Court File No. T-2058-12 FEDERAL COURT BETWEEN: VOLTAGE PICTURES LLC Plaintiff - and - JOHN DOE AND JANE DOE Defendants - and - TEKSAVVY SOLUTIONS INC. Responding Party - and - SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC Intervener VOLUME II OF II RECORD OF TEKSAVVY SOLUTIONS INC. (Re: Reasonable Legal Costs, Administrative Costs and Disbursements) October 31, 2014 STIKEMAN ELLIOTT LLP Barristers & Solicitors Suite 1600, 50 O'Connor Street Ottawa, Canada K1P 6L2 Nicholas McHaffie Tel: (613) 566-0546 Alexander Sarabura Tel: (613) 564-3474 Fax: (613) 230-8877 Solicitors for the Responding Party, TekSavvy Solutions Inc. - 2 - TO: THE REGISTRAR AND TO: BRAUTI THORNING ZIBARRAS LLP 151 Yonge Street, Suite 1800 Toronto, ON M5C 2W7 P. James Zibarras John Philpott Tel: (416) 362-4567 Fax: (416) 362-8410 Lawyers for the Plaintiff, Voltage Pictures LLC AND TO UNIVERSITY OF OTTAWA Faculty of Law, Common Law Section 57 Louis Pasteur Street Ottawa, ON K1N 6N5 David Fewer Tel: 613-562-5800 ext. 2558 Fax: 613-562-5417 Lawyers for the Intervener, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic - i - TABLE OF CONTENTS VOLUME I OF II Tab Description Page 1. Bill of Reasonable Legal Costs of the Responding Party, TekSavvy Solutions Inc. 1 A. Stikeman Elliott LLP Invoices and Pre-Bills 8 B. Supporting Documents re: Disbursements 51 2. Affidavit of Marc Gaudrault, sworn June 27, 2014 86 A. Exhibit “A” to the Affidavit of Marc Gaudrault (E-mail chain between C. 108 Tacit and J. Philpott, dated November 13, 2012) B. Exhibit “B” to the Affidavit of Marc Gaudrault (E-mail chain between N. 111 McHaffie, J. Philpott and others, dated November 13-21, 2012) C. Exhibit “C” to the Affidavit of Marc Gaudrault (E-mail chain between J. 121 Philpott, N. McHaffie and others, dated November 13-29, 2012) D. Exhibit “D” to the Affidavit of Marc Gaudrault (Copy of TekSavvy notice 134 to customers, dated December 10, 2012) E. Exhibit “E” to the Affidavit of Marc Gaudrault (E-mails from N. McHaffie 137 to J. Philpott and others, dated December 16-17, 2012) F. Exhibit “F” to the Affidavit of Marc Gaudrault (E-mail chain between J. 140 Philpott, N. McHaffie and others, dated November 13 – December 11, 2012) G. Exhibit “G” to the Affidavit of Marc Gaudrault (E-mail chain between N. 159 McHaffie, J. Philpott and others, dated January 11, 2013) H. Exhibit “H” to the Affidavit of Marc Gaudrault (E-mail from C. Tacit to 163 M. Gaudrault, dated June 26, 2014) I. Exhibit “I” to the Affidavit of Marc Gaudrault (Bundle of invoices from C. 166 Tacit to TekSavvy) J. Exhibit “J” to the Affidavit of Marc Gaudrault (Invoice from Arbor 200 Networks Inc. to TekSavvy, dated September 17, 2013) 3. Affidavit of Pascal Tellier, sworn June 27, 2014 202 4. Affidavit of Pierre Aubé, sworn July 3, 2014 205 5. Transcript of Cross-examination of Marc Gaudrault, held October 8, 2014 209 1. Exhibit “1” to the Cross-examination of Marc Gaudrault 232 (Copy of TekSavvy webpage) 6. Transcript of Cross-examination of Pascal Tellier, held October 8, 2014 234 7. Transcript of Cross-examination of Pierre Aubé, held October 8, 2014 242 - ii - VOLUME II OF II Tab Description Page 8. Affidavit of Barry Logan, sworn July 30, 2014 (with one exhibit) 246 U. Exhibit “U” to the Affidavit of Barry Logan 264 9. Affidavit of Steven Rogers, sworn July 31, 2014 (without exhibits) 266 A. Exhibit “A” to the Affidavit of Steven Rogers 268 B. Exhibit “B” to the Affidavit of Steven Rogers 334 10. Affidavit of John Philpott, sworn July 31, 2014 (without exhibits) 337 11. Transcript of Cross-examination of Barry Logan, held October 9, 2014 350 1. Exhibit “1” to the Cross-examination of Barry Logan 393 A. Exhibit “A” to the Cross-examination of Barry Logan 402 12. Transcript of Cross-examination of Steven Rogers, held October 9, 2014 415 1. Exhibit “1” to the Cross-examination of Steven Rogers 440 13. Transcript of Cross-examination of John Philpott, held October 9, 2014 444 14. Order and Reasons for Order of Prothonotary Aalto, dated February 20, 2014 455 15. Order and Reasons for Order of Justice Mandamin, dated January 18 and 31, 2013 514 16. Statement of Claim in Court File No. T-2058-12, filed November 14, 2012 521 17. Written Representations of TekSavvy Solutions Inc. 531 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 Expert Report of Steven L. Rogers In Voltage Pictures LLC, Plaintiff vs. TekSavvy Solutions Inc., Defendant 270 2 Retention 1. Digital Evidence International Inc. (“DEI”) has been retained by counsel for Voltage Pictures LLC (the “Plaintiff”) to provide analysis, insight and opinion on the process and procedures undertaken by TekSavvy Solutions Inc. (the “Defendant”), in fulfilling its requirements to provide subscriber information to the Plaintiff. DEI was advised by counsel for the Plaintiff that the Defendant was required by order of the court to produce subscriber information related to certain IP addresses during certain time periods. 