Okay. But it would take a little hunting to find ones that were the same? A Yes. Q All right. Okay, any other similarities you can point out? A The screen back here, they're identical. Q Now when you say back here - - THE COURT: The screen back here is - - THE WITNESS: When I backed out of reading that text file - - THE COURT: On the right hand one? THE WITNESS: - - the screen on the right, the screen on the left, they're the same except for the screen on the right has not got the brackets around it, but it's still looking for the type of directory. This one has the clock. That one, the one on the left has got the memory, but it's still got the same - - THE COURT: Now you're back to the implode D flat? THE WITNESS: Yes, sir. BY MR. KITCHEN: Q Okay. Back out one more step and I see you're hitting escape on each one? A I hit escape on both. Q Okay. And any other similarity you want to point out? A Here is where they - - Okay, ours used the square box. You had to hit enter to get that. Here he's switched down to the 25th line to get all of his commands, like we do in OPB9. Q Okay, any other similarity in the function of the whole program that you've noted - - A They're the same throughout the whole program, the extract, the DOS, the view, the copy. Q Well, let's take a look at the DOS, for example. Okay. All right. Now, on the right, you went back to the category screen and you hit a key. What did you hit? A D for DOS. Q All right. And where are you now in terms of that program on the right hand computer? A I'm shelled to DOS. Q Shelled out to DOS? A Yes. Q So you can perform some kind of DOS function? A Yes. Q And if you wanted to go back into the program, what would you do? A I would type exit on both machines. Q All right. Now how about the machine on the left, what did you do to get to that position? A Hit the D. Q Okay, and that took you out to DOS again? A Too me, shelled me to DOS, yes. Q And on the left hand one, what would you have to do to get back in? A Type exit. Q Okay. So let's do that on both. Okay. Are there any other functions which you, which are similar? A Well, that one paused, it asked for a - - on a Night Owl 5, the computer on the left, it did ask you to press any key - - Q Uh-huh. A - - coming back from exit. Q The one on the right didn't? A The one on the right did not, no. Q All right. Okay. What other functions can these programs do? A Extract. Q Okay, what does abstract do - - Oh, extract? A Extract a file. Q Okay, let's try and extract a file on the left. A You hit your X. I hit copy, I think. Let me out of here. Q How do we extract on the right? A On the right, you would go alternate-X. Q You gotta get into a category first? A Now it's unzipping. Q Okay. So, same command to do the same thing? A The same command, yes, X to extract. Q Okay. And you've extracted the one that you've selected on the left and you've extracted the one that you've selected on the right? A Yes, sir, I did. Q Okay. Any other function that you can demonstrate on this, on these programs? A These screens are also the same. Q Oh, the screens themselves? A Yes. Q Now we're looking at - - A Well, except for the text files itself that's in that file, but even the wording. Q Okay, you're referring - - A F-ten menu - - Q - - to the top two lines? A The top two lines. You hit F-10 for your extra menu. F-10 there, F-10 here. Same identical. Same lines. Same commands. THE COURT: I see dates and times on each. Do they have significance? THE WITNESS: No, sir, they do not. THE COURT: What do they mean? THE WITNESS: These are the dates these files were created. THE COURT: So they do have that significance? THE WITNESS: Inside that file, yes, sir. BY MR. KITCHEN: Q Well, again on the right screen in the white portion of the screen with the red bar, the single red line, red bar, that material is from where? A That material, them four files are from within inside of a zip file. Q Okay. But it's not from the retrieval system itself? A No, sir, it's not. Q It's something that's being retrieved? A It's something that's being retrieved. Q Okay. And - - A And viewed. Q All right. It's the meat and the meat grinder. It's not the meat grinder? A Right. Otherwise this file is being looked at PKUNZIP minus B to view that inside of that file. Q All right. And over on the left, the blue area with the black bar that moves up and down, is that in the same category, or the same class of material, it's - - A Yes, all them files are located inside of one zip file, yes. Q All right, okay. All right. Any other functions you can demonstrate in the program that are similar? A We've already extracted. The disk doesn't have any execute file in it, so I can't execute it from there. The copy command, I can get out of here, I hit exit. Hit exit here. THE COURT: Again, you said something about this didn't have something. THE WITNESS: This didn't have an execute file. THE COURT: The one on the right. THE WITNESS: The one on the right did not have an execute file. THE COURT: All right. THE WITNESS: I hit escape on both machines, and it says delete files created in, and it asks you the directory name. This one is C-colon-backslash-dub here-backslash- unzip-question mark or bracket question mark. The same way on screen left. THE COURT: This one is what? Again you're getting into the this one and so forth. THE WITNESS: I'm sorry. THE COURT: This one was what? THE WITNESS: The screen on the left says delete file created in, bracket-C-colon-backslash-night-backslash- unzip-bracket-question. Same wording in the right screen and the left screen, the left monitor. MR. KITCHEN: Uh-huh, okay. THE COURT: Except for the name of the program? THE WITNESS: Yes, sir, the name of the disk, the Pier and the Night. THE COURT: Pier versus Night. THE WITNESS: Night, right. I hit escape again. BY MR. KITCHEN: Q And you got a beep on each one? A This one come up and said please enter yes or no. THE COURT: This one is which one? MR. KITCHEN: The one on the right. THE WITNESS: The one on the right. THE COURT: Okay, you've gotta keep that - - MR. KITCHEN: It says please enter yes or no? THE WITNESS: The one on the left, you just hit yes. THE COURT: You got to pay attention to that, Mr. Graham, and not say this one or that one. THE WITNESS: Yes, sir. BY MR. KITCHEN: Q Okay. So what did you enter then for each one now? A I entered yes. Q On the left and yes on the right? A Yes. Q Okay. THE COURT: Now let me ask you, do the screens themselves have anything to do with the, what comes up or they just channels? The screen is a part of an apparatus that's sitting up on the shelf, and that one on the right is Axiom and the one on the left is Touch Computer. Is there anything in that differentiation that will be reflected on the screen? THE WITNESS: No, sir, that's just monitor types. BY MR. KITCHEN: Q All right. Any other functions that these programs do that you might want to demonstrate? A Copy command. Q On the right, the copy command, what did you do? A I hit Alternate-C. Q On the left, what do you do? A Hit C. Q Okay. A And it says enter full path to copy - - The right hand side, the Pier disk asks for enter full path to copy. Then it gives you your file name. On the left hand computer it says enter full path to copy file. You type in your path. I'm doing it on the computer on the right. Q Path is where you want the thing to be copied to? A Yes, sir. Q Okay. A And I'll do the same on the left hand side. I don't know if he has a work directory, so this one might not work. THE COURT: This one is what one? MR. KITCHEN: The left one. THE WITNESS: Mr. James' computer. THE COURT: On the left? THE WITNESS: On the left. THE COURT: See, you point, and our record has no idea to what you're pointing. BY MR. KITCHEN: Q Can you give it a full path if you can? A I have no idea. I haven't been on this computer. Q Okay. THE COURT: This computer is which? THE WITNESS: This computer on the left. MR. OSTROWSKI: What do you need? THE WITNESS: I need to know a path to copy a file to. And now it asks you, okay, on the computer on the right, it asks you to copy-bracket-the file name-bracket-to-bracket- C-colon-backslash-work-bracket-question mark. The computer on the left says copy-bracket-file name-bracket-to-bracket-C- colon-backslash-night-bracket-question mark. Same identical wording. MR. KITCHEN: Okay. THE COURT: Except for night is night on the left and work on the right? THE WITNESS: Press yes, no or cancel. Night and - - Yes, sir, that's because I didn't know if he had a work directory. Otherwise it would have been identical. I hit yes there on the left hand computer. I hit yes on the right hand computer. It comes up and it says press any key to continue on the right, press any key to continue on the left. Hit enter and enter, and I'm back to - - BY MR. KITCHEN: Q Where you were before. A - - where I was before. Q All right. And any other functions you could demonstrate? A The search feature is the same. Q Okay. How do you search for something on the - - A Escape back to the main window. Escape back to the main window. Hit your S for search, hit enter. Search, no enter. I'm typing in a file name on the right. Q Now - - A A Q-modem and I hit enter. Q All right. A I'm doing it on the left, same program, hit enter. Q Now let me stop you a second because there were some differences, weren't there? A Yes. Q Okay, the one on the - - A Just one. Q The one on the right opened a space down at the bottom for you to put in what you wanted to search for, right? A Yes. Q And the one on the left cleared the screen and - - A Started the search. Q - - left space for you at the top? A Yes. Q Okay. But to get to that point where they asked you what you wanted to search for, you hit S in each case? A S for search, yes. Q Okay. And the next function was asking you what you wanted to search for? A Yes, it was. Q Okay. And you put the same thing in both? A Yes, I did. Q Okay. And why did you type in Q-modem. Did you have some feeling you might end up with something? A I knew I would. Q Okay. All right. And what - - What do we have now? A Well, you've got the same identical screens as you did before - - Well, not identical. The first two lines, the same thing, the name in parentheses, the virgin number. Q You're referring to the right hand screen now. A The right hand and now the left hand screen. The left hand screen on the second line is got two brackets around it. They've taken the two brackets out on the screen on the right hand side. Category, pound sign S, category, pound sign, S. Both on left and right. When it finds - - When it does its search, it's counted the files up. There's 15 files found. Press any key. Over here it says seven files were found. Press any key. Stop - - Well, ours didn't stop, it was an on-continuous search. Bottom line is the same except for your clock over there it's free size. THE COURT: Bottom line on which? MR. KITCHEN: On the right. THE WITNESS: On the right hand side is different that it has a clock in the left hand corner. The one on the left has free and your percent of memory on the left hand side. Your quit command is bracketed, and that's where they made their change there. The Q-modem is bracketed. The words are the same. THE COURT: Now you're pointing to a difference and not mentioning it. THE WITNESS: This P009 is directory, DIR9, the same as that would be. Their directory was renamed. THE COURT: That one that you're pointing is the left? THE WITNESS: This one on the right is PDIR0 - - or P009. Mine were named - - THE COURT: On the left. THE WITNESS: On the left is named DIR9, but they're the same type of files. BY MR. KITCHEN: Q In fact, they happen to have the same directory number, right? A Yes. Q Okay. Now, let me just ask you, too, since it was searching for the word Q-modem, it was searching for it wherever it was located, even in the, in the descriptive text to the right? A Yes. Q Okay. And - - THE COURT: Let me ask you another. The screen on the right that shows bracketed 7, and I notice there are seven listings there. The one on the left shows bracket 15, and there are only eight listings, nine listings. THE WITNESS: Because there is probably eight or nine files that went down past there that's already up on the top. It's already scrolled by. BY MR. KITCHEN: Q Can you look at them if you want? A Yes, I could. Q How would you do that? A I would hit enter to get out of the search. Oops. Hit U for user's directory. This is the one on the left. THE COURT: Back to nine again.. THE WITNESS: And I would do the same on the left hand side. Oops, I should have hit no. Hit U for users. He's added a command global or local. BY MR. KITCHEN: Q Okay. A Now we're in the top and bottom line from screen, the computer enter. THE COURT: Where are you? THE WITNESS: The screen on the right, the second and bottom line is the same as the second and bottom line on the right except for the bracketed - - THE COURT: On the left, the one on the right is the same as the left, you misspoke. THE WITNESS: Yes, sir. BY MR. KITCHEN: Q Okay. Any other functions you want to demonstrate that could - - A I could show you the user's files. It's all - - They're identical. THE COURT: Let's put it, is there anymore that you, Mr. Kitchen, want him to demonstrate? MR. KITCHEN: Yes. THE COURT: Are there? MR. KITCHEN: Well, yes, if there are ones that he can demonstrate. THE COURT: You want him to - - You're just leaving it to the witness. MR. KITCHEN: Well, I'm asking him then, are there any things he can demonstrate. MR. OSTROWSKI: Maybe he should ask you some questions. THE COURT: Yes, I - - MR. KITCHEN: That may help. THE WITNESS: What I'm doing now is I'm typing the configuration files for each one of these disks. BY MR. KITCHEN: Q Yeah, tell me again, what are you doing? A I'm typing the configuration file for each one of these disks. Q Have you exited both programs? A Yes, I did. We just exited them. Q All right, you brought up a - - By the way, you're in - - are you in DOS right now? You're out of the program? A I'm out of the program both. Q So the leftovers we're seeing of the red screen there on the left just hasn't left the screen yet, right? A That was the closing screen for the left - - left hand was for the PDSI005. Q Okay. A That's correct. Q Okay, go ahead with what you're