Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 1 of 38 Page ID #:1215

1 MICHAEL K. GRACE (SBN 126737) [email protected] 2 PAMELA D. DEITCHLE (SBN 222649) 3 [email protected] 4 GRACE+GRACE LLP 444 South Flower Street, Suite 1650 5 Los Angeles, California 90071 6 Telephone: (213) 452-1220 7 Facsimile: (213) 452-1222

8 Attorneys for Defendants XenForo Limited 9 and Kier Darby

10 UNITED STATES DISTRICT COURT

11 FOR THE CENTRAL DISTRICT OF CALIFORNIA

12 WESTERN DIVISION 13

Grace LLP Grace 14 + vBULLETIN SOLUTIONS, INC., a ) Case No.: CV 10-8209-R (JEMx)

Intellectual Property Intellectual 15 California corporation, ) Grace Los Angeles, CA 90071 CA Angeles, Los ) DECLARATION OF KIER DARBY IN 16 444 South444 Flower Suite Street, 1650 Plaintiff, ) SUPPORT OF DEFENDANTS’ 17 ) MOTION FOR SUMMARY 18 v. ) JUDGMENT ) 19 XENFORO LIMITED, an English ) 20 private limited company; and KIER ) 21 DARBY, a British citizen; and DOES 1- ) 10, inclusive, ) 22 ) 23 Defendants. ) 24 ) 25 26 27 28

DECLARATION OF KIER DARBY Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 2 of 38 Page ID #:1216

1 DECLARATION OF KIER DARBY 2 I, Kier Darby, declare as follows: 3 1. I have personal knowledge of the facts set forth in this declaration and, 4 if called upon to do so, I could and would testify competently from personal 5 knowledge as follows: 6 2. In 1998, I graduated with a B.A. Honors degree from the National 7 Centre of Computer Animation at Bournemouth University in the United 8 Kingdom. After university, I started a computer graphics animation company, 9 Alternate Perspective 3D Ltd. (“AP3D”) with two fellow graduates. Our clients 10 included FIFA, AMD, and Ferrero Kinder.

11 3. In 2000, while developing the AP3D website and working on my own

12 personal projects, I became an active member of an online community of persons

13 who develop third-party add-ons, which provide additional functionality for the

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+ Internet forum software “vBulletin”. The vBulletin Internet forum software was

Intellectual Property Intellectual 15 developed by Jelsoft Enterprises Limited (“Jelsoft”), a private limited company in Grace Los Angeles, CA 90071 CA Angeles, Los 16 the UK founded by James E. Limm and John Percival. 444 South444 Flower Suite Street, 1650 17 4. Like the majority of other Internet forum software applications, of 18 which dozens if not hundreds are available, vBulletin is written using the “PHP” 19 programming language. I made use of the programming training I had received at 20 university learn how to program in PHP. 21 5. In early 2001, John Percival, a co-founder, lead developer and project 22 manager of vBulletin, took notice of my vBulletin add-on work. He offered me a 23 job as a freelance developer responsible for integrating my add-ons into the core 24 code for the next major release of vBulletin: vBulletin 2. I accepted his offer and 25 joined the Jelsoft team that already included Michael Sullivan and Freddie 26 Bingham. At the time, we all worked from our respective homes using our own 27 computer equipment, because Jelsoft did not have any physical offices. 28

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1 6. After the release of vBulletin 2 in 2002, Jelsoft started development of 2 vBulletin version 3. The nature of vBulletin development was to continually add 3 new features and improvements to the existing code. vBulletin 2 included most of 4 the code and features from vBulletin 1, and vBulletin 3 would include most of the 5 code and features from both vBulletin 1 and 2. 6 7. In 2003, Percival resigned from the vBulletin development team, and I 7 was invited to take over the jobs of lead developer and product manager of 8 vBulletin on a freelance basis, which I accepted. 9 8. As the lead developer and product manager, I had overall day-to-day 10 control over vBulletin software development. I also assumed responsibility for

11 many of the day-to-day tasks of managing the vBulletin business and had full

12 access to all of Jelsoft’s computer systems, including servers hosting vBulletin’s

13 websites, sales, license and customer data. I also had full access to the complete

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+ history of all vBulletin software development.

