Motion for Order Enforcing SANCTIONS 3.20.13

m THE COURT OF COMMON PLEAS

OF LUZERNE COUNTY

SUNDANCE VACATIONS, INC.

Plaintiff,

v.

ALBERT WHITEHEAD,

Defendant.

NO. 12-CIV-8006

PLAINTIFF SUNDANCE VACATIONS, INC.'S

PETITION TO ENFORCE CONTEMPT ORDER

AND FOR ADDITIONAL SANCTIONS

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Plaintiff Sundance Vacations, Inc. ("Sundance Vacations"), by and

through its undersigned counsel, hereby seeks an Order enforcing the Court's

January 18, 2013 Order finding PlaintiffAlbert Whitehead in contempt and

imposing additional sanctions against Mr. Whitehead for his continuing violation

of that Order and, in support thereof, states the following:

1 . This action arises out of the flagrant, contemptuous and

continuing breach, by Mr. Whitehead ofhis contractual obligation to refrain from

in any way disparaging Sundance Vacations.

2. By Amended Order dated October 23 , 20 1 2, this Court

preliminarily enjoined Mr. Whitehead from further breaches of the contractual

obligations owed to Sundance Vacations under the parties' Settlement Agreement

and directed Mr. Whitehead to remove the "Boycott Sundance Vacations" page

(referred to hereinafter as "the Boycott page") that he admittedly administered on

Facebook using the false name "John Flannagan." (A true and correct copy of the

October 23, 2012 Amended Order is attached hereto as Exhibit "A.")

3. Notwithstanding his concession to entry of the preliminary

injunction, Mr. Whitehead flagrantly and willfully continued to violate the terms

of the Settlement Agreement as well as the October 23, 2012 Amended Order.

Specifically, Mr. Whitehead administered the "Boycott" page using another false

name, "Mary Smith 4158," beginning on October 17, 2012 and continuing through

at least November 16, 2012 (the date that Facebook produced records identifying

the "Boycott" page administrators). (See Tr. ofProceedings on January 18, 2013

at 20, 1.9 to 2 1 , 1. 1 1 .) (A true and correct copy of the transcript of the January 1 8,

2013 hearing is attached hereto as Exhibit "B.")

4. Upon receipt of records from Facebook confirming Mr.

2

Whitehead's continued involvement in administering the "Boycott" page under the

name "Mary Smith 4158," Sundance Vacations filed an Emergency Petition for

Contempt Sanctions and for Order Compelling Compliance With October 23,

20 1 2 Amended Order on December 21,2012. A hearing on the motion was held

on January 18, 2013.

5. At the hearing, Sundance Vacations offered unrebutted proof

that Mr. Whitehead continued to administer the "Boycott" page after October 23,

2012 using his Verizon internet account and the false name "Mary Smith 4158"

and that he had the ability to but did not discontinue the "Boycott" page despite

the October 23, 2012 Amended Order compelling him to do so.

6. Following the hearing, this Court entered the Order dated

January 18, 2013 finding Mr. Whitehead in contempt of the October 23, 2012

Amended Order. The January 18, 2013 Order directed Mr. Whitehead to send a

letter to Facebook within five (5) days of the date of the Order requesting that the

"Boycott" page be removed and also that Mr. Whitehead "undertake efforts to

personally remove" the "Boycott" page from Facebook within three (3) days of the

date of the Order. The Order further directed that failure by Mr. Whitehead to

comply with the Order "will result in a sanction of $250 per day thereafter" and

that Mr. Whitehead "shall reimburse [Sundance Vacations] for counsel fees and

filing costs associated with [its] emergency petition and hearing" on January 18,

2013. (A true and correct copy of the January 18, 2013 Order is attached hereto as

Exhibit "C.")1

7. In a half-hearted and belated effort to comply with the Court's

Order, Mr. Whitehead sent a letter to Facebook on or about January 30, 2013. Mr.

Whitehead made no reference in his letter to the finding of contempt or his use of

the false name "Mary Smith 4158," but rather stated that he was "reluctantly

compelled" to request removal of the page based on a purported "oversight"

(rather than a knowing breach of his contractual obligations). While Mr.

Whitehead acknowledged his use of the name "John Flannagan" in the letter, he

did not make clear that he used the false name to administer and post messages on

the "Boycott" page or that he continued to do so using a second false name, "Mary

Smith 4158," after the Court preliminarily enjoined him from doing so. Moreover,

Mr. Whitehead sabotaged any effort to have the "Boycott" page removed by

claiming that he lacked "standing and/or authority to personally remove" the page

and by characterizing his request that Facebook remove the page as an "ineligible

1 Sundance Vacations is filing under separate cover an itemization of the counsel feesand expenses required to be reimbursed by Mr. Whitehead.

4

request." (A true and correct copy of the January 30, 2013 letter is attached hereto

as Exhibit "D.")2 Given the equivocal nature of Mr. Whitehead's letter and his

refusal to take down the page himself, Facebook has refused to remove the

"Boycott" page. (A true and correct copy of the March 15, 2013 letter to

Facebook' s counsel confirming this position is attached as Exhibit "E.")

8. Although Mr. Whitehead had the ability to remove the

"Boycott" page himself, (see Tr. ofProceedings on January 18, 2013 at 27, 1.21 to

29, 1.9), he has willfully failed and refused to do so. Importantly, counsel for

Sundance Vacations arranged for a video conference on Friday, February 22, 2013

with Mr. Whitehead and his counsel to assist Mr. Whitehead in performing the few

keystrokes necessary to remove the "Boycott" page. (A true and correct copy of

the letter dated February 20, 2013 arranging for the video conference is attached

hereto as Exhibit "F.") Mr. Whitehead, however, refused to participate in the

video conference and has made no effort to remove the page himself.

9. In addition, Mr. Whitehead has failed and refused to remove

disparaging posts that he made concerning Sundance Vacations on internet blog

2 Mr. Whitehead also copied Facebook' s counsel on a letter which he sent to this Court

on or about January 23, 2013. That letter conveys no request to remove the "Boycott" page but

rather suggests (without justification) that there is no basis for the Court's January 18, 2013

Order and that he is unable to comply with the Order.

5

spots, including posts made using the false name "Dolores" on

http://sundancevacationsccp.blogspot.com. http://naskiewicz.blogspot.com. and

http://sundancevacationsmanipulation.blogspot.com using an AOL email address

[email protected]. (See Tr. ofProceedings on January 18, 2013 at 29,

1.14 to 35, 1.3.) Those posts remain viewable by the public on the internet as of the

date of the filing of this petition.

10. Mr. Whitehead's continuing refusal to remove the "Boycott"

page and other disparaging posts is willful, flagrant and contemptuous and

warrants imposition of the most severe sanction both to coerce compliance with

the Court's Orders and to protect and preserve the authority of this Court.

1 1 . Mr. Whitehead has demonstrated the utmost contempt for the

Orders issued by this Court as well as his contractual obligations and therefore

additional, more severe sanctions are necessary and appropriate.

12. Accordingly, Sundance Vacations hereby moves for an Order

enforcing the January 18, 2013 Order of Court by imposing additional sanctions

both to punish Mr. Whitehead for his intransigence and to coerce compliance with

the Court's Orders.

WHEREFORE, Sundance Vacations, Inc. respectfully requests that

the Court impose additional sanctions to enforce the October 23, 2012 Amended

Order and the January 18, 2013 Order of Court by, inter alia:

(a) Compelling Mr. Whitehead to pay to Sundance

Vacations the amount of $14,000.00, which represents the $250.00 fine for each

day from January 1 8, 2013 to the present that Mr. Whitehead was in violation of

the Court's January 18, 2013 Order (with the assessment of the daily fine

continuing due to Mr. Whitehead's ongoing contempt);

(b) Increasing the daily fine to $500.00 for each day forward

that Mr. Whitehead continues to refuse to comply with the terms of the January 18,

2013 Order;

(c) Imposing a conditional order of imprisonment confining

Mr. Whitehead to the Luzerne County Jail unless and until he removes the

"Boycott" page and all posts that he made on other online platforms concerning

Sundance Vacations; and

(d) Such other and further relief as the Court deems

appropriate under the circumstances.

Respectfully submitted,

Daniel T. Brier

Donna A. Walsh

Attorneys for Plaintiff,

Sundance Vacations, Inc.

MYERS, BRIER & KELLY, L.L.P.

Suite 200, 425 Spruce Street

Scranton, PA 18503

(570)342-6100

Date: March 20, 2013

VERmCATIQlS

I, John Dowd, President and CEO of Sundance Vacations, Inc.,

hereby certify that the facts contained in the foregoing Petition To Enforce

Contempt Order and for Additional Sanctions are true and correct and are made

subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to

authorities.

John Dowd

Date: 3 ' ( ^ ^ 3

Exhibit A

SUNDANCE VACATIONS, INC., r IN THE COURT OF COMMON PLEAS OF

Plaintiff LUZERNE COUNTY

V8

ALBERT WHITEHEAD, CIVIL ACTION - LAW

Defendant :NO. 1I-CIV-8006

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AMENDED ORDER £ fea'/-'

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AND NOW, tbls 23rd d»y of October, 2012, at /J:zd Btm„ upon

consideration of Plaintiff Sundance Vacations, Inc.'s Petition for Preliminary

Injunction and supporting memorandum as well as testimony/argument introduced

at the hearing this date,

IT IS HEREBY ORDERED that Defendant Albert Whitehead is enjoined

from existing and future breaches uf the Settlement Agreement dated February 6,

2007 pending further Order of Court. Further, all posts and activity concerning

Sundance Vacations, Inc. in any manner made by Defendant Albert Whitehead

posing as "John Fionnagan" or using any other pseudonym on Facehook or any

other platform shall be removed immediately.

Further, Defendant Albert Whitehead shall not interfere with the efforts of

Sundance Vacations Inc. to remove the posts and shall cooperate with Sundance

Vacations Inc. in directing Facchookto remove the ''Boycott Sundance Vacations"

page.

Security shall be entered in the amount of $100.00 (one hundred dollars) in

accordance with Pa.R-Civ. P. 1531(b)

The Prothonotary is directed to forward a copy of this order to all parties

pursuant to Pa. ItC.P. 236,

BY THE Q

DERANTONI

Exhibit B

IN THE COURT OF COMMON PLEAS

OF LUZERNE COUNTY

PENNSYLVANIA

SUNANCE VACATIONS, INC.,

Plaintiff,

ALBERT WHITEHEAD,

Defendant

CIVIL ACTION

NO. 8006 of

TRANSCRIPT OF PROCEEDINGS

BEFORE:

The Honorable Fred W. Pierantoni, III, J.Courtroom No. 5

Luzerne County Court House

200 North River Street

Wilkes-Barre, Pennsylvania 18711-1001

Commencing Friday, January 18th, 2012

APPEARANCES:

DONNA WALSH, Esq.

For The Plaintiff

MATTHEW J. CARMODY, Esq.

