Dan Caban Affidavit _24

Commercial List No.: 06-CL-6575
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ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
BETWEEN:
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ECHOSTAR COMMUNICATIONS CORPORATION, ECHOSTAR SATELLITE LLC,
ECHOSTAR TECHNOLOGIES CORPORATION, AND NAGRASTAR LLC
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Plaintiffs
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- and -
STEVEN RODGERS a.k.a. STEVEN R. RODGERS a.k.a TOMICO a.k.a TOMICO-IND
a.k.a. K-OS a.k.a. DSSWHOLESALEDIRECT a.k.a DSSWHOLESALE, STEVEN
RODGERS c.o.b as TOMICO INDUSTRIES, STEVEN RODGERS c.o.b as TOMICO
INDUSTRIES (IND), STEVEN RODGERS c.o.b as TOMICO INDUSTRYS, STEVEN
RODGERS c.o.b as TOMICO IND, STEVEN RODGERS c.o.b. as www.tomicosatellites.com , STEVEN RODGERS c.o.b. as www.tomico-ind.com , STEVEN RODGERS
c.o.b. as www.tomicoreviews.com , STEVEN RODGERS c.o.b. as www.electronics-elite.com ,
STEVEN RODGERS c.o.b. as www.sales-dynamics-firm.com , STEVEN RODGERS c.o.b. as
www.dss-wholesaledirect.com , ROSS RODGERS a.k.a. ROSS GEORGE RODGERS,
NICOLA DE SANTIS a.k.a. NICK DE SANTIS, KRIS BOUCHARD a.k.a KRIS
MICHAEL BOUCHARD a.k.a. KRISTOPHER MICHAEL JOEL BOUCHARD, KRIS
BOUCHARD c.o.b. as J.A.C. UNLIMITED SOLE PROPRIETORSHIP, KRIS
BOUCHARD c.o.b. as www.tomico-satellites.com , KRIS BOUCHARD c.o.b. as www.tomicointLcom, KRIS BOUCHARD c.o.b. as www.electronics-elite.com , KRIS BOUCHARD c.o.b.
as www.sales-dynamics-firm.com , NAVDEEP BHAMBRA, 6048951 CANADA INC.. JOHN
DOE, JANE DOE and other persons unknown who have conspired with the named
Defendants
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AFFIDAVIT OF DAN CABAN
(Sworn February 2, 2010)
BACKGROUND
OVERVIEW OF THE EVIDENCE
THE WEB SITES
(A)
(B)
(C)
(D)
(E)
(F)
The Tomico-Satellites Web Sites
The Other Original Web Sites
The Nagra Web Sites
The Anton Pillar Web Site
The Picnic Web Site and the Fun Web Site
Rodgers Has Not Provided Access to the Web Sites
Defendants
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RODGERS' EFFORTS TO FRUSTRATE THE ANTON PILLER ORDERS AND
COMPLIANCE ORDERS
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(A) Zentek
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(B)
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Elite is the Owner/Operator of the Web Sites
(C)
Rodgers is Elite
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(1) Elite Used the Same IP Addresses as Rodgers
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(2) Rodgers' Frequently-Used IP Addresses Are Assigned to His Residence and
Neighbours
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(a)
The 35 IP Address
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(b) The 62 IP Address and the 170 IP Address
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(c)
The 41 IP Address
(3) Rodgers' IP Addresses Are the Same as Tomico-Ind Email Account and Nagra3
Email Account
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(4) Elite's Address and Phone Number Same as the Tomico Store
(5) My New Aff
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(6) The Donkapo and 6251 Password
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(D) Email Messages Directing Zentek Not to Disclose Information to the Plaintiffs
(E) Maintenance of Web Sites and Registration of New Domains Upon Release
from Prison
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(1) Renewals From January to March 2008
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(2) Renewal and Registration of Domains in April to May 2008
(3) Renewals and Registration of the Picnic Web Site and New IP Addresses in May
2008
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(F)
Transfer of the Web Sites to a New Server in July 2008
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(G) Renewals from September 2008 to December 2008 after Compliance Orders
(H) Requests for Assurances from Zentek in November and December 2008 That
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the Elite Email Account and IP Address Information Were Not Disclosed
Substantial Deletion of the Elite Email Account (Information Produced on
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February 25, 2009)
Substantial Deletion of Other Email Account (Information Produced on
(J)
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February 26, 2009)
(K) Web Sites With No Content and Passwords That Did Not Work (Information
Produced on February 27, 2009)
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(1) FTP Access to the New Server and Five Web Sites
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(2) vBulletin
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(3) Additional Email Accounts
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Deletion of Data on the New Server (Information Produced on March 24, 2009)
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(L)
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(1) Massive Deletion of Data From The New Server
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(a)
Web Sites Deleted From the New Server
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(b) Fragments of the Databases Were Found on the New Server
(c)
Deletion of User Accounts
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Email Messages Sent from the Forums
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(d)
(e)
The Anton Pillar Web Site Was Moved to Another Server
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(2) Relevant Tomico Files Deleted from the New Server
(3) Access to the New Server from IP Addresses Used by Rodgers
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(4) Creation of the nick User Account for Production to the Plaintiffs
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-3(5) Private Messages from dano About Deleting the Web Sites
RODGERS HAS CONTINUED TO ENGAGE IN PIRACY ACTIVITY
(A) Rodgers Administered, Moderated and Posted Messages on the Anton Pillar
Web Site and the Picnic Web Site Under Various Usernames
(B)
Rodgers Offered Piracy Technology in Return for "Donations" on the Anton
Pillar Web Site and the Picnic Web Site and Received the Proceeds
(1) The Anton Pillar Web Site
(2) The Picnic Web Site
(3) Rodgers Received "Donations" from Piracy Technology Sales
(C) Rodgers Sold Piracy Technology After the Anton Piller Orders and Judgments
(1) The Picnic Web Site and the Fun Web Site
(2) The Tomico-Satellites.Net Web Site
(3) The Nagra 2 FixElite Web Site and Nagra2-Software Web Site
(4) The Nagra2Elite Web Site
(5) The Nagra3 Web Site
(D) Rodgers' Continuing Efforts to Develop An N3 "Hack", "Boxes", and IKS
Server
RODGERS' COMPUTERS
RODGERS' DEFIANT ATTITUDE
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I, DAN CABAN, of the City of London, in the Province of Ontario, MAKE OATH
AND SAY:
BACKGROUND
1.
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I am an Internet Research Specialist with Digital Evidence International Inc. ("DEI"), a
computer forensics firm retained by the Plaintiffs, and as such have knowledge of the matters to
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which I hereinafter depose. I am also a licensed private investigator in the Province of Ontario.
Where I do not have personal knowledge, I have stated the source of my information and believe
it to be true.
OVERVIEW OF THE EVIDENCE
2.
I have reviewed the Anton Piller Orders of the Honourable Justice Lederman dated
August 1, 2006 (the "Anton Piller Orders"). They required Steven Rodgers ("Rodgers") to
provide the Plaintiffs with access to the web sites named therein, www.tomico-satellites.corn
(which became www.tomico-satellites.net in January 2008), www.tomico-ind.corn,
-4www.tomicoreviews.corn, www.electronics-elite.corn, www.sales-dynamics-firm.corn,
and
www.dsswholesaledirect.com (the "Original Web Sites"), and "any other web site operated by
the Tomico Defendants containing the Evidence".
3.
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I have also reviewed the compliance orders of the Honourable Justice Mesbur dated
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September 17, 2008 (the "Compliance Orders"). They required Rodgers to provide access to
most of the Original Web Sites (being the ones that remained registered at the dates of the
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Compliance Orders), as well as
www.nagra2-software.com , www.nagra3.com ,
www.nagra2elite.com , www.nagra2fixelite.com
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(together, the "Nagra Web Sites") and
www.anton-pillar.com (the "Anton Pillar Web Site").
4.