Intellectual Property Intellectual 15 9. By the Spring of 2006, Jelsoft had become very successful due to the Grace Los Angeles, CA 90071 CA Angeles, Los 16 popularity of the vBulletin software. On my recommendation, Jelsoft leased office 444 South444 Flower Suite Street, 1650 17 space in Pangbourne, Berkshire – approximately two miles from my home – to 18 serve as Jelsoft’s business and software development headquarters. 19 10. In addition, Michael Sullivan, Ashley Busby, Scott MacVicar, and I, as 20 well as a number of other UK-based freelancers, became full-time, permanent 21 employees working out of the new Jelsoft office. I was entirely satisfied with the 22 compensation that I received both as a freelancer, and also as a full-time employee 23 of Jelsoft. True and correct copies of my employment agreement and Restrictive 24 Covenant Agreement, both dated April 6, 2006, are attached hereto as Exhibit A 25 and Exhibit B, respectively. 26 11. When I became an employee of Jelsoft in April 2006, we had been 27 working on vBulletin 3.6. I believed that the architecture of vBulletin was 28 becoming outdated and cumbersome to maintain, due to the fact that it still

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1 included large amounts of older code from older versions of vBulletin. The 2 development process was reaching the point at which almost as much effort was 3 being expended maintaining the old code and correcting errors therein as was 4 being spent developing new features. 5 12. With considerable input from the development team, I decided that 6 3.6 would be the final version to use the old code, and that the next major release of 7 vBulletin (“vBulletin 4”) would consist of all new code, employing new “object 8 oriented” programming techniques that had only become available to PHP after 9 vBulletin 3 was released. I understood that this change would allow for faster, more 10 robust future development. We estimated that vBulletin 4 would require

11 approximately two years of design and development work before commercial

12 release. We referred to vBulletin 4 as a “rewrite”, as we intended to implement all

13 of the existing vBulletin 3 features using brand new code.

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+ 13. We decided to make use of an approach called “model-view-

Intellectual Property Intellectual 15 controller” (“MVC”) for the new PHP code, and “semantic XHTML” for the Grace Los Angeles, CA 90071 CA Angeles, Los 16 vBulletin 4 user interface. Both MVC and semantic XHTML are widely-known, 444 South444 Flower Suite Street, 1650 17 industry-standard patterns, consistent with modern programming practices and 18 customer expectations. Both are subject to the interpretation of the individual 19 developer as to the manner in which they are implemented, in the same way as a 20 determination to make a cake does not dictate the ingredients or method. 21 14. Many products and software frameworks implement their own 22 versions of MVC in PHP, and hundreds of thousands, if not millions of websites 23 and web software applications employ semantic HTML and XHTML, including 24 two of vBulletin’s major competitors, Invision Power Board and phpBB, both of 25 which released versions of their forum software using semantic XHTML in late 26 2007 to early 2008. 27 15. After the release of vBulletin 3.6 in 2006, Jelsoft was focused on the 28 development of two add-on products for vBulletin (“Blog” and “Project Tools”).

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1 During this period, Limm suddenly informed me that he wanted to add “social 2 networking” features to vBulletin as soon as possible. This was the first time that 3 Limm had ever instructed the development team to follow a specific development 4 path. I told Limm that development of these features would delay the start of work 5 on vBulletin 4, but he was insistent that the social networking features must be 6 developed immediately. Limm’s requirements for the features kept expanding, and 7 the aging vBulletin 3 architecture hampered the development process. Eventually, 8 we decided that the new features could only be achieved with a new vBulletin 9 version, and as a result we began working on vBulletin 3.7. 10 16. In mid-2007, while we were developing vBulletin 3.7, Limm informed

11 me that he and Percival had sold their Jelsoft shares to IB Services Limited, an

12 English affiliate of an American company, Internet Brands, Inc. (“Internet

13 Brands”). I had been unaware that Limm was interested in selling Jelsoft, and I had

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+ never met or had any contact with anyone from Internet Brands.

Intellectual Property Intellectual 15 17. Days before the sale of Jelsoft to Internet Brands completed, Ashley Grace Los Angeles, CA 90071 CA Angeles, Los 16 Busby arranged for generous bonuses to be paid to all Jelsoft staff. These bonuses 444 South444 Flower Suite Street, 1650 17 were linked to the completion and release of vBulletin 3.6, but had been delayed for 18 several months. 19 18. From June 2007 to mid-2008, I continued to work on the vBulletin 3.7 20 release with the features as directed by James Limm. With the exception of a single 21 conference call in the first days of 2008, which was unrelated to software 22 development, I had no direct contact with anyone from Internet Brands. I 23 understand that all communications between Jelsoft and Internet Brands were 24 conducted through James Limm, who remained managing director of Jelsoft. 25 19. Throughout this time, Jelsoft continued to maintain its own 26 computing environment and servers; the Internet Brands network and that of 27 Jelsoft were not integrated at all. 28