doing. What have you brought up? A I brought up the configuration files for both the Night and the Pier. Q Is this what was created during the install functions? A Yes, it was. Q Okay . Do you notice any similarities or differences? A Well, I can see where he's - - The one on the right, he's added, he's added six new categories, one I know is a screen saver, one is a blink to screen, delay three minutes and it's chimes. Q Uh-huh. A But from one, two, three, four, five, from the fifth line down or from line one to line five, they're about, they're the same. Q And what information - - THE COURT: What you're pointing out the same, the five lines on the right screen you're saying are the same as six on the left? THE WITNESS: No, let's see, default - - THE COURT: Coming down to the line on each which says - - THE WITNESS: Okay, this is the top of - - THE COURT: - - user, user prog. THE WITNESS: Right, I'm going by the Pier- underscore area-equals-C-colon-backslash-the Pier. On ours it starts with Night-underscore area-equals-C-colon- backslash-Night. THE COURT: There's no difference then in the fact there are six lines on the left which you say are the same as five on the right? THE WITNESS: No, there's more configuration in the one on the right than there is on the one on the left. The other file was the user's DIR. I've got to stop this one. THE COURT: This one is which one? MR. KITCHEN: The one on the right. THE WITNESS: The one on the right. It's too quick for me. MR. KITCHEN: You're getting slow in your old age. BY MR. KITCHEN: Q All right, what have we brought up now, these files, user files you've called them? A These were the files created by the search. THE COURT: The right? THE WITNESS: The one on the right was created by the search. The ones on the left were created by the search. BY MR. KITCHEN: Q Okay. Same format structure? A Same format. Q Obviously, different content because - - A Different content - - Q We had different - - A - - because they were different files. Q Okay, the search produced different stuff, yeah. A This one he used the bracket on - - THE COURT: This one is which one? THE WITNESS: The one on the right used a bracket. The one on the left used a carrot insignia, but that's the location of files or the zero-zero-zero, location of files on the right is zero-zero-zero. THE COURT: Where do you see zero-zero-zero? THE WITNESS: Location of files. That's a stamp. THE COURT: Oh, I see. Four zeros. THE WITNESS: Yes, sir, it's the same way as it is on the right. BY MR. KITCHEN: Q Okay. A Top line reads user built from and the one on the left is user built directory. Q Okay. A Just changing in wordings. Q Well, you heard Mr. James testify that with his program, there was no such thing as a zero-zero-zero-zero directory, right? A Well, there's one right there. Q Okay. Does that about cover it? A To go into it more - - this, you know. Q Okay. You know, if you can think of anything else you can, that you can show, fine. A Well, I could show where this will work on my disk. Q That what will work on your disk? A The Pier retrieval will work on my disk. It will work on my brand new disk. That's why it was created that way, to duplicate Night Owl. Q How would you demonstrate that? A I made a floppy up. All I have to do is change the name of his files, his P-001, P-002, change them to DIR1, DIR2, put my headers into it, and it will work on my disk in his - - also mine will work on his disk. Q Okay. So, now have you actually done this on your own computer? A Yes, I have. Q Okay. A Yes, I have. Q And it does work that way? A It does work, and also you asked the question before when he had the retrieval up in there, how come he left out communications where we did, where we have it. Well, if you put it in there, it will use it. MR. KITCHEN: Okay. All right. I'm done, Your Honor, with the demonstration portion here, and I have more questions of Mr. Graham probably from the witness stand. THE COURT: Take lunch. When will we come back? MR. OSTROWSKI: Your Honor, I have to file my appeal over the lunch hour. THE COURT: Trial. MR. OSTROWSKI: I was just going to ask Mr. Kitchen - - MR. KITCHEN: I really think, you know, I've got some questions, obviously some things I have to cover. I'm going to try and go through them efficiently, and I think that's it. THE COURT: How long? MR. OSTROWSKI: Brand new stuff, right? THE COURT: How long? MR. KITCHEN: Oh, well, probably an hour, and then - - THE COURT: Cross examination? MR. OSTROWSKI: Well, I won't have much on this stuff I don't think. MR. KITCHEN: I'm sure you'll have some cross. THE COURT: Is Mr. Graham your last witness? MR. KITCHEN: Yes. I don't anticipate - - THE COURT: So we have one hour then before the trial is completed? MR. KITCHEN: Well, plus his cross examination. THE COURT: Well, he said he has not much cross examination. MR. KITCHEN: Well, I think he'll have - - I think he'll probably have cross of what I cover on the stand. THE COURT: Oh, I see. MR. OSTROWSKI: Well, these things are in evidence, so - - THE COURT: I see. MR. OSTROWSKI: - - I don't know how much time I need to spend on them. THE COURT: All right. Two o'clock? Very good. (12:30 lunch recess.) (Testimony resumes.) BY MR. KITCHEN: Q Mr. Graham, I want to ask you some questions about the testimony of Ken Helinski. How'd you first meet this Mr. Helinski? A Through a Chuck Morgan. Q And what was involved with - - Did you and Mr. Helinski make any plans to do anything business-wise? A Yes, Chuck brought him over to my house and asked him if I could compile a CD-ROM disk for him. Q And approximately when was this, do you know? A September, 1990. Q And was Mr. Helinski already involved in doing CD-ROM? A No, he was not. Q Okay. What was his background computer-wise, as far as you understood at that time? A From what I understood, that they were trying to make a retrieval-type data base for a banking system. Q Okay. So, had they been - - They hadn't been operating in the shareware environment at all? A No, sir. Q Okay. So, did you reach some sort of an agreement with them or understanding with Ken Helinski as to what would, what was going to be done? A Yes, we did. Q Okay. Was that - - THE COURT: Who is we? THE WITNESS: Ken Helinski and myself. BY MR. KITCHEN: Q Was anybody else involved? A Chuck Morgan. Q Okay. And was that what was embodied in that agreement which I think is Defendant's Exhibit 14? A That I would do certain things for them for X amount of dollars per week. Q Okay. Did you - - Was that agreeable to you? A Pardon? Q Was that agreeable to you? A Yes, it was. Q Okay. Did you ever get paid? A No, I did not. Q Okay. Did you, did you do anything? A Yes, I did. Q Okay, and what did you do for them? A I compiled PDSI001 for them. Q Now, was Chuck - - How involved was Chuck Morgan in this whole thing? A Chuck was more less the technical support at that time. Q Okay. Was he continually involved in this operation? A On and off. There was - - It started to end up to confusions because Mr. Helinski tried to dump Chuck Morgan. Q Are you acquainted with a Lou Manzi? A Yes, I am. Q Okay. THE COURT: Who? MR. KITCHEN: Lou Manzi. BY MR. KITCHEN: Q What was his involvement, if anything, in this? A When I first met him, the understanding was that him and Kenny Helinski were partners, that Lou Manzi had furnished him with the $50,000 to start the business. Q Okay. And are you acquainted with a Louis Kainz? A No, I am not. Q Okay. You never met anybody by that name? A Never. Q Okay. Now, as a result of this business involved with Ken Helinski, did you attend any trade shows anywhere? A Yes, I did. Q Where was that? A I went to the Boston Trade Show, which is in Boston, Massachusetts. Q Uh-huh. A We did that show in late September or early October. Q Of - - A 1990. Q Okay. And what was the purpose of your going to the show? A To promote the CD-ROM disk that I had put together for them. Q Did - - And what was the - - What was that CD-ROM disk called? A PDSI001 CARRS, Computer Records Assisted Retrieval System. Q All right. And did it have a retrieval system on it? A No, it did not. Q Okay. So if somebody wanted to get a file off of there, would just have to find it on their own? A Yes, sir. Q Okay. You went to the Boston Computer Trade Show and who paid your way and took care of expenses on that? A On that trip, Mr. Helinski. Q Okay. And was it successful or did it accomplish what it was supposed to? A Yes, it did. We developed quite a few leads from that show. Q Did you get any payment or anything for going other than your expenses covered? A No, I did not. Q All right. Any other shows you went to? A We went to Comdex, which is in LasVegas. Q Comdex, is that C-O-M-D-E-X? A Yes, it is. Q Okay. And what kind of a show is that? A That's also a computer show. Q When did you go there? A It was either November or early December. THE COURT: Of ninety - - THE WITNESS: Of 1990. BY MR. KITCHEN: Q Did you - - You recall Mr. Helinski testifying that he paid for your room and the booth, etcetera? A Yes, I did. Q Okay. Was that true? A No, it was not. Q Who paid for the room? A I did. Q Who paid for your air fare to get there? A Lou Manzi did for me, himself - - THE COURT: Who did? THE WITNESS: Mr. Lou Manzi paid for himself, myself and his son. BY MR. KITCHEN: Q And so his son was there with him? A Yes, he was. Q Was anybody else in this entourage? A In that flight? No, there was not. Q Okay. Where was Mr. Helinski when you went to the show? A He was in Australia. Q And how long were you - - Did he meet you there? A He met us there the second night of the show. Q Okay. Did you rent a car while you were there? A Yes, we did. Q Who paid for that? A I did. Q Now so far at this time, you hadn't been paid any money for your work? A No, sir, I have not. Q Okay. Now, the last day of the - - When did you leave? A I think that show - - I'm not positive. I think it was either a four or five day show. We did the whole show, but we left that show about noontime the last day of the showing. Q Uh-huh. A But we left on our original flight time, so we did not leave Las Vegas early. We left on our regular flight. Q Okay. A On our return trip. Q Now, do you recall whether there were any leads or - - well, I guess the appropriate term, leads that were collected during the show? A Yes, it was. Q And in what form were they? A They were like in a, a Visa receipt. Q Uh-huh. A Just almost just like a credit card machine. You run it across and you get the person's imprint or address or name of the corporation or company or whatever. Q Oh, all the people were carrying a credit card - - A Yes. Q - - kind of thing? A Yes, that's their identification when they go to that show. Q Okay. So, how many leads were there, do you remember? A There was a lot. Q And do you know what became of those leads? A I do. Q What? A When we left that show, Mr. Helinski turned them over to a Mr. Lou Manzi. THE COURT: To who? THE WITNESS: To Lou Manzi. BY MR. KITCHEN: Q And did Mr. Manzi - - Have you seen them since? A Yes, I have. Q Okay. Where have you seen them since? A Lou Manzi. Q Okay. This was what, sometime after the show? A Right. Well, there's a little bit leading up to us leaving the show and him getting them. Q Okay. So you left the show itself? A Yes, I did. Q And did you see Mr. Helinski later that day? A Before that, I met Mr. Manzi. He come to my motel room. He asked me if I would please stay. MR. OSTROWSKI: Objection, hearsay. BY MR. KITCHEN: Q Okay. Well, you had a conversation with Mr. Manzi? A Yes. Q Okay, after. All right. Well, as a result of your conversation with Mr. Manzi, what did you do? A I proceeded to go ahead and wait for my flight. Q Okay. And did you see Mr. Helinski that day? A Yes, I did. He came back - - We had the same room. So he come back to the room. BY MR. KITCHEN: Q When you say gave him the money, do you know how much money he gave him? A There was $2,700. Q You heard Mr. Helinski say that some $7,000 was taken by you? A No, sir, that's incorrect. Q Well, did you hear him testify about that? A I heard him testify. Q All right. And you're saying that's not true? A No, it's not. Q Okay. Did you receive any money from Mr. Helinski, direct or indirectly then? A Not one nickel. Q And did you take any money from the motel room? A Not one nickel. Q And the leads you said were turned over to Mr. Manzi? A Yes, sir, they were. Q Now, this $2,700 that was turned over and the leads that were turned over, I mean, was it, was it under some threat of physical force or something like this? A No, sir, it was not. Q Did Mr. Helinski willingly hand them over to Mr. Manzi? A Yes, sir, he did. Q And now, was there a computer purchased by this partnership or company or whatever? A Yes, sir. Q Okay. And when was that? A It was a Northgate 486. Q Okay. When was it acquired? A I'm not positive when it was acquired. It was brought to my premises. Q Oh, okay. Who brought it over? A Kenny Helinski. Q And what was the purpose of it being put on your premises? A For instead of me using my computers, which I needed multiple drives because I only had 80 meg drives since the material we were working with was 600 megs of material, we needed a bigger hard drive. So he brought his over, which was the bigger hard drive, bigger hard drive, faster computer. Q Okay. Did Mr. Helinski ever ask for the return of the computer? A No, sir, he did not. Q Did he ever come over and try and take it? A No, sir, he did not. Q Did you - - Do you feel that you had done some work which was entitled to some remuneration pursuant to the agreement? MR. OSTROWSKI: Objection, leading. THE COURT: He may answer. BY MR. KITCHEN: Q Did you earn any money - - I mean - - Well, did you do anything that entitled you to be paid? A Oh, yes. Q And you were not paid? A I was not paid. Q Do you have any idea what would be owed to you if you were paid pursuant to the agreement? A Well, four months, that's sixteen weeks times four hundred a week. THE COURT: Is this the first time you're calculating that, Mr. Graham? THE WITNESS: I'm just calculating. THE COURT: First time you've ever done it? THE WITNESS: Yes, sir. THE COURT: All right. BY MR. KITCHEN: Q Okay. So that would be $6,400? A Yes, sir. Q Excuse me, $5,600? A Yes, sir. Q Now, you heard Mr. Helinski's