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1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA 2 AMERICAN CIVIL LIBERTIES : CIVIL ACTION 3 UNION, ET AL : : 4 PLAINTIFF : : 5 : VS. : 6 : : 7 ALBERTO R. GONZALES, : IN HIS OFFICIAL CAPACITY AS : 8 ATTORNEY GENERAL OF THE : UNITED STATES : 9 : DEFENDANT : NO. 98-05591 10 THURSDAY, OCTOBER 26, 2006 11 COURTROOM 17-A PHILADELPHIA, PA 19106 12 ___________________________________________________ BEFORE THE HONORABLE LOWELL A. REED, JR. SJ 13 _______________________________________________________ NON-JURY TRIAL 14 DAY 4 _______________________________________________________ 15 APPEARANCES: 16 CHRISTOPHER A. HANSEN, ESQUIRE KATHARINE MARSHALL, ESQUIRE 17 ADEN J. FINE, ESQUIRE BEN WIZNER, ESQUIRE 18 CATHERINE CRUMP, ESQUIRE STEFANIE LAUGHLIN, ESQUIRE 19 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD STREET 20 NEW YORK, NY 10004-2400 (212)549-2606 FOR THE PLAINTIFFS 21 SUZANNE R. WHITE, CM 22 FEDERAL CERTIFIED REALTIME REPORTER FIRST FLOOR U. S. COURTHOUSE 23 601 MARKET STREET PHILADELPHIA, PA 19106 24 (215)627-1882 25 PROCEEDINGS RECORDED BY STENOTYPE-COMPUTER, TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION 2 1 APPEARANCES: (CONTINUED) 2 CHRISTOPHER HARRIS, ESQUIRE BENJAMIN SAHL, ESQUIRE 3 JEROEN VAN KWAWEGEN, ESQUIRE ADDISON F. GOLLODAY, ESQUIRE 4 BENJAMIN SAHL, ESQUIRE LATHAM & WATKINS 5 53RD AT THIRD, 885 THIRD AVENUE SUITE 1000 6 NEW YORK, NY 10022 (212) 906-1200 FOR THE PLAINTIFFS 7 8 U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION 9 RAPHAEL O. GOMEZ, ESQUIRE THEODORE HIRT, ESQUIRE 10 ERIC J. BEANE, ESQUIRE KENNETH E. SEALLS, ESQUIRE 11 TAMARA ULRICH, ESQUIRE JOEL MCELVAIN, ESQUIRE 12 JAMES TODD, ESQUIRE ERIC J. BEANE, ESQUIRE 13 ISAAC R. CAMPBELL, ESQUIRE ROOM 6144 14 20 MASSACHUSETTS AVENUE, NW WASHINGTON, DC 20530 15 (202)514-1318 FOR THE DEFENDANT 16 17 18 19 20 21 22 23 24 25 3 1 (CLERK OPENS COURT.) 2 THE COURT: GOOD MORNING, ALL. 3 ARE YOU READY TO CONTINUE WITH MR. RUSSO? 4 MR. VAN KWAWEGEN: YES, YOUR HONOR. 5 THE COURT: MR. RUSSO, YOU ARE WELCOME TO 6 COME UP. 7 MR. GOMEZ: WITH THE COURT'S PERMISSION, 8 I NEED TO BE OUT OF THE COURTROOM FOR A SHORT PERIOD OF 9 TIME THIS MORNING, BUT WILL RETURN. MR. HIRT WILL BE 10 HERE. 11 THE COURT: ABLE BODIED PEOPLE IN CHARGE. 12 MR. VAN KWAWEGEN: YOUR HONOR, BEFORE MR. 13 TODD CONTINUES HIS CROSS EXAMINATION, MR. RUSSO HAS 14 INDICATED THAT HE WOULD LIKE TO CORRECT PART OF HIS 15 TESTIMONY FROM YESTERDAY WITH YOUR PERMISSION. 16 THE COURT: WELL, TYPICALLY YOU ASK 17 QUESTIONS. SO DO YOU THINK YOU HAVE TO DO IT BEFORE 18 YOUR REDIRECT? 19 MR. VAN KWAWEGEN: NO, YOUR HONOR. 