I have also reviewed the Judgments of Mesbur J. dated December 18, 2009 (the
"Judgments"). The Anton Piller Orders and the Judgments enjoin Rodgers from, among other
things:
(a)
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marketing, selling, distributing, providing, trafficking in, exposing or offering for
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the purpose of trade or otherwise, any Piracy Technology (as defined in the Anton
Piller Orders);
(b)
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operating, maintaining, servicing, modifying or accessing the Original Web Sites
or any other web site for any purposes contrary to the injunctions granted in the
Anton Piller Orders and the Judgments;
(c)
participating or engaging in any electronic mail, newsgroup, Internet relay chat
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communications, and forum web sites for any purpose contrary to the injunctions
contained in the Anton Piller Orders and Judgments;
(d)
creating, modifying, operating, maintaining, servicing or posting content to any
other web site for any purpose contrary to the injunctions; and
(e)
soliciting any person to purchase Piracy Technology (as defined in the Anton
Piller Orders and Judgments).
5.
As explained in detail below:
-5(a)
Rodgers never provided the Plaintiffs with access to any of the Web Sites (as
defined below) or their databases as required by the Anton Piller Orders;
(b)
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Rodgers created the appearance of complying with the Anton Piller Orders and
the Compliance Orders, while taking active steps to make the Web Sites and
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servers on which they resided inaccessible to the Plaintiffs by:
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(i)
concealing from the Plaintiffs the email account which he used regularly
to communicate with the host of the Zentek Web Sites (as defined below),
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Zentek
International
Co.
Ltd.
("Zentek"),
"elite-
[email protected]" (the "Elite Email Account"); and
(ii)
using the Elite Email Account to warn Zentek in advance that information
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would be sought concerning Rodgers and the Zentek Web Sites and
instructing Zentek not to provide it;
(c)
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Rodgers orchestrated a scheme to move the Zentek Web Sites to a new server
with Zentek, delete the old server so that there would be "no more tomico", and
set up new Internet Protocol Addresses ("IP Addresses") that could not be linked
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to the existing Web Sites "so it looks like someone else";
(d)
Rodgers deleted or arranged for the deletion of some of the Web Sites and other
content from the server on which they were hosted immediately prior to granting
access to the server to the Plaintiffs after denying that he had the ability to provide
access for 2V2 years;
(e)
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in addition to the web sites that Mesbur J. found Rodgers owned and
administered,
Rodgers
www.picnicinthesun2008.com
operated
the
piracy
(the
"Picnic
Web
web
sites
Site")
and
www.funathecircus.com (the "Fun Web Site");
(f)
after the execution of the Anton Piller Orders, Rodgers continued to sell, offer,
and distribute Piracy Technology, and provide web sites and services to facilitate
-6piracy activities by other persons, including the Anton Pillar Web Site, the Nagra
Web Sites, the Picnic Web Site and the Fun Web Site; and
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(g
)
in 2008 and 2009, Rodgers engaged in and promoted efforts to compromise the
Plaintiffs' encryption technology, including the development of receivers, piracy
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devices, and software "hacks", and Internet Key Sharing ("IKS") servers to
permit persons to steal DISH Network Programming and ExpressVu
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Programming.
THE WEB SITES
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Rodgers' activities relate principally to the following four categories of web sites:
(a)
the Original Web Sites named in the Anton Piller Orders;
(b)
the Nagra Web Sites that Mesbur J. found Rodgers owned and administered;
(c)
the Anton Pillar Web Site that Mesbur J. found Rodgers owned and administered;
and
(d)
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the Picnic Web Site which, as described below, began as the web site
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www.nagra2fixelite.com (the "Nagra2FixElite Web Site") and later became the
Picnic Web Site and the Fun Web Site.
7.
Where distinctions between the categories of web sites listed above are required, they are
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referred to as the Original Web Sites, the Nagra Web Sites, or by their individual names. Where
no distinction is required, they are referred to collectively as "the Web Sites".
8.
I have periodically monitored and reviewed the registration records, status and content of
the Web Sites. The status, hosting companies and content of the Web Sites has changed over
time. Some of the Web Sites changed domain names while maintaining their content. I describe
below the most salient information about each of the Web Sites. Certain historical information
pertaining to the Web Sites has previously been filed in this proceeding and I have not included
this information as exhibits to this Affidavit.
-79.
Web site domain names are registered for a finite period of time. Registration generally
is for one year, but it is usually possible to register domain names for longer terms of up to 10
years. Reminders are generally sent to the owner prior to expiry inviting him or her to renew the
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registration. If the registration is not renewed, the domain name becomes available. Some of the
domain names for the Web Sites have expired. As set out below, NagraStar LLC ("NagraStar")
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has registered some of the expired domain names.
10.
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The fact that a web site is not operating, has been taken "offline" or has expired does not
necessarily mean that its content has been deleted. A web site may be taken offline for
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maintenance, rendered inaccessible when a domain name expires, or go offline for other reasons.
However, its content may still reside on the server which hosted the web site or may have been
saved to a hard drive or other form of electronic media. Thus, it is impossible to know whether
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the content of a web site which is "offline" or even expired has been deleted or continues to
exist.
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Several of the Web Sites were "forum" web sites. A forum web site is a web site in
which users and registered members can interact by exchanging messages on a particular subject,
similar to a conversation. Forum web sites generally work as follows:
(a)
web site;
(b)
to become a member, it is necessary to register by creating a username and a
password;
(c)
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most members create usernames that are fictional nicknames (for example,
"Tomico-ind" or "dano");
(d)
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in order to participate in a forum web site, the user must become a member of the
only one person can register a particular username, and if a username is already
taken, the person is required to select another one;
(e)
once a person has registered a username (and, in some cases, paid a membership
fee), they become a member of the web site and can participate in the web site
forum;
-8(f)
a user starts a "thread" by posting a message on a certain topic and creating a title
for the thread which appears in bold print;
(g)
other users may view the thread and post messages in response;
(h)
an exchange or conversation often develops with various users commenting and
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(i)
posting responding messages — this thread reads much like a chain of e-mails
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(except that the messages are available to all members);
users can send each other "private messages" sometimes called "pms"
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which do not appear in the discussion threads available to other users; and
the administrator(s) of forum web sites may have access to a database which
tracks, among other information, IP Addresses (as defined below) of the users on
the web site.
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grammatical errors.
corrected the errors.
I have reproduced the content of the messages verbatim and have not
(A) The Tomico-Satellites Web Sites
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The messages reproduced in this Affidavit contain numerous spelling, typographical and
The domain name for the web site
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-www.tomico-satellites.com
(the "Tomico
Satellites.Com Web Site") was created March 2, 2002 and offered piracy-related content until
January 5, 2007 at which time its content was transferred to www.tomico-satellites.net (the
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"Tomico Satellites.Net Web Site"). The Tomico Satellites.Com Web Site was taken offline at
that time.
14.
Despite being taken offline three years ago, the domain name for the Tomico
Satellites.Com Web Site has been kept current and has been renewed to March 20, 2014. Steps
were taken to update the registration on April 24, 2008, May 6, 2008 and December 5, 2008.
The Tomico Satellites.Com Web Site is hosted by Zentek and the "responsible name" was
"[email protected]" (the "Tomico-Ind Email"), an email address that was linked to
Rodgers.
-915.
The domain name for the Tomico Satellites.Net Web Site was created on January 14,
2007 and offered piracy-related content until approximately January 28, 2008, when it was taken
offline. Despite being offline, the domain name for the Tomico Satellites.Net Web Site has been
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kept current and has been renewed to January 15, 2014. Steps were taken to update the
registration on January 17, 2008, May 6, 2008 and December 5, 2008. The Tomico
Satellites.Net Web Site is hosted by Zentek and the "responsible name" is the Tomico-Ind Email.
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Piracy content on the Tomico Satellites.Net Web Site is described and discussed below.
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(B) The Other Original Web Sites
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The domain name for the web site www.tomico-ind.com (the "Tomico-Ind Web Site")
was created June 16, 2003. The Tomico-Ind Web Site has not been operational since at least
April 2008. The domain name registration for the Tomico-Ind Web Site was kept current at least
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until April 2008, and was hosted by Zentek with the responsible name being the Tomico-Ind
Email. The domain name for the Tomico-Ind Web Site expired and in November 2009, DEI
registered it on behalf of NagraStar.
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The
domain
names
for
the
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web
www.dsswholesaledirect.com , www.electronics-elite.corn
www.tomicoreviews.com ,
sites
and www.sales-dynamics-firm.com
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expired as of April 2008. In November 2009, DEI registered these domain names on behalf of
NagraStar.