testimony about your reputation, did you? A Yes, I did. Q Okay. Do you have a reputation for bad business ethics? A No, sir. Q Do you have a reputation for being underhanded? A No, sir. Q Do you have a reputation for being a back-stabber? THE COURT: This is like asking your mother to be a character witness. Go ahead. MR. KITCHEN: Well, all right, I know, but - - THE WITNESS: I have to correct you. That was $6,400. BY MR. KITCHEN: Q Oh, it was sixty-four hundred? A Sixty-four hundred. Sixteen into forty is not fifty- six, I don't think. Q Oh, I'm sorry. I thought you - - Yes, that's right, sixteen and I was multiplying by fourteen. Okay, all right. Now, you also heard testimony from Mr. Helinski about how he produced his Phoenix CD-ROM, didn't you? A Yes, sir, I did. Q When he testified, was this the first time you had heard - - you had learned of how he produced it and where he got his material? A No, sir, I knew. Q Okay. And how did you find that out? A Through the marketplace. Q Okay. Well, did you find it out directly by examining the disk or did you find it out by talking to other people? A Oh, no, I purchased the disk and checked it out. Q Okay. And did you ever give Mr. Helinski permission to copy the material from your disk? A No, sir, I did not. Q When did you first become acquainted with Greg Armenia? A Physically or by - - THE COURT: Excuse me? THE WITNESS: Physically or by where? BY MR. KITCHEN: Q Well, in any way, either physically or not physically? A Communications over the BBS I'd say in 1990. Q Uh-huh. Well, how about when did you actually meet face to face? A September of '91. Q And what was the occasion of your meeting? A We were talking on the phone and he decided one day he'd like to come over. So, he came over and I mentioned my wife's birthday that was on the 2nd, and I think it was the day after my wife's birthday because they brought a gift over, which she wasn't expecting. Q Okay. And what year was that, by the way? A That was 1991. Q Okay. Your wife could not recall whether it was 1990 or 1991. Is there some reason you have for a memory it was 1990 - - or excuse me, 1991? A I know it was 1991 because he started to work for me December of '91. Q Okay. Now, you had already - - Had you already had some arrangements made with Larry James by the time you met Greg Armenia? A Oh, yes. Q And what was Larry doing for you at that time? This would be beginning of September, 1991. A Beginning of September, 1990, Larry was working for us in-house. Q Okay. A 1991. Q 1991, okay. You - - Did you recall the testimony Mr. Armenia said that he was a beta tester of the Night.EXE. Do you remember him saying that? A Yes, sir, I do. Q Is that true? A No, it's not. Q What is a beta tester, by the way? A To check out the codes to make sure if they run, otherwise to fire up the Night.EXE to make sure that that program works efficiently and correct. Q Is that typically done with programs? A A percentage of them. Q And who do you have do beta testing? A I had Ralph doing mine. THE COURT: What is that word, data testing? THE WITNESS: Beta. MR. KITCHEN: Beta. THE COURT: B-E-T-A? MR. KITCHEN: B-E-T-A. BY MR. KITCHEN: Q Was Greg Armenia involved at all with testing the - - A No, he was not. Q Okay. Now, you said that he came over and you met physically about the 2nd of September. What contact did you have from then on? How frequently did you get together with Mr. Armenia? A Probably in the month of September, probably once or twice for that month. October got a little bit more. Q And what was his purpose in coming over? A At that time, he was only going to school. He was not working, and he just had a lot of free time. He liked to talk. Q Did you have him work for you or do anything at that point? A At that point, no, I did not. Q Okay. Did he ask you or want to get employed? A Not right out point blank, no. Q Did he tell you what he was going to school for? A Yes, he did. Q What was it? A Criminal justice. Q Okay. Now, we've already heard testimony to the fact that the relationship between yourself and Larry James kind of came to an end or broke down by the end of September, is that about right? A About September 23rd. Q Yeah, and to what extent was Greg Armenia made aware of this breakdown in your relationship with Larry James? A Well, he knew Larry James was programming for me. Q Was he there the same time that Larry was in September? A No. Q How did he know that Larry was programming for you? A We would talk on the phone. He would call me every, you know, maybe couple times a week and we would talk. Q Greg would? A Greg would, right. Q Now, during these conversations, between - - and let me just stop for a minute. What was your contact with Greg before September 2nd, 1991? A Just by phone. Q And how - - A Or BBS. Q Okay. And how often did you converse, either by phone or by, over the BBS? A God, it could be maybe once every six months, once every three months. Q Well, focusing on the, let's say the spring and summer of 1991, and I'm talking about the time in April when you met with and developed the kind of working relationship with Larry James through up until you, the beginning of September when you actually physically met with Greg, could you tell us how often you might have talked to Greg or communicated with him? A Probably in that whole year right up until September of '91, I probably had talked to Greg probably three times at the most. Q These three times or whatever, did that involve you explaining all your whole relationship with Larry James and what Larry was doing and what the programming was? A No, sir. Q Now, between the time that you met Greg and the 23rd of September, - - A Second of September. Q Twenty-second? A Second. Q Oh, the 2nd of September - - A Right. Q - - and the 22nd of - - or 23rd of September, actually about three weeks, during that three week period, what conversations would you have had with Greg Armenia about Larry James? A After the initial meeting with Greg Armenia, it was almost a daily thing he would call every day, every other day. So that was pretty, you know, pretty well, a lot of communication. Q Uh-huh. And did you explain to him what Larry was doing during those, some of those conversations? A Yes, I did. Q Okay. Now, during these conversations, at anytime did you tell Greg Armenia that you had an agreement with Larry to pay him $1,000 plus a dollar a disk for writing this retrieval program? A Never. Q In fact, during that period of time, did you, in fact, have an arrangement with Larry James to give him $1,000 plus a dollar a disk? A No, I did not. Q Now, how often was - - Well, but during that three week period, you had conversation you said almost daily with Greg? A Almost daily, yes. Q Okay. Did that increase at all after Larry left? A Considerably. Q Did you inform Greg about the break-up with Larry? A I called him, yes, and I told him we had a misunderstanding. Q So what happened after that with regard to your relationship with Greg? A It got stronger. Otherwise he started coming over personally to the house more and more. Q Okay. And did you converse when he was over at the house frequently about Larry? A Yes, I did. Q And what was Greg's - - What did he say during these conversations? What was his point of view? A From his point of view, it was my code because I explained the whole deal exactly the way it's been said. He talked to a professor at his college. He come back, he says, Richard, I'm sorry to say, but it's your code, and that's why I made the phone conversation to Larry. Q Why did you make the telephone conversation with Larry? What did Larry - - A I didn't make the tape. I dialed the phone to call Larry. Q Right. A To find out if I owned the code. If I didn't own the code, I'd go a different direction. Q Whose idea was it to tape a conversation with Larry? A Greg Armenia. Q And who provided the tape recorder and mechanism for all that? A Greg Armenia. Q And who ran the tape recorder and all that during this? A Greg Armenia. Q And was that for both tapes? A That was for both tapes. Q Now, there was also some testimony by Mr. Armenia that there was a third taped conversation. Do you recall any third taped conversation? A There was never no third taped conversation. Q Do you recall a telephone conversation with Ralph Markwardt that was taped? A Never to my recollection. There was never no tape, no third tape. There was two that I'm positive of. Q Okay. Greg Armenia, you say, ran the tape recorder. Now, we've also heard this, had testimony about the glitch? A Yes, sir. Q What you referred to as the glitch. Do you have any certain knowledge about what the actual source of the glitch is? THE COURT: What the actual what? MR. KITCHEN: Source of the glitch is? THE COURT: Source of the glitch? MR. KITCHEN: Glitch, right. THE WITNESS: I believe the glitch - - THE COURT: Are we all in agreement that there is a glitch? MR. KITCHEN: Well, there - - Well, let me ask - - MR. OSTROWSKI: I'm not. THE COURT: Pardon me? MR. OSTROWSKI: I'm not. THE COURT: I thought you were the one that brought it up. MR. OSTROWSKI: Well, a glitch implies accident. THE COURT: No, we'll take it as all embracive, accident or not. MR. OSTROWSKI: Then I agree that there's a glitch. THE COURT: All right. BY MR. KITCHEN: Q There's that funny noise - - A Yes, sir. Q - - or spot on the tape. Well, first of all, did you, did you cause that funny noise to happen? A Personally? Q Right. A Not personally. Q Did you, did you alter the tape or edit the tape in any way after it had been made? A I never possessed the tape. Q Okay. Well, but answering my question even as directly then, did you, in fact, edit it or make any changes? A No, sir, I did not. Q And did you - - THE COURT: Did you listen to it at all after the telephone calls had been made? THE WITNESS: Yes, I did. BY MR. KITCHEN: Q Do you recall whether the glitch or noise was there when you first listened to it? A I can't really swear to it, but I hear it in court and I know what it is. Q What do you - - A I hear my microwave. Q What do you mean, you hear your microwave? A That ding, ding, ding or that noise that you're hearing is my son came in that night, as a matter of fact, when my wife come through the door, Greg goes, he puts his finger up for her to be quiet because he was taping Larry. Q You made a gesture, and you held your finger up in - - A No, Greg did. Q Excuse me. You, in testifying this moment, I'm trying to make a record of this, you held your finger up vertically in front of your lips? A Yes, sir. Q Okay, that was the gesture he made? A Right. Then my son came in, he just - - he worked for some pizza place on Grant Street. He came in and he took a bag of popcorn or some ham, I can't remember which one it was because he was always making popcorn, and he put it in the microwave. And at the end of the cycle of the microwave, that microwave will count down, and that's what I hear on the tape. Q Okay. Now, have you had this microwave for some time? A Oh, yes. Q And have you noticed anything about the lights in the house when the microwave started up? A Oh, yes. Q What happens? A They go dim. Q Uh-huh, okay. Do you - - THE COURT: Pretty bad electrical system? THE WITNESS: Yes, sir, it was an old house and very bad electrical system. BY MR. KITCHEN: Q Was this tape recorder plugged into your electrical system in the house? A It was plugged in right beside the microwave. Q And it was located next to the microwave? A There was only one outlet. Q Well, you're not an electrician, are you? A No, sir, I'm not. Q You're not an electronic engineer? A I know a little bit about it, but I'm not an engineer. Q Okay. I mean you can't say with scientific certainty that this must have been the source of this particular noise? A No, sir. Q Okay, but that's your best guess as a layman? A I know it was the microwave clicking, I know that. Q Okay. And can you actually hear the microwave sounds, the - - Q You can hear the clock on the microwave. THE COURT: Before it's done? MR. KITCHEN: No, what I was - - THE COURT: Or when it's finished? When it's finished, it gives a couple bongs, right? THE WITNESS: That end of where it first started that cycle right up to where actually it sounded like the tape had a glitch. THE COURT: Well, there's a slight noise as you punch in the time? THE WITNESS: Yes, or - - THE COURT: And then when it finishes, there's a noise? THE WITNESS: Yes. MR. KITCHEN: If you - - THE COURT: Which are you talking about? THE WITNESS: I'm talking about the consecutive beep, beep, beep, beep. THE COURT: Punching in the time? THE WITNESS: Right. BY MR. KITCHEN: Q Okay. So, when you tell your microwave how long you want it to cook and you press a button, the button, it makes a beeping sound? A Yes, sir. Q Okay. And can you hear that on the tape? A Yes, sir. Q We're referring to Plaintiff's 16, that first conversation? A Yes, sir. Q Okay. And do those little beeps appear right ahead of this thing we've referred to as the glitch? A Yes, sir. Q In fact, is it the presence of the beeps that has led you to conclude that that, that it might be the microwave - - THE COURT: Don't lead the witness. MR. KITCHEN: Pardon? THE COURT: Don't lead the witness. BY MR. KITCHEN: Q Now, you've heard some testimony by Mr. James that there was this whole block of missing conversation that was, would have been where this glitch was. Was there any conversation missing? A Not that I could tell. Q And at anytime during the course of the conversation, whether it appeared - - whether it ended up on the tape or not, was there anytime in that conversation when you said that you were going to give him his money later or that you were going to pay him this, his dollar a disk or something at some future time? A No, sir. Q Do you know whether Greg Armenia ever met Larry James at your house? A He never did. Q Now, how many conversations did you have during the fall of 1991 with Greg Armenia about Larry James and the situation with Larry James? A I never presented a conversation. He always did. He always every day was pushing me to do something. THE COURT: Only he talked? THE WITNESS: No, I mean we conversed back and forth, but he would start the conversation about me doing something about the problem. BY MR. KITCHEN: Q Okay. What was Greg's attitude