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1 20. In late June 2008, Internet Brands’ CEO Robert Brisco, Technology 2 Director Jennifer Rundell, and Project Manager Michael Anders visited Jelsoft’s 3 offices in England on short notice. The Saturday before Internet Brands’ visit on 4 the following Monday, James Limm sent me an email instructing me to prepare a 5 presentation about the development of vBulletin 4. vBulletin 4, however, was not 6 being developed at that time, because the development team had been diverted by 7 Limm to develop and write the social networking features that would debut in 8 vBulletin 3.7. 9 21. I was present at and participated in meetings with Internet Brands at 10 the Pangbourne office over three days in June 2008. During the first of these

11 meetings, I discovered that Internet Brands’ corporate representatives believed that

12 Jelsoft had been working on vBulletin 4 since at least 2007. Brisco expressed shock

13 when I told him that we had been working on upgrades to the vBulletin 3 series,

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+ that we were just starting to plan the development of vBulletin 4, and that vBulletin

Intellectual Property Intellectual 15 4 was two years away from commercial release. Grace Los Angeles, CA 90071 CA Angeles, Los 16 22. I have since learned that Brisco has testified that, prior to June 2008, 444 South444 Flower Suite Street, 1650 17 Limm had assured him on a regular basis that Jelsoft was working on vBulletin 4 18 and that progress was good. Contrary to Limm’s assurances to Brisco, vBulletin 4 19 had only reached its early planning stages, with functional requirements still being 20 defined. With the exception of the decision to make use of MVC and semantic 21 XHTML principles, no technical design or development work for vBulletin 4 had 22 been undertaken at all. 23 23. Over the subsequent days of meetings in Pangbourne, Scott MacVicar 24 and I met with Rundell and Anders to formulate a development plan and schedule 25 for vBulletin 4, which was still intended to be all new code at that time. I felt that 26 the meetings were productive, and understood that Rundell and Anders believed 27 the same. We parted on good terms. 28

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1 24. One of the resolutions made at the Pangbourne meetings was to 2 improve communications between the vBulletin team and Internet Brands, by, 3 among other things, scheduling weekly conference calls with Internet Brands’ staff. 4 By participating in the subsequent conference calls, I became acquainted with 5 Joseph Rosenblum, who is now Chief Technology Officer for Internet Brands. 6 25. James Limm advised me that, based on his discussions with Internet 7 Brands, the scope of vBulletin 4 would have to be revised to be ready for 8 commercial release within 18 months, not two years. He instructed me to draft a 9 document that would illustrate roughly how the development process might 10 occupy the 18-month period. I produced a high-level document named

11 “schedule_draft.doc”, which was a single page with less than 100 words consisting

12 of four or five colored blocks containing text like “Design vB4 core: 3 months” and

13 “Write vB4 application: 12 months.” I gave Limm a printed copy of this document.

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+ 26. On August 4th, 2008, at Limm’s direction, I posted a public

Intellectual Property Intellectual 15 announcement on vBulletin.com, stating among other things that vBulletin 4 Grace Los Angeles, CA 90071 CA Angeles, Los 16 would be consist of all-new code, using a modern industry-standard programming 444 South444 Flower Suite Street, 1650 17 approach called “MVC”, and that vBulletin 4 would employ “semantic XHTML” 18 for its user-facing output, consistent with modern website design standards. 19 27. In late August 2008, Limm told me that Internet Brands’ management 20 had requested that Sullivan and I travel to corporate headquarters in Los Angeles, 21 California, USA, for a series of meetings about vBulletin 4 development. Around 22 the same time, I learned that Internet Brands had hired a Los Angeles-based project 23 manager, Ray Morgan, to manage Jelsoft’s development of vBulletin 4 in England. 24 The result was that vBulletin development would be subject to multiple levels of 25 management in California and my previous decision-making responsibility was 26 greatly diminished. 27 28. On September 2, 2008, Limm, Sullivan and I flew to Los Angeles. 28 During the flight, Limm told me and Sullivan, for the first time, that our eighteen-

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1 month development schedule for vBulletin 4 was not acceptable to Internet Brands, 2 and that we would probably need to deliver a product half that time, or only nine 3 months. 4 29. When we arrived in Los Angeles on the afternoon of September 3rd 5 2008, we met Brisco, who was was cold and sharply criticized our development 6 pace as “glacial.” He said that he had already informed Internet Brands’ 7 shareholders that vBulletin 4 would be ready very soon, and, therefore, Internet 8 Brands in Los Angeles would assume direct control over the vBulletin development 9 process to ensure the delivery of vBulletin 4 by March 2009. To meet this 10 accelerated schedule, Brisco proposed outsourcing all development to China and

11 transforming Jelsoft’s development staff from code developers to code reviewers of

12 work by Chinese software writers.