(C) The Nagra Web Sites
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As of April 2008, the registrations for the Nagra Web Sites, except for the
Nagra2FixElite Web Site, were current and hosted by Zentek, but they have since expired. DEI
registered the domain name for the web site www.nagra2-software.com (the "Nagra2-Software
Web Site") on behalf of NagraStar.
19.
The Nagra2FixElite Web Site was a piracy forum web site. It was last online in March
2008 and at that time was hosted by Katz Global Domain Name Trust. As explained below, it
appears that the content from the Nagra2FixElite Web Site was transferred to the Picnic Web
Site in or about July 2008. The domain name for the Nagra2FixElite Web Site expired and in
November 2009, DEI registered it on behalf of NagraStar.
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20.
As described below, the web site www.nagra2elite.corn (the "Nagra2Elite Web Site")
offered piracy-related content in March 2008, the Nagra2-Software Web Site offered piracy-
related content in March and April 2008, and the web site www.nagra3.com (the "Nagra3 Web
Site") offered piracy-related content in April 2008.
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(D) The Anton Pillar Web Site
21.
The domain name for the Anton Pillar Web Site was registered on December 4, 2006.
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The Anton Pillar Web Site has been offline since September 7, 2009, but the registration has
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been kept current and renewed to December 4, 2010. The registration information was updated
at least on April 15, 2009. The Anton Pillar Web Site is hosted by Zentek.
(E) The Picnic Web Site and the Fun Web Site
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The domain name for the Picnic Web Site was created on May 28, 2008 and was initially
hosted by Zentek. As described below, the Picnic Web Site offered piracy-related content until
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in or around April 2009 at which time it went offline and its content was transferred to the Fun
Web Site. The domain name for the Picnic Web Site expired and in November 2009, DEI
registered it on behalf of NagraStar. The Fun Web Site is hosted by Hosting Panama.
23.
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I am advised by Elissa Goodman of Borden Ladner Gervais LLP ("BLG") that Mesbur J.
found that Rodgers was the owner and administrator of the Nagra2FixElite Web Site. It appears
that in or around July 2008, the Nagra2Fix Elite Web Site became the Picnic Web Site. Attached
hereto and marked as Exhibit "1" is a copy of messages posted by Retired fellow (a username
that can be linked to Rodgers, as described below) dated July 5 and 19, 2008, concerning the
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domain name for the Picnic Web Site. There is extensive evidence described below indicating
that Rodgers also administered the Picnic Web Site.
24.
The Picnic Web Site and the Fun Web Site were piracy forum web sites. When the
Picnic Web Site was active, several messages posted on it included links to the Nagra2FixElite
Web Site. While it is not uncommon for links to other web sites to be included in messages
posted on a forum web site, when I followed the links which referred to the Nagra2FixElite Web
Site, they directed me to messages posted on the Picnic Web Site which appeared, by their
content, to be the messages referenced in the posts. By way of example, attached hereto and
marked as Exhibit "2" are several discussion threads with messages posted on the Picnic Web
Site containing links to the Nagra2FixElite Web Site which actually linked back to the Picnic
Web Site. The threads in Exhibit "2" bear dates of 2006 and 2007. This is because even though
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the Picnic Web Site did not actually go online until May 28, 2008, it contains the content from
the Nagra2FixElite Web Site. These messages were posted on their original dates in the
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Nagra2FixElite Web Site but were available through the Picnic Web Site when I accessed them
in 2009.
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The content of the first thread at Exhibit "2" also indicates that the Picnic Web Site is a
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relocated web site, rather than a new one, and that the move was orchestrated by the user
"cooldude" who claimed to be "tomico". Cooldude's message in post no. 1 states:
"Well guy we changed venue , no one knows we are here , I even changed our
names so no one knows it's us and what we are doing. I think we got hacked over
at the other place , since a lot of sites which we will remain nameless , is not
happy that we do are thing. We are safe here no one knoews we are here. I will
be making a new site on a new server for us in a week or so where we do are thing
there.
cooldude=tomico"
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The Picnic Web Site went offline in or around April 2009 and the Fun Web Site came
online around the same time. I was able to login to the Fun Web Site using the same username
and password that I used for the Picnic Web Site without re-registering. Several message threads
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that had begun on the Picnic Web Site were transferred to and continued on the Fun Web Site.
By way of example, attached hereto and marked as Exhibit "3" are certain posts from two
discussion threads which were begun on the Picnic Web Site and continued on the Fun Web Site:
(a) "Explaination About Keeping the Site Running Needed" dated February 18, 2009 to February
25, 2009", and (b) "Very first Channels gone to N3 on Dish" dated January 22, 2009 to March 7,
2009. The name of the web site on which the messages appeared is displayed in the bottom left
corner of the page.
27. Attached hereto and marked as Exhibit "4" are messages excerpted from two discussion
threads from the Fun Web Site: (a) "Private Site", and (b) "those of you who emailed me to find
-12the new site". These messages indicate that in April 2009 the Picnic Web Site changed to the
Fun Web Site.
28.
Based on the foregoing, it appears that the Fun Web Site is a successor to the Picnic Web
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Site and that it includes much of the piracy-related content from the Picnic Web Site and the
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Nagra2FixElite Web Site.
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(F)
Rodgers Has Not Provided Access to the Web Sites
29.
Rodgers has not provided the Plaintiffs with access to any of the Web Sites, or their
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databases, with the exception of certain content as described below. In February 2009, Rodgers
provided a password for a Zentek server where some of the Original Web Sites had been hosted,
but the Web Sites were not on the server and there had been deletions of massive quantities of
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data from the server immediately prior to Rodgers providing the Plaintiffs with access to it.
RODGERS' EFFORTS TO FRUSTRATE THE ANTON PILLER ORDERS AND
COMPLIANCE ORDERS
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In addition to Rodgers not providing the Plaintiffs with access to the Web Sites and their
databases, there is an abundance of evidence that Rodgers took active steps to avoid providing
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access and frustrate the Anton Piller Orders and the Compliance Orders. The evidence produced
to the Plaintiffs by non-parties including Zentek, Hushmail Communications Canada Inc.
("Hushmail"), Microsoft Corporation ("Microsoft"), Rogers Communications Inc. ("Rogers
Communications") and Bell Canada ("Bell"), which I have reviewed, reveals that:
(a)
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the owner/operator of numerous of the Web Sites communicated regularly with
Zentek in 2008 using the Elite Email Account and this was the only email address
that Zentek would answer;
(b)
the owner/operator of the Elite Email Account ("Elite") appears to be Rodgers
because he used:
(i)
the same 1P Addresses to access the Elite Email Account (on hundreds of
occasions) that Rodgers has used;
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IP Addresses that were assigned to 5 Holly Meadow Road, Barrie, Ontario
(the "Rodgers Residence") and neighbouring homes;
(iii)
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the same IP Addresses as the owner/operator of the Tomico-Ind Email
Account and the email account "[email protected] " (the "Nagra3
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(c)
Email Account), who appears to be Rodgers; and
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(iv)
the address 338 Queen Street, Brampton, Ontario and the telephone
number 905-453-3474 (the "Tomico Store"), which were previously used
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by Rodgers;
Elite/Rodgers took steps to avoid providing access to the Web Sites and to
conceal his involvement in them by:
(i)
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sending an email message to Zentek on September 17, 2008, the very day
the Compliance Orders were made, warning Zentek that "someone from
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Canada" will be requesting information on the servers for the Web Sites
and asking Zentek to respond "you have no info";
(ii)
creating the appearance of compliance by requesting information from
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Zentek using names and email addresses other than the Elite Email
Account after receiving an assurance from Zentek that it would not answer
any contacts other than the Elite Email Account;
(iii)
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repeatedly seeking assurances from Zentek that it had not disclosed the
Elite Email Account or other information to the Plaintiffs that would
identify him; and
(iv)
failing to disclose that he has other email addresses including the Elite
Email Account, the Tomico-Ind Email Account and the Nagra3 Email
Account, and disclose passwords for these email addresses;
(d)
Elite/Rodgers also took steps in 2008 to maintain and operate some of the Web
Sites by:
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repeatedly renewing their registrations and continuing to pay for them;
(ii)
immediately after Rodgers' release from prison, assuming "full control" of
the Web Sites from Zentek; and
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(iii)
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orchestrating and implementing a scheme to move the Web Sites to a new
server with Zentek, delete the old server so that there would be "no more
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tomico", and set up new IP Addresses that could not be linked to the
existing Web Sites "so it looks like someone else".