2. The opinions presented are not legal opinions and to the extent that additional or updated information is made available for review and that such additional or updated information impacts my findings my report may be updated. Compensation 3. DEI bills fees and expenses in this matter based on an hourly rate and expenses incurred. The hourly rate for DEI personnel with regard to this engagement is the usual and ordinary rate in effect at the time the report is prepared. No portion of DEI’s compensation is dependent upon my conclusions or the outcome of this matter. Neither the amount of DEI’s compensation nor its hourly billing rate depends on whether I am obligated to testify at discovery or trial. Data and Other Information Considered 4. In arriving at my opinion in this case I have considered a number of different sources of information that are identified below and in the attached exhibits. The primary documents and sources of data that I reviewed for the preparation of this report are: a. The affidavit of Marc Gaudrault sworn June 27, 2014 (the “Gaudrault Affidavit”) b. The affidavit of Pascal Tellier sworn June 27, 2014 (the “Tellier Affidavit”); c. The affidavit of Pierre Aube, unsworn (the “Aube Affidavit”); 271 3 d. A blog post by Jason Koblovsky titled “The Price For Internet Providers To Look The Other Way On Privacy” (the “Koblovsky Post”); e. The website http://wikipedia.com; (the “Wikipedia Web Site”); f. The website http://merriam-webster.com (the “Merriam Webster Website”); g. The website http://whatismyipaddress.com (the “What Is MyIP Address Web Site” and collectively the “Information Considered”); and h. The website http://deepsoftware.com (the “Deep Software Web Site”) Background and Qualifications 5. I am the President of DEI and have been involved in computer forensic examinations and Internet investigations since 1995. I have been involved in the collection and examination of thousands of pieces of electromagnetic storage media and have conducted or managed hundreds of Internet investigations. 6. I was a member of the Royal Canadian Mounted Police (“RCMP”) for 24 years serving my last 6 years in charge of the tech crime section for Ontario. As part of my day to day responsibilities I was tasked with overseeing and / or conducting the forensic examination of all forms of electro-magnetic storage devices including but not necessarily limited to work stations, laptops, CD’s, Jazz discs, Bernouli discs, file servers, email servers, floppy diskettes, USB devices and hand held devices such as Palm Pilots and cell phones. The forensic analysis of these devices included an array of file systems such as FAT 12, FAT 16, FAT 32, HFS, NTFS, ext2 and HFSPlus. Additionally, my work involved the forensic analysis of various operating systems including Apple MacIntosh, Linux, DOS, Novell and Microsoft Windows. My service with the RCMP Tech Crime section also involved providing assistance to our client detachments and partner police service agencies. 272 4 7. Under my stewardship the RCMP Tech Crime section also implemented a mentoring program where we invited our police partners into our forensics lab for the purpose of being mentored by my team of forensic examiners. I participated in the day to day training of these police partners with the objective of providing them with enough skill and knowledge to return to their own department and create and run their own computer forensics lab. 8. Immediately after retiring from the RCMP I worked for H&A Forensic and Investigative Accounting (as it then was) as the National Director, Computer Forensics and E-Discovery. I implemented all policies and procedures for the computer forensics lab and procured all hardware and software. 9. In August, 2003 I founded DEI. DEI has been providing computer forensic acquisitions and analysis and Internet investigation services since its inception. Through the development of its own proprietary methodologies of archiving Internet content, DEI has been able to secure and maintain the continuity of publicly available information for use in evidence. 10. I have participated in the execution of approximately sixty-five Anton Piller Orders (“APO’s”) for the purpose of, among other things, anti-piracy investigations, theft of intellectual property and fraud. The data collected in the majority of these cases has been forensically acquired and analyzed by DEI and is used as a database of intelligence for current and future investigations. DEI also receives data from its clients where such data has been acquired through judicially authorized search warrants executed in the United States or where data has been voluntarily surrendered to our clients in Canada and the United States and then forwarded to DEI for forensic analysis and migration to DEI’s proprietary database.