towards Larry? A Vicious. Q Vicious? A Yes, it was. Q How so? How did he manifest this viciousness? A Oh, he'd blow right off the handle when Larry's name was mentioned or he brought it up. He just - - It's really hard to explain unless you see it. THE COURT: He would start the conversation? THE WITNESS: Mr. Armenia. THE COURT: Excuse me, he would start the conversation and then he would blow up? THE WITNESS: Right, if I'd come back and say something like no, I'm not going to do anything. Then he would totally go - - THE COURT: Oh, I see. He would blow up at your reply to him? THE WITNESS: Yes. BY MR. KITCHEN: Q What did Mr. Armenia think you should do? A Oh, he wanted me to - - THE COURT: What did he say? BY MR. KITCHEN: Q Yes, what did he say that he thought you should do? A To get a lawyer, to go down and press charges against Larry James for computer theft. Q Uh-huh. A I mean lines and lines and lines of stuff. He just every day rattled on. Q You heard him say that you used certain racial slurs and epithets in referring to Larry, is that true? A That's untrue. Q How about Greg, did he use any racial slurs or epithets against Larry? MR. OSTROWSKI: Objection to relevance. THE COURT: Pardon me? MR. OSTROWSKI: Relevance. Armenia's not on trial. It's an extrinsic matter designed to impeach. THE COURT: All right. What's the question? I didn't get it. MR. KITCHEN: Did Mr. Armenia use racial slurs or epithets? I'm asking this for - - THE COURT: About? MR. KITCHEN: About Larry James. THE COURT: All right, he may answer. THE WITNESS: Yes, he did. BY MR. KITCHEN: Q Okay. How did he refer to Larry? A I don't like using them, the word. THE COURT: Pardon me? THE WITNESS: I don't like using that word. THE COURT: Well, what do you mean you don't like? THE WITNESS: I don't like using the word that he - - THE COURT: Testify, tell us. THE WITNESS: Pardon? THE COURT: Tell us. THE WITNESS: He always used Larry's name as a nigger. BY MR. KITCHEN: Q And did you make any objection known to Greg Armenia about the use of that word? A Yes. Q Did Greg Armenia have an opinion about the notion of this $1,000 or dollar a disk business? A Did Greg? Q Yeah, did he - - THE COURT: What? Wait a minute. Did Mr. Armenia have a notion? MR. KITCHEN: Did he have an opinion about this - - THE COURT: Just yes or no. THE WITNESS: No. BY MR. KITCHEN: Q Well, in the course of the conversation, did the subject come up of this dollar a disk that Larry James wanted? THE COURT: Just yes or no. THE WITNESS: No. BY MR. KITCHEN: Q You said that eventually Greg Armenia began working for you. What was his position? A Sales and marketing. Q And when did he start working for you? A In December of 1991. Q Did you have some pay arrangement with him? A He owed me $1,300. I told him once that money is paid off, then, you know, he would, he would become full time employee of my place. Q Okay. The $1,300, was that the money paid to him in that check? A That was a loan for $1,300 for a computer. Q Okay. There was a - - When did you, when did you - - How did he owe you $1,300? A I lent him the money to buy a, purchase a computer. He took the money out of his wife's savings account and come over to me one day and asked me if I would kind of let him borrow the money because he wanted to put it back in her account before she found out about it. And I said yes, you know, I'd lend him the money. So I wrote him a check. Q Had you, at the time, planned to employ Mr. Armenia? A At that particular time, no, I did not. Q Okay. What arrangements did you make for him to pay it back? A He was - - THE COURT: Different from what he's already said? Oh, you mean, when he first made the loan? MR. KITCHEN: Yes. THE WITNESS: He was supposed to pay me back $100 a week. BY MR. KITCHEN: Q And did he do that? A He paid me back two payments. Q Okay. Did that arrangement change at all when he became employed for you? A Yes, I told him we'd take it out of his pay check. Otherwise, it would be better if he would just go ahead and work the first, you know, that first month free. Otherwise, that was three, six, nine, twelve, that would pay him off and he would start January 1st as an employee. Q Okay. And is that what he did? A No, he did not. Q Okay. What happened. How long did he work for you? A The day of our first hearing here was the last day I seen Greg Armenia. Q Well, he was present here at the courtroom, wasn't he? A Yes, he was. Q But he didn't testify? A No, he did not. Q What happened after the hearing? A He, myself and him went back to my house and Chuck Morgan came over, a friend of ours, - - well, he'd been in court - - to, you know, to see how things went, and we proceeded in this conversation, and the next thing - - Well, actually, we were talking about some of the disks that I had sold to one of my distributors. The pricing was a little bit too low, and Chuck's been in sales, so I kind of talked to him and asked him how we could really get an effective market and try to keep our price range right. So he gave us a theory and - - MR. OSTROWSKI: Objection, hearsay. THE COURT: Yeah, we don't want to know all of that. BY MR. KITCHEN: Q Right. Well, anyway, he told you something and then what? A I gave a piece of paper to Greg to try to go ahead and call this gentleman to make arrangements to try to straighten out the purchase price of our product, and Greg flew off the handle. Q What was he upset about? Did he say? A He says I'm not, you know, well, I can't really remember the right words, but he just - - THE COURT: If you can't remember, just give us a summary. BY MR. KITCHEN: Q Give us the gist of it. A He started screaming and hollering at me because it was my fault, which I accepted. I says all I was asking you to do is correct the problem. You're sales and marketing, you know, from now on it's in your ball field. Well, he just continued on. He got up and left my office and never came back. Q Now, how long total did he work for you? A Two and a half to three weeks. THE COURT: Two and a half what? THE WITNESS: Two and a half to three weeks. BY MR. KITCHEN: Q And during that time, to what extent did he get involved in the actual income, you know, on the - - of these disks you were selling? A He was right in the middle of it. I mean he would see the income and the outgoing. Q You heard his testimony about the fact that at that time you were earning $1,500 to $2,000 a day, right? A Yes, sir, I heard that. Q Okay. Was that true? A No, sir, it's not. Q Okay. Do you have figures on that? A All his figure? Oh, that would be about thirty to $60,000 a month, I'd say. THE COURT: Do you have figures on it is what he's asking. MR. KITCHEN: Yeah, do you have - - THE WITNESS: Oh, on my income, what I actually? BY MR. KITCHEN: Q Real stuff. A In the month of December, I think it was $9,000. THE COURT: What do you mean I think? Don't you have records? THE WITNESS: Yes, sir, I do. I gave them to Denis. MR. KITCHEN: Okay. Your Honor, I can't put my fingers on them right now. Let me press on with other areas and then after we take a break, I'll take a look and I'll get back into this. BY MR. KITCHEN: Q Now, you have heard Mr. Armenia give some testimony with regard to your credibility, correct? A Yes, I have. Q And we asked for the names of the individuals he talked to, and he gave us the names of three individuals, and were those names that were known to you? A Yes, sir, they were. Q One of the names was Fay Sharp. Do you know who Fay Sharp is? A Yes, sir, I do. Q And is she connected in your type of business? A She is a distributor, yes. Q Okay. A Of CD-ROM disks. Q Okay. Do you know whose disk she distributes? A Pier 1. Q Okay. And that's the disk produced by Mr. Armenia? A Yes, sir. Q Okay. Do you have any business dealings with Fay Sharp? A No, I do not. Q And Mike Shannon, do you know who Mike Shannon is? A Yes, sir, I do. Q Okay. And what - - A He's Pier 1's exclusive distributor. Q Does he distribute your disk? A No, he does not. Wait, maybe he does. Q He's with an outfit called Star Vector, apparently? A Yes, he may purchase off our distributor. Q Okay. And have you had any problems or difficulties with Fay Sharp or Mike Shannon? A I have with Fay, yes. Q What was your difficulty? A I would not sell her my product. Q Okay. And why not? A Because she would buy the product and sell it for one dollar over cost, which would effectively destroy a person's market. When you're trying to create a market, you know, a mark-up of one dollar, it's just not effective. Q Uh-huh. Did you have any other run-ins or difficulties with her other than your refusal to sell her your product? A No, we straightened that out. I met her a couple of months ago at a Ohio-Dayton show, and I had talked to her personally, and she wanted to buy my product. We, you know, she understood my meaning, what I was trying to say when you - - a dollar a disk will not work in this market. Q And the third name was Mark Abacci? A Yes, sir. Q Or Abacci. He's with an outfit called what? A The Marketplace. Q Okay. And what is, what is his relationship with you now? A With me? Q Yeah. A He distributes my product. Before me, he was Pier 1's exclusive distributor. Q Do you have an ongoing relationship with Mark Abacci? A Now I do, yes. Q Yes. How long have you had this going? A I'd say three months. Q And does this involve some agreement between yourself and Mr. Abacci? A Yes, sir. Q Is your relationship with Mr. Abacci satisfactory? A Yes, it is. Q Have there been any problems between the two of you? A Never. Q And, in fact, does he not actually - - Doesn't he actually advertise your product nationally? A Yes, sir, he does. Q Mr. Armenia said that you and he were still friends. Is that true? A No, sir, it's not. Q How often do you see him? A Since December of 1991, I have not seen Greg Armenia till the day we come to court, August 12th of '93. Q So, and there have been no interaction between him and your family to your knowledge? A None whatsoever except for one day six months ago he called me by phone. Q What was that about? A That was about the letter that we released out on the national Echo Mail about our release of him trying to say that we had to upgrade our Night Owl retrieval through Mr. James, and we put out a response to it that we owe nobody nothing, that I have two programmers that program my own disk, and he got very nervous and called me personally. That I think was when you sent them letters - - THE COURT: Pardon me? Wait for a question. BY MR. KITCHEN: Q Did Greg Armenia ever tell you that he was an FBI informant? A Yes, he did. Q Did he tell you anything about, you know, why he was or what was going on? A No, I never asked him anything about it. Q Okay. And do you know if he told other people, too? A Yes, sir, I do. MR. OSTROWSKI: Objection. BY MR. KITCHEN: Q Were you there when he mentioned it to others? THE COURT: Yeah, wait a minute. You have to show how he knows it. THE WITNESS: I was not there when he was told. THE COURT: All right. Then we'll strike that from the record. BY MR. KITCHEN: Q Now, you've already testified about Jeff Anderson giving the code that he had developed to you for the original retrieval, right? A Yes, sir. Q And that you had made some further changes and developments to it yourself, right? A Yes, sir. Q And you indicated also that Jeff Anderson had essentially turned it over to you and given you full ownership of it, correct? A Yes, sir. Q Do you recall Mr. Anderson testifying that he never saw the copyright notice that you had put on this product? A No, he knew it was, he knew it was. Q Okay. You do recall -- THE COURT: The question is, do you remember his testimony? THE WITNESS: Yes. BY MR. KITCHEN: Q All right. Was that true, his testimony? A His testimony was untrue. Q Okay. How do you know that he saw the notice? A Because he's been to my house after that disk was produced three or four times, and that disk was there, and I showed him. Plus it was explained to him before I even changed it why I changed it. Q Okay. Now, when Larry James testified, he indicated that he had taught you how to read. Do you recall that testimony? A I recall that. Yes, I do. Q Now, how far did you get in formal schooling? A Formal school? Eighth grade before I quit and went in the service. Q All right. And did you ever complete high school credits in any respect? A Yes, I did. Q How? A My high school equivalency, my GED. Q Okay. And how did you get that GED? A Went to school. Q And where did you go to school? A Florida. Q Were you still in the service at that time? A No, I was not. It was in 1980. Q Okay. And how long did you have to go to school to prepare for the GED? A One day. Q Okay. And did you, you know, take practice tests and were there books involved in the GED? A It was supposed to be an eight week course. I went to one night, and they told me not to bother to keep coming back, just come and take the test. So I waited till after this, the eight weeks, and I went and took the test. Q Now, did this test require that you read something? A Oh, yes, it does. Q I mean it wasn't a test that was given to you orally, was it? A No, it's a read and write test. Q Okay. And did you read and write the test? A Yes, sir, I did. Q Didn't cheat, did you? A Oh, no, sir. Q And you were awarded your GED diploma? A Yes, sir, I was. Q Okay. Now, have you since been in any, in any occupations that have required you to have some knowledge or skill of reading and writing? A Yes, sir, I have about three or four different diplomas in auto mechanics where I had to read and write. I also had a job as Parks Superintendent. Well, I started out as field supervisor. Three months upon the job, I was promoted to Park Superintendent because of my abilities. Q And did that job require you to do some reading and writing? A I had to do the annual budgets. I had to do employees' payrolls. THE COURT: Where was that? THE WITNESS: Sanford, Florida. BY MR. KITCHEN: Q Now, I think you've testified earlier that in terms of computers, you're kind of self-taught? A Self-taught, yes. Q Okay. Where did you get this knowledge? How did you teach yourself? A Books and mistakes. Q Okay. The books, you were able to read those books? A Oh, yes. Q Okay. Now, did you, did you receive any teaching from Larry James about reading and