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I describe the evidence on each of these issues below.
(A) Zentek
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As described above, most of the Web Sites are, or were, hosted by Zentek. Zentek is an
internet hosting company based in Hong Kong which describes itself as "a fully offshore
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company". I have reviewed portions of Zentek's web site www.zentek-internationaLcom which
states, in part:
"Hong Kong is a country with few restricting and governing laws (unlike the
USA, Britain and others), and is politically and geophysically stable. Hong Kong
also has one of the freest market economies in the World, meaning: 1) low level
of restrictions on market; 2) very low level of regulation; 3) very low level of
government involvement in business activities"
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Attached hereto and marked as Exhibit "5" are copies of relevant pages from Zentek's web site.
32.
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The following Web Sites are or were hosted by Zentek: (a) the Tomico-Satellites.Com
Web Site, (b) the Tomico-Satellites.Net Web Site, (c) the Anton Pillar Web Site, (d) the TomicoInd Web Site, (e) the Nagra2-Software Web Site, (0 the Nagra3 Web Site, (g) the Nagra2 Elite
Web Site, and (h) the Picnic Web Site (together, the "Zentek Web Sites").
(B)
Elite is the Owner/Operator of the Web Sites
33.
Zentek and Hushmail produced email messages that reveal that the owner/operator of the
Zentek Web Sites used the Elite Email Account to communicate with Zentek and the Elite Email
- 15 Account was the only email address that it would answer. Numerous examples of such email
messages are attached as exhibits below.
(C)
Rodgers is Elite
34.
There is strong evidence that Rodgers is Elite. In summary:
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(a)
Elite most frequently accessed the Elite Email Account (on hundreds of
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occasions, including before and after, but not during, the time that Rodgers was
incarcerated) from:
.s
at
(i)
the same IP Addresses that Rodgers has used; and
(ii)
IP Addresses assigned to computers located at (1) the Rodgers Residence,
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(2) Rodgers' aunt's residence next door at 7 Holly Meadow Road, Barrie,
Ontario ("7 Holly Meadow"), and (3) the residence of one of Rodgers'
neighbours, Stephen Singleton, who resides three houses away;
am
(b)
Elite used the same IP Addresses as the owner/operator of the Tomico-Ind Email
Account and the Nagra3 Email Account, who appears to be Rodgers;
(c)
Elite's address and telephone number registered with Zentek are the address and
telephone number for the Tomico Store; and
(d)
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on May 25, 2008, Elite used the Elite Email Address to send an attachment called
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"mynewaff', the date of which corresponded to an Affidavit sworn by Rodgers in
this proceeding, and the content of which contained facts unique to Rodgers.
(1)
35.
Elite Used the Same IP Addresses as Rodgers
An IP Address is a unique identifying number assigned to each computer on a network.
For public use of the Internet, such as in residential premises throughout Canada, Internet
Service Providers ("ISP") such as Rogers Communications and Bell supply or "lease" to each of
their customers a unique IP Address that gives the customer access to the public network. An IP
Address is assigned to a computer (or other device that has access to the Internet) and that
-16computer (or device) "reports" itself to other users and web sites on the Internet using that IP
Address. In the case of email messages, the IP Address of the computer used to send the email
message may appear in the "header" of the email message, and the IP Address can be used to
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identify the location of the computer used by the sender. An IP Address can therefore be a
useful tool to determine whether a computer (or device) at a particular location was used for
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activities on the Internet such as sending email messages or logging in to email accounts.
36.
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IP Addresses can be "dynamic" in that an ISP may change the IP Address assigned to a
subscriber from time to time. Usually, a dynamic IP Address will be assigned to a subscriber as
.s
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long as the computer (or device) to which it is assigned remains connected to the Internet. When
that computer or device becomes disconnected from the Internet, the IP Address may be released
and put back into the pool of IP Addresses to be re-assigned by the ISP, and a new IP Address
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may be assigned when the computer (or device) is re-connected to the Internet.
37.
I am advised by Ms. Goodman that Hushmail produced "log files" for the Elite Email
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Account (the "Elite Log Files"). I have reviewed the Elite Log Files. They track all attempts to
login to the Elite Email Account from August 14, 2007 to December 9, 2008. The Elite Log
Files indicate the date and time each login was attempted, whether the login attempt was
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successful, and the IP Address from which the login was attempted. Attached hereto and marked
as Exhibit "6" is a CD-ROM with a copy of the Elite Log Files.
38.
The IP Addresses most frequently used by Elite to login to the Elite Email Account are:
(a)
99.239.68.62 (the "62 IP Address"), which was used 448 times from October 9,
2007 to December 9, 2008;
(b)
22, 2007 to May 1, 2008; and
(c)
64.229.43.41 (the "41 IP Address"), which was used 64 times from October 20,
2008 to November 21, 2008.
In addition:
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74.115.96.170 (the "170 IP Address"), which was used 168 times from August
-17(a)
the IP Address 74.115.96.173 (the "173 IP Address") was used 21 times from
August 18, 2007 to September 17, 2007 to login to the Elite Email Account; and
(b)
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39.
the IP Address 99.239.81.35 (the "35 IP Address") was used 3 times from
October 24, 2007 to May 25, 2008 to login to the Elite Email Account.
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I am advised by Ms. Goodman that since this litigation was commenced, Rodgers has
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sent numerous email messages to BLG and one email message to J.J. Gee of NagraStar, from
Rodgers' email account "[email protected] " (the "TheFirmInc Email Account"). I
.s
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have reviewed some of these email messages and the "header" information that contains the IP
Addresses from which they were sent. These email messages reveal that the 62, 173 and 35 IP
Addresses were used by Rodgers at various times. For example:
(a)
Address;
(b)
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email message from Rodgers to Mr. Gee dated May 26, 2008 sent from the 35 IP
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email messages from Rodgers to Ms. Goodman dated October 25, November 5,
2007, May 21, June 4, June 12, June 18, June 20, July 4, July 7, July 8, July 10,
July 11, July 15, August 12 and August 26, 2008 and July 27, 2009 sent from the
35 IP Address;
(c)
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email messages from Rodgers to Ms. Goodman dated February 21, March 6,
March 25, April 4, May 28, June 12, and July 5, 2007 sent from the 173 IP
Address; and
(d)
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email messages from Rodgers to Ms. Goodman dated November 1, November 2,
November 10, 2007 and June 5, 2008 sent from the 62 IP Address.
This confirms that Rodgers used the 62, 173 and 35 IP Addresses in these periods. Attached
hereto and marked as Exhibits "7", "8", "9" and "10" are copies of the aforementioned email
messages. The IP Addresses that the messages were sent from have been highlighted in the
exhibits.
40.
I am also advised by Ms. Goodman that Hushmail produced the log file (the "LegalFight
Log File") for the email account "[email protected] " (the "LegalFight Email
-18Account"). Rodgers admits that the LegalFight Email Account is his in paragraph 28(b) of his
Affidavit sworn October 14, 2008. I have reviewed the LegalFight Log File which tracks all
attempts to login to the LegalFight Email Account and it indicates that the only successful login
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attempts to the LegalFight Email Account were from the 35 IP Address. This confirms that
Rodgers used computers at the 35 IP Address. The CD-ROM attached as Exhibit 6 contains a
copy of the LegalFight Log File.
41.
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The Elite Log Files reveal that Elite used the 62 and 35 IP Addresses both before and
after Rodgers was incarcerated, but not during. DEI has created a graph based on the Elite Log
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Files which depicts successful login attempts to the Elite Email Account from the 62 IP Address
(the most frequently used IP Address to access the Elite Email Account), a copy of which is
attached hereto and marked as Exhibit "11". The graph indicates that there was regular access
to the Elite Email Account from the 62 IP Address up to and including December 19, 2007.
sc
After that day, logins by Elite from the 62 IP Address completely stopped until April 22, 2008
when logins spiked to record levels. In other words, Elite did not access the Elite Email Account
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at all from the 62 IP Address used by Elite and Rodgers during the time that Rodgers was
incarcerated. Elite also did not access the Elite Email Account at all from the 35 and 170 IP
Addresses in this period.