13 30. I told Brisco that the vBulletin 4 product as then planned could not be

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+ developed within six months, and in a period of six months we could only develop

Intellectual Property Intellectual 15 a very limited set of new features based on the creaky and outdated architecture of Grace Los Angeles, CA 90071 CA Angeles, Los 16 vBulletin 3. Brisco replied that only programmers care about software architecture, 444 South444 Flower Suite Street, 1650 17 and that anyone who proposed a project to him with a timeline exceeding six 18 months would be fired. He indicated that if we did not agree with his new 19 direction for developing vBulletin on an accelerated schedule, we were free to leave 20 and not return for further meetings. 21 31. Following the meeting with Brisco, the scope of the vBulletin 4 project 22 changed completely, from an effort to write a brand new product with all-new 23 code, into a one where a handful of new features would be added on top of the 24 existing vBulletin 3 code with minor changes thereto. Planning for the previously 25 envisioned project was abandoned, and no further work was done to progress it. 26 32. Sullivan and I also attended a meeting with a number of Internet 27 Brands’ staff, including Jennifer Rundell and Christopher Holland (a web 28 developer) about search engine optimization (“SEO”) features that Internet Brands

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1 wanted to include in vBulletin 4. “Search engine optimization” is a practice 2 whereby websites attempt to improve their ranking on search engines such as 3 Google, with the goal of appearing as close to the top of the list of search results as 4 possible. We reviewed the features of a popular third-party vBulletin add-on called 5 vBSEO, developed by Crawlability, Inc., of Puerto Rico. We noted on a whiteboard 6 a number of the features from vBSEO that we felt would be of benefit and could be 7 developed for vBulletin 4 quickly and easily. At the meeting I took a photograph of 8 the whiteboard rather than transcribe its contents onto paper and emailed a copy 9 of the photo to the other attendees so that they could have a record of the 10 whiteboard, too.

11 33. In mid-September 2008, Ray Morgan travelled to Jelsoft’s office in

12 Pangbourne to continue working on specifications for vBulletin 4. I was instructed

13 to write a specification for a new vBulletin content management system (“CMS”),

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+ which I did, and I forwarded the specification to Internet Brands senior personnel,

Intellectual Property Intellectual 15 including Jennifer Rundell. A “content management system” in this context is a Grace Los Angeles, CA 90071 CA Angeles, Los 16 software application that allows text, pictures and other material to be prepared for 444 South444 Flower Suite Street, 1650 17 publishing on a website, and provides a structure within which the material can be 18 published. 19 34. Rundell asked me to travel back to California at very short notice in 20 order to work through the CMS specification with Internet Brands’ personnel. I 21 was reluctant to make the journey, because I had a year-old son and for many 22 months I had been spending the majority of my days and evenings working on 23 vBulletin rather than spending time with my family. Rundell informed me that if I 24 did not travel to California, my involvement with developing the initial design for 25 the vBulletin 4 CMS would be diminished. 26 35. Accordingly, I flew to California and worked on the CMS specification 27 with Ray Morgan in a small office in Internet Brands’ building. I had no need to 28

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1 access Internet Brands’ secured network, computers or data servers while I was in 2 California, and I never did so. 3 36. Before returning to England, I had an informal and cordial meeting 4 with Brisco, Rundell and Morgan in Brisco’s office. During that meeting, Brisco 5 and Rundell thanked me for travelling to California and participating in valuable 6 and productive meetings. I asked them why they had previously believed that 7 Jelsoft would be ready to deliver the vBulletin 4 “rewrite” in late 2008. Brisco and 8 Rundell told me that that there had been a series of miscommunications between 9 Internet Brands and James Limm. I was also told that Internet Brands’ lack of 10 involvement with Jelsoft before the acquisition and for a full year after the

11 acquisition occurred in June 2007 was due to Internet Brands’ management’s focus

12 on preparing for a public offering of common stock in Internet Brands.