For The Defendant

2012

COPY

INDEX TO WITNESSES

PLAINTIFF'S

WITNESSES DIRECT CROSS REDIRECT RECROSS

Dennis Dean Cheng 11

John M. Downs 38 — — —

John Dowd 42 44 _ —

1 THE COURT: We have Plaintiffs petition,

2 emergency petition for contempt sanctions and for

3 order compelling compliance with October 23rd, 2012

4 amended order. Correct?

5 MS. WALSH: Thafs right, Your Honor.

6 THE COURT: Let me just have the introduction

7 of counsel for the record.

8 MS. WALSH: Donna Walsh for Sundance

9 Vacations, Your Honor.

10 MR. CARMODY: Mat Carmody for the Defendant,

11 Albert Whitehead.

12 THE COURT: Attorney Walsh.

13 MS. WALSH: Your Honor, we moved for sanctions

14 as a result of Mr. Whitehead's wiiiflii failure to

16 comply with Your Honor's October 23rd preliminary

16 Injunction which barred him from in any way posting

17 messages in any online forums relating to Sundance

18 Vacations, and also compelled him to cooperate with

19 Sundance Vacations In removing a page on Facebook

20 called Boycott Sundance Vacations.

21 By way of background. Judge, there was an

22 employment discrimination case that began in 2004

23 that resulted in a settlement agreement in February

24 of 2007. Pursuant to that agreement Mr. Whitehead

26 promised he would never again post In any fashion

1 We sent a draft letter to Mr. Whitehead's

2 counsel asking that he send that letter to Facebook

3 asking them to take down the page and they have

4 blatantly refused to do that.

5 THE COURT: Was that the November 1st letter

6 attached to your petition?

7 MS. WALSH: There were two letters, Your

8 Honor, October 24th and November 1st.

9 THE COURT: They were prepared by your office

10 and not sent as far as you know?

11 MS. WALSH: Correct, Your Honor.

12 THE COURT: You may continue.

13 MS. WALSH; So that's the first area in which

14 there's been a violation of Your Honor's order. In

15 addition to that, Judge, Mr. Whitehead has refused

16 to take any action to remove posts that he made on

17 other Internet sites. For example, we've confirmed

18 that he's posted on three blog spots using false

19 names. We've confirmed that through discovery and

20 Mr. Whitehead refuses to remove those posts.

21 But the real kicker, Your Honor, is we've

22 learned through discovery that Mr. Whitehead, after

23 Your Honor ordered him to stop posting, he began

24 another false name. He began to administer the

25 same Boycott Sundance Vacations page using the

1 in any forum any messages in any way referencing

2 Sundance Vacations.

3 We filed this lawsuit in April of 2012

4 contending that he breached his obligations by

5 administering a page on Facebook called Boycott

6 Sundance Vacation, and we also brought a claim for

7 tortious interference. Through the course of

8 discovery we were able to confirm that Mr.

9 Whitehead had administered the page using the false

10 name John Flannagan, and that prompted us to move

11 for a preliminary Injunction before Your Honor, and

12 Your Honor entered, with the consent of Mr.

13 Whitehead, the injunction on October 23rd again

14 preventing him from posting -- prohibiting him from

15 posting in any online forum and also requiring him

16 to cooperate with us in removing the Boycott

17 Sundance Vacations page that he actively

18 administered under the false name John Flannagan.

19 Subsequent to that date, Your Honor, we

20 discovered three things. First, Mr. Whitehead

21 refuses and continues to refuse to cooperate with

22 Sundance in removing the page. Your Honor clearly

23 directed him on October 23rd that he is required to

24 cooperate with Sundance to get the page down and he

25 has refused.

1 false name Mary Smith. He did that from October

2 17th, 2012 continuing thereafter.

3 We have witnesses here today that I would like

4 to present that will verify and confirm that Mr.

5 Whitehead is, in feet, Mary Smith; that he

8 administered the Facebook page Boycott Sundance

7 Vacations after October 23rd, and that he continued

8 to post messages on that page after that date in

9 willful violation of the Court's order. So we have

10 three witnesses, Your Honor, we would like to

11 present testimony from concerning these matters.

12 THE COURT: Mr. Carmody.

13 MR. CARMODY; Thank you. Your Honor. Just to

14 try to address each issue that Plaintiffs counsel

15 addressed. She mentioned In paragraph seven of her

16 motion there were three blogs that they found after

17 the Court's order. These are the printouts of

18 those blogs. As you could see, those blogs are

19 March of '09, August of '09, and March of 2010, two

20 years after your October 2012 order. Those blogs

21 on the last page will show that they were drafted

22 or written by Dolores, who's been proven through

23 discovery -

24 THE COURT; Your position is these were

25 before?

1 of 13 sheets COPY Page 2 to 5 of 53

1 MR. CARMODY: Correct. And those were by

2 Dolores who, discovery has shown, has been a

3 display name that my client has used In the past.

4 Exhibit F of Plaintiff's motion shows that Dolores

5 was a display name for [email protected], and

6 for [email protected]. And if you look at

7 Exhibit E of the motion, both

8 [email protected] and [email protected] have

9 both been deleted.

1 0 I'm not sure if Your Honor is aware, but if

1 1 you create an email account, go on the Internet and

12 put a blog on the Internet, and subsequent to that

13 you delete that email address, you can't go back

14 and remove something from cyberspace. It's there

15 permanently. So my client has no ability to go

16 back to a blog from 2009 and 2010 and remove them

17 at this time.

18 The next issue that Plaintiff's counsel has is

19 with the Boycott page. As Your Honor is aware, we

20 submitted an affidavit from our client saying that

21 he was not the creator of that page, and because he

22 is not the creator of that page, he doesn't have

23 the authority or the ability to take that down.

24 THE COURT: Did you ever correspond with

25 Facebook?

1 create it and therefore he doesn't have the right

2 or the authority to tell Facebook you got to take

3 this down. Frankly, he would have been out of

4 line.

5 THE COURT: Out of an abundance of caution,

6 couldn't a letter have been sent?

7 MR. CARMODY: We could send a letter if that's

8 what you would like.

9 THE COURT: I think If you sent a letter, even

10 If It had no effect, at least you would have

11 complied more thoroughly with the order.

12 MR. CARMODY: Correct.

13 THE COURT: Continue.

14 MR. CARMODY: Third, the Plaintiff presents

16 Exhibits G, H and I, and she claims that - the

16 Plaintiff claims that these exhibits identify my

17 client, the Defendant, as the current administrator

18 of the Facebook page.

19 If you take a look at these exhibits they

20 don't say any of that. They identify a user name

21 and they identify Facebook records, but they don't

22 show what pages this person was on. It doesn't

23 show ~ it doesn't say he was an administrator or

24 not an administrator. It says nothing. It just

26 shows that this was a Facebook name and he was

1 MR. CARMODY: No. I felt it was inappropriate

2 for Plaintiffs counsel to send me a pre-drafted

3 letter for me to sign and for me to send to

4 Facebook. I didn't think It was ethical on my part

5 to submit a letter that I knew not to be true

6 factually, based upon my client's representations,

7 for me to send a letter to Facebook stating facts

8 or allegations that I knew not to be true and based

9 upon my client's representations I knew not to be

10 true. Nothing in your court order ~

11 THE COURT: Part of the order from October

12 23rd contains an entry that your client would

13 cooperate with Sundance in directing Facebook to

14 remove the Boycott Sundance Vacations page. Did

15 you undertake any attempt to contact Facebook by

16 your own letter?

17 MR. CARMODY: No. Respectfully, Your Honor,

16 we disagreed with that portion of your order.

19 THE COURT: You may disagree with it, but it's

20 an order. What harm would there have been to send

21 a letter?

22 MR. CARMODY: The response to your order was

23 to get a sworn affidavit from our client saying

24 that, Your Honor, I understand you made this part

25 of your order, but the fact is that he didn't

1 logged in on Facebook. It doesn't say what pages

2 he was logged in on, and most importantly,

3 Plaintiff alleges in their motion that there were

4 defamatory statements made, yet there is not one

6 defamatory statement made in any of the exhibits

6 that they attached.

7 Based on that, Your Honor, the motion lacks

8 any evidence and, therefore, Plaintiff didn't meet

9 their burden to sustain a motion for sanctions.

10 THE COURT: You are prepared to offer

11 testimony today?

12 MS. WALSH: Yes, Your Honor.

13 THE COURT: I could understand Mr. Canmody's

14 concern about sending a letter to Facebook that may

16 be composed by your office, but if such a letter

16 was forwarded to Facebook, would that solve the

17 problem in any way for you?

18 MS. WALSH: It would go toward solving the

19 problem, Judge, but the real problem here is that

20 Mr. Whitehead, once he's caught using one name, he

21 Just changes his name. We caught him as John

22 Flannagan so he became Mary Smith.

23 THE COURT: Do you have any belief that he

24 could direct Facebook to take any page down?

25 MS. WALSH: I do, Your Honor, and we have


1 proof here today that we'll establish that ~ 1 University. Training there Included data management

2 THE COURT: Did you discuss that with Mr. 2 analysis, computer networking, and advanced mathematics

3 Carmody? 3 Q. Can you tell the Court, please, about your

4 MR. CARMODY: We have discussed, not In great 4 work experience In the area of Information technology.

5 detail, but we have discusses It. 5 networking, and computer forensics?

6 THE COURT: I will give everybody a 20-mlnute 6 A. Since about 1995 I've been employed In various

7 recess to discuss your differences. If there still 7 positions that Indude the management, upkeep, development

8 Is an Issue we'll come back and we'll take 8 of computer Infrastructure. I have served as advisor to

9 testimony. 9 numerous Internet operations. I have served as HIPAA

10 MS. WALSH: Thank you. Your Honor. 10 security officer for medical operations, and I have

11 [Whereupon, after recess:] 11 performed forensic analysis for legal cases.

12 THE COURT: I appreciate counsel's discussion 12 Q. Do you have any spedalized training In

13 of the matter before coming back. 13 computer technology?

14 MR. CARMODY: Your Honor, I spoke with my 14 A. I have attended numerous courses hosted by

15 dient. In regards to your suggestion about 15 Access Data Corporation that makes forensic tools.

16 submitting the letter to Facebook and requesting 16 Q. Your r^sum^ Identifies you as a security

17 them to take the page down, he Is In agreement that 17 officer, that you served as security officer for a period of

18 he would do that. I have exchanged that message 18 time in the go's at Clinical Laboratories. Can you describe

19 with counsel. 19 that for the Court, please.

20 THE COURT: Let's start with that point. You 20 A. Part of that included the protection of health

21 will send a letter on behalf of your client, your 21 information, data protection, and incident response and

22 dlent will correspond with Facebook to undertake 22 Investigation.

23 whatever he can. Understood? We'll have that done 23 Q. Did you have an opportunity to work with law

24 within five days. 24 enforcement?

25 MR. CARMODY: Okay. 25 A. We have. As part of the HIPAA security

1

11

THE COURT: Attorney Walsh. 1

13

officer, as well as internal employee investigations, we

2 MS. WALSH: Your Honor, we would call Dennis 2 worked with law enforcement.

3 Cheng. Your Honor, If I could hand up a copy of 3 Q. Now you are the founder and you work at Two By

4 our exhibits. 4 Two Solutions, correct?