42.
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The Elite Log Files also reveal that there were logins to the Elite Email Account during
the time that Rodgers was incarcerated from different IP Addresses and periodic email messages
sent from and to the Elite Email Account during that time. This suggests that either Rodgers had
access to the Elite Email Account while he was incarcerated or someone else had access to it in
that period.
43.
Account, on hundreds of occasions, as Rodgers has used.
(2)
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Based on this evidence, Elite used the same IP Addresses to access the Elite Email
Rodgers' Frequently-Used IP Addresses Are Assigned to His Residence and
Neighbours
44.
I am advised by Ms. Goodman that Rogers Communications produced the table attached
hereto and marked as Exhibit "12" and Bell produced the table attached hereto and marked as
Exhibit "13". I have reviewed these tables and they indicate that at the relevant times:
- 19 (a)
the 35 IP Address was assigned to the Rodgers Residence;
(b)
the 62 IP Address was assigned to 7 Holly Meadow which belongs to Rodgers'
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aunt;
(c)
the 170 IP Address was also assigned to 7 Holly Meadow; and
(d)
the 41 IP Address was assigned to Stephen Singleton at 42 Farmstead Crescent,
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Barrie, Ontario ("42 Farmstead") which is a residence situated three houses away
and across from the Rodgers Residence.
.s
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Each of these IP Addresses is discussed further below.
(a)
45.
The 35 IP Address
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The 35 IP Address was assigned to Ross Rodgers at the Rodgers Residence. The contact
telephone number was 705-725-0680, which, I am advised by Jason Dumbreck of King-Reed
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Associates Inc., a private investigation firm retained by the Plaintiffs, is the phone number of the
Rodgers Residence. The primary email address was "[email protected] ", which Rodgers
admitted in his Affidavit sworn October 14, 2008 is the "family email address". Elite also
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accessed the Elite Email Account from the 35 IP Address, as described above.
(b)
46.
The 62 IP Address and the 170 IP Address
Both the 62 IP Address and the 170 IP Address were assigned to Angie Bennett of 7
Holly Meadow. I am advised by Mr. Dumbreck that 7 Holly Meadow is located immediately
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next-door to the Rodgers Residence. I am advised by Ms. Goodman that Rodgers' mother,
Palma Rodgers, has admitted that Angie Bennett of 7 Holly Meadow is her sister, and therefore
Rodgers' aunt. Attached hereto and marked as Exhibit "14" is a copy of pages 49-50 of the
transcript of the examination of Palma Rodgers dated June 13, 2007 and relevant pages from a
Notice of Application and Affidavit of Service which refer to Angela Bennett of 7 Holly
Meadow.
47.
Given that Rodgers sent email messages to Ms. Goodman from the 62 IP Address,
Rodgers either (a) used a computer at 7 Holly Meadow, or (b) connected to a wireless Internet
-20service at that address. Elite also accessed the Elite Email Account from the 62 IP Address on
hundreds of occasions, as described above.
(c)
The 41 IP Address
48.
The 41 IP Address was assigned to Mr. Singleton of 42 Farmstead. I am advised by Mr.
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Dumbreck that 42 Farmstead is on the southwest corner of Farmstead Crescent and Holly
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Meadow Road, approximately three doors away and across the street from 5 Holly Meadow.
49.
Elite accessed the Elite Email Account from the 41 IP Address on several occasions. Mr.
.s
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Singleton swore an Affidavit in which he stated that there was an "unsecured" wireless router in
his home and that neither he nor any member of his household ever used the Elite Email Account
or the Nagra3 Email Account, and that Rodgers was not authorized to use his Internet
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connection. Attached hereto and marked as Exhibit "15" is a copy of the Affidavit of Stephen
Singleton, sworn January 27, 2009.
50.
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Based on this evidence, Elite used IP Addresses to access the Elite Email Account that
are either at, or in the immediate vicinity of the Rodgers Residence. It is reasonable to conclude
that Rodgers used the wireless Internet signals from the unsecured router at 42 Farmstead to
access the Elite Email Account.
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(3)
Rodgers' IP Addresses Are the Same as Tomico-Ind Email Account and Nagra3
Email Account
51.
As described above, the Tomico-Ind Email Account is listed as the "responsible name"
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for the Tomico-Satellites.Com Web Site and the Tomico-Satellites.Net Web Site. I am advised
by Ms. Goodman that Microsoft produced the records for the Tomico-Ind Email Account
attached hereto and marked as Exhibit "16". I have reviewed these records and they indicate
that:
(a)
the Tomico-Ind Email Account was registered to "mike ianetta";
(b)
the Tomico-Ind Email Account was registered on April 19, 2008;
-21(c)
the owner/operator of the Tomico-Ind Email Account logged in from the 62 IP
Address from May 24, 2008 to October 5, 2008, the same time period in which
Elite logged in to the Elite Email Account from the 62 IP Address; and
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(d)
the owner/operator of the Tomico-Ind Email Account logged in from the 35 IP
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Address on May 19, 2008, in the same time period in which Elite logged in to the
Elite Email Account from the 35 IP Address.
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Given that Rodgers has used both the 62 IP Address and the 35 IP Address, it is reasonable to
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conclude that Rodgers accessed the Tomico-Ind Email Account.
52.
The Tomico-Ind Email Account is registered with a Microsoft email service known as
Hotmail. It is a policy of Hotmail that a free email account that has not been used for a period of
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30 days is deemed inactive but the account name is reserved. If the account remains inactive for
another 90 days, the account name is deleted but can be re-activated. It therefore appears that the
Tomico-Ind Email Account was deactivated because it was inactive for 90 days and then
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reactivated on April 19, 2008, the day after Rodgers was released from prison.
53.
I am advised by Ms. Goodman that Microsoft also produced the records for the Nagra3
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Email Account attached hereto and marked as Exhibit "17". I have reviewed these records and
they indicate that:
(a)
the Nagra3 Email Account was registered with the first name "ira" and the last
name "gee" of California;
(b)
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the owner/operator of the Nagra3 Email Account logged in from the 62
IP
Address from September 29, 2008 to November 4, 2008, the same time period in
which Elite logged in to the Elite Email Account from the 62 IP Address; and
(c)
the owner/operator of the Nagra3 Email Account logged in from the 41 IP
Address on October 22, 2008, in the same time period in which Elite logged in to
the Elite Email Account from the 41 IP Address.
Given that Rodgers has used the 62 IP Address, it is reasonable to conclude that Rodgers
accessed the Nagra3 Email Account.
- 22 54.
Based on this evidence, Elite used the same T Addresses as the owner/operator of the
Tomico-Ind Email Account and the Nagra3 Email Account, who appears to be Rodgers.
(4)
Elite's Address and Phone Number Same as the Tomico Store
55.
I have reviewed the evidence produced to the Plaintiffs by Hushmail. Attached hereto
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and marked as Exhibits "18", "19", "20", "21" and "22" are copies of the following "renewal
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reminder" email messages from Zentek to the Elite Email Account (the "Renewal Messages"):
(a)
email messages dated May 22, May 29, June 5, June 12, June 17, June 19, June 26
.s
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and July 3, 2008 regarding the Tomico Ind Web Site;
(b)
email messages dated September 18, October 23, October 30, November 6 and
November 13, November 27, December 4, and December 5, 2008 regarding the
Anton Pillar Web Site;
(c)
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email messages dated October 23, October 30, November 6, November 13,
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November 27 and December 4, 2008 regarding the Tomico-Satellites.Net Web
Site addressed to the Tomico-Ind Email Account and copied to the Elite Email
Account;
(d)
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email messages dated September 11, September 18, October 30 and November 6,
2008 regarding the Nagra2Elite Web Site copied to the Elite Email Account; and
(e)
email messages dated November 27 and December 4, 2008 regarding the Nagra2Software Web Site.
56.