13 37. Over the next several months, I worked diligently to comply with

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+ Internet Brands’ development schedule and methodology. I frequently expressed

Intellectual Property Intellectual 15 concern about the unreasonable timeframe demanded by Internet Brands and Grace Los Angeles, CA 90071 CA Angeles, Los 16 proposed that we work on a rewrite for a new version of vBulletin rather than 444 South444 Flower Suite Street, 1650 17 adding a handful of new features to vBulletin 3 and calling it “vBulletin 4.” I was 18 concerned that vBulletin customers would reject the product, which I had been 19 previously announced to be an all-new version. This concern was especially acute, 20 as Internet Brands also had decided to change the vBulletin licensing fees and 21 structure to a model that I believed was less favorable to customers. 22 38. In early January 2009, vBulletin 3.8 was released. It was the first 23 version of vBulletin whose release was managed by Internet Brands. I reviewed 24 numerous instances of negative consumer feedback, based on Internet Brands’ 25 failure to explain in advance certain features that were perceived by customers as 26 enabling Internet Brands to surreptitiously harvest private data about vBulletin 27 customers. These customer concerns were exacerbated by Internet Brands’ long 28 delays in responding to questions from customers following the release.

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1 39. Around the same time, James Limm decided to create a series of 2 “developer blogs” for the vBulletin.com website in which members of the team 3 would reveal various aspects of the development process, including new features 4 that were being developed. Over a period of months, vBulletin staff posted blogs 5 and forum posts detailing the upcoming features and technical information 6 intended to be included in vBulletin 4. 7 40. From October 2008 -- when coding of the vBulletin 4 features began -- 8 to my last day at Jelsoft, my work met with praise from Ray Morgan and Internet 9 Brands’ management. My work on the visual style for vBulletin 4 received a 10 particularly effusive response, and Jennifer Rundell described the developer blog I

11 authored, in which I detailed some of my styling work, as “gold”. This blog also

12 met with an excellent reaction from vBulletin customers. I understood that

13 Internet Brands’ management was delighted with my work, and never received any

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+ comments to the contrary.

Intellectual Property Intellectual 15 41. In late February 2009, while I was attending a conference in London Grace Los Angeles, CA 90071 CA Angeles, Los 16 with the rest of the UK-based vBulletin development team, I learned that Internet 444 South444 Flower Suite Street, 1650 17 Brands had informed Ashley Busby that his position was made “redundant” that 18 morning, and that his employment was terminated by Jelsoft. Given that Internet 19 Brands had refused to hire more developers for the UK office but was actively 20 recruiting in Los Angeles, I became concerned about my own job security. 21 42. I also observed that the mounting pressure to develop vBulletin 4 22 features on the outdated vBulletin 3 code base on an expedited schedule was taking 23 its toll on my Jelsoft development team. During a spring 2009 conference call with 24 the whole development team, Joseph Rosenblum stated that no Jelsoft employees 25 would be permitted to take any time off until vBulletin 4 was completed. I 26 responded that the team was already working around the clock to meet an 27 impossible deadline, and that such an oppressive tactic would not improve 28 productivity or quality but would further erode Jelsoft team morale. Rosenblum

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1 appeared not to understand the scope of the problem and refused to change the 2 new “no holiday” policy. 3 43. On April 14th 2009, Michael Sullivan resigned from Jelsoft, despite 4 my efforts to persuade him to stay. During his final weeks, at Jelsoft he continued 5 to work hard, and I observed no drop in his productivity. He even delivered a final 6 release of the vBulletin Project Tools product to customers just a couple of days 7 before the end of his employment. 8 44. After Sullivan left, the development of vBulletin 4 slowed 9 considerably, because I was the only person remaining with the expertise to 10 complete many of the outstanding tasks. Internet Brands sought to speed up

11 production by outsourcing some template development work to a company located

12 in India, but the work product was slow to be delivered and was unsatisfactory in

13 many ways. Likewise, Internet Brands re-purposed some of its own in-house

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+ development staff to work on vBulletin 4 under my supervision, but their work was

Intellectual Property Intellectual 15 inferior to that of seasoned vBulletin developers and was often unusable without Grace Los Angeles, CA 90071 CA Angeles, Los 16 significant editing from me. I became increasingly frustrated by Internet Brands’ 444 South444 Flower Suite Street, 1650 17 lack of support and rejection of my efforts to maintain the high quality of vBulletin 18 and to provide the superb customer service that had been the cornerstone of 19 vBulletin and of my professional life. 20 45. On May 8, 2009, I submitted my letter of resignation to James Limm, 21 effective thirty days later. Later that day, I spoke with Limm and Morgan about the 22 reasons for my departure and about plans for helping Jelsoft to manage vBulletin 23 development after I left. We agreed that I would document my processes for 24 developing and managing vBulletin software, and that I would put affairs in order 25 prior to my exit, so that the ongoing development task would be as easy to manage 26 as possible. I was also candid about my fears that vBulletin was being driven down 27 a dangerous path that would damage its sales, reputation and market position. I 28 stated that I did not want to be associated with an incremental version of vBulletin