20 THE COURT: THE WAY WE WILL DO IT IS YOU 21 WILL ASK QUESTIONS. HE WILL NOT SPONTANEOUSLY DISCUSS 22 WHAT HE WANTS TO SAY. 23 MR. VAN KWAWEGEN: THANK YOU. 24 THE COURT: MR. RUSSO. IN THE EVENT THAT 25 WHEN YOU ARE UNDER CROSS EXAMINATION WE GET INTO -- 4 1 COUNSEL GETS INTO AN AREA THAT YOU WANT TO ADD MORE 2 INFORMATION TO, YOU WILL HAVE TO DO THAT IN CONNECTION 3 WITH MAKING WHATEVER ANSWER YOU WANT. 4 THE WITNESS: THAT'S FINE, YOUR HONOR. I 5 THINK IT WILL COME UP. 6 THE COURT: THE FORMAL EXCHANGE OF IT 7 WILL COME WHEN PLAINTIFFS' COUNSEL GETS TO REDIRECT 8 EXAMINATION. 9 THANK YOU. 10 CONTINUED CROSS EXAMINATION 11 BY MR. TODD: 12 Q. GOOD MORNING, MR. RUSSO, HOW ARE YOU TODAY. 13 A. GOOD MORNING. HOW ARE YOU. 14 Q. I THINK WHEN WE LEFT OFF WE WERE IN THE MIDDLE 15 OF THE DEFENDANT'S EXHIBIT 383? 16 A. IS THIS ALSO IN MY BINDER, WOULD YOU KNOW? 17 Q. I THINK THOSE ARE EXHIBITS THAT THE PLAINTIFFS 18 INTRODUCED. 19 A. OKAY. 20 Q. WE HAD JUST FINISHED LOOKING AT PAGE 2, I 21 BELIEVE. PAGE 2, MR. BYRDSONG. I HAD JUST READ ALOUD 22 THE SENTENCE: PARENTS ENROLL THEIR TEEN IN THE PROGRAM 23 AND CAN ALSO MONITOR THEIR TEEN'S SPENDING. THEY SET 24 THE SPENDING LIMITS BY THE PREPAID AMOUNT LOADED ON THE 25 CARD. 5 1 IF WE COULD NOW BRING UP THE DEPOSITION, 2 MR. BYRDSONG. ON PAGE 112, LINE 18, I ASKED YOU, ARE 3 YOU AWARE THAT THE VISA BUXX CARD REQUIRES A PARENT'S 4 SIGNATURE ON THE ACCOUNT, AND YOU ANSWERED: I THINK 5 THIS PARTICULAR ISSUE IS NOT ANYTHING THAT I CONSIDERED 6 ONE WAY OR THE OTHER. IS THAT CORRECT? 7 A. ABOUT THE VISA BUXX CARD, YES, CORRECT. 8 THE COURT: YOU HAVE TO BE CAREFUL WHEN 9 YOU ASK A WITNESS, IS THAT CORRECT. DID YOU MEAN DID HE 10 SAY THAT OR DID HE READ IT CORRECTLY? 11 BY MR. TODD: 12 Q. THAT WAS YOUR TESTIMONY, IS THAT CORRECT? 13 A. YES, I WAS INDICATING TO YOU THAT THAT 14 PARTICULAR ISSUE ABOUT THE VISA BUXX CARD REQUIRING 15 PARENT'S SIGNATURE ON THE ACCOUNT WAS NOT SOMETHING I 16 HAD CONSIDERED. 17 Q. YES OR NO WOULD BE SUFFICIENT. 18 A. OKAY. 19 Q. IF WE COULD GO TO -- GO BACK TO THE DEFENDANT'S 20 EXHIBIT 383, MR. BYRDSONG. ACTUALLY, CAN WE SEE THE 21 WHOLE PAGE FIRST? 22 THE COURT: EXHIBIT NUMBER AGAIN FOR THE 23 RECORD? 24 MR. TODD: THIS IS 383, YOUR HONOR, 25 DEFENDANT'S EXHIBIT 383. THIS IS THE PRINTOUT FROM 6 1 AUGUST 11, 2006 WITH THE VISA BUXX CARD FREQUENTLY ASKED 2 QUESTIONS. 3 BY MR. TODD: 4 Q. IF WE CAN ZOOM IN ON THE HIGHLIGHTED QUESTION, 5 MR. BYRDSONG. 6 THE QUESTION IS: HOW CAN PARENTS GUIDE 7 THEIR TEENS TO THE MOST APPROPRIATE PLACES TO SHOP, 8 ESPECIALLY ONLINE? AND THE ANSWER IS: PARENTS CAN 9 REVIEW A TEEN'S ACCOUNT ANY TIME AND SEE HOW MUCH THEY 10 ARE SPENDING AND WHERE THEY ARE SPENDING IT. PARENTS 11 CAN DISCUSS WITH THEIR TEENS HOW AND WHERE THE CARD CAN 12 BE USED. TOGETHER, YOU AND YOUR TEEN CAN AGREE ON THE 13 BEST PLACES TO SHOP. BUT EVEN MORE IMPORTANT IS TALKING 14 TO YOUR TEEN ABOUT MONEY AND WHAT YOU EXPECT FROM THEM. 15 IS THAT WHAT IT SAYS? 16 A. THAT IS WHAT IT SAYS, YES. 17 Q. NOW, MR. RUSSO, YOU TESTIFIED -- I'M SORRY, MR. 18 BYRDSONG, IF YOU CAN BRING UP PAGE 114 OF HIS DEPOSITION 19 TESTIMONY. YOU TESTIFIED THAT YOU WERE ONLY AWARE OF 20 THE VISA BUXX CARD EXISTENCE, IS THAT CORRECT? 