writing? A No, sir, I could not have. Q You also may recall testimony that he met you in - - or rather that he was coming over to the house regularly in 1988, correct? A Yes, sir. Q Okay. Was that true? A No, sir, it's not. Q Okay. He said that he was coming over six hours at a time for three days a week, at least three days a week and up to seven days a week, is that true? A No, sir, it is not. Q Did you have any time during 1988 where he was coming over regularly? A No, sir, there was not any time in 1988. Q Okay. Was there any time ever in which he came over regularly? A Not until he started to work for me in 1991. Q All right. And he wasn't - - Was he teaching you reading and writing then? A No, sir, he was not. Q The Borland C-Plus-Plus program that you purchased, you did purchase that, right? A Yes, sir, I did. Q Now, was that intended to be purchased as a gift for Larry James? A No, sir, it was not. Q What was the purpose of the gift - - or what was the purpose of purchasing the - - A It was so he could do the job for me. Q Okay. And was it your intention to turn it over to his possession? A Well, if that was the case, I could have registered it right there in his name the day I bought it. THE COURT: Why don't you just answer the question? THE WITNESS: No, there was no intentions of him having it. BY MR. KITCHEN: Q All right. And did you register? A I registered, yes. Q Okay. And whose name did you put down? A Night Owl's Computer Service. Q Okay. Now, you - - Did you intend for him to utilize the program? A Yes, sir, I did. Q Did you authorize him to upload it to his own computer? A No, sir, I did not. Q Did you know when he did upload it to his computer that he was doing that? A After the fact. Q How long after? A The next day. Q So, he didn't ask you or anything before he did it? A No, he did not. THE COURT: Excuse me, you said uploading? MR. KITCHEN: Uploading. BY MR. KITCHEN: Q Yeah, describe uploading to us. A Upload means when you call another computer system and you send them a program. That's uploading. Q Okay. A Download is when you receive it back to you. Q Okay. Now, when you had the initial conversation with Larry James in April about doing programming for you, did he indicate to you then that he was at all experienced or adept in the C-programming language? A No, sir, he did not. Q Did he indicate to you that he had a bunch of libraries or modules already pre-written in the C-language? A No, sir, he did not. Q And did he mention anything about having any kind of file retrieval system that he had already developed? MR. OSTROWSKI: I'm going to object at this point. This is rehashing his central main testimony. It's beyond the scope of rebuttal. MR. KITCHEN: Well, my problem, Your Honor, is we're somewhat distanced in time but also I'm intending to cover this because it was specifically addressed by Defendant when he testified. THE COURT: Well, the question is whether Mr. Graham, himself, testified to it earlier. MR. KITCHEN: I think some of this he did, Your Honor, but I - - THE COURT: And whether what you're doing now is really just doing the same thing all over again under the pretext of rebuttal. MR. KITCHEN: Well - - THE COURT: I say that's the question. MR. KITCHEN: Yes, and I'm not doing it intentionally, Your Honor. THE COURT: You admit he did some of it earlier? MR. KITCHEN: I think, I think we're going to have necessity see a certain amount of overlap. I'm going to try to avoid duplication of testimony that's already been put in. THE COURT: Please do that. MR. KITCHEN: Okay. Notwithstanding the temptation to bolster, but I will try and avoid that. BY MR. KITCHEN: Q Did he ever tell you that he had already written a menuing system in basic? A No, sir, he did not. Q Did he ever tell you that he had written a menuing system in assembly language? A No, sir, he did not. Q Did he ever tell you that he had done any programming in assembly language? A I knew he had did one. Q Okay. A But I'm not sure what kind of code. THE COURT: How did you know that? THE WITNESS: He brought it to my home. BY MR. KITCHEN: Q When did he bring that? A Oh, golly, that might have been in 1990. Q Okay, before the - - A Oh, yeah. Q Right. To what extent did you have input in what was to be on that program that you had Larry James write? A I believe everything that's on the retrieval was my input. Q Was there any feature that - - or any part of the program that he came up with that was not authorized or approved by you? A A lot less than what was authorized or asked for. Q Okay. Meaning what, you had authorized or wanted more? A We wanted more, right. Q Okay. At some time in the programming process when he was working for you, did he come up with any feature that you particularly didn't like? A The kiss screening closing screens and what - - Q What closing screen? What did he come up with for a closing screen? A The same thing that's on the Pier disk but with his name on it instead. Q Okay, this with the fancy - - A The swirling out thing comes shooting out in your face. Q Uh-huh. Did you object to that? A Oh, yes. Q Okay. Why did you object to the fancy thing coming out at your face as you put it? A Well, the wording that's on Pier disk right now is more or less what we wanted on mine. I wouldn't mind the floral but it came out copyrighted by Larry James, nothing to do with Night Owl or anything else. Everything had to be highlighted around Larry James. Q So you didn't approve that? A No, I did not. Q Now, I think you've already acknowledged that Larry had some ability to do programming or at least - - A Yes, he did. Q All right. But you had done a certain amount of programming yourself, correct? A Very little, yes. Q Okay. Did you consider at all the possibility of devoting some time in learning more about programming so you could do more yourself? MR. OSTROWSKI: Objection, relevance. THE COURT: He may answer. THE WITNESS: No, I did not. BY MR. KITCHEN: Q Okay. You indicated that you acquired what programming knowledge you had by, from books and experience? A Yes. Q Okay. How would you have acquired more? MR. OSTROWSKI: Objection, relevance. THE COURT: Sustained. BY MR. KITCHEN: Q Once Larry James started working on the C-language program, where did he do most of his work? MR. OSTROWSKI: Objection, beyond the scope of rebuttal. It's been fully covered. THE COURT: He may answer. THE WITNESS: The C-plus program? BY MR. KITCHEN: Q Right. A Most of - - Half and half. THE COURT: Pardon me? THE WITNESS: Half and half. THE COURT: Half and half what? THE WITNESS: Well, first he started working in his cab and probably at his house, and then he finished up at my place. BY MR. KITCHEN: Q Now, during this entire process, was he in contact with somebody else who worked with you? A Yes, he was. Q Who was that? A Ralph Markwardt. Q And Ralph was what? A Ralph was to keep track of the program to tell Larry what we wanted into it. Q Well, what was Ralph's relationship to you at that time? A With me? Q Yes. A He was doing our DIR's and other stuff. Q All right. A Sorting files. Q What connection did he have with your business? A Technical support, beta tester and stuff for the retrieval. Q And did he have any connection with your bulletin board service, too? A He used to be our CO-SYSOP 2. THE COURT: He used what? THE WITNESS: Used to be a CO-SYSOP, S-Y-S-O-P. BY MR. KITCHEN: Q That's SYSOP, meaning systems operator? A Yes. Q All right. Did Ralph have an understanding as to what you wanted for the retrieval? A Ralph knew what I wanted. MR. OSTROWSKI: Objection. THE COURT: Sustained. Testimony is stricken. MR. KITCHEN: Your Honor, I don't understand the basis for the objection. THE COURT: There's no basis for his showing his knowledge of the thing, and I don't know how he would know what somebody else knew. MR. KITCHEN: Well, did you make - - THE COURT: You said did you know that he knew this. BY MR. KITCHEN: Q All right. Did you make Ralph aware of what, what you wanted on your retrieval system? A Yes, me and Ralph had talked about it. THE COURT: Wait a minute, answer is yes. BY MR. KITCHEN: Q Okay. And you had discussions about this? A Long, lengthy ones. Q Okay. THE COURT: Along with what? THE WITNESS: Long, lengthy conversations. BY MR. KITCHEN: Q And did you make it clear to him what you did want and didn't want in your retrieval? A Yes, sir, I did. Q Okay. And did you essentially ask Ralph to - - THE COURT: Don't lead the witness. BY MR. KITCHEN: Q All right. Did - - What, if any, guidance did you give to Ralph as to how he should deal with Larry? A Ralph was to monitor what Larry's work was doing. Otherwise, Larry used to come to me to show me what he was doing. Well, I couldn't, I couldn't take the time because I'm answering phones for the business and trying to compile a disk. It was just too involved. So I asked him, Ralph, to guide Larry in which way we want this retrieval to go. And that was Ralph's job. So, Larry would report to Ralph and not to my place anymore. Q Was that done on a regular basis? A Yes, it was. Q And eventually, did there come a time when Larry did spend more time at your place? A Yes, he did. In September. Q And that - - Okay. And how often was he there then? A Every day. Q And was he - - What was he doing when he was there? A Programming. Q Okay. And this is programming on the - - A The Night retrieval. Q Okay. Was he using the - - Did you have the Borland C- plus-plus at that time? A Yes, I did. Q Okay. And it was available to him? A We installed it on the computer for him, yes. Q Okay. Now, at the time that you started to have him over there full time, what was your intention in terms of the duration of this working relationship? A I was hoping it was longlasting. THE COURT: Excuse me? THE WITNESS: Longlasting. BY MR. KITCHEN: Q Well, once he had finished this retrieval system in C language, would there have been anything else for him to do? A Oh, yes, sir, I had a lot of projects. Q Okay. Such as? A We needed a data base program written. We need some editors written, other stuff that I wanted done. Q Was there also a possibility or any discussion about a commercial version of the retrieval system? A Yes, there was. Q What would that have involved to develop something like that? A That would have involved a brand new retrieval, nothing to do with Night Owl, totally different. It could not look like or act like Night Owl's. It had to be different. Q And would it have had to have any other related things with it? A A lot of other things, ways to create a CD-ROM drive, otherwise make a path for the DIRs to go in. Otherwise it had to be pretty well automated. Q And if you had put together something like that, how would that be distributed then? A That would be distributed as commercial CD-ROM retrieval. Q Okay. And what would be your market? Who would you be distributing it to? A We'd have tried to go after authors of other CD-ROMs. Q Okay. Essentially people such as the competitors, your - - A Yes, uh-huh. Q Okay. You indicated that about September 23 is when the relationship ended and Larry had left. Would you have continued the relationship but for the fact that he had left? A Yes, we would have. Q Now, in September when the relationship broke up, what was your monetary relationship with him? What was he working for? A After or - - Q When he started working for you in September? A Two hundred and fifty a week. Q And you, in fact, made payments to him? A Yes, I did. Q At that time, did you have anybody who was a payroll employee? THE COURT: Isn't this all repetitive? You went over that with his earlier testimony, didn't you, the working relationship and the pay and the checks and - - MR. OSTROWSKI: The difference is that now it's somewhat different - - THE COURT: Pardon me? MR. OSTROWSKI: The only difference, Your Honor, is that it's now somewhat different testimony, but it is about the same subject that he's already covered. THE COURT: You mean he's changed his story - - MR. OSTROWSKI: Yes, he has. THE COURT: - - which you'll bring out on cross examination. MR. KITCHEN: Well, I suppose some of it is repetitive, Your Honor, I'm - - THE COURT: Well, we want to minimize it. It's 3:18 and I've been holding off on taking this break that you referred to, and I'm thinking I might not take it, and it is Wednesday and they don't resume court here until Monday when I've got other matters. MR. KITCHEN: Right. Okay. I'll get off of that, Your Honor. BY MR. KITCHEN: Q Do you recall Mr. James testifying that you told him that you would pay him what you were paying Folio, do you remember him saying that in court here? A Yes, I did. Q What were you paying Folio? A I paid Folio - - I found a receipt not just too long ago, - - it was 564, 554, it was a nine hundred and ninety- some - - it was close to $1,000 retail product, but I got discounted to five-something. THE COURT: You're paying Folio for what? THE WITNESS: For the use of their product. BY MR. KITCHEN: Q And, by the way, how did you buy it? Was it through a wholesaler or retailer, I mean what - - A Yes, it was through a wholesaler. It was - - I can't think of the gentleman's name, but he lived out east. I met him at a computer show. Q Okay. And was this a one time thing? I mean you bought the program and you could use it? A Yes, sir, it was a run time license. Q So, this - - THE COURT: You mean a one time payment for a license? THE WITNESS: It was a - - otherwise I could use it as many times as I want for that 500 - - THE COURT: One time payment for a full license? THE WITNESS: Yes, sir. BY MR. KITCHEN: Q Yeah, by the way, did the word you use, was that one time or was that run time? A Run time, R-U-N-T-I-M-E. Q Okay. THE COURT: But again, with a one time payment? THE WITNESS: With a one time payment, yes. MR. KITCHEN: Okay. THE COURT: Just to get my point. BY MR. KITCHEN: Q Yes. So, if you came out with different versions of your shareware disk, you could continue to use Folio? A Yes, I could. Q Okay. And you didn't have to give him anything on a per disk basis? A No, I did not. Q Okay. And, by the way, is that essentially the same arrangement you've had with the other programmers since who have programmed retrieval programs for you? A Oh, yes. Q Okay. Other than the fact that they're exclusive, they're not sold to anybody else? A