5 THE COURT: Proceed. 5 A. Correct.

6 ..... 6 Q. What is the business of Two By Two Solutions?

7 DENNIS DEAN CHENG, called as a witness on 7 A. Two By Two Solutions provides consulting

8 behalf of the Plaintiff, having been duly sworn, 8 services for legal firms.

9 was examined and testified as follows: 9 Q. How long have you worked in the field of

10 10 information technology working In computer forensks?

11 DIRECT EXAMINATION 11 A. Full-time since 1995.

12 12 MS. WALSH: Your Honor, I'd offer Dennis Cheng

13 BY MS. WALSH; 13 as an expert in the area of information technology.

14 Q. Dennis, can you turn, please, to what's been 14 infrastructure and networking, as well as computer

15 marked Exhibit R In the binder before you. 15 forensics.

16 A. Sure. 16 THE COURT; Any voir dire, Mr. Carmody?

17 Q. Can you tell us, please, whether that is a 17

18 true and correct copy of your curriculum vltae? 18 VOIR DIRE EXAMINATION

19 A. It is. 19

20 Q. Can you tell the Court about your educational 20 BY MR. CftRMPPY?

21 background, please. 21 Q. Mr. Cheng, we're here today -- a large basis

22 A. The relevant parts of my educational 22 of the daims here today are dealing with the Facebook

23 background, I attended the University of Michigan Ann Arbor 23 website. What's your experience with Facebook In terms of

24 for my undergraduate studying, among other things, computer 24 IT?

25 science and advanced mathematics. Graduated Johns Hopkins 25 A. I am familiar with Facebook's operation. Any


1 claims that we will be talking about here today I've tested. 1 Q. Can a person have more than one persona on

2 As you know, Facebook Is a public company, secretive. Even 2 Facebook, or more than one name on Facebook?

3 within Facebook somebody can't say this is exactly how it 3 A. In practice, yes.

4 behaves because of something called A. B. Testing, which I'm 4 Q. How does that work?

5 happy to explain. 5 A. Ifs as simple as filling out another

6 MR. CARMODY: I have no objection to him as an 6 enrollment to create another account^ although it's

7 expert 7 expressly forbidden in the Terms of Use.

8 THE COURT: We'll recognize you as an expert, 8 Q. But ifs possible to do it?

9 sir. Proceed. 9 A. Very possible.

10 PY MSi WfttiSH' 10 Q. Were you able to reach any conclusions as to

11 Q. Dennis, have you had an opportunity to examine 11 the location of the person using the name marysmith4158?

12 a page on Facebook called Boycott Sundance Vacations? 12 A. Yes, all accesses from that user account

13 A. I have. 13 originated from the same IP address. I performed analysis

14 Q. What Is that, please. 14 on that IP address and it was registered to Verizon as a

15 A. It is a Facebook page apparently devoted to 16 consumer DSL.

16 discussions of Sundance Vacations, and specifically devoted 16 Q. Dennis, I'm going to ask you to slow this down

17 to stopping business with the organization. 17 a little bit.

18 Q. Is that a page that's open to the public? 18 A. It was located In the metropolitan

19 A. It is. 19 Philadelphia area.

20 Q. Ifs viewable by members of the public? 20 Q. Thank you. Can you show us, please, where in

21 A. It is. 21 the Facebook records you see an IP address associated with

22 Q. I'm going to ask you to turn to Exhibit H In 22 marysmith4158@hotmaii,com.

23 the binder In front of you. As the certificate suggests. 23 A. Ifs in Exhibit H. There's no page numbers.

24 these are records that were produced to Sundance Vacations 24 though.

25 by Facebook in response to our subpoena for information 25 Q. In Exhibit H, about half of the way through

1

15

identifying the administrators of the Boycott page, and the 1

17

there's a reference to [email protected].

2 response identifies five different administrators for the 2 MS. WALSH: Your Honor, the exhibits are

3 page, and the names would be Fran Wilson, Mary Smith, 3 printed in the binder that was handed up.

4 marYsmithl2079 and marysmith4158, Nancy Vosicka, and Mark 4 THE COURT: Thank you.

5 Adomo. 5 BY MS. WALSH;

6 Before we get into those details, can you teO 6 Q. So Is the IP address Information for all of

7 us, what are administrators of a Facebook page? 7 the marysmith4158 logins the same.

8 A. A Facebook page Is a site on Facebook devoted 8 A. Yes.

9 to a cause, a business or a group. Because of that there 9 Q. What research did you do to Identify the

10 are individuals or user accounts that are assigned as 10 person or persons associated with that IP address?

11 administrators. So an administrator has elevated privileges 11 A. We had, as I said, we have identified It as a

12 on that page so that they can post, delete, manage, and 12 Verizon IP address. We happen to have a subpoena response

13 otherwise manipulate the operations of the page. 13 from Verizon, and cross-referring that IP address it was

14 Q. Are administrators basically the managers of 14 Indeed the IP address of Albert Whitehead.

15 the page? 15 Q. Tell the Court what an IP address is.

16 A. Yes, they are. 16 A. An IP address is computer terminology that is

17 Q, In this case there are five administrators. 17 used In networking that essentially operates much like a

18 Is this common with Facebook that more than one person can 18 phone number where a public computer endpoint has this

19 serve as an administrator? 19 address, so that it is used to broker communications.

20 A. There's nothing preventing that. 20 Q. Are IP addresses unique to the user, or can

21 Q. Do administrators have the ability to post 21 many different users share the same IP address.

22 messages on a Facebook page? 22 A. The IP address is usually restricted to one

23 A. They have the ability to post both as 23 location.

24 themselves and as the page itself. They can use either 24 Q. Who assigns IP addresses?

26 identity. 25 A. In the case of something like home DSL or


1 residential services. It's done by the ISP, or in this case 1 A. It is.

2 Verizon. 2 Q. When did marysmith4158 register for a Facebook

3 Q. So you've traced this IP address in the Mary 3 account?

4 Smith records to Verizon? 4 A, It was listed In the Facebook exhibit. First

5 A. Correct. 6 use or registration?

6 Q. You mentioned DSL or home account, is that a 6 Q. When did she register for a Facebook account?

7 common Internet service that's provided to individuals? 7 A. Thafs at the end of the records. Looks like

8 A. Most civilians or most regular people have 8 August 13th, 2012.

9 residential service, so either by cable modem or DSL 9 Q, Help us put into context this individual using

10 Q. If 1 have Internet access In my home, there 10 the name Mary Smith, when this individual logged on to the

11 would be an IP address associated with my address? 11 Facebook account. We had a preliminary injunction ~ a

12 A. Correct. 12 hearing, I should say, on this case on October 19th. When

13 Q. Did you reach any conclusion as to the IP 13 did the person using the name marysmith4158 first logon to

14 address that the person claiming to be Mary Smith used to 14 Facebook?

15 logon to Facebook? 15 A. The first logon indicated here is November

16 A. Yes, that IP address was, as I said, the one 16 16th, 2012.

17 that was allocated to Albert Whitehead. 17 Q. I'm sorry, is that the first logon? Not the

18 Q. Can you identify for the record the number of 18 last logon.

19 that IP address? 19 A. I apologize, this Is sort of in reverse order.

20 A. It Is 72.78.191.60. 20 It should be, and It Is, October 17th, 2012. My apologies.

21 Q. I'm going to ask you to turn to Exhibit I in 21 Q. So the first logon for Mary Smith is October

22 the records before you. 22 17, 2012. What page are you referring to?

23 MR. CARMODY; I'm sorry, the IP address you 23 A. Marysmith4158 there is a section mid page it

24 stated, what number was that? 24 says logout. It's the entry right above that.

25 THE WITNESS: 72.78.191.60. 25 Q. Is that the first login for marysmlth4158?

1

19

MS. WALSH: For clarification. Your Honor, 1

21

A. It appears to be, yes.

2 there are two Mary Smiths associated, and it's the 2 Q. During what period of time do these records

3 [email protected] that's associated with 3 show that marvsmith4158 was logging on to Facebook?

4 this IP address. 4 A. According to these records from October 17th,

5 THE COURT: Is that correct, sir? 5 2012 through November 16th, 2012. I noted that the records

6 THE WITNESS; Yes. 6 were generated on the 16th of November, so ifs not to say

7 THE COURT: Continue. 7 that it stopped at that point.

8 BY MS. WALSH! 8 THE COURT: It stopped on that date?

9 Q. Turn please to Exhibit I. 9 THE WITNESS: The records were generated -

10 MS. WALSH: I will represent to the Court 10 obviously they couldn't go into the future, so it

11 these are records that were subpoenaed from Verizon 11 was current as of generation.

12 with regard to IP addresses associated with Mr. 12 THE COURT: Was there any check to see if

13 Whitehead's residence. 13 they're current today?

14 14 MS. WALSH: That's in process, Your Honor.

15 Q. Dennis, tell the Court, please, what is the 15 THE COURT: So be It.

16 last known IP address associated with Mr. Whitehead 16 MS. WALSH: Facebook is In California and as

17 according to these records? 17 Your Honor —

18 A. The last known IP address as of the Verizon 18 THE COURT: Go ahead.

19

20

letter was 72.78.191.60.

Q. Can you tell us, please, what page of the

19

20 Q. Dennis, what on these records tells us that

21 exhibit you're referring to? 21 the records are printed only through 11/16/2012?

22 A. It Is, I believe, the last page of the exhibit 22 A. At the head of each target page there is a

23 and there's a table for Albert Whitehead. 23 field called date range, and in this report it Indicates

24 Q. Is that the same IP address associated with 24 creation, so account creation to November 16th, 2012.

25 marysmlth4158 In the Facebook records? 25 Q. Did you do an investigation to determine

S of 13 sheets COPY Page 18 to 21 of 53

1 whether marysm(th4158 posted messages on the Boycott page 1 we'll go through specifically some of the examples?

2 during this period of time from October 17, 2012 to November 2 A. Okay. Any one of these communications or

3 16, 2012. 3 messages that were identified as coming from the

4 A. Yes, I did. 4 administrator, they're time-stamped. So we compared the

5 Q. And what did you conclude? 5 time stamp of that message to the windows of time between a

6 A. I concluded that there were a number of times 6 login and logout event, and eliminating periods of dme

7 that we could prove marysmlth4158 did Indeed post to the 7 where there were multiple parties logged In concurrently, we

8 Boycott Sundance Vacation page. 8 could Identify periods of time where only Mr. Whitehead was

9 Q. There were other administrators. Were you 9 logged on.

10 able to rule out that the other administrators posted In 10 Q. Can you tell us, please, what Exhibit N

11 lieu of or Instead of Mary Smith? 11 represents, N as In Nancy?

12 A. I did. 12 A. N Is summary data inputted from the Facebook

13 Q. How could you determine that she was the 13 response.

14 exclusive poster of messages during this period? 14 Q. Does this show the particular administrator's

16 A. We have comprehensive login and logout times 15 login and logout Information?

16 for all the other users and so we could Identify windows of 16 A, It does.