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The Renewal Messages provide a status report on the names of the Web Sites. Each and
every one of the Renewal Messages asks Elite whether the "info" that Zentek has is current and
lists the same contact information:
"frank mir
338 queen st
brampton ontario n7k7g6 CA
[email protected]
905-453-3474
Account Name: Elite-Tech"
- 23 57.
The Tomico Store is one of the premises named in the Anton Piller Orders. Attached
hereto and marked as Exhibit "23" is a copy of the Affidavit of Chad Winslade sworn July 28,
2006 without exhibits. Mr. Winslade's Affidavit confirms that 338 Queen Street, Brampton,
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Ontario, is the address of the Tomico Store and its telephone number is 905-453-3474.
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58.
I am advised by Mr. Dumbreck that King-Reed has been unable to identify any real
person with the name "Frank Mir" who is associated with the address of the Tomico Store, and
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this name appears to be fictitious.
59.
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Based on this evidence, it is reasonable to conclude that Elite provided Zentek with the
Tomico Store address and telephone number as his contact information and that information
remained unchanged through to December 2008.
(5) My New Aff
60.
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Attached hereto and marked as Exhibit "24" is an excerpt of the Elite Log Files
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pertaining to activity in the Elite Email Account for May 25 and 26, 2008. The excerpt from the
Elite Log Files reveals that:
(a)
on May 25, 2008 at 13:14 there was a successful login to the Elite Email Account
from the 62 IP Address;
(b)
at that time, an email was sent from the Elite Email Account to the Elite Email
Account and read, and an attachment named "My new aff dated May 27.doc" was
saved;
(c)
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on May 25, 2008 at 14:28 there was a successful login to the Elite Email Account
from the 35 IP Address; and
(d)
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at that time, an email was read and the attachment named "My new aff dated May
27.doc" was saved again.
61.
Attached hereto and marked as Exhibit "25" is a copy of the email message dated May
25, 2008 (the "May 25, 2008 Email") sent to and from the Elite Email Account. The attachment
to the May 25, 2008 Email called "My New aff dated May 27.doc" includes the following
- 24 statements: (a) "On dec 19 I went to jail", (b) "Sometime in February I was informed by my
father Ross Rodgers that...", and (c) "I got out of jail on April 18 2008".
62.
I am advised by Ms. Goodman that Rodgers swore an Affidavit in this litigation on May
27, 2008. Based on this evidence, it is reasonable to conclude that Rodgers used the Elite Email
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Account.
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(6)
The Donkapo and 6251 Password
63.
The information provided to the Plaintiffs by Hushmail included a separate access log for
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the Elite Email Account for encrypted (i.e. scrambled) email messages and included the
passphrase used to decrypt them (the "Passphrase Log"). The Passphrase Log reveals that the
passphrase for encrypted messages in the Elite Email Account was
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"6251mnmzdonkapo1876251mnmzdonkapo_". Attached hereto and marked as Exhibit "26" is
a copy of the Passphrase Log.
64.
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This passphrase is similar to other passwords used by Rodgers. In particular:
(a)
the Admin Password for the New Server (as defined below) that Rodgers
provided in March 2009 (as described below) was "6251";
(b)
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the password that Rodgers used for the "Dreammates" dating web site was "6251"
(a copy of a printout with Rodgers' login information is attached hereto and
marked as Exhibit "27"); and
(c)
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Kris Bouchard deposed at paragraph 13 of his Affidavit sworn January 18, 2007
that: "During the time that I provided services to him, "Mike" [Rodgers] also had
administrative access to the Web Sites and their databases under a name
("Admin") and password ("donkapo") which he chose and I implemented." (a
copy of certain excerpts from the Affidavit of Kris Bouchard is attached hereto
and marked as Exhibit "28").
65.
All of the foregoing information confirms that Rodgers used the Elite Email Account and
is Elite. The email messages produced by both Zentek and Hushmail (exhibited below) indicate
that the Elite Email Account was used to instruct Zentek to conceal information from the
-25Plaintiffs and to take steps to move the Web Sites to new servers. Given the evidence referred to
above, it is reasonable to conclude that the instructions given via the Elite Email Account were
from Rodgers.
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(D) Email Messages Directing Zentek Not to Disclose Information to the Plaintiffs
66.
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The Compliance Orders made on September 17, 2008 required Rodgers to contact Zentek
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"using the names, email addresses, usernames, or contact information used in any dealings with
Zentek... and instruct it to bring the web sites on line for copying by the Plaintiffs".
67.
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Attached hereto and marked as Exhibit "29" is a copy of an email message from the
Elite Email Account to Zentek dated September 17, 2008 (the very day that the Compliance
Orders were made) called "Important Notice", in which Elite states:
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"Just a heads up someone from canada will be emailing you for info on the old
tomico server. The canadian courts are making him do it. please do not mention
the new server at all to him . Just state the old one is now dead and you have no
info thanks. Please reply and let me know you got this email . I hope this my
new server and all my info is private and will not be given up.
Thanks
Frank Mir"
68.
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Attached hereto and marked as Exhibit "30" is a copy of an email message from the
Elite Email Account to Zentek dated September 18, 2008 called "important email" in which Elite
states:
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"I never heard back from you on my email I sent yesterday it is very important
that nothing is given up to the guy who is going to email you today or tomorrow
about the old server. Do not say anything about the new server. Just state that the
old server is dead and you got no info about it anymore. Please and thanks.
his name is Steve Rodgers and he will be emailing you because the canadian civil
courts want him to please keep this all private thanks"
69.
Attached hereto and marked as Exhibit "31" is a copy of an email message from Zentek
to the Elite Email Account dated September 18, 2008 in which Zentek states:
"Dear Frank,
-26We do not answer an other contacts except [email protected]
regarding this server. This is the only email address listed as authoritive.
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Sincerely,
Security Administrator"
70.
Attached hereto and marked as Exhibit "32" is a copy of an email message from the
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Elite Email Account to Zentek dated September 18, 2008 stating: "ok thank you". According to
the Elite Access Logs, Elite logged into the Elite Email Account from the 62 IP Address on
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September 17 and 18, 2008 when the messages set out above were sent.
71.
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In his Affidavit sworn October 14, 2008, Rodgers states at paragraph 8 that on September
18, 2008 he sent an email message to Zentek requesting information on the server for the Web
Sites, purportedly to comply with the Compliance Orders. The email message is at Exhibit "B"
to the October 14 Affidavit and appears to have been sent after both of the messages set out
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above from Elite were sent to Zentek. Rodgers' email message began with the words "My name
is Steven Rodgers". The email message appears to have been sent from the email address of
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Vanessa Arsenault of Alan D. Gold Professional Corporation, counsel for Rodgers. Unless
Rodgers actually dealt with Zentek using Ms. Arsenault's email address, it appears that the email
message he sent did not comply with the Compliance Orders. In paragraphs 14 and 16 of the
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Affidavit, Rodgers states that after counsel for the Plaintiffs brought this issue to the attention of
counsel for Rodgers, Rodgers (a) re-sent the same message from Ms. Arsenault's email account
on September 23, 2008, but signed it as "tomico-ind", and (b) sent another email from his email
address "[email protected] " to Zentek requesting information "in the name of Tomico and
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used the name Nick, Steve and Mike" on September 25, 2008. Once again, unless Rodgers
actually dealt with Zentek using these names and this email address, it appears that the email
messages he sent did not comply with the Compliance Orders. Moreover, Zentek's email
message dated September 18, 2008, specifically confirmed that it would not respond to any
contacts that were not from the Elite Email Account and Rodgers did not use the Elite Email
Account for the communications with Zentek, as required by the Compliance Orders.
72.
Zentek's response of September 18, 2008 indicated that only the Elite Email Account was
listed as "authoritive" (presumably "authoritative") by Zentek. Based on this comment and
Zentek's apparent failure to respond to the email messages sent by Rodgers from other email
-27addresses, it appears that Zentek, like many other companies that correspond with their
customers over the Internet, will only deal with customers through a specific, registered email
account for security reasons.
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73.