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1 4 to be released prematurely, because it would severely damage my own reputation 2 for developing high-quality software products. 3 46. Morgan asked me to stay with Jelsoft for an extra two weeks -- until 4 June 19, 2009 -- so I could help to complete the beta (pre-release) process for 5 vBulletin 4. I agreed to assist in any way I could. He also asked if I had any future 6 plans. I responded that I had no firm plans, but that I believed I could probably 7 find work as a freelance developer. He said that my expertise would be missed and 8 proposed that Jelsoft and/or Internet Brands would likely want to engage my 9 development services. I told him that I would entertain such an offer if and when it 10 was made.

11 47. On May 11, 2009, Scott MacVicar resigned from Jelsoft. Morgan and

12 Limm asked that he also stay until June 19th 2009, and he agreed.

13 48. After Scott MacVicar and I resigned from Jelsoft, the only personnel

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+ remaining in the Jelsoft office were James Limm and Darren Gordon. Limm

Intellectual Property Intellectual 15 decided to close the office and have the two of them work from home, as had been Grace Los Angeles, CA 90071 CA Angeles, Los 16 the case in the early years of vBulletin. Because Jelsoft had no further need for 444 South444 Flower Suite Street, 1650 17 office furniture and equipment, MacVicar and I asked Limm if we could take our 18 desks, chairs and computer displays. Limm agreed and also allowed Sullivan and 19 Busby, who had already left, to do the same. I also took a printer and miscellaneous 20 office supplies including pens, post-it notes and printer paper, with permission 21 from James Limm. MacVicar also asked Limm if he could donate one of the three 22 servers from the office to the PHP project, as Jelsoft for had not used it over a year. 23 Limm agreed. 24 49. Prior to closing the office, I saw Limm spending several days 25 shredding documents. He also directed the employees at the office to electronically 26 “shred” the disk drives from our office computers in order to permanently and 27 irreversibly erase the data stored on them, which we did. I understood that Limm 28 instructed us to do this because a suggestion had been made that the computers

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1 would be donated to charity. I understood that this electronic “shredding” process 2 would destroy no valuable data, as copies of all electronic documents on which the 3 staff worked were stored on the two remaining office servers, which Limm said that 4 he would take away himself. I expected Limm would forward the data on these 5 servers, or the servers themselves, to Internet Brands. 6 50. Any Jelsoft or vBulletin property in the form of electronic data to 7 which I had access remained on the Jelsoft servers, and what little paper material I 8 had, I left at the office. I did not attempt to retain any of this material with the 9 exception of my email, which I retained due to the presence of personal messages 10 within it.

11 51. At no point during my work for and with Jelsoft was I ever asked by

12 Internet Brands to return or destroy any vBulletin, Jelsoft or Internet Brands

13 property or proprietary materials in my possession, custody or control. Until this

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+ lawsuit, I never received any communications, telephonic or electronic, from Lynn

Intellectual Property Intellectual 15 Tokeshi or anyone affiliated with Internet Brands or Jelsoft about the return of any Grace Los Angeles, CA 90071 CA Angeles, Los 16 allegedly proprietary materials obtained during my employment with Jelsoft. 444 South444 Flower Suite Street, 1650 17 52. On June 19th 2009, my last day at Jelsoft, the working day concluded 18 with an extended teleconference with the entire vBulletin development team. As 19 the meeting ended, Rundell, Morgan and others thanked me for my contributions 20 to vBulletin, and wished me well for the future. 21 53. The following week, I received a “farewell and best wishes” 22 greetings card and £100 Amazon.co.uk gift certificate from Internet Brands, in 23 which was the following written notes. True and correct copies of the card and gift 24 certificate are attached hereto as Exhibits C and D, respectively. 25 54. After my final day at Jelsoft on June 19, 2009, Sullivan, MacVicar, 26 Busby and I decided to design and develop a wholly new forum software 27 application. This forum software would eventually become known as XenForo. 28 Our goal was to build a saleable product by the end of 2010.