17 time where marysmith4158 was the only user with 17 Q. Have you done anything to make this

18 administrator privileges logged In to Facebuok. 18 presentation consistent with local time as opposed to UTC

19 Q. Let's go through some of those records. First 19 time?

20 of all, I ask If you can Identify for the record what we 20 A, Yes, I directed and supervised the conversion

21 have marfced as Exhibit M? 21 of UTC timestamps to eastern localized time.

22 A, These appear to be screen shots of posts to 22 Q. Why did you do that? Why did you make that

23 the Boycott Sundance Vacations page. 23 conversion?

24 Q. During what period of time? 24 A. Because the screen shots from Facebook are

25 A. This one, it appears to be November 5th, 2012. 25 displayed in eastern time, so just for the sake of simple

1

23

Q. Did you do an investigation to analyze the IP 1

25

comparison and not having to know daylight savings rules, we

2 data received from Facebook with respect to the 2 performed that conversion.

3 administrator appearing on these pages? 3 Q. So you're trying to compare apples to apples,

4 A. I did. 4 correct?

5 Q. First, can you tell the Court how you can 5 A. Correct.

6 Identify a message that was posted by the administrator as 6 Q. Let's go back to Exhibit M and let's go

7 opposed to a user of the site? 7 through some of these examples. There's a post on the

8 A. The messages are the - the comments In this 8 bottom of the page from the Boycott Sundance Vacations

9 case are identified with the name Boycott Sundance Vacations 9 administrator dated November 9th, 2012 at 4:43 p.m. Do you

10 and happens to have the logo of the - I dont know what you 10 see that on the first page of Exhibit M?

11 call that, the red cross through Sundance Vacations. 11 A. I do.

12 Q. Looks like it's the Sundance Vacations name 12 Q, What can you tell us about the Identity of the

13 with a cross through it? 13 administrators who were logged on on November 9, 2012 at

14 A. Uh-hum. 14 4:43 p.m.

15 Q. Is that the sign that this post Is from an 15 A. I referenced the last page of the Facebook

16 administrator as opposed to a user? 16 logs and, this is sorted by date and time, identified a

17 A. Yes, It is. 17 window of time from November 9th at 1:34 p.m. -- I'm sorry.

18 Q. You were telling us about the investigative 18 November 9th at 4:21 p.m. until 9:41 p.m. where

19 work that you did to determine whether any particular 19 marysmlth4158 was logged in. I then compared other

20 administrator post was made by marysmith4158 or one of the 20 administrators and see that the latest time In proximity to

21 other administrators. I wonder If you could walk us through 21 that was 4:33. So any time after 4:33 until some period

22 what you did to make that determination? 22 after the 9th the only administrator logged in was

23 A. Okay. Should we speak to a specific post 23 marysmlth4158.

24 here, maybe the November 9th one? 24 Q. On November 9th at 4:43 p.m. the only

26 Q. Tell the Court generally what you did and then 25 administrator logged on was marysmlth4158?


1 A. Correct. 1 A. We ran tests and It Indicated that any single

2 Q. Let's go to the third page in Exhibit M. 2 administrator had rights to take down the page with

3 There Is a reference there to a post made by the Boycott 3 Immediate effect.

4 Sundance Vacations administrator on October 30, 2012 at 7:51 4 Q. Can you describe for the Court, please, the

5 a.m. Did you do any Investigation to determine whether one 5 process by which an administrator can remove a Facebook

6 or more than one administrator for the Boycott page was 6 page?

7 logged In on that date at that time? 7 A. Ifs fairly simple. There are either one or

8 A. Yes, I did. It Identified marysmlth4158 as 8 two steps. The first step is to remove other administrators

9 the sole login at that time. 9 from the page, and then under one of the settings pages for

10 Q. Is that also apparent from the charts that are 10 the page there Is a quick link to delete the page, Ifs a

11 In Exhibit N? 11 one dick deal and two confirmations.

12 A. Yes, I believe so. 12 Q. I ask you please to turn to Exhibit K and I

13 Q. Can you explain that? 13 will ask you to Identify Exhibit K for the Court, please.

14 A. Forgive me, this Is difficult to parse. There 14 A. Yes, this Is the page settings page that I

15 Is a login event for marysmlth4158 on October 28th, and It 15 awkwardly described previously.

16 stays logged In -- thafs the login for marysmlth4158. 16 Q. Is that the page that the administrator would

17 During that time unti the 30th there was one Mark Adomo 17 go to In order to complete the process of removing a

18 logged out on the 29th, but then we have the post on the 18 Facebook page?

19 30th at 7:51 a.m., so by the process of elimination again, 19 A. Correct. At the bottom of the page there's a

20 It was the only person that was logged on at that time. 20 bottom that says, save changes, and Immediately before that

21 Q. So there was no other administrator logged on 21 there Is a section that says, delete page. One just has to

22 on October 30 at 7:51 a.m. other than marysmith4158? 22 dick the link and then confirm the choice.

23 A. Correct. 23 MS. WALSH: I will represent to the Court the

24 Q. Lefs go through one last example for October 24 information blacked out is the personal Information

25 19, 2012, which Is the date that we were here In court on 25 of the Facebook user that formed the basis for

1

27

the preliminary injunction hearing. I ask you, Dennis, to 1

29

printing this page.

2 turn to the 19th page, which I apologize, the pages are not 2 BY MS. WAkSH:

3 appropriately numbered, but the 19th page of Exhibit M. I 3 Q. How long would It take an administrator to

4 ask If you can see a post there dated October 19, 2012 at 4 remove a Facebook page?

5 9:53 a.m. on the bottom of the page? 5 A. Being generous with mouse skills and time, I

6 Yes, I do. 6 would say less than a minute.

7 Q. Is that a post that was made by the Boycott 7 Q. What Information or resources would a user

8 Sundance Vacations administrator? 8 need to have to delete a page?

9 A. It was. 9 A. A computer and a working login.

10 Q. Did you do an investigation to determine 10 Q. Mr. Whitehead daims in papers filed in this

11 whether one or more than one of the administrators was 11 court that only creators can delete a Facebook page; is that

12 logged on to Facebook on that date at that time? 12 accurate?

13 A. My determination was that only marysmlth4158 13 A. That is not accurate.

14 was logged In at that time. 14 Q. Did you also perform an investigation to

15 Q. We've gone through some examples. Are there 15 determine whether Mr. Whitehead posted messages on other

16 other examples that would show us that marysmith4158, which 16 Internet sites that made reference to Sundance Vacations,

17 is associated with Mr. Whitehead, was the only administrator 17 that Is aside from the Boycott page?

18 logged on making posts during the period covered by the 18 A. I did.

19 Facebook records? 19 Q. What did you condude?

20 A. I'm sure of it. 20 A. I conduded that there are a number of Wog

21 Q. Who has the ability to remove a Facebook page? 21 spot sites that are actively referenced by the Boycott

22 A. An administrator of that page. 22 Sundance Vacations Facebook page that are, like I said.

23 Q. Is it sufficient for one administrator to take 23 actively referred to. I think there are three of them.

24 down the page, or do all of the administrators need to join 24 Q. Can you Identify for the Court, please, what

25 together to do that? 25 we have marked as Exhibits P, Q and R in the binder before


1 you? 1 Q. You concluded that independently based on your

2 A, P Is a printout of one of these pages, I 2 investigation, connect?

3 believe the title of It Is the Sundance Vacations 3 A. Correct.

4 Sweepstakes versus Do Not Call. 4 Q. I ask you to turn briefly to Exhibit E of the

5 Q. Can you tell us what Exhibit Q Is? 5 binder In front of you, and I represent to the Court that

6 A. Q Is another one of these blog spot pages 6 Exhibit E Is the response that we received from AOL to the

7 titled Sundance Vacation Manipulations. 7 subpoena that was served seeking screen name and account

8 Q. And R? 8 information for Albert Whitehead.

9 A. R Is ~ 9 Dennis, can you turn please to page six of

10 Q. I apologize, Exhibit 0? 10 Exhibit E and tell us what are the screen names that appear

11 A. 0 is Sundance Vacations Complaints and 11 on Exhibit 6?

12 Cancellation Procedures blog spot page. 12 A. Would you like me to read them all?

13 Q. Are Exhibits 0, P and Q reflective of online 13 Q. Lefs see If we can cut through this. What is

14 posts made by Mr. Whitehead? 14 an AOL screen name and how Is It used?

15 A. Yes. After my analysis, yes. 15 A. In AOL there is a master account and from that

16 Q. Can you tell the Court briefly what you did In 16 one can create multiple identities. The proper use of It Is

17 terms of your analysis to Identify Mr. Whitehead as the 17 sort of a family might want to get an email address for the

18 author of these biogs? 18 wife and the kids. In this instance one can make numerous

19 A. All three biogs have their publicly facing 19 Identities that would have capabilities of both sending and

20 identification, or the person who's responsible for this are 20 receiving email and communicating via Instant Messenger,

21 false names. I believe there's a Google response somewhere 21 among other things.

22 in here that identifies the true owner of these biogs. 22 Q. Would a person with an AOL account, would

23 Q. I ask you please to turn to Exhibit F? 23 their AOL email address include their chosen screen name?

24 A, Yes. 24 A. They could send and receive email. For

25 MS. WALSH; I will represent to the Court that 25 example this Deserie account, Deserie@aol,com would be a

1

31

this Is a response that we received from Google In 1

33

valid email address.

2 response to a subpoena that was served for records 2 Q. The screen names associated with Mr. Whitehead

3 Identifying the author of three biogs. Including 3 include the term Beware Sundance and Sundance Vac. Do you

4 SundancevacatlonsCCP, Nasklewlcz2.blog.spot, and 4 see that?

5 Sundancevacatfonsmanlpulatlon. 5 A. I do, yes.

6 6 Q. What does that mean? Does that mean that Mr.

7 Q. What do these records tell you about the email 7 Whitehead Is sending and receiving emails using the account

8 address associated with the Individual who posted on the 8 [email protected] and [email protected]?

9 three biogs that 1 mentioned. 9 A. Very well could have, yes,

10 MR. CARMODY: Your Honor, we already 10 Q. Does he also have the ability to communicate

11 essentially admitted this morning that my client 11 online through Instant messaging using these screens name?

12 did author these three biogs back In 2009 and 12 A. Yes. Or did.

13 2010 -- 13 Q. Do the AOL records show the IP address

14 THE COURT: Prior to the order. So noted. I 14 associated with Mr. Whitehead.

15 have them here. Move on to another area. 15 A. There are a number of IP addresses listed but.

16 MS. WALSH: Thank you. Your Honor. 16 yes.

17 WLMS. WAUSH= 17 Q. Do you see an IP address in these that you've

18 Q. For the record, please, can you tell the Court 18 seen before In the Facebook records or the Verizon records?

19 the email address thafs associated with these biogs? 19 A. I have.

20 A. Ifs a misspelling but in English translation 20 Q. What is that?

21 it's [email protected]. 21 A. Our familiar 72.78.191.60.