Right. Q Okay. Did you tell Larry what you were paying for Folio? A I'm not sure if I did or not. Q Now, some questions were put to Mr. James with regard to the text files which are used as part of the retrieval, and when I say that I mean the files that contain the names of the files on the disk and the dates and the size and then a description over to the right. You know what I'm talking about? A Yes, sir, I do. Q Okay. Who wrote those, those files? A On which disk? Q Well, on the disks that you produced. THE COURT: The disk? BY MR. KITCHEN: Q The disks that you produced. A On PDSI002, it was use Q-edit. THE COURT: Excuse me? THE WITNESS: Q-edit. BY MR. KITCHEN: Q That's the program you used? A That's the program I used to edit them. Q Who actually did the writing, though? Who prepared those? A Ninety-nine percent of the ones on PDSI002 were handwritten by myself or by Chuck Morgan or by Ralph. Q Okay. Well how about the later disks? A The later disks, as they started, they started putting what they call a DIZ file and inside a file, so there's a lot of programs don't have to be written. You can run a program that will add that description for you in a text file. Some were handwritten by us because there are special programs sent to me. I get thousands of programs a month from authors. Them have to be handwritten onto the disk. Q Well, these descriptions over on the right that comment or tell about the particular file or program, are these edited or reviewed by you? A They are edited and reviewed by us, yes. Q Okay. And when you say us, you mean other than just yourself? THE COURT: So when he says there, goody goody, a fun game, that's yours? THE WITNESS: Yes, sir. THE COURT: All right. BY MR. KITCHEN: Q Okay, all right. A Now it's done by my employee. Q Do they check these things and find out if it really is a fun game? A Yes, he has to. His job is to open each individual file. Q Do your programs or your disks come with any kind of documentation? A Yes, sir, they do. Q Okay. So each of the retrievals has like a readme file or something like that that talks about the program and how it works? A Yes, sir. Q Who wrote that for? A On PDSI2, I wrote it all. PDSI3, I wrote it all. PDSI4, Larry wrote the first four lines and I wrote the rest. Q How much was the rest? A Ninety-nine percent of that text file I wrote. Q Okay. How long is that text file, by the way? A The text file is about two screens, about 48 lines. Q Okay. And how about the stuff since then? A Since then I write all the documentation. Q Okay. A Except for the new retrievals, like the retrieval Phil wrote, he has to write his own documentation. Q Okay. That part of the deal with Phil? A Yes, it was. MR. KITCHEN: Your Honor, I'm not in a position to promise that if we take a break and come back that I'll only focus on the one little thing I wanted to look up, but I'll certainly attempt to. I think I'm substantially through most of the meaty part here. THE COURT: Promise during a break not to intentionally generate additional material? MR. KITCHEN: Right. THE COURT: Merely organize what you have in mind? MR. KITCHEN: Yes, sir, but - - THE COURT: All right. We'll take a break. MR. KITCHEN: - - you know how these things have a way of cropping up. (Recess, 3:08 p.m.) (Resume, 3:45 p.m.) MR. KITCHEN: Your Honor, I have a Plaintiff's Exhibit 3 - - Excuse me, 73, 73, which could be a, regarded as Plaintiff's notes regarding number of disks sold, and I will show Plaintiff's 73 to Mr. Graham. (Document marked Plaintiff's Exhibit 73 for identification.) BY MR. KITCHEN: Q Okay. You had previously testified that you couldn't recall specifically the number of disks that you sold in 1991. Did you make some - - THE COURT: He said, he said he had records. BY MR. KITCHEN: Q But you said you had some records? A Yes, sir. Q And had you, in fact, looked up those records and written down the numbers of disks that you had sold during the various months? A Yes, sir, I did - - THE COURT: You have looked at your records and you have written down information from your records? THE WITNESS: Yes, sir. THE COURT: And where are the records? THE WITNESS: The records are in the back seat of my car. I had them in court the last time we appeared, and I took these notes off them records. THE COURT: And your car is where? THE WITNESS: Across the street in a parking lot. THE COURT: Thank you. BY MR. KITCHEN: Q What months does this cover? A It covers April, '91 to December of 1991. Q Okay. And during that period of time, would that cover essentially all the disks that contained any of the code that Larry James was involved with? A Yes, sir, it does. Q Okay. And actually, does it contain some that Larry was not involved with? A No, I'm pretty sure I deducted all them. Q All right. Okay. What do we have in terms of how many disks did you sell during that period of time? A $1,819. Q Okay. Now those are sales, not necessarily - - THE COURT: Are you going to put that in evidence? THE WITNESS: That was disks. MR. KITCHEN: All right, okay. THE COURT: You want to put it in evidence? MR. KITCHEN: Yes, sir, I'll offer it. THE COURT: I recognize, Mr. Ostrowski, you may want to check that against the actual records, but reserving that right to you, is there any problem with receiving it into evidence? MR. OSTROWSKI: No, Your Honor. THE COURT: All right, we'll receive it then. (Plaintiff's Exhibit 73 received into evidence.) MR. KITCHEN: I just have a couple of questions. BY MR. KITCHEN: Q Did you give any disks to Mr. James? A Yes, sir, I did. Q Okay. And these were regular production disks that he could resell? A Yes, sir. Q All right. About how many did you give him, do you recall? THE COURT: What's a production disk? Is it a blank disk or - - BY MR. KITCHEN: Q No, I mean these are, these are CD-ROMs that were produced, regular Night Owl CD-ROMs? A Yes, sir, they were. Q Okay. THE COURT: All set to put in a machine and run? THE WITNESS: Yes, sir. BY MR. KITCHEN: Q And how many did you give him? A I'd say a hundred. Q Did you place any limitations on his sale of those disks? A No, I did not. Q And did you give them to him with the understanding that he could resell them? A Yes, he could. That was the purpose. Q Did you also have a - - Did you also give to him a piece of hardware? A Yes. Q What did you give him? A It was a per store card. Q A per store? THE COURT: You gave him what? THE WITNESS: Per store card. MR. KITCHEN: Could you spell that? THE COURT: Per star - - spell that. THE WITNESS: P-E-R S-T-O-R-E. BY MR. KITCHEN: Q Okay. And what does a per store card do? MR. OSTROWSKI: Objection. THE WITNESS: It's a disk doubling - - MR. OSTROWSKI: I object on the grounds of relevancy. THE COURT: I don't know what the relevance is yet. It probably has some value, and he's going to show how nice a guy he was. Go ahead. MR. KITCHEN: More than that, Your Honor. BY MR. KITCHEN: Q What is a per store card? A It doubles your hard drive space. Q And did this cost you anything? A Yes, it did. Q What did it cost you? A The card itself was 400. The individual drives were about 280 apiece. Q Did you give it to Larry to use himself? A I let Larry James use them. Q Okay. Did you give it to him to keep? A No, sir, I did not. Q Has he ever returned it? A No, sir, he has not. THE COURT: You didn't give it to him. You loaned it to him. THE WITNESS: I loaned them to him. BY MR. KITCHEN: Q What was the purpose of loaning them to him? A He kept hollering that he was running out of hard drive space when he was running the programs, programming for the C, part of the quick basic four, the Night Owl retrieval, which does require a lot of hard drive space, you know, writing modules. So I says I'll let you borrow these drives and the per store card. That will give you - - THE COURT: Where does this come into the lawsuit? MR. KITCHEN: Well, was this intended to be a - - THE COURT: Plaintiff making any claim for this particular - - the value of this, the return of this loan or something? MR. KITCHEN: No, no, my next question was, was this a tool intended to help him do his programming for you? THE WITNESS: Yes, it was. MR. KITCHEN: All right. No further questions. CROSS EXAMINATION BY MR. OSTROWSKI: Q Do you think Ken Helinski is a liar? A What was that question, please? Q Is Ken Helinski a liar? A I know Ken Helinski's a liar. Q Greg Armenia's a liar? A I know Greg Armenia's a liar. Q Jeff Anderson's a liar? A Greg Armenia - - Jeff Anderson did lie. Q Larry James is a liar? A Larry James is definitely a liar. Q And, of course, you've already admitted that you're a big liar, is that correct? A I did not say that. Q You didn't, okay. A No. Q Okay. Now, back in Vegas, Helinski offered you seventy- five percent of his business? A That's correct. Q Why? A To keep me in his business. Otherwise he wanted to use me to get his way, and that was all. Q Well, what were the skills that you possessed that were so valuable that he would offer you seventy-five percent of his business? A That I knew what I was doing. Q With respect to what? A Building a CD-ROM disk. Q And the first one you built didn't have the file retrieval on it, right? A No, sir, it did not. Q That's not knowing what you're doing, is it? A I still gathered material, yes, it is. Q Do you know where this piece of paper is that Helinski allegedly signed that turned his business over to Manzi? A Yes, I do, and it's not alleged because I watched it being signed. Q Well, I say it's alleged. Where is it? A It's in my briefcase. Q Well, let's see it. A You've got a copy. THE COURT: Get the original. MR. KITCHEN: Your Honor, I wanted to ask, is this a document that appeared at some point during the examination of Mr. Helinski? MR. OSTROWSKI: I don't think so. THE COURT: Pardon me? What's your answer, Mr. Ostrowski? MR. OSTROWSKI: I don't think so. MR. KITCHEN: My client has some recollection and I have a vague recollection of presenting something to Mr. Helinski which he might have repudiated at the time, but I don't - - I'm trying to pin it down. I can't imagine that I would have shown it to him without it being marked. MR. OSTROWSKI: I don't recall it, no. THE COURT: The folder, Plaintiff 52. MR. KITCHEN: Yeah, I have a blank for 52. I didn't know what that was. THE COURT: I have Helinski folder with copy of Defendant 14, which is the agreement between Helinski and Graham, October 26th, 1990. Then without any particular pertinency, I also have it noted stapled and re-stapled. I don't know what that's involved. MR. KITCHEN: That wasn't - - That wasn't the one that Mr. Ostrowski used that great big stapler on and because it was only a few sheets of paper, it produced a, it turned a couple of sheets of paper into a lethal weapon because it had that great big fat staple in it and then he had to remove it or something? THE COURT: I can give you no further help. MR. KITCHEN: Your Honor, my client says that he had a folder marked Kenneth Helinski, Helinski folder. He had a number of things in it. I have the original of the employment agreement, but I believe the copy of that's already been put in under Defendant's 14; and I think, at the time, the only exhibit that was admitted at that time was Defendant's 14. Now my client informs me that he has the folder but it's, he left it home, the one that's marked Kenneth Helinski. So, I mean, obviously, we can provide it, but we can't provide it right now. As I recall, that particular document was shown to Mr. Helinski and he said it was a forgery. MR. OSTROWSKI: I don't recall. Well, why don't we just proceed? BY MR. OSTROWSKI: Q I take it, Mr. Graham, the document was not in your briefcase? A No, it's not. Q And I believe you stated that the, originally CARRS was a partnership? A That's what I was led to believe, yes. Q Who led you to believe that? A Kenny Helinski and Lou Manzi. Q Okay. And the partnership bought this Northgate 486? A That's what I was told, yes. Q Where is it today? A At my house. Q How come it's not at Mr. Manzi's house? A Because Mr. Manzi never asked for it. Q We don't know where he is now, do we? A He lives in Angola. Q Angola? A Angola, I think. Q You could just ship it to him in the mail, couldn't you? A He's never asked for it. THE COURT: What is it you have, the program? THE WITNESS: A 486 computer. BY MR. OSTROWSKI: Q Now, didn't you say earlier in the trial that you bought that computer yourself? A I did not. Q You didn't say that? A No, sir, I didn't. Q You didn't say you bought it on credit? A No, I did not. I bought a computer on credit, but not that. Q Oh, a computer. A A computer. Q Well, what computer did you buy on credit? A I have three computers. I bought two of them on credit. I bought one from American Systems and I bought one from Radio Shack. Q Well, what kind of computers were they? A One was a 386, and one was a 286. Q Okay. You didn't, you didn't buy the 486 on credit? A No, I did not. Q Why did Mr. Helinski owe you - - or I should say, why did Mr. Manzi and Mr. Helinski owe you $6,400? A For the work I had done, $400 a week for 16 weeks comes out to $6,400. Q You worked for sixteen weeks? A Sixteen weeks. Q From when to when? A From - - Oh, God - - September 1st or October - - No, December - - Oh, God - - went right after the Las Vegas show. Q From when to when? A From September to December. THE COURT: You say right after the Las Vegas show? THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q I thought you left the employ of Mr. Helinski after Vegas? A I sure did. Q But he owed you $6,400 for work that you did after you left his employ? A I never got paid. THE COURT: I guess the obvious question is why were you doing work for him then? THE WITNESS: Because I was promised to get paid. THE COURT: I see. BY MR. OSTROWSKI: Q Who promised you to pay - - that you would be paid? A He was - - I was promised to be paid at that show out of their proceeds. Q No, but I - - You were promised to be paid in Vegas for work you did after Vegas? A I was promised to be paid in Vegas at the show when he got back from Australia, my money, but he never paid me. Q Well, paying you for work you did after Vegas? A I didn't do any work for him after Vegas. THE COURT: Well, I thought you said you worked from September to December, after Vegas. THE WITNESS: After Vegas was roughly around