21 A. CAN YOU REPEAT THAT? 22 Q. I ASKED -- AT THE DEPOSITION I ASKED YOU WITH 23 THE VISA BUXX CARD, SINCE YOU MENTIONED THAT IN YOUR 24 REPORT, WERE YOU AWARE THAT THE PARENTS COULD REVIEW THE 25 TEEN'S ACCOUNT ANY TIME? AND YOU ANSWERED: I HAVE 7 1 NEVER USED A VISA BUXX CARD MYSELF, I ONLY KNOW OF ITS 2 EXISTENCE SO I WOULD HAVE NO OPINION ON THAT ONE WAY OR 3 THE OTHER. THAT WAS YOUR TESTIMONY, CORRECT? 4 A. THAT'S CORRECT, YES. 5 Q. NOW, MR. RUSSO, YOU CAN'T QUANTIFY THE NUMBER OF 6 CHILDREN THAT HAVE A VISA BUXX CARD, IS THAT CORRECT? 7 A. THAT'S CORRECT, YES. 8 Q. AND YOU CAN'T QUANTIFY THE NUMBER OF CHILDREN 9 THAT HAVE ACCESS TO ANY TYPE OF PAYMENT CARD, IS THAT 10 CORRECT? 11 A. YES, THAT'S CORRECT. 12 Q. NOW, YOU ALSO TESTIFIED, I BELIEVE, THAT NOT ALL 13 ADULTS HAVE ACCESS TO PAYMENT CARDS, IS THAT CORRECT? 14 A. YES, CORRECT. 15 Q. BUT THE BASIS OF YOUR KNOWLEDGE FOR THAT IS 16 ANECDOTAL, IS THAT CORRECT? 17 A. COULD YOU BE A LITTLE MORE SPECIFIC, PLEASE, AS 18 TO WHAT YOU ARE GETTING AT? 19 Q. SURE. IF WE COULD BRING UP PAGE 124 OF MR. 20 RUSSO'S DEPOSITION, PLEASE. I ASKED YOU BEGINNING AT 21 LINE 7: 22 QUESTION: YOU IDENTIFY PROBLEM 2 AS NOT 23 ALL ADULTS HAVE ACCESS TO A PAYMENT CARD. 24 THEN I ASKED: NOW WHAT IS YOUR BASIS FOR 25 THAT STATEMENT? 8 1 THEN YOU STATED: THERE HAVE BEEN 2 INSTANCES WHERE AFFILIATE PROGRAM OPERATORS HAVE 3 DISCUSSED REQUESTS THEY HAVE GOTTEN TO RECEIVE CONTENT 4 THROUGH MEANS OTHER THAN A PAYMENT CARD BECAUSE THE 5 INDIVIDUAL CONTACTING THEM DOESN'T HAVE A PAYMENT CARD. 6 IS THAT YOUR TESTIMONY? 7 THE WITNESS: YES. YOU ASKED ME FOR THE 8 BASIS OF MY OPINION. THAT IS AN EXAMPLE THAT I GAVE 9 YOU. THAT IS MY EXAMPLE, YES. 10 Q. IN FACT, BUT YOU HAVE NO -- YOU CAN'T QUANTIFY 11 THE NUMBER OF ADULTS THAT DON'T HAVE PAYMENT CARDS, IS 12 THAT CORRECT? 13 A. I HAVE NO NUMBERS WHATSOEVER IN TERMS OF HOW 14 MANY ADULTS DON'T HAVE PAYMENT CARDS, CORRECT. 15 Q. YOU ALSO BASED YOUR STATEMENT THAT -- NOT ALL 16 ADULTS HAVE ACCESS TO PAYMENT CARDS -- YOU WERE NOT 17 CONFINING THAT STATEMENT TO U.S. ADULTS, IS THAT 18 CORRECT? 19 A. I SEE NO REASON WHY IT WOULD BE CONFINED TO U.S. 20 ADULTS ONLY. 21 Q. YOUR TESTIMONY WAS THAT PAYMENT CARDS ARE NOT AS 22 POPULAR IN EUROPE, FOR EXAMPLE, IS THAT CORRECT? 23 A. THAT'S VERY TRUE, YES. 24 Q. YOU CAN'T QUANTIFY THE NUMBER OF PEOPLE IN 25 EUROPE THAT DO OR DON'T HAVE A PAYMENT CARD, IS THAT 9 1 CORRECT? 2 A. I HAVE NO NUMBERS IN THAT REGARD, CORRECT. 3 Q. TURNING TO YOUR EVALUATION OF WHAT YOU CALLED 4 DATA VERIFICATION SERVICES, THAT IS THE EVALUATION YOU 5 DID ABOUT ID RESPONSE, VERIFY ME AND IDOLOGY, IS THAT 6 CORRECT? 7 MR.

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