22 Q. Thafs a service associated with Mr. 22 Q. During what period of time, did Mr. Whitehead

23 Whitehead, correct, pursuant to the stipulation we've Just 23 use that IP address?

24 heard? 24 A. As late as November 5th, I believe, and as

25 A. Yes. 25 early as — it has to be August of 2012.


1 Q. Just so the record Is dear, the dates of use 1 A. Yes.

2 would be apparent from the IP session logs that are Induded 2 Q. What Is that opinion?

3 in Exhibit E, correct? 3 A. My opinion Is that he has Indeed posted on

4 A. Numerous ones, yes. 4 other sites other than Facebook.

5 Q. There's been an allegation that once an S Q. Do those posts remain viewable by the public?

6 Individual makes a post on a blog that that cant be 6 A. They do.

7 removed; is that accurate? 7 Q. Does Mr. Whitehead have the ability to remove

8 A. No, that's not accurate. 8 those posts?

9 Q. Can you tell us what an individual would need 9 A. I believe he does.

10 to do In order to take down a post he or she made in a post 10 Q. Do you give these opinions within a reasonable

11 such as this? 11 degree with professional certainty?

12 A. We are spedficaliy speaking to blog spot. 12 A. I do.

13 Although the email address might no longer be valid, the 13 MS. WALSH: No further questions.

14 account Is separate and exduslve of the email address. So 14 THE COURT: Thank you. Cross.

15 If the credentials for that account are still available, one 15 MR. CARMODY: Your Honor, without my dlent

16 could login and destroy the post. Alternatively, if the 16 having a similar expert to review documents that we

17 account credentials are no longer available, one could 17 received last month, and additional documents that

18 request the host of the blog to take It down providing 18 we received today, I don't believe I would have any

19 adequate proof of ownership. 19 appropriate cross-examination questions for Mr.

20 Q. In your experience, does it usually work to 20 Cheng, and with that -- so I have no

21 ask a blog to be taken down? 21 cross-examination. I would ask If Plaintiff's

22 A. I've seen It done, yes. 22 counsel - are you going to submit additional

23 Q. The blog spots that we have identified, which 23 witnesses?

24 are Exhibits 0, P and Q, are those visible on the Internet 24 MS. WALSH: Yes. Two very brief witnesses.

25 today? 25 Your Honor.

35 37

1 A. They are. 1 THE COURT: Let me ask you. You believe that

2 Q. Viewable by the public? 2 an Individual can have a page or post removed.

3 A. They are. 3 THE WITNESS: Yes.

4 Q. Do you have an opinion as to whether Mr. 4 THE COURT: Other than the administrator?

5 Whitehead administered the Boycott page on Facebook under 5 THE WITNESS: Speclflcally speaking to the

6 the page marysmlth4158 after October 23, 20X2? 6 blog spots, yes.

7 A. I do. 7 THE COURT: How would that be done? What

8 Q. What is your opinion? 8 would an individual have to do?

9 A. My opinion Is that Albert Whitehead did 9 THE WITNESS: They have a login and password,

10 administer the Boycott Sundance Vacations page under the 10 and If they still have that login and password they

11 marysmlth4158 alias. 11 could login and destroy the page. Lefs Just say

12 Q. Did he also post messages on Facebook during 12 that that Information is no longer available. I

13 this period? 13 believe that the individual or the Court could

14 A. Yes. 14 request, with proper documentation, the takedown of

15 Q. Do those posts remain viewable by the public? 15 those pages.

16 A. They do. 16 THE COURT: Anyone want to follow up? Call

17 Q, Do you have an opinion as to whether Mr. 17 your next witness. Anyone plan to recall this

18 Whitehead has the ability to remove the Boycott Sundance 18 witness?

19 Vacations page? 19 MS. WALSH: Not at the present time.

20 A. I do. 20 THE COURT: Sir, you are free to stay or

21 Q. What Is your opinion? 21 leave, whatever your schedule dictates.

22 A. My opinion Is that he does have that ability. 22 MS. WALSH; We call Joe Downs.

23 Q. Do you have an opinion as to whether Mr. 23

24 Whitehead authored messages on other Internet sites that are 24 2BSEPH M. POWNS, called as a witness on behalf

25 disparaging of Sundance Vacations? 25 of the Plaintiff, having been duly sworn, was


1 examined and testified as follows: 1 her sister when she was 16 years of age and she had a

2 - 2 daughter by Mr. Whitehead.

3 DIRECT EXAMINATION 3 Q. Did you do anything to investigate the

4 4 Identity of the other Individuals associated with the

5 BY MS. WALSH: 5 Facebook page, and I will go through them one by one. Mark

6 Q. Can you please state your full name for the 6 Adomo. Were you able to, through your investigative

7 record. 7 efforts, locate an individual named Mark Adomo who Is

8 A. Joseph M. Downs, D-o-w-n-s. 8 affiliated with the Facebook page?

9 Q. What Is your occupation, sir? 9 A. Yes, ma'am, I was.

10 A. 1 am a licensed private detective in the State 10 Q. Were you able to confirm that Mark Adomo Is

11 of Pennsylvania. 11 the administrator, is the poster, or did your investigation

12 Q. Can you describe your work background, please. 12 prove fruitless in that regard?

13 A. Yes. 1 spent almost 25 years with the Federal 13 A. I learned that Mark Adomo is actually Mark

14 Bureau of Investigation. Prior to that I spent 14 years in 14 Martin who resides at 76 Village Drive in Shanksvilie,

15 the Philadelphia police department serving as a highway IS Pennsylvania, and that his wife is Ruth Martin with a maiden

16 patrol officer, detective for the District Attorney, and 16 name of Adomo. It was my understanding that the Facebook

17 also a street sergeant. 17 page was registered to a Mark Adomo, which Is his wife's

18 Q. Did you do anything to investigate to 18 maiden name.

19 determine whether the administrator, or I should say, the 19 Q. Is there an individual named Mark Adomo based

20 person Identified as an administrator of the Facebook page 20 on your Investigation, or is that a conglomeration of other

21 going by the name Nancy Vosicka, whether she has any 21 names?

22 connection to that page? 22 A. Weil, I believe that Mark Adomo Is the same

23 A. Yes. I spoke to Miss Vosicka on January the 23 person as —

24 2nd by telephone -- 24 MR. CARMODY; Objection.

25 MR. CARMODY: Your Honor, I object to the 25 THE COURT: Sustained. Calls for conjecture.

1

39

hearsay. 1

41

Rephrase your question.

2 MS. WALSH: I believe It fits within an 2 BY MS. WALSH:

3 exception, Judge. I would like to ask what this 3 Q. To summarize, sir, were you able to locate any

4 witness' investigative steps were. I intend to ask 4 Individuals, any real, live, in-person Individuals that

5 him about family and reputationai information which 5 share the name of the administrator - strike that.

6 falls within an exception to the Hearsay Rule, and 6 Were you able to locate the real live

7 I plan to ask about the witness' expression of her 7 individuals whose names are associated with the Facebook

8 state of mind. 8 page Boycott Sundance Vacations, or did your investigation

9 So none of the information is being offered 9 show something else?

10 for the truth of the matter asserted, I Just want 10 A. Yes, ma'am, the answer Is yes to your former

11 to get into this witness' investigative steps. 11 question. I did locate a Richard Harris and I did speak to

12 And, as I said, the information about family and 12 him.

13 reputationai background which fails within the 13 Q. What did you determine from Mr. Harris?

14 exclusion under P.A. Rule of Evidence 80319. 14 A. That he was not —

15 THE COURT: Objection is sustained. Move on IS MR. CARMODY: Objection.

16 to another area. 16 THE WITNESS: -did not give permission to

17 BY MS. WALSH: 17 anyone to use his —

18 Q. Were you able to track down a Nancy Vosicka 18 THE COURT: Sustained. Stricken. Any other

19 with a link to the Facebook page? 19 questions?

20 A. Yes, ma'am, I was. 20 MS. WALSH: No, Your Honor.

21 Q. Was ~ does Nancy Vosicka have any connection 21 THE COURT: Mr. Carmody, any questions?

22 or relationship with Albert Whitehead? 22 MR. CARMODY: No, Your Honor.

23 A. Yes, ma'am, she does. 23 THE COURT: Counsel approach. Off the record.

24 Q. What is that relationship? 24 [Whereupon, an off-record discussion occurred

25 A. About 40 years ago Mr. Whitehead Impregnated 25 at sidebar, after which a short recess was taken.]

10 of 13 sheets COPY Page 38 to 41 of S3

1 THE COURT: Continue, please, Attorney Walsh. 1

2 MS. WALSH: Your Honor, we call John Dowd. 2 CROSS EXAMINATION

3 3

4 JOHN DOWD. called as a witness on behalf of 4 BY MR. CARMODY;

5 the Plaintiff, having been duly sworn, was examined 5 Q. Mr. Dowd, you said you're the president, CEO

6 and testified as follows: 6 of Sundance Vacations?

7 7 A. Yes.

8 PIRECT EXAMIWAHQN 8 Q. How many stores does that Indude, or how many

9 9 business locations?

10 BY MS. WALSH: 10 A. Currently there are four sales locations.

11 Q. John, what is your relationship with Sundance 11 Q. Where are they located?

12 Vacations? 12 A. One In New Jersey, one In King of Prussia,

13 A. Owner and president. 13 Pennsylvania, one in Harrisburg, and one In Illinois.

14 Q. How long have you been associated with the 14 Q. How long have you been president of Sundance

15 business of Sundance Vacations? 15 Vacations?

16 A. Since 1991. 16 A. Since It started In '91.

17 Q. Just briefly, can you tel the Court the 17 Q. In the last 20-plus years as president of

18 business that Sundance Vacations is In? 18 Sundance Vacations, in your position as president, have you

19 A. Marketing sales of wholesale vacations. 19 become aware of complaints about Sundance Vacations?

20 Q. Did you have an opportunity to investigate 20 MS, WALSH: Objection, Your Honor. It exceeds

21 whether the persons who are identified as Facebook 21 the scope of direct. Ifs not relevant to any

22 administrators, whether they were ever customers of Sundance 22 Issue ~

23 Vacations or affiliated with the company In any way? 23 THE COURT: Overruled. If you can answer,

24 A. We checked our databases, which we keep 24 sir.

25 extensive databases, and five people that are administrators 26 THE WITNESS: Again, please

43 45

1 of the page have never had any contact with our company, 1 BY MR. CARMOPY:

2 never received any marketing calls, have never visited any 2 Q. In your role as president of Sundance ever the

3 of our locations, never purchased any of our products. 3 last 20 years, have you received complaints about Sundance

4 Q. How has the Boycott page affected the business 4 Vacations service or products?

5 of Sundance Vacations? 6 A. As with any business, our business is not

6 A. Ifs the single worse thing that's happened to 6 perfect. We've had complaints from legitimate customers

7 our business since we started it. Ifs cost us millions of 7 from time to time.

8 dollars over the past few years. We laid off over a hundred 8 Q. Are you aware of any local television

9 people as a result of problems caused by this page. People 9 reporting that's been shown on television regarding

10 believe what they see on the Internet. They think that 10 complaints about Sundance Vacations?

11 stuff is credible. 11 A. I am not.