the last week of December or middle of December, somewhere in there. THE COURT: Oh, so it wasn't right after the show that you did this work? THE WITNESS: No, sir. That work wasn't done after the show. The work on PDSI002 was done before the show. BY MR. OSTROWSKI: Q Okay. When was the 16 weeks that you worked? A It ranged from either the second week in August, either October 1st, I'm not positive because I have dates, but up until December till the show, till we finished the show there in Las Vegas. Q When - - A When I went there myself, I was no longer an employee for him. Q When was the Vegas show? A The Vegas show was in December. Q Okay. So you worked sixteen weeks from August to October? A Yes. Q And you were supposed to get $400 a week? A Yes. Q Then you got nothing? A I got nothing. Q Did you get a little suspicious after the second or third week when you weren't getting any money? A In a way. Q When did you lend Mr. Armenia the money, the 1,300? A I think it was in November of '91, to my recollection. Q Now, you testified earlier that you'd had some relationship with Mr. Armenia. He was running one of your bulletin boards, or how did that work? A Greg Armenia was not running one of my bulletin boards. He was running his - - my bulletin board at his house, and that was roughly in November. Q That was in November of '91? A November or December. THE COURT: What was he doing then? THE WITNESS: They had to be in December because - - THE COURT: What was he doing then, whenever it was? THE WITNESS: He was supposed to be running a node from the Night Owls BBS for us at his house. THE COURT: He was running a what? THE WITNESS: A node, N-O-D-E. THE COURT: N-O-D-E? N-O-D-E? THE WITNESS: Yes, sir. THE COURT: What's that have to do with the bulletin board? THE WITNESS: That would be a bulletin board, but it's considered a node, just like say if I run two telephones at my house, I would have node one and node two. He was node two - - or actually he was node four. I had three at my home, so he was node four at his house, to offer a bigger line of service. BY MR. OSTROWSKI: Q Now, as far as this microwave, where was this microwave in your house in relationship to where the tape recorder was? A It was plugged into the same plug, and the tape recorder was right on top of the microwave. Q The tape recorder was right on top of the microwave? A Yes, it was. We have a counter - - Q Did it get burned at all? A On top of the microwave, the countertop of the microwave. Q No, I guess what I'm asking you is when the microwave went on, did it burn the tape recorder at all, do you know? A No, I don't think so. Q Tape recorder was never in the microwave, was it? A No. Q Okay. Now let me picture this now. You're saying the tape recorder was on top of the microwave when Mr. Armenia was taping the call? A Yes. Q And where was Mr. Armenia, was he sitting on the kitchen counter or something? A No, he was standing right next, the counter comes right straight across. It splits our room up. On this side, there's a room. On that side, there's a kitchen. The living room and kitchen are together. So he was standing on this side next to the microwave where the one plug is, and the phone is over on this side of the counter where I was. Q Now, are you saying that the microwave made some noise that was picked up by the tape recorder? A Yes, sir, I am. Q Are you also saying that the microwave drew some current out of the outlet away from the tape recorder so that it went off temporarily? A I can't determine that. I know the noise on it. Q Well, I'm asking you what you're saying happened. A What I say is happening, I heard my microwave on that tape. I'm not saying that that caused the glitch in the tape. Q Are you saying that there's a glitch in the tape other than hearing the microwave on the tape? A I hear my microwave. Then I hear a (sound effect) a stop. Q And why did you hear the microwave? A I heard when it's played back on the tape. Q No, I mean but why was the microwave making noise in the first place? A Because my son came in the house and put some food in there to warm it up. Q And when does the microwave make noise? A It either makes noise before the cycle or after the cycle. Q But not during? A Not during. It just hums. Q Okay. So you're having - - You're taping this phone call and your son barges in and starts interrupting the call by using the device which is right next to the tape recorder? A He didn't interrupt the tape recorder. The tape recorder's on top. The door is on the side. You open the door. Nobody's standing there. There's a little spot there Greg was standing. Q Did you say anything to your son at that time? A No, I did not. Q Now, again, I ask you, since I didn't get an answer, are you saying that the fact that the microwave was turned on drew some current away from the tape recorder and caused it to slow down or stop? A I can't - - I'm not qualified to answer that. Q Okay, but I notice you testified that the lights went down or something? A Yes, the lights do go down. Q But you don't think that had any connection to the glitch on the tape? A I have no idea. Q You never possessed the tape, - - A I never - - Q - - is that correct? A That's correct. Q Where did the tape go from your own personal knowledge? A Greg Armenia. It went with him when he left my house to go to his house. Q And then when's the next time you saw the tape, if ever? A The next time I saw the two tapes, he turned over to Denis Kitchen in his office. Q Now, when exactly did Mr. James become your employee? A Full time employee, I'd say September 1st. Q Well, when did he become your employee in any sense? A Well, he worked for us in April. Q Do you know what an independent contractor is? A I do. Q Was he an independent contractor in April, or was he an employee? A I'd say independent. THE COURT: Independent? THE WITNESS: Independent. BY MR. OSTROWSKI: Q And when did he become your employee then? A September. Q And what was the, what was he supposed to be doing as your employee? A Programming. Q Programming what? A Programming Night. Programming other utilities that we wanted made. Q You mean programming the Night from scratch? A No, just reprogramming for the Night. Q Okay. Well, the Night was already done then by September, right? A No. Q No? A No. Q Well, hadn't you already used it on a release? A Well, we used it, but it wasn't totally up to snuff. Q Did it work? A Yeah, it worked. Q Well, we saw in the courtroom that it worked, right? A Yep, it worked. Q But that was done before he was a full time employee? A Um - - Q Well, let me strike that. That was done before he was an employee in any sense, which you said was in September? A Well, independent contractor, that's an employee. Q You said he was an employee starting in September, right? A The way you're looking at it, yeah. Q Well, I'm not looking at anything. A I consider him an employee in April. THE COURT: You said that really you don't see in your mind any distinction between an independent contractor and employee, is that what you said? THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q Are you saying he was an employee before September? Are you changing your testimony? A I'm not changing my testimony. I believe when he started to work for us, when I asked him to write a program, he started to work for Night Owl, whether he is as a private contractor - - Q You just said he was an employee in September, right? A What I consider a full time employee, right. You could consider him a part time employee. Q Well, no, you didn't say full time. You said employee. You didn't qualify it. You said he started as an employee in September. THE COURT: Now let me ask you this, isn't there one important, important difference as far as you would be concerned as to whether he was an independent contractor or whether he was an employee insofar as your liability to make quarterly tax returns for FICA and income tax? THE WITNESS: I figure that would be an hourly employee. It would be - - THE COURT: Did you make those for him beginning in September? THE WITNESS: In September, no, sir, because - - THE COURT: No. THE WITNESS: - - we started processing him, yes. THE COURT: You started processing. THE WITNESS: We already had filed or tried to get workmen's compensation. THE COURT: Did you make a quarterly return for him? THE WITNESS: We filed the papers and we had them sent to him and he never - - THE COURT: He doesn't have anything to do on that. THE WITNESS: He had to give us his social security number. He refused to give it to us. I have signed affidavits. THE COURT: So, not having the social security number then, you just didn't do anything on it? THE WITNESS: My bookkeeper couldn't file nothing, Your Honor. THE COURT: Did she try? THE WITNESS: She tried, tried to file a 1049. We sent him a certified letter stating what we needed. THE COURT: Did she sent that into the IRS? THE WITNESS: I'm not sure if the accountant did that, Your Honor. BY MR. OSTROWSKI: Q You already had a working version of the file retrieval in C from Mr. James in July, isn't that correct? A Yes. Q Now, with respect to Ralph Markwardt, you said he was supervising Larry? A Yes, he was. Q When? A Well, April, May, June, July, August. Q How do you know? A Because he called me. Q Well, you can't testify as to what he told you. I'm asking you how you know. Did you see him? A No, I didn't see them two at Ralph's house. No, I did not. Q So you see, you don't know if he was supervising Mr. James? A I think Ralph testified that he did. MR. KITCHEN: Well now, Your Honor, I'm going to object. Mr. Ostrowski is asking him how he knows something. He knows something by means of hearsay, what people told him, and, of course, Mr. Ostrowski now tells him that, of course, he can't testify to that. So, Therefore, he doesn't know something. MR. OSTROWSKI: This was brought up on direct, on direct by Mr. Kitchen. I'm crossing, I'm cross examining his basis for his testimony on direct, which is apparently nothing. THE COURT: He may answer. BY MR. OSTROWSKI: Q You don't know of your own personal knowledge that Ralph was supervising Larry, do you? A By the looks of the program, yes, I'd say he was directing him. Q Okay. Give us an example of how you know that? A Well, the example what went into the help, the example what showed up on our screens. Q Ralph was quite a good programmer, wasn't he? A I don't know if Ralph was a programmer. I know he was good as instructing. Q Now, when you say he was instructing, was he instructing like a patient tells a doctor, Doctor, it hurts here in my knee, please look at it; or was he actually writing the source code? A No, instructing as to where and how the retrieval is supposed to function. Q Well, would that be like a doctor saying, telling a doctor, look, Doctor, my neck hurts, do some surgery, or are you saying more like he was doing the surgery, to use an analogy? A No, you're, you're using the wrong technology. You're asking patient/doctor. He's giving him technical advice how to do something in the program. That's totally different in a patient. Q So, is it fair to say that Ralph is superior, has superior knowledge of computer programming than Larry? A I'd say he's more superior than I am. I'm not sure about him and Larry. Q Well, you are sure, aren't you? A No, I'm not sure. If I was sure, I'd tell you. Q You know that Larry knows a lot more than Ralph, right? A I wouldn't say that. Q No? A No, I would not. Q Well, if Ralph, Ralph was closer to you than Larry, wasn't he? A I'd say they were about the same. Q Wasn't the guy who brought the two of you together? A No. Q He's been your supporter in court - - A I'm - - Q - - both hearings. A I met Larry before I met Ralph, I'm sorry to say. Q Well, that's not what I'm asking you, and I know you're - - A You asked me if I was friends - - Q You're closer to Ralph - - A No. Q - - than you are to Larry, aren't you? A Now I am. No, I was not before. Q You were not, even though it was Ralph that brought you two together? A Ralph did not bring us two together. I just said that. I met Larry before I met Ralph. Q Okay, you keep saying that. It's very impressive, but you're saying that Mr. Markwardt did not arrange a meeting where you and Larry got together and talked about the file retrieval? A Ralph arranged the meeting, yes. Q Okay. A But that's not the first meeting. You're saying when we first met. I met Larry before I met Ralph Markwardt for the first time. Q And that's the third time you said that - - A Okay. Q - - and that's not what I'm asking you. Didn't you testify at the preliminary hearing that Ralph Markwardt brought Larry James over for a meeting? A And that is correct. Q Okay. THE COURT: Physically brought - - THE WITNESS: In 1991. THE COURT: Physically brought him to the house? THE WITNESS: Physically brought him to my house in 1991. BY MR. OSTROWSKI: Q Didn't you testify, quote, I mentioned to Ralph I need a programmer? A That is correct. Q Well, why don't you just hire Ralph if he knew so much - - A I - - Q - - to guide Larry - - A I already knew Larry, too. Q - - in developing the program? THE COURT: Wait a minute, please. Finish your question. BY MR. OSTROWSKI: Q Why didn't you just hire Ralph? You're already talking to him, Ralph, I need a program - - THE COURT: Wait a minute, let him answer the question. THE WITNESS: I don't even know what the question was, Your Honor. THE COURT: All right, repeat the question. BY MR. OSTROWSKI: Q The question is, if Ralph knows so much about programming to guide Larry like a puppet, why didn't you just hire Ralph? A Ralph never claimed to be - - Q The fact is he doesn't know - - THE COURT: Wait a minute. Wait for the answer, please, Mr. Ostrowski. THE WITNESS: Ralph never said he was a programmer. BY MR. OSTROWSKI: Q And, therefore, since he's not a programmer, he can't supervise Larry, can he? A Yes, he could. Q Okay. Kind of like a patient supervises the doctor, right? THE COURT: All right, ask questions. BY MR. OSTROWSKI: Q Now, you said you paid $564 for Folio? A Yes, sir. Q But you didn't own it, right? A I did not own the code, no, I did not. Q And Folio was out there selling to anybody else who wanted it? A That is correct. Q And Folio was a piece of garbage, wasn't it? A Not correct. It did