Based on this evidence, it appears that Elite/Rodgers frustrated the Compliance Orders by
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warning Zentek, the day before he sent his first email through counsel, that "someone from
Canada" (and then "Steve Rodgers") would be emailing Zentek for information, and by asking
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them not to mention the "new server" and to state simply that the "old server is dead" and Zentek
has "no info". It also appears that Elite/Rodgers was assured by Zentek that it would only
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answer contacts from the Elite Email Account before Rodgers, directly and through counsel, sent
his emails requesting information on the server for the Web Sites from different email accounts
on September 18, 23, and 25, 2008.
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(E) Maintenance of Web Sites and Registration of New Domains Upon Release from
Prison
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(1)
Renewals From January to March 2008
74.
I am advised by Ms. Goodman that Rodgers was imprisoned for contempt of the Anton
Piller Orders on December 19, 2007. From January 2008 to March 2008, while Rodgers was
incarcerated, there were email messages between the Elite Email Account and Zentek. In
particular:
(a)
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in January and February 2008, the Tomico Satellites.Net Web Site and the Nagra2
Software Web Site (which were scheduled to expire on January 15, 2008 and
February 21, 2008, respectively) were renewed and paid for; and
(b)
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in March 2008, the "TOMIC" server and the Nagra3 Web Site (which were
scheduled to expire in March 2008) were paid for and renewed.
Attached hereto and marked as Exhibit "33" are copies of the relevant email messages between
Zentek and the Elite Email Account from January 17, 2008 to February 6, 2008. Attached hereto
and marked as Exhibit "34" are copies of the relevant email messages between Zentek and the
Elite Email Account from March 1 to March 10, 2008.
-2875.
The focus of the email messages during Rodgers' incarceration was basic maintenance of
the aforementioned Web Sites and the server. It appears that this maintenance was necessary to
prevent the Web Sites from expiring and the server from being shut down for non-payment. The
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nature and volume of email messages in this period is markedly different from the period
immediately after Rodgers' release in April 2008, at which time the number of email messages
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increased dramatically.
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76. In addition, none of the email messages from the Elite Email Account during the period
that Rodgers was incarcerated were sent from the 62, 35, 41 or 170 IP Addresses. This is
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significant because the 62 and 35 IP Addresses were used both before and after Rodgers'
incarceration.
77.
Based on this evidence, the Elite Email Account was accessed while Rodgers was
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incarcerated, to renew and pay for certain of the Web Sites and the server. However, the access
to the Elite Email Account in this period was not from the IP Addresses typically used by
Elite/Rodgers.
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(2)
Renewal and Registration of Domains in April to May 2008
78.
I am advised by Ms. Goodman that Rodgers was released from prison on or about April
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18, 2008. On April 21, 2008, Elite wrote to Zentek to register multiple new web sites, purchase
new IP Addresses, and renew the registrations for the Tomico Satellites.Com Web Site, the
Tomico-Satellites.Net Web Site and the Tomico-Ind Web Site. The relevant correspondence
indicates that:
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(a)
on April 21, 2008, Elite wrote to Zentek and asked to buy several IP Addresses
and new domains;
(b)
on April 23, 2008, Elite wrote to Zentek and asked "what happened to my domain
tomico-satellites.com ";
(c)
Zentek responded that the domain for the Tomico-Satellites.Com Web Site had
expired "after multiple reminder emails" and provided instructions for renewal.
-29Elite directed Zentek to "renew it right now" and asked for Western Union
information to make payment;
(d)
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on April 23, 2008, Zentek inquired whether Elite wished to renew the TomicoSatellites.Com Web Site, the Tomico-Satellites.Net Web Site and the Tomico-Ind
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(e)
Web Site. Elite replied affirmatively;
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on April 26, 2008, Elite advised Zentek that he had paid $400 using Western
Union and the name "Lola Lopez". He further advised that he would be ordering
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more domains that coming weekend;
(f)
on April 27, 2008, Elite asked Zentek to register the domain name "elitetechnologys.net " and to point his web sites to particular nameservers;
(g)
sc
on May 1, 2008, Elite provided Zentek with a list of domain names that he wished
to register, including the Tomico Satellites.Com Web Site;
(h)
am
on May 1, 2008, Zentek advised Elite that he could have "full control" and "full
ownership" of his domains if he registered a username for a domain
administration account;
(i)
s.
co
on May 1 and 2, 2008, Elite advised that he had registered an account as "user:
Elite-Tech act id — 2448619", which he subsequently re-registered as Account ID
2449091;
(j)
account;
(k)
on May 3, 2008, Elite asked Zentek to "please put the rest of my domains there
now to"; and
(1)
m
on May 3, 2008, Zentek advised that all domains had been moved to Elite's
on May 4, 2008, Elite clarified that the domains in his account should be "all my
original ones, tomico-satellites.com and net. nagra2-software.com , antonpillar.com, nagra2elite.com , elite-coders-corner.tv".
-30Attached hereto and marked as Exhibit "35" are copies of the aforementioned email messages
exchanged between Zentek and the Elite Email Account from April 21, 2008 to May 4, 2008.
79.
According to the Elite Access Logs:
w
(a)
on April 21, 2008, Elite logged into the Elite Email Account from the 35 IP
w
(b)
Address; and
w
on April 23, 26, 27, and May 2, 3, and 4 2008, Elite logged into the Elite Email
Account from the 62 IP Address.
80.
.s
at
Based on this evidence, immediately after Rodgers' release, Elite/Rodgers inquired on
the status of various of the Web Sites, renewed various of the Web Sites, asked to buy new IP
Addresses and new web sites, and obtained "full control" of his web sites from Zentek.
sc
(3)
Renewals and Registration of the Picnic Web Site and New IP Addresses in May
2008
81.
On May 24, 2008, Elite asked Zentek to register additional web sites and to add other
am
web sites, including the Anton Pillar Web Site, to his account so that could "manage" them.
Rodgers also asked to register the domain name for the Picnic Web Site, stating "I need the
s.
co
domain picnicinthesun2008.com registered". Zentek confirmed on May 28, 2008 that the
domain for the Picnic Web Site would be registered for 1 year.
82.
Elite also asked for IP Addresses "not close" to his current IP Address "so it looks like
someone else" and stated: "Is it possible to get 4 ip's not close to the ones I have now so it looks
like someone else??? If yes then I want them."
83.
m
On May 24, 2008, after receiving a response from Zentek that new IP Addresses could be
allocated, Elite stated: "Yes I want 4 ips as far apart as the ones I have now as possible."
84.
On May 29, 2008, Elite confirmed again in three separate messages:
(a)
"I want 4 ip's way away from any I have now thanks";
(b)
"Change the ips as much as you can"; and
-31(c)
85.
"move it as far away as possible, I want the ip to look as different as it could from
14".
On June 3, 2008, Zentek wrote to Elite and confirmed that "full control" over the web
w
sites had been passed to Elite. Attached hereto and marked as Exhibit "36" are copies of the
aforementioned email messages exchanged between Zentek and the Elite Email Account from
w
May 24 to June 3, 2008.
86.
w
Based on this evidence, it appears that, in May 2008, Elite requested new IP Addresses
.s
at
for his web sites, far away from his existing IP Addresses, "so it looks like someone else", and
Zentek confirmed that "full control" over the domains had passed to Elite.
(F)
Transfer of the Web Sites to a New Server in July 2008
87.