12 Q, What is the relief that you are asking this 12 Q. Are you aware of any newspaper ads that have

13 Court for? 13 been written from aggrieved customers of Sundance Vacations?

14 A. Mr. Whitehead signed an agreement not to do 14 A. I am not.

15 this in a federal court case In '07 and he continues to do 15 Q. So, as you sit here today, the only complaints

16 It since then. I don't know what he will listen to. I 16 you're familiar with are ones that were submtted personally

17 don't know what language he listens to. He hasn't listened 17 to you?

18 to your order to date. I don't know what we could do to 18 A. That's a broad question. I don't want to say

19 force him to stop other than Jail time. 19 the wrong thing.

20 MR. CARMODY: Objection. 20 Q. Let me back up. You said you were aware of

21 THE COURT: Sustained. 21 past complaints from customers. How did you become aware of

22 MS. WALSH: Thank you. No other questions. 22 those complaints?

23 THE COURT : Mr. Carmody, any questions for Mr. 23 A. We have a large customer service department

24 Dowd? 24 that fields calls for anybody that might have any Issues

25 MR. CARMODY: Yes, Your Honor. 25 regarding any contact with our company. They could have a


1 problem with a vacation they've taken. 1 Whitehead Is In contempt of —

2 Q. How would you have been notified? 2 THE COURT ; Mr. Carmody, are you offering any

3 A. I'm not necessarily notified of every 3 testimony, sir?

4 complaint Many complaints are handled by the people who do 4 MR. CARMODY: No, Your Honor. As I

6 that everyday. 5 represented to this Court, based on my client's

6 Q. But you're not aware of any news programs on 6 health, he has not appeared for any of these

7 television that have broadcasted stories about Sundance 7 hearings.

8 Vacations? 8 THE COURT: III come back to your argument

9 A. I am not. 9 Let me come back to Ms. Walsh. Go ahead.

10 Q, And you're not aware of any newspaper ads that 10 MR. CARMODY: Yes, Your Honor.

11 have been written as editorials regarding complaints about 11 MS. WALSH: Your Honor, we'd ask for a finding

12 Sundance Vacations? 12 based on the unrebutted expert evidence that we've

13 A. There was an op-ed piece in the Philadelphia 13 entered today. We ask — first. Your Honor, I'd

14 paper some time ago. They were customers. This was not an 14 move for the admission of Exhibits A through R

15 op-ed. 15 which are In the binder that was handed up earlier

16 Q. Who was the author of that? 16 today.

17 A. I don't recall. 17 THE COURT: Any objection, Mr. Carmody?

18 Q. Do you know the — what was the synopsis of 18 MR. CARMODY; No objection.

19 that story? 19 THE COURT; So moved. We admit all exhibits

20 A. I would say on balance it was just 20 In that binder. Go ahead.

21 Informative. It was neutral. Someone had just investigated 21 MS. WALSH; We'd ask Your Honor for a finding

22 their Interactions with the business and published what they 22 that Mr. Whitehead is In contempt of Your Honor's

23 found. I don't recall the specifics. 23 October 23rd, 2012 order by, first of all.

24 Q. Did that article involve complaints about 24 continuing to administer the Boycott Sundance

25 Sundance Vacations services? 26 Vacations page under the name Mary Smith 4158 after

1

47

A. I don't recall. 1

49

the entry of the October 23rd order.

2 Q. You testified that because of Mr. Whitehead 2 We'd also ask for a finding that Mr. Whitehead

3 your business has suffered tremendously? 3 Is In contempt of this Oourt's order by refusing to

4 A. It has. 4 cooperate with Sundance Vacations In asking

5 Q. How do you know that to be true? 5 Facebook to take down the Boycott Sundance

6 A. When customers ask to have refunds for travel 6 Vacations page.

7 packages they purchased because they've seen the Boycott 7 Finally, we'd ask for a finding that Mr.

8 Sundance page and have Interacted with him. We have gotten 8 Whitehead Is In contempt for refusing to remove

9 letters from customers saying they wanted to obtain refunds 9 posts that he made on other pages using pseudonyms

10 that were written by Albert Whitehead. 10 containing messages disparaging of Sundance

11 Q. Did these customers, did they Identify news 11 Vacations.

12 stories that they saw on television regarding Sundance 12 We'd ask Your Honor that Mr. Whitehead be

13 Vacations services? 13 compelled to send a letter to Facebook requesting

14 A. No, because there have been none. 14 that the page be taken down. We'd ask that Your

16 Q. Did they reference any newspaper ads 15 Honor compel him to remove the Boycott Sundance

16 concerning services of Sundance? 16 Vacations page pursuant to the method that was

17 A. The newspaper article you are referring to I 17 outlined In evidence here today, and we ask that

18 believe was seven or eight years ago, so Ifs not recent 18 Your Honor give a date certain to do that or face a

19 history. ' 19 certain consequence, which would be a term of

20 MR. CARMODY: That's aH I have. 20 conditional Imprisonment until he complies, or In

21 THE COURT: Any redirect? 21 the alternative a daily fine of $500 per day until

22 MS. WALSH: No, Your Honor. 22 he compOes.

23 THE COURT; Anything else. Attorney Walsh? 23 Finally, Your Honor, we'd ask that Mr.

24 MS. WALSH; Just to summarize. Judge. We'd 24 Whitehead be compelled to reimburse Sundance

25 ask the Court to enter an order finding that Mr. 25 Vacations for the costs and fees Incurred In coming


1 back to this Court repeatedly for relief.

2 Respectfully, Judge, we had an agreement in

3 2007 and Mr. Whitehead has continually failed to

4 live up to It. When we found out that he was

5 posing as John Flannagan we came to the Court and

6 asked for relief, and Mr. Whitehead conceded that

7 relief was appropriate. And now it's been

8 established through the evidence today that he

9 defied that order. He's broken his own promise yet

10 again.

11 We ask that Your Honor impose an order or

12 enter an order with appropriate sanctions and

13 appropriate teeth just to prevent us from having to

14 come back here again.

16 THE COURT: Attorney Carmody, we'll hear from

16 you, sir.

17 MR. CARMODY: Thank you, Your Honor.

18 The last half of Ms. Walsh's argument, we have

19 agreed at the outset before testimony was taken

20 today that the Defendant was going to submit a

21 letter within five days. The meat and potatoes of

22 this whole case is this Facebook page, the Boycott

23 page. This letter that you've already ordered my

24 client to submit within five days should clean up

25 any issues that the Plaintiff has, assuming their

1 complaints of Plaintiff.

2 THE COURT: Anything else, counsel?

3 MS. WALSH: Very briefly, Your Honor.

4 The Defendant has had the documents that were

5 produced by Facebook and Yahoo and Google for weeks

6 now. There was nothing new presented today from

7 any of those entities.

8 With regard to the order, we respectfully

9 disagree. We need a finding of contempt by this

10 Court and an appropriate entry of an order of

11 sanctions Just to enforce the agreement, to enforce

12 Your Honor's order, and to prevent us from having

13 to come back here today.

14 THE COURT: Mr. Carmody, anything you want to

16 say?

16 MR. CARMODY: That's Just not correct. There

17 were certain documents that were not provided to me

18 until 10:00 this morning, so I did not have the

19 appropriate amount of time to review it or consult

20 with my client on his thoughts of those documents.

21 THE COURT: In accordance with the Plaintiffs

22 emergency petition for contempt sanctions and order

23 compelling compliance with the October 23rd, 2012

24 amended order, and after evidentiary hearing on

25 same along with counsel, the order will be as

51

1 allegations are correct that he is the

2 administrator or he has the authority or capability

3 to do it, that this letter should be sufficient to

4 take the page down, thereby addressing any concerns

5 and needs the Plaintiff may have.

6 In regards to the testimony that was presented

7 here today, a lot of these exhibits, specifically

8 the exhibits regarding at what time a person made a

9 post, one of the administrators, these are

10 documents. Your Honor, that I just received when we

11 came up before you. I did not have appropriate

12 time to review that. I would ask that any further

13 order beyond compelling the letter within five

14 days, I would ask that the Court holds off or gives

16 the Defendant an extension of time to, number one,

16 look at these new documents. Number two, get a

17 copy of the transcript so that I may present that

18 to my client. And that In the event he believes

19 that certain testimony was not correct, or in the

20 event he Is willing to spend money on an expert of

21 his own, that he may want to rebut certain

22 allegations.

23 At the end of the day I believe that your

24 order to submit this letter within five days should

25 dean up most of — or should address most of the

53

1 follows: Number one. Defendant Albert Whitehead is

2 found in contempt of court, the order dated October

3 23rd, 2012. Number two. Defendant shall send a

4 letter to Facebook within five days requesting

5 removal of the Boycott page In accordance with the

6 October 23rd, 2012 court order. Number three, the

7 defendant shall undertake efforts to personally

8 remove the Boycott page from Facebook and/or any

9 other platforms within three days of the date of

10 this order. Number four, failure of Defendant to

11 comply with the above-stated will result in a

12 sanction of $250 per day thereafter. Number five,

13 Defendant shall reimburse Plaintiff for counsel

14 fees and filing costs associated with this

16 Plaintiff's Emergency Petition and hearing this

16 date. Six, Defendant shall comply with this and

17 all previous court orders.

18 That will conclude the proceeding. I thank

19 both counsel for their presentations. Thank you.

20 MS. WALSH: Thank you, Your Honor.

21 MR. CARMODY: Thank you. Your Honor.

22 [Whereupon, the proceeding was concluded.]

23

26


CERTIFICATION

I HEREBY CERTIFY that the proceedings are contained fully and

accurately in the notes of testimony taken by me on the proceedings of the above

matter, and that this is a true and correct transcript of the same.

isitDanklfl. @oJiDaniel J. Coll,

Official Court Reporter

Exhibit C

.-22' 13 (THE) 09:211 P. 002


OF LUZERNE COUNTY

PENNSYLVANIA

SUNDANCE VACATIONS. INC.,

Plaintiff,

Vs;

ALBERT WHITEHEAD.

Defendant.

CIVIL ACTION

% VU*'A"A*

NO. 8006 of ^ 20li-

* AmMMM *

AND, NOW, this 18th day of Januaiy, 2013, in accordance with the

Plaintiffs emergency petition for contempt sanctions and order compelling compliance

with the October 23'*, 2012 amended order, and after evidentiary hearing on the same

along with opposing counsel, the order will be as follows:

No. 1, Defendant, Albert Whitehead, Is found In contempt of court, the order

dated October 23*. 2012.

No. 2. Defendant shall send a letter to Faoebook within five days requesting

removal of the boycott page in accordance with the October 23,l,l 2012 court order.

No. 3, the Defendant shall undertake efforts to personally remove the

boycott page from Faoebook and/or any other platforms within three days of ths date of

this order.

No. 4, failure of Defendant to comply with the above-stated will result in a

sanction of $250 per day thersaftor.. .

1.-22* 13 (Ml 1)9:211 P. 003

No. 6, Defbntant shall reimburae Plaintiff for counsel fees and filing costs

associated with Plaintiffs emergency petition and hearing this date. •

No. 6, Defendant shall comply with this and aii previous court orders.