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1 55. Based on my knowledge of developing Internet forum software, I 2 understood that our target release date was ambitious. Sullivan, MacVicar and I 3 agreed that we would not follow the traditional software development process, in 4 which a long time is spent drafting an extensive design for the software before 5 starting to write code. Rather, we decided to employ modern development 6 processes known as “Agile” and “Rapid Application Development”, in which only 7 very small amounts of design are done prior to writing a small amount of code and 8 reviewing it, followed by another small amount of design work before another 9 round of coding and review. This cycle repeats for the entire duration of the 10 development process. As such, the software evolved organically as time progressed

11 -- there was never an all-encompassing design to which we worked.

12 56. Further, we decided that to give ourselves the best chance of achieving

13 our goal in the proposed time, and to avoid “reinventing the wheel”, we would use

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+ third-party, Open Source software as the foundation of our application, including

Intellectual Property Intellectual 15 the Zend Framework (for our PHP code) and jQuery (for our JavaScript). Grace Los Angeles, CA 90071 CA Angeles, Los 16 57. Software developers frequently use third-party repositories to secure, 444 South444 Flower Suite Street, 1650 17 back-up and monitor source code and its development. These repositories are also 18 referred to as “version control” systems. XenForo uses a publicly-available system 19 called Subversion (“SVN”), which besides storing a secure “master” copy of our 20 software source code, also tracks and logs every single change made to the source 21 code by user and date. 22 58. After a few days of discussions regarding the basic architectural 23 structure of our new software, which we called simply “Foro” at that time, Michael 24 Sullivan wrote the first lines of code on June 30, 2009 and committed them to the 25 SVN repository. 26 59. Our first few weeks of programming were focused on building a 27 flexible framework upon which we could build a forum application with a limited 28 set of features. This framework would serve as the base for continuing development

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1 for years to come. Our development process was very fluid, and most decisions 2 were made “on-the-fly” following discussions and debates between Michael 3 Sullivan and me. 4 60. Around the end of September 2009, Scott MacVicar told Sullivan, 5 Busby and me that his passion for forum software had waned, and that he wanted 6 to depart. He did so, and quickly gained a position as a software developer for 7 Facebook in San Francisco. 8 61. To mark progress in the development of XenForo, Sullivan and I 9 defined “milestones” that would focus our development efforts until such time as 10 they were achieved. These milestones included being able to output a page of

11 HTML to a web browser, the ability to register a user account, and the ability to

12 post a message to a discussion topic. I was very pleased at the speed with which we

13 achieved these milestones, but the software required far more work after these

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+ milestones were achieved in order to become a marketable product.

Intellectual Property Intellectual 15 62. Except for several Open Source libraries, all of our source code is Grace Los Angeles, CA 90071 CA Angeles, Los 16 original work authored by me, Michael Sullivan and to a lesser extent, Scott 444 South444 Flower Suite Street, 1650 17 MacVicar. Throughout our design and development, we never used, copied or 18 referenced any vBulletin source code or designs, which in any case is incompatible 19 with the object-oriented MVC software architecture that we developed for our 20 product. We did not and could not refer to any technical design documents related 21 to the vBulletin 4 “rewrite”, because the vBulletin 4 “rewrite” had been cancelled 22 before any design work could commence. Although XenForo contains a number 23 of general forum features that are also present in vBulletin, these features are 24 common to virtually every other Internet forum software application (of which 25 there are hundreds), and are present on innumerable websites. Our software 26 executes these features in a completely different way from vBulletin. 27 63. During the time in which we were developing the XenForo software, I 28 continued to take an interest in vBulletin. I regularly read vBulletin-related

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1 discussions on various public forums, including those on vBulletin.com, and 2 occasionally logged in to the customer area of the vBulletin.com website, to which 3 all vBulletin customers, myself included, have access. 4 64. I also remained in touch with several of my Jelsoft friends and former 5 colleagues including Freddie Bingham and Darren Gordon. On a number of 6 occasions, using the “Skype” text messaging system and by email, they told me 7 generally what they were working on or invited me to see some of their recent 8 work. I believe that they did this solely in the spirit of friendly conversation, and 9 none of the material that I saw had any bearing whatsoever upon the development 10 of XenForo.

11 65. After I left Jelsoft, my former vBulletin colleagues occasionally asked

12 me for help with various technical aspects of the vBulletin software, which I

13 happily answered. Attached as Exhibit E, Exhibit F, and Exhibit G are true and

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+ correct copies of email exchanges between me and vBulletin staff after I left Jelsoft.

