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DEPOSITION OF MICHAEL W. FRANELL |
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
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AMERICAN BUDDHA, an Oregon
Nonprofit corporation,
Plaintiff,
vs. NO. 06-CV-3054-PA
THE CITY OF ASHLAND and THE
WASHINGTON POST COMPANY,
Defendants.
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DEPOSITION OF MICHAEL W. FRANELL
FRIDAY, NOVEMBER 3, 2006
12:30 P.M.
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LAURA L. SMITH, RPR, OR CSR #97-0340, CA CSR #273
Certified Court and Deposition Reporter
2305-C Ashland Street, PMB 228
Ashland, Oregon 97520
(541) 488-4677
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1 APPEARANCES
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3 For the Plaintiff:
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BY: CHARLES CARREON, Attorney at Law
5 423 Gateway Drive, #64
Pacifica, California 94044
6 650-735-5277
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8 For the Defendant City of Ashland:
9 HOFFMAN HART WAGNER, LLP
BY: KAREN O'KASEY, Attorney at Law
10 1000 S.W. Broadway, 20th Floor
Portland, Oregon 97205-3070
11 503-595-1242
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13 For the Defendant (via telephone): The Washington
Post Company:
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WILLIAMS & CONNOLLY
15 BY: KEVIN HARDY, Attorney at Law
725 12th Street, N.W.
16 Washington, D.C., 20005
202-434-5257
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Also present: Mrs. Tara Carreon
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*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 I N D E X
2 Page
3 Examination by Mr. Carreon 4
4 Reporter's Certificate 9
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7 EXHIBITS
8 (Nothing marked.)
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*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 BE IT REMEMBERED, that on FRIDAY, NOVEMBER 3, 2006,
2 commencing at the hour of 12:30 P.M., at the office of the
3 City of Ashland Legal Department, 20 East Main Street,
4 Ashland, Oregon, before me, LAURA L. SMITH, a Certified
5 Shorthand Reporter in and for the states of Oregon and
6 California, there personally appeared:
7 MICHAEL W. FRANELL,
8 a witness in the above-entitled action, called by the
9 plaintiff, who, being by me first duly sworn, was examined
10 and testified as follows:
11 EXAMINATION BY MR. CARREON
12 MR. CARREON: Perhaps we could go off the record
13 briefly and discuss the ground rules for what we are doing
14 here, because I don't want to spend all day.
15 MS. O'KASEY: Sure.
16 (Conversation held off the record.)
17 MR. CARREON: Back on the record.
18 Mr. Franell is the city attorney for the city of
19 Ashland, and as such, I have agreed with Ms. O'Kasey that
20 she will articulate a single objection on the record at this
21 time which she may interpose by saying, "same objection,"
22 with respect to any questions which she finds subject to
23 privilege.
24 MS. O'KASEY: The basis for the objection is that
25 because Mr. Franell is the city attorney, there may be,
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 during the course of this deposition, questions that will
2 require an answer that would invade the attorney-client
3 privilege, so when such a question is asked, I will
4 basically make the same objection and I'll refer to it as my
5 earlier objection based on privilege.
6 MR. CARREON: All righty.
7 Q Mr. Franell, the documents that we have been
8 discussing with the other witnesses here today that I'd like
9 to address with you are, first of all, Exhibit 2, which
10 appears to be an e-mail from Kathleen Parker to
11 abuse@ashlandfiber.net, and I'd ask you, was that document
12 forwarded to you by Mr. Holbo, as he was uncertain?
13 A Yes.
14 Q Did you have any telephone conversations or e-mail
15 exchanges with Mr. Holbo about Exhibit 2?
16 A Yes.
17 Q And were his decisions, as he expressed them here
18 at deposition, with regard to what the City of Ashland would
19 do with Exhibit 2, were those, say, in the course and scope
20 of his employment?
21 He wasn't on a lark and a frolic? He did what he
22 was supposed to do?
23 A Yes.
24 Q Did you have any conversations with anyone from the
25 Washington Post?
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 A No.
2 Q Did you have any conversations with Ms. Kathleen
3 Parker?
4 A No.
5 Q Mr. Parker?
6 A No.
7 Q Jon Dowd?
8 A No.
9 Q Anyone at InfoStructure?
10 A No.
11 Q Mr. Joe Franell?
12 Maybe I should clarify it as to time.
13 A Yes.
14 Q Before the decision was made by Mr. Holbo and
15 Mr. Dowd to turn off the modem that was servicing --
16 A No.
17 Q -- American-Buddha.net?
18 Q With regard to Exhibit 1, the AFN copyright
19 infringement process, would you confirm what Mr. Holbo said,
20 that he prepared that without your input?
21 A Yes.
22 Q Is a formal DMCA policy under consideration or in
23 preparation at this time?
24 A I have received a request to assist AFN in
25 developing a policy.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Q And so when that -- when that is done, will it be
2 posted on the web site to inform people about that?
3 A I am not sure how I will inform them about that.
4 Q And do you expect that that policy will be
5 formulated within, say, the next month?
6 A I anticipate that it would be formulated within the
7 next month.
8 Q And I take it you would have no problem having
9 Ms. O'Kasey forward a copy of that to me when it is
10 prepared?
11 A Not at all.
12 Q Okay. Are there any written communications that
13 have been generated by AFN concerning this matter that are
14 not before us here as Exhibit 1, 2, 3, or 5?
15 A There are written communications between Mr. Holbo
16 and myself.
17 Q And were those -- if we were to date those written
18 communications, would they be August 1st, August 2nd, or
19 thereafter?
20 A There was some on August 2nd and there are some
21 thereafter.
22 Q All right. And you have -- it's -- those
23 communications contained legal advice from you to Mr. Holbo,
24 as an AFN employee --
25 A Yes.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Q -- for the City of Ashland?
2 Were those communications, at any time, was the
3 substance of them disclosed to any person who was not a
4 party to that advice?
5 A No.
6 Q We can take a brief break here. My client -- I
7 have got to know where she is.
8 (Recess in proceedings.)
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10 MR. CARREON: I think I'm done.
11 MS. O'KASEY: Kevin, do you have any questions?
12 MR. HARDY: No, I don't.
13 MR. CARREON: Back on the record, no questions from
14 counsel.
15 MS. O'KASEY: I have no questions.
16 MR. CARREON: We may adjourn.
17 MS. O'KASEY: Thank you.
18 THE WITNESS: Thank you.
19 (Deposition concluded at 12:29 p.m.)
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*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 REPORTER'S CERTIFICATE
2 STATE OF OREGON )
) ss.
3 COUNTY OF JACKSON )
4 I, LAURA L. SMITH, a Certified Shorthand Reporter
5 and Notary Public for the State of Oregon, do hereby
6 certify:
7 That the witness, MICHAEL W. FRANELL, was present at
8 the time and place herein set forth and was by me sworn to
9 testify as to the truth;
10 That the said proceedings were recorded
11 stenographically by me and were thereafter transcribed under
12 my direction via computer-assisted transcription;
13 That the foregoing transcript is a true record of
14 the proceedings which then and there took place;
15 That I am a disinterested person to said action.
16 IN WITNESS WHEREOF, I have affixed my seal and
17 subscribed my name on January 11, 2007.
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23 ______________________________
LAURA L. SMITH, Notary Public
24 CSR NO. 97-0340
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*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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