BY THE

THE PROTHONOTARY OF LUZERNECOUNTY. PENNSYLVANIA SHALLGIVE NOTICE OF THIS ORDER TOALLPARTIES PUR8URANTT0PA. RXXP.236.

Fred n. Plerantoni. ill

-2-

Exhibit D

January 30th, 2013 Certified Mail No. 7009 1410 0001 4770 2195

Theodore W. Ullyot, Esquire

VP, General Counsel and Secretary

Facebook, Inc. Legal Department

1601 Willow Road

Menlo Park, CA 94025

Albert Whitehead

842 No. 27'h StreetPhiladelphia, PA. 19130-1832

(215) 235-1308 (Day & Night)

Email: PhilaPA3 [email protected]

Re: Sundance Vacations v. Albert Whitehead

Luzerne County, Pennsylvania - Civil Action No. 2012-08006

Dear Mr, Ullyot:

Under court order in the above captioned matter, I am reluctantly compelled to request that Facebook

remove the "Boycott Sundance Vacations" page from its' platform.

During the spring of 2012, 1 was one of many administrators solicited as a "Content Creator" using the

pen name of "John Flannagan" and, consequently, put in a position of inadvertently disregarding a 6

year old settlement agreement that I believed was revoked, only to find out that it was not.

Nonetheless, that Facebook account (John Flannagan) has been permanently deleted as a means of

making an effort to rectify the aforementioned oversight.

Obviously, I completely understand that I have no standing and/or authority to personally remove the

"Boycott Sundance Vacations" Facebook page, now totaling 1,125 members, but I am reluctantly

compelled by Court Order to submit this ineligible request that the "Boycott" page be removed.

Sincerely yours,

Albert Whitehead

AW/aw

cc: Prothonotary Of Luzerne County, Pennsylvania

File

Exhibit E

m b k myers brier& kelly.' ATTOSMeys AT UAW 7

March 15, 2013

VIA ELECTRONIC AND FIRST-CLASS MAIL

Ryan Spear, Esquire

Perkins Coie LLP

1201 Third Avenue, Suite 4900Seattle, WA 98101-3099

Re; Sundance Vacations. Inc. v. Albert Whitehead - No.2012-8006

Dear Ryan:

This will confirm our discussion yesterday. Specifically, you advised that

Facebook is unwilling to remove the "Boycott Sundance Vacations" page from its platform. You

offered two reasons for your client's refusal: (1) it is not clear from Albert Whitehead's January30, 2013 letter that he admits administering the "Boycott" page; and (2) it is not clear why Mr.

Whitehead refuses to take down the page himself. You also noted that Facebook is not the

subject of any court order directing the removal of the page.

If this is incorrect in any way, please advise me in writing immediately.

Sincerely,

Donna A. Walsh

DAW:rcs

425 Spruce Street 1 Suite 200 | P.O. Box 551 j Scranton, PA 18501-0551 | p (570) 342-6)00 | f (570) 342-6147 | www.mbklaw.com

Exhibit F

m b k my®/,so»b/6i,®r&kelly-

February 20, 2013

VIA FACSIMILE & FIRST CLASS MAIL

Matthew J. Carmody, Esquire

Elliott Greenleaf & Dean

39 Public Square, Suite 1000Wilkes-Barre, Pennsylvania 18701

Re: Sundance Vacations. Inc. v. Albert Whitehead - 12-CV-8006

Dear Matt:

Albert Whitehead continues to disregard the Court Orders dated October 23, 2012

and January 18, 2013. On January 18, Judge Pierantoni questioned why you had notcommunicated with Facebook personally after entry of the October 23 Order. (See Transcript of

Hearing (January 18, 2013) pp. 6:24 to 8:13). Judge Pierantoni then directed you - and you

agreed - to write Facebook on behalfofyour client to ensure the Boycott Sundance Vacations

page was taken down, (See Transcript of Hearing (January 18, 2013) pp. 8:5 to 8:12, and 10:20

to lO^S).1 Yesterday you advised that you had not taken this critical step. This is particularlytroubling because Albert Whitehead's contempt is irreparably harmful to Sundance Vacations

and his communications with the Court and Facebook are disingenuous and misleading.

Albert Whitehead's January 23 letter to Judge Pierantoni (copy to Facebook)

states "contrary to [Sundance Vacation's] arguments, there are no comments of any nature

posted [on the Boycott Sundance Vacations page] by Mary Smith and I challenge the Plaintiff to

produce any such comments." A true and correct copy of the January 23 letter is attached asExhibit "A."

Albert Whitehead's letter is disingenuous. He does not tell Judge Pierantoni that

1 Later in the hearing you stipulated that Albert Whitehead authored three Google Blogspots thatremain accessible to the public at httD://sundancevacationsccD.blogspot.coin/. httD://naskiewicz2.blogspot.com/.

http://siindancevacationsmanipulation.blogspot.com/. (See Transcript ofHearing (January 18, 2013) p. 31:10 to31:13).

425 Spruce Street | Suite 200 : P.O. Box 551 [ Scranton, PA 18S0 1-0551 i p (570) 342-6100 [ f (570) 342-6147 ] www.mbklow.com

Matthew Carmody, EsquireFebruary 20, 2013

he is "Marysmith4158," that "Marysmith4158" is an administrator2 ofBoycott SundanceVacations, or that "Marysmith4158" posted disparaging comments about Sundance Vacations as

the page administrator. The unrebutted expert testimony and documentary evidence on January18 proved all of these things. (See Transcript ofHearing (January 1 8, 2013) pp. 22: 15 to 27:22).

Albert Whitehead is "Marysmith4158." Id. "Marysmith4158" is one of five administrators forBoycott Sundance Vacations. Id "Marysmith4158" first logged in two days before the October

19, 2012 hearing, and "Marysmith4158" posted on Boycott Sundance Vacations as anadministrator on October 19, 2012, October 30, 2012, November 9, 2012, and other days. Id.

On behalfof Sundance Vacations, I request that you please clarify these issues with the Court.

Albert Whitehead's January 30 letter to Facebook's General Counsel (copy to the

Prothonotary) is also misleading. A true and correct copy of this letter is attached hereto as

Exhibit "B." In this letter, Albert Whitehead states that Facebook solicited him in the spring of

2012 as a "Content Creator using the pen name of John Flanagan." Purporting to have"rectified]" his "inadvertent disregard[ ] ofa 6 year old settlement," Albert Whitehead told

Facebook that he "permanently deleted" the "John Flanagan" Facebook account. Albert

Whitehead then told Facebook he has "no standing and/or authority to personally remove theBoycott Sundance Vacations Facebook page," but that he is "reluctantly compelled by CourtOrder to submit this ineligible request that the Boycott page be removed."

The unrebutted expert testimony and documentary evidence confirms that Albert

Whitehead administers Boycott Sundance Vacations as "Marysmith4 1 58," that he posted as anadministrator after October 23, and that he has authority to take down this site. (See Transcript

ofHearing (January 1 8, 2013) pp. 22:15 to 27:22). By omitting reference to "Mary Smith,"Albert Whitehead suggests falsely to Facebook and the Court that he no longer has anyinvolvement with Boycott Sundance Vacations. This must also be clarified with Facebook andthe Court.

To move toward compliance with Judge Pierantoni's Orders in a manner that

accounts for Albert Whitehead's purported health limitations, I have made arrangements for a

WebEx Conference Call on Friday February 22, 2013 at 1 p.m. I will participate in the call with

Mr. Dennis Cheng on behalf of Sundance Vacations, and I request that you and Albert

Whitehead also participate. The object of the conference call will be to lend Mr. Cheng's

expertise to Albert Whitehead in taking down the Google Blogspots and Boycott Sundance

Vacations. At the time of the meeting, Mr. Whitehead will need to have access to a telephone

and a computer with internet connection. He will need his Facebook administrator's credentials

for Boycott Sundance Vacations and the password for the Google Blogspot accounts.

2 Citing an unattached verification and pledging oaths on family members, Albert Whitehead'sletter to Judge Pierantoni denies having conceived, designed, composed, or published Boycott Sundance Vacations.Conspicuously absent is any mention whether Albert Whitehead is an administrator ofBoycott Sundance Vacations.

Matthew Carmody, Esquire

February 20, 2013

If the preceding arrangements do not result in the sites being taken down onFriday February 22, 2013, Sundance Vacations expects you will act in accordance with JudgePierantoni's direction and make a personal request - on behalfof your client - that the offendingsites be taken down. Judge Pierantoni clearly assumes that our offices will cooperate to achievecompliance with the Court's Orders. Ifwe have not achieved compliance by WednesdayFebruary 27, Sundance Vacations will seek an emergency conference with Judge Pierantoni to

discuss again the enforcement of his Orders.

Sincerely,

(s John B. Dempsey

JBDxak

Enclosures

cc: Donna A. Walsh, EsquireCatherine M. del Fierro Anderson, Esquire

EXHIBIT A

January 23rd, 2013 VIA FArsiMTT p. and ppbttptt^d mah, no. lopg 1410 QQQi 4770 21 ««

The Honorable Fred A. Pierantoni, in

Court of Conunon Pleas of Luzerne County

Luzerne County Courthouse

200 North River StreetWilkes-Barre, PA. 18711

TEL 570-830-5144; FAX 570-825-1518

Albert Whitehead842 No. 27a StreetPhiladelphia, PA. 19130-1832

(215) 235-1308 (Day & Night)Email: PhilaPA3] [email protected]

In Re: Sundance Vacations v. Albert Whitehead - Civil Action No. 2012-08006

Dear Judge Pierantoni:

I submit this correspondence, wjth ai t. due respect, as I am the defendant in the above

captioned case and a 72 year old a cancer survivor with various other health problems consequently,

I am virtually homebound. I do not seek sympathy, I merely wish to inform the Court as to why I

could not attend the last "Show Cause" hearing (1/18/13) to offer my personal testimony, which

now seems to put me in the unfortunate position of having to prove a negative, but I will try!

Although to date represented by highly ethical and competent counsel, albeit financially restrained,

I am now rnMPPT i.F.n to write the Court directly for two reasons:

(1) I can no longer afford extended representation, beyond this instant issue, because my

children used part of their inheritance to defend me, but those limited funds are exhausted.

(2) I am literally stunned because the Court has issued an extensive order, to perform a task that

is virtually impossible for me to accomplish and I will elaborate as briefly as is possible,while attempting to offer the Court a clear picture of this litigation without all the legalgobbledygook. I'm an articulate, but indigent old man appealing to the essence of American

justice - this Court. And, in this case, this unbiased jurist (Hie Honorable Fred A.

Pierantoni, m) who represents justice for all, even die indigent insignificant old man being

persecuted hv the youthful and powerful millionaire!