Intellectual Property Intellectual 15 66. In the summer of 2010, when we were nearing the point at which we Grace Los Angeles, CA 90071 CA Angeles, Los 16 had built an application that could be demonstrated to the public, we decided that 444 South444 Flower Suite Street, 1650 17 the time had come to decide upon a name for our software. After much 18 consideration of names that included “Foro” in some way, we chose “XenForo”, 19 which means “different/unique forum”. 20 67. On June 24th 2010, more than one year after Sullivan, Busby and I had 21 left Jelsoft, we incorporated XenForo Ltd. as a private, limited liability UK 22 company. The three of us are the sole directors and shareholders in XenForo Ltd. 23 68. Late on July 28th 2010, we deployed our software to our website -- 24 XenForo.com -- in order to allow the public to use the XenForo product on our 25 website. I was thrilled by the response that our debut received, including very 26 positive messages from members of the vBulletin community and our former 27 Jelsoft and vBulletin colleagues. 28

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1 69. On September 20th 2010, I announced on XenForo.com that a “beta” 2 or test version of our software would be made available for sale in the first week of 3 October, and then on September 28th gave a more specific date of October 5th 4 2010. The XenForo software at that point was still not complete and we advised 5 potential customers that it was unsuitable for deployment to mission-critical 6 websites, but it was at a sufficient state of readiness to allow customers to 7 experiment with it and provide further feedback. 8 70. Development of the XenForo software continued after the release of 9 the beta version, and several further test versions were released to XenForo 10 licensees before Sullivan and I decided that it was sufficiently complete and robust

11 to warrant a “final” or “gold” release. We released this version as XenForo 1.0.0 on

12 March 8, 2011. This represents a total development time from start to finish of

13 slightly more than 20 months. Development of the XenForo software is ongoing,

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+ and we released a major new version, XenForo 1.1.0, to public beta testing on

Intellectual Property Intellectual 15 October 5 2011. Grace Los Angeles, CA 90071 CA Angeles, Los 16 71. On October 4 2010, only a few hours before the release of the XenForo 444 South444 Flower Suite Street, 1650 17 1.0.0 beta software, Internet Brands suddenly and without prior notice announced 18 on the public vBulletin.com website that Jelsoft and vBulletin Solutions Inc., had 19 filed a Claim in the High Court of Justice, alleging copyright infringement and 20 misappropriation of trade secrets among other claims. We received no prior 21 warning of this litigation, and were not contacted prior to its filing with any 22 attempt to answer their questions or to resolve the dispute. 23 72. I have never sought to divert business from vBulletin, and I do not 24 have access to vBulletin customer lists or any other means to do so. XenForo is 25 marketed to the public at large, and is not specifically targeted to vBulletin 26 licensees. XenForo is not “backwards-compatible” with vBulletin in any way and 27 the two products cannot interoperate. As is common with Internet forum software, 28 XenForo offers an “import” system by which data such as users, discussions and

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1 messages from other forum products can be translated into a format usable by 2 XenForo. XenForo provides importers for vBulletin 3, and Invision Power Board 3 3. Independently, XenForo customers have also developed importers for vBulletin 4 4 and PunBB. By contrast, vBulletin itself offers importers for approximately one 5 hundred other products. 6 7 EXECUTED this 8th day of October, 2011 at Reading, Berkshire, England. 8 I declare under penalty of perjury under the laws of the United States that 9 the foregoing is true and correct. 10 ______

11 Kier Darby

12 13

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Intellectual Property 15 Grace Los Angeles, CA 90071 CA Angeles, Los 16 444 South Flower Street, Suite 1650 Suite Street, Flower South 444 17 18 19 20 21 22 23 24 25 26 27 28

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EXHIBIT A Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 21 of 38 Page ID #:1235 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 22 of 38 Page ID #:1236 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 23 of 38 Page ID #:1237

EXHIBIT B Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 24 of 38 Page ID #:1238 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 25 of 38 Page ID #:1239 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 26 of 38 Page ID #:1240 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 27 of 38 Page ID #:1241

EXHIBIT C Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 28 of 38 Page ID #:1242 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 29 of 38 Page ID #:1243

EXHIBIT D Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 30 of 38 Page ID #:1244 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 31 of 38 Page ID #:1245

EXHIBIT E Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 32 of 38 Page ID #:1246 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 33 of 38 Page ID #:1247 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 34 of 38 Page ID #:1248

EXHIBIT F Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 35 of 38 Page ID #:1249 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 36 of 38 Page ID #:1250 Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 37 of 38 Page ID #:1251

EXHIBIT G Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 38 of 38 Page ID #:1252