the purpose. Q You saw your expert, Mr. Swanson, struggle to get it working for about a half an hour in the courtroom, didn't you? A Mr. Swanson never operated it. Q In the trial, did you see him try to - - A That was the first time he ever operated that code. Q Well, he's an expert, right? A Expert don't mean nothing when you're talking about different things. Q Well, it doesn't mean anything when you're talking about a bad program like Folio, right? A Are you an expert? Q Now, when did you have this discussion about this commercial version of a brand new file retrieval with Mr. James, or did you? A I'd say that come up in September sometime. Q You first talked to him in September about that? A I'd say in September, yes. Q And who initiated the conversation? A I think Larry did because he was trying to sell the product to Ralph Markwardt. Q Well, what did Larry say? A Ralph called me and he rejected to buy it, and I told Larry, I says, fine, why don't we write a commercial program. Q Larry - - So what, tried to sell what to Ralph? A He tried to sell the Night.EXE to Ralph Markwardt. Q Who owned the codes to the Night.EXE at that time? A I did. Q The source codes? You did? A I owed them all the time. Q You positive? A I'm positive. Q You are absolutely positive at the time you owned them, but isn't the reason why you called up Larry to find out whether you owned them? A To confirm my ownership, that's correct. Q Oh, to confirm. Not to find out? A That's correct. Q To confirm, to who, yourself or to Mr. James? A To myself, yes. Q Okay. Cause you weren't sure yourself - - A Well - - Q - - who owned the source codes, correct? A The way he was going, no, anybody get confused. Q You weren't sure at the time who owned the source codes, correct? A At that particular time, I was not. Q Okay. In September, '91? A September 23rd of 1991, no, I was not - - Q Okay. A - - certain of anything at that time. Q Okay, fine. So Larry comes to you after trying to sell, well, who knows who owns the Night at that point, to Ralph and talks to you about what exactly? A I got a call from Ralph, and I'm pretty sure it was - - Q Well, I'm talking about what Larry said. A Well, I have to lead up to why it was mentioned. Q Well, you can't, though, because that's hearsay. A Repeat the question. Q But Larry can hear you, so you can say what Larry said. A Repeat. Q Well, I'm asking you what did Larry James say to you at that point after trying to sell the program that you now say is yours to Ralph? A I questioned Larry about why he was trying to sell it to Ralph. Q Okay, and what did Larry say? A He asked me if it was okay, and I said, no. The only release that will ever go out would be a commercial version of a retrieval, not the Night.EXE. Q Okay. What would the details of that commercial version be? A The commercial version would be totally different from the Night.EXE, totally different. It would not look like my product. Q You mean kind of like the two programs you operated today didn't look like each other? A They did look like each other. Q Oh, okay. And how would it, how would the program have been - - how was the commercial program supposed to have been different? A It was supposed to be able to help the person build their CD-ROM, otherwise compile their material, put it in the proper disk areas like if they wanted the name of communications directory, put them programs in it, put their programs up into the retrieval, then it would have been a completed package. It would have been a commercial package. Q And then - - A But you just can't send them a retrieval - - Q And who was going to write this program? A Larry James was supposed to write the program. Q And what was your involvement supposed to be with it? A I was to sell it. Q You were going to, what, distribute it? A I would distribute it, yes. Q So Larry would sell it to you or give it to you to sell? A No. Larry - - I would have sold the product. Q Well, if he would - - A Whatever the product was sold for, it would have been - - Q Who would have - - A - - my sale. Q Who would have owned it? A I would have owned it. He would have got a dollar a disk from the distributor of that disk. Otherwise, if you bought the product and you made disks, you would owe Larry James a dollar per disk. Q And was there any thousand dollar a disk agreement? A No, there was no thousand dollars a disk. Q Okay. So you did - - There was some discussion between you and Mr. James about a dollar a disk arrangement, correct? A Not on Night Owl products. Q Okay. Well, was there any discussion between you and Mr. James about a dollar a disk per CD-ROM sold? A There was a talk about a dollar a disk for a commercial- type retrieval to be sold, yes. Q Which did not exist at that time? A Did not exist and never really even went into conception. MR. OSTROWSKI: I have no further questions. MR. KITCHEN: Just very briefly. REDIRECT EXAMINATION BY MR. KITCHEN: Q You indicated that you started this process of doing the appropriate paperwork for Larry James as an employee in September? A Yes, I did. Q And did that also involve you looking into Worker's Comp.? A Yes, it did. Q Did you have anybody else that was at that time on a payroll? A At that time, no, I did not. Q So, this would have been a first? A This would have been a first. Q And you had no payroll setup or any Worker's Comp. for anybody at that time? A No, sir, I did not. Q You did talk to somebody, an insurance agent or something about it? A Yes, I did. Q Okay. And when did you expect that you would get that up and running for Larry James? A October 15th. Q Then when he left your employ on or about the 23rd of September, did you abandon any efforts to get that going? A I - - THE COURT: To do what? To do what? MR. KITCHEN: Did he abandon the efforts to get him signed up for all that employee stuff? THE WITNESS: I left it open. THE COURT: Yeah, but my whole question relates, of course, to the FICA and the income tax withholding and the quarterly reports. MR. KITCHEN: Well, yes, I - - THE COURT: For which if you pay somebody over $50 a quarter, you have to do it. MR. KITCHEN: Yeah. THE COURT: If the person's an employee. MR. KITCHEN: Yeah, I guess, I guess, Your Honor, of course, September would have been - - He would have - - If he started in September, then he wouldn't have been in that one - - Well, of course, he'd be over $50 right away, yeah. All right. THE COURT: And he said, he, Mr. Graham, said he would have done this, but his bookkeeper was unable to obtain from Mr. James, Mr. James' social security number and, consequently, she, Mr. Graham says, was unable to do that. BY MR. KITCHEN: Q Okay. With respect to that piece of paper that was in your folder that was marked as Plaintiff's 52, that was a piece of paper that had Mr. Helinski's, what purported to be Mr. Helinski's signature on it, and we had it in the courtroom when Mr. Helinski was on the stand, correct? A Yes, sir. Q And I showed it to Mr. Helinski and asked him if he could identify his signature? A Yes, sir. Q And he said it wasn't his signature? A Yes, he said it was not. Q That particular document I showed him, was that a document that you had in your possession? A I did have it. Lou Manzi gave it to me, yes. Q Okay, and you gave it to me? A That's correct. Q All right. And did you, in fact, see Mr. Helinski sign that document? A I and two other witnesses seen him sign that document. Q Okay, and that so it is - - it is his signature? A It is his signature. MR. KITCHEN: Okay. Your Honor - - THE COURT: Which document are we talking about? MR. KITCHEN: This is a piece of paper that was out of the folder marked as Plaintiff's 52, and it was a folder with regard to Mr. Helinski; and as a matter of fact, Defendant's 14 - - THE COURT: A piece of paper that came out of that then? MR. KITCHEN: Yes. THE COURT: So this is marked separately? MR. KITCHEN: Yes, it was - - Well, I don't think that particular paper was marked separately. It might have been the whole folder was marked, but we're just referring to the one piece of paper. THE COURT: Yeah. You going to offer something, the - - MR. KITCHEN: Well, yes, actually, as unusual as it seems, Your Honor, I wish to offer that into evidence. THE WITNESS: I'll send it to you. MR. KITCHEN: I understand I do not have it physically here except that it was presented to Mr. Helinski. It was in the courtroom then. It is still in existence, and this witness has now identified it and also testified to its authenticity, and I - - we will, of course, supply it. THE COURT: And this what, a contract? MR. KITCHEN: No, this was a - - THE WITNESS: It was where he resigned from his corporation. He resigned the - - THE COURT: Helinski - - THE WITNESS: He resigned from his corporation. He stated his corporation was in the State of Arizona and that he would give up his ownership to it, and he resigned and he signed it, and he handed it to Lou Manzi. BY MR. KITCHEN: Q Okay. Didn't hand it to you, handed it to Lou? A He didn't hand it to me, no. I wasn't part of the corporation. MR. KITCHEN: All right. Other than - - MR. OSTROWSKI: I object to a document which is not present being offered into evidence - - MR. KITCHEN: Well - - MR. OSTROWSKI: - - and also after three months of trial. THE COURT: Well, it not being here carries no particular weight. We have Mr. Graham's testimony that he saw it and that's about all we can do. MR. KITCHEN: Well, but we have more than that, Your Honor. We have the actual existence of the document and the actual - - THE COURT: No, you don't have it here. MR. KITCHEN: Yes, but we have - - we know that it exists, and we knew that it was in the courtroom - - THE COURT: I know. MR. KITCHEN: - - at one time. THE COURT: Well, I know. Where does that get you? MR. KITCHEN: Well, I suppose that makes it somehow more real than just the document that Mr. Graham here would be testifying about that no one has ever seen. THE COURT: No, it's no more real than a witness saying yes, there is a document. I saw the document and so forth, but we're just left with the testimony. MR. KITCHEN: Except we have the testimony of a person who would at least acknowledge that the document existed even though he repudiated his signature on it. I'm trying to add weight because I don't have the physical document myself. MR. OSTROWSKI: You have the metaphysical document, though. MR. KITCHEN: I have the - - I wish to offer the document with the understanding that it would be supplied. THE COURT: Well, you don't have it here. You can't offer what you don't have. MR. KITCHEN: Well, then other than that, I would just ask for an adjournment to be able to provide it. THE COURT: Pardon me? MR. KITCHEN: An adjournment to be able to provide it. THE COURT: Until when? THE WITNESS: An hour, half hour. MR. KITCHEN: Well, I could probably have it by Monday. THE WITNESS: I can have it any day you want it. MR. KITCHEN: Right. MR. OSTROWSKI: Well, I oppose an adjournment for all the obvious reasons and also I believe that I brought this up. THE COURT: Can we do - - Pardon me? MR. OSTROWSKI: I think I brought this up. I mean this is just - - THE COURT: Well, I'm just wondering whether or not if Mr. Graham gives this document to Mr. Kitchen who sends it or a copy of it to you so you can examine it, and then you might then say yes or no it might come into evidence. I can't envision any cross examination you would be able to make of this document, which was another person's document and signed by another person unless you wanted somehow to try to bring that other person into the courtroom, which I don't think you can. MR. KITCHEN: In fact, Your Honor, Mr. Graham obviously can testify only to the fact that he saw it being signed, which contradicts Mr. Helinski's statement that he didn't sign it. THE COURT: Absent that - - MR. OSTROWSKI: Well, the only - - THE COURT: - - I can't see where you can try to surmount that hurdle by some stipulation with Mr. Ostrowski or not. MR. KITCHEN: Well, other than the stipulation perhaps that the court reserve on this issue and let me submit it to him and then submit it to the court and let the court make the decision on its admissibility in connection with - - this is, frankly, the end of my questioning. This is our last witness and - - THE COURT: Well I would think we're about at the end of the trial. MR. KITCHEN: That's right. THE COURT: Period. MR. KITCHEN: And I'm - - And I'm - - MR. OSTROWSKI: The document has not been identified - - has not been validated by any witness, and it's so collateral and so far removed, it's so late in the day. THE COURT: Why don't you make an offer of proof on it, and we'll leave it at that. If the document were here, I suppose we would mark it as 52(A). MR. KITCHEN: Yes, sir. THE COURT: And if it were here, you would offer it for what purpose? MR. KITCHEN: Well, for one thing, because Mr. Ostrowski said that the document was simply a legend, perhaps a figment of Mr. Graham's imagination. He, obviously, brought it up in an effort to challenge Mr. Graham's credibility, but also it is, the existence of the document is inconsistent with Mr. Helinski's testimony, if it is a valid document, if it were signed by him. THE COURT: All right. I think that nails it - - MR. OSTROWSKI: Yeah, but you should have brought - - THE COURT: I think that nails it down very neatly. Since the provocation or need for the document has been shown by Mr. Helinski's testimony, the fact that it's not here, I'm going to preclude you from doing anything further on it. Do you have any further evidence? MR. KITCHEN: none, Your Honor. THE COURT: All right. You rest, case closed? MR. OSTROWSKI: Yes, Your Honor. THE COURT: How do you want to proceed from this point? MR. KITCHEN: I would like to verify what documents are already in evidence. I know we went through that, Your Honor. THE COURT: Step down. (Witness excused.) MR. KITCHEN: A little bit of - - THE COURT: All right. Off the record. (Trial concluded at 4:40 p.m.) I N D E X Further Direct Cross Redirect Recross Redirect WITNESS FOR PLAINTIFF Anna M. Graham 1561 Philip Swanson 1578 1605 Richard Graham 1619 1726 1752 EXHIBITS: Marked Received Defendant's Exhibits: 7 - Business certificates 1533 71 R. Graham Code 1579 72 - Notes 1594 73 - Note regarding number of disks sold 1720 1772