The foundation of this litigation is based on a "settlement agreement" signed on February 6th, 2007and, as was my sincere belief, revoked on February 7th, 2007. Be that as it may, the plaintiff is nowsuing me for inadvertently violating that agreement by virtue of the fact that I posted comments

about the plaintiff, Sundance Vacations, in violation of that agreement. The plaintiff further avers

that those comments were made on a Facebook page entitled "Boycott Sundance Vacations."The essence of the litigation against me is that I, under the pen name of "John Flannagan" andothers, have caused economic damage to Sundance Vacations, and to their reputation, in violationof that settlement agreement of February 6th, 2007. Fair enough, so let's first look at the"reputation" of Sundance Vacations, considering the following irrefutable facts.

(1) July, 2005, "Sundance Vacations was investigated by the state of New Jersey for failure to

comply with Federal and state minimum wage laws. The investigation resulted in 32 employees

being paid a total of $19,762.62 in back wages. The company also paid administrative fees of$1,976.26 and penalties of $3,000." (Quoted from the New Jersey Department of Labor andWorkforce Development, as publicly posted on the Internet.)

(2) November 6, 2006, a consumer fraud civil law suit was filed against Sundance Vacations, Inc.and Sundance Vacations Network, Inc. The fraudulent misrepresentation claim was filed in theSuperior Court of New Jersey, Bra-gen County, docket number L-8256-06. The civil suit detailed

numerous violations of NJ.S.A. 56:8 et seq. of the New Jersey Consumer Fraud Act, by utilizing

"false pretenses through the use of unconscionable commercial practices." (As pubhshed on theInternet)

(3) August 9th, 2009, in the Sunday Philadelphia Inquirer, consumer reporter Jeff Gelles exposedSundance Vacations' questionable marketing and sales practices, in conjunction with the fact thatSundance Vacations' ignores The Pennsylvania Unfair Trade Practices And Consumer ProtectionLaw (§201-7. Contracts: Effect Of Rescission)

(4) May 20th, 2010, the state of New Jersey published, on the internet, the results of aninvestigation into Sundance Vacations' questionable marketing and sales practices. Incidentally,many civil law suits have been filed against Sundance Vacations, in Bergen County, New Jersey{Thomas vs. Sundance Vacations, Inc.) and there are approximately three other plaintiffs, allalleging the same "unconscionable commercial practices."

(5) July 6th, 2010, Ohio consumer reporter, Mike Bowersock, (NBC 4) aired a TV expose ofSundance Vacations* questionable marketing and sales practices. The two Ohio two sales officeshave subsequently closed.

(6) November 1st, 2010, that "Boycott" page was first published. (That information is publiclyavailable on that "Boycott" page, that now numbers 1,120 members.)

(7) May 17th, 2012, "Boycott" page member Kara Kenney, who also happened to be an IndianaConsumer Reporter (RTV6), reads all the horror stories on the "Boycott" page. She also conducteda 3-month undercover investigation of Sundance Vacations' affiliates in Indiana (DowdMarketing/SmarTravel/TAN) and then, on 5/17/2012, she airs 7 minutes of the undercover video

exposing the questionable marketing and sales practices from A to Z. That particular sales officesubsequently closed.

(8) January 3rd, 2013. As of that date there were approximately 7 civil law suits filed againstSundance Vacations for "unconscionable" marketing and sales practices, in New Jersey andWisconsin. The Wisconsin attorney, DeVonna Joy, publicly commented on that "Boycott" page and

2

was subsequently threatened in writine. personally, by the Sundance Vacations' CEO, John Dowd,Imagine threatening an attorney for doing their job! That type of thinking is insane, literally! Ms.Joy publicly responded and also notified her associates. Consequently, over 100 members of thelegal community rallied around Ms, Joy, became members of that "Boycott" page, and someattorneys publicly commented on that "Boycott" page while offering pro bono legal advice.

The point being Your Honor, the plaintiff is not as innocent as portrayed to this Court during thetestimony offered on January IS0*, 2013. Moreover, their "reputation" preceded that "Boycott"page. All that "Boycott" page did was offer the consumers a public platform and support network.A public platform and support network that Sundance Vacations is attempting to shut-down bydevious means. It is frightening when private enterprise attempts to suppress the I81 Amendment!

I am also aware of the fact that the plaintiff has retained "Keystone Intelligence Network, Inc." inPhiladelphia, PA. (Private Investigators) The individual PI (Joseph M. Downs) has picked-up mytrash, (which is admittedly legal) followed me and others while also showing up at their homesunannounced, repeatedly called and harassed innocent people, some of whom I have not seen inliterally 50 years and have absolutely nothing to do with this litigation, absolutely nothing!

I now address the issue of that "Boycott" page, which this Court has ordered ME to facilitate itsremoval and that is the essence of my dismay! In addition to the "Verification" attached, I take anoath on the souls of my deceased mother and deceased sister that I did not conceive of that"Boycott" page, I did not design that "Boycott" page, I did not compose that "Boycott" page and,most importantly, I did not publish that "Boycott" page, period! So what does the plaintiff want ofme? I cannot perform impossibilities*. And, again, WITH ALL DUE RESPECT, it is unfair for thisCourt to order me to accomplish those impossibilitiesl I may be old and sick, but I'm not senile orstupid! I'll comply with gnx Court Order, but it must be appropriate and within my humancapabilities! I ask you, is that so unreasonable Your Honor? . .

Let me offer the Court a profound and accurate analogy. I write and publish a tell-all book, inviolation of a non-disclosure "settlement agreement." That book is then placed on the book storeshelves for sale. Now comes the plaintiff demanding not only that the published book be removedfrom the shelves, but that the entire book store be closed down! That is, in effect, what the plaintiffis demanding. A demand that is beyond the purview of this litigation, and a demand that Ipersonally cannot accomplish! What abilities, power or authority do / possess to shut-down theentire book store? Notwithstanding the obvious question as to why should I?

My attorney submitted a Motion For Judgment On Liability and the Court granted that motion. Sohow does a Facebook "Boycott" page suddenly become the issue, as opposed to damages andinjunctive relief? It's painfully obvious that the plaintiff is using this litigation as a means ofattempting to remove a public forum that the Facebook authorities have declined to remove becausethere was no slander, libel or defamatory comments that would violate their Terms Of Service(TOS), so the "Boycott" page survived despite the plaintiff's constant attacks. I chose my wordscarefully Your Honor and when I say "attack" that's precisely what I mean. The plaintiff hasattacked anyone and everyone who has dared to exercise their protected speech and share theirexperiences on a public forum. A public forum the plaintiff seems obsessed with shutting down byany means necessary! Why do they fear a public discussion forum while attempting to use me as afall-guy to accomplish that which they have failed to accomplish by every legal means, including

appeals to Facebook authorities! I simply do not have the ability to do anvthins to that "Boycott"page!

The plaintiff argues that I logged-on to Facebook using the name of "Mary Smith" and maijedisparaging comments. Nevertheless, contrary to the plaintiffs arguments, there are no commentsof any nature posted by Mary Smith and I challenge the plaintiff to produce any such comments. Ireiterate, there are no disparaging, or any other type of comments, posted on that "Boycott" page by"Mary Smith" at any time since its inception, and I again challenge the plaintiff to produce thosealleged comments!

Hie plaintiff has submitted pounds of Exhibits that they allege support their allegations. ThoseExhibits are esoteric, but / fully understand their significance, or lack thereof. Those Exhibits, inconjunction with specious, albeit somewhat persuasive testimony, was not disputed because it wasdetrimental to my physical well-being to travel to Wilkes-Barre, from Philadelphia, a trip that takes

about 2V2 hours one-way, requiring the use of seat belts. Since I have a prosthetic mesh screenstapled inside my abdomen, to repair an incisional hernia resulting from cancer surgery, theextended use of seat belts is painful, (driver or passenger). But now I have no other choice because Idid not expect the plaintiff to offer mendacious testimony with distorted Exhibits, that / clearlyunderstand and emphatically dispute the plaintiffs' offered interpretation of those "Exhibits."

In conclusion, I beseech the Court to reconsider the orders dated October 23Td, 2012 and January18th, 2013 simply because it is notpossible for me to honestly comply. In the alternative I ask theCourt to stay the orders with an opportunity to appear before this Court and offer my own sworntestimony in rebuttal of all the unchallenged allegations, despite the inevitable physical pain andburden of traveling to Wilkes-Barre, from Philadelphia. I assure Your Honor, the Court's time willnot be wasted and my rebuttal testimony will be irrefutably documented and persuasive. This Courthas heardfrom everyone but me, and I implore the Court to grant me that opportunity consideringthe extensive sanctions imposed!

In the final analysis, I submit this litigation is tantamount to the abuse of process, plain and simple!

Thanking you, in advance, for your time and consideration, while anxiously awaiting your reply.

Respectfully submitted,

ALBERT WHITEHEAD

AW/aw

Attachment (1): Signed Verification

Cc: Matthew Carmody, Esquire - Elliot Greenleaf & DeanTheodore W. Ullyot, Esquire - VP, General Counsel - Facebook, Inc.file

EXHIBIT B

January 30th, 201 3 Certified Mail No. 7009 1410 0001 4770 21 95

Theodore W. Ullyot, Esquire

VP, General Counsel and Secretary

Facebook, Inc. Legal Department

1601 Willow RoadMenlo Park, CA 94025

Albert Whitehead842 No. 27,h StreetPhiladelphia, PA. 19130-1832

(215) 235-1308 (Day & Night)Email: [email protected]

Re: Sundance Vacations v. Albert Whitehead

Luzerne County, Pennsylvania - Civil Action No. 2012-08006

Dear Mr. Ullyot:

Under court order in the above captioned matter, I am reluctantly compelled to request that Facebook

remove the "Boycott Sundance Vacations" page from its' platform.

During the spring of 2012, 1 was one of many administrators solicited as a "Content Creator" using the

pen name of "John Fiannagan" and, consequently, put in a position of inadvertently disregarding a 6year old settlement agreement that I believed was revoked, only to find out that it was not.

Nonetheless, that Facebook account (John Fiannagan) has been permanently deleted as a means ofmaking an effort to rectify the aforementioned oversight.

Obviously, I completely understand that I have no standing and/or authority to personally remove the

"Boycott Sundance Vacations" Facebook page, now totaling 1,125 members, but I am reluctantlycompelled by Court Order to submit this ineligible request that the "Boycott" page be removed.

Sincerely yours,

Albert Whitehead

AW/aw

cc: Prothonotary Of Luzerne County, PennsylvaniaFile


OF LUZERNE COUNTY, PENNSYLVANIA

SUNDANCE VACATIONS, INC.,

Plaintiff,

v.

ALBERT WHITEHEAD,

Defendant.

CASE NO. 12-CV-8006C-CJ->

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CERTIFICATE OF SERVICE

I, Donna A. Walsh, hereby certify that a true and correct copy of the

foregoing Petition to Enforce Contempt Order and for Additional Sanctions was

served upon the following counsel of record via first class mail, postage prepaid,

on this 20th day of March, 2013:

Matthew J. Carmody, Esquire

Elliott Greenleaf & Dean

39 Public Square

Suite 1000

Wilkes-Barre, PA 18701

Donna A. Walsh

Motion for Order Enforcing SANCTIONS 3.20.13

Documents

Transcript of Motion for Order Enforcing SANCTIONS 3.20.13