In the email messages between Zentek and Elite in September 2008 set out above, Elite
sc
asks Zentek not to disclose any information regarding the "new" server. The correspondence
am
between Zentek and Elite indicates that in July 2008, Elite orchestrated and implemented a
scheme to move the Web Sites to a new server (the "New Server") and "wipe" (i.e., delete) the
old server (the "Old Server"). In particular:
(a)
s.
co
on July 8, 2008, Elite wrote to Zentek and indicated his intention to transfer his
"stuff' to a New Server and "get rid of the old one" as follows:
"Will you let me buy a new server pay u 1 month for it , transfer all my stuff to
the new server and get rid of the old one, and put the remaining months on the
new Orie999
? 9 ";
(b)
m
Elite's initial reason for a New Server was that he wanted to run FreeBSD (an
operating system). Zentek responded that FreeBSD was not as well-supported
and attempted to dissuade Elite from making the switch;
(c)
on July 8, 2008, Elite advised Zentek that he wished to make the switch because
his "new server guys" were more familiar with FreeBSD. Elite again asked
Zentek whether he could have a New Server and "kill the old one";
-32(d)
on July 8, 2008, Zentek responded and provided Elite with additional options that
it indicated would have made the transfer unnecessary;
(e)
w
on July 12, 2008, Elite asked for the "status of new server please?", apparently
disregarding Zentek's options;
w
(f)
(g)
on July 13, 2008, Zentek advised that its senior management's approval of the
w
proposed plan was necessary;
on July 14, 2008, Zentek confirmed approval and advised that the New Server
.s
at
could be ready in two weeks and that it would "wipe" the Old Server;
(h)
on July 15, 2008, Elite directed Zentek to proceed as follows:
sc
"Yes thats great. Call the new server elite-tech have all the register info to this
email account all the old stuff is no longer valid. Let me know as soon as it's
ready so we can start getting it ready";
(i)
am
on July 19, 2008, Zentek advised Elite that the New Server was "being prepared"
and that the IP Addresses for the New Server would be in the range of
210.245.160.6 to 210.245.160.23;
(j)
s.
co
on July 20, 2008, Elite wrote to Zentek and asked for different IP Addresses since
the ones suggested by Zentek were close to his old ones:
"Not to be a pain but i just noticed these ips are close to my old ones , i want them
far away as my old ones as possible i want no link to the old stuff if u can please
make my ips totally different thanks";
(k)
m
Zentek provided new IP Addresses to Zentek in the range of 203.98.175.6 to
203.98.175.55. Elite responded with the following requests:
"yes thank you , just make sure all of this has no trace to the old one at all so all
registration info is to this email address not the old one, and this server is now
called elite-tech no more tomico thanks";
-33(1)
Zentek responded that the New Server was "up already now" and asked Elite to
move the content from the Old Server to the New Server, following which it
would "take down the original TOMIC server";
w
(m) on July 20, 2008, Elite asked Zentek the following questions about his New
w
Server:
w
"A few questions
1. is all registered info from before gone? so this is totally new registered to this
email address and only this one??
.s
at
2. What the user and password to get in to this server??
3. I take it the way in is the first ip??
sc
4. What are the 3 namerservers?????";
(n)
Zentek provided the username and password for the servers as follows:
"Username: Password
root: morel 59"
(o)
am
Zentek also gave Elite instructions on how to register his nameservers and advised
s.
co
that that way Elite could "have full control over it"; and
(p)
between July 20 and 28, 2008, there was a further exchange of correspondence
with regard to setting up nameservers and on August 2, 2008, Elite wrote to
Zentek advising:
"shut the old server down now all is gone from it thanks."
m
Attached hereto and marked as Exhibit "37" are copies of these email messages exchanged
between Zentek and the Elite Email Account from July 8, 2008 to August 2, 2008.
88.
Later email messages and posts appear to confirm the transfer to the New Server. For
example:
-34(a)
on November 19, 2008, after Rodgers had learned of the judgment obtained by
the Plaintiffs requiring Zentek to produce certain records (the "Hong Kong
Judgment"), ThEmAdHaTtEr (a username that can be linked to Rodgers, as
w
described below) posted a message on the Picnic Web Site, in which he stated:
"We are not like other sites , money is no object when it comes to safety. We
w
(b)
knew ahead of time this was going to happen so all sites were moved off that
server. So dish won and got shit , nothing is on that server.";
w
on November 19, 2009, in a post on the Picnic Web Site, ThEmAdHaTtEr stated:
.s
at
"Zentek gave up an old Tomico server which had nothing on it.";
(c)
on November 22, 2009, in a post on the Picnic Web Site, ThEmAdHaTtEr stated:
"That was the old server which had nothing on it because we switched 4 monthws
ago.";
(d)
sc
on November 26, 2008, in a post on the Anton Pillar Web Site, dano (a username
am
that can be linked to Rodgers, as described below) stated: "the server in question
was an old one with nothing on it"; and
(e)
s.
co
on November 27, 2008, Elite sent an email message to Zentek thanking Zentek
for protecting the "new server":
"After talking with my partner who handles the server's he said you were telling
the truth and no one went into the new server. So thanks for all you did".
Attached hereto and marked as Exhibit "38" are copies of these messages.
89.
m
Based on this evidence, it appears that in July, 2008, Elite/Rodgers set up a New Server
with Zentek called "elite-tech" and "got rid of the old one", "with no trace of the old one", so
that there would be "no more tomico". It further appears that Elite/Rodgers moved the control of
the Old Server to the New Server, and then instructed Zentek to shut down the Old Server.
90.
On August 6, 2008, Zentek wrote to Elite and requested payment for the "elite-tech"
server for the period beginning August 18 and ending November 17, 2008 in the amount of US
$1680. Elite responded that half of the fee would be paid by Western Union and half by PayPal.
- 35 On August 28, 2008, Elite confirmed that $860 had been sent by Western Union in the name of
"Iola lopez". Attached hereto and marked as Exhibit "39" is a copy of the email messages
between Zentek and the Elite Email Account from August 6, 2008 to August 28, 2008.
w
(G) Renewals from September 2008 to December 2008 after Compliance Orders
91.
w
On September 18, 2008, the day after the Compliance Orders were made, Elite sent an
w
email message to Zentek asking it to renew the Anton Pillar Web Site and another web site.
After an exchange of email messages regarding price and additional domains that Elite sought to
.s
at
register, Elite confirmed again on November 1, 2008 that he wished to renew the Anton Pillar
Web Site for two years. On November 3, 2008, Zentek confirmed that it had done so. Attached
hereto and marked as Exhibit "40" are copies of the email messages between the Elite Email
Account and Zentek dated September 18, 2008 to November 3, 2008 regarding the renewal of
the Anton Pillar Web Site.
sc
92. On November 30, 2008, Elite again requested that the domains for the Anton Pillar Web
Site be renewed for 2 years and that the domains for the Tomico Satellites.Com Web Site and the
am
Tomico Satellites.Net Web Site be renewed for 5 years. On December 5, 2008, Elite confirmed
those instructions. Attached hereto and marked as Exhibit "41" are copies of the email
s.
co
messages from the Elite Email Account to Zentek dated November 30, 2008 and December 5,
2008.
93.
Based on this evidence, between April and December 2008, Elite renewed several of the
Web Sites, transferred the content of the Web Sites to a new server called "elite-tech", and
deleted the old server called "tomico".
m
(H) Requests for Assurances from Zentek in November and December 2008 That the
Elite Email Account and IP Address Information Were Not Disclosed
94.
The email messages produced by Hushmail indicate that by November 19, 2008, Elite
was aware that the Plaintiffs had obtained the Hong Kong Judgment requiring Zentek to produce
certain records. In addition, excerpts from the Hong Kong Judgment were posted on the Anton
Pillar Web Site by IwuzB4Him (a username that can be linked to Rodgers, as described below)
on November 19, 2008, and on the Picnic Web Site on the same day (see Exhibit "38").
-36Attached hereto and marked as Exhibit "42" are copies of posts from the Anton Pillar Web Site
containing excerpts from the Hong Kong Judgment.
95.
In November and December, 2008, Elite sent a series of email messages to Zentek
w
expressing concern and inquiring whether Zentek had disclosed the Elite Email Account and
w
Elite's IP Address. Attached hereto and marked as Exhibit "43" is email correspondence
between Zentek and Elite dated November 19 to December 6, 2008, which indicates that:
(a)
w
on November 19, 2008 at 2:44 a.m. Elite wrote to Zentek, citing the style of cause
.s
at
for the Hong Kong proceeding and asked:
"Why didn't you guys tell me that you are being sued in court now to get my
records???";
(b)
sc
on November 19, 2008 at 5:24 a.m. Zentek responded that it had retained counsel
to defend the application at a cost of US $25,000 and that "no data or details
regarding your new server with us is released";
am
(c)
on November 19, 2008 at 7:14 a.m. Elite asked "What info did you give up?";
(d)
on November 20, 2008 at 1:39 a.m. Zentek responded:
s.
co
"...we maximized the confidentiality and privacy as much as we could
considering the plaintiffs came to us already with so much information, of which
we added basically nothing new they did not already have";
(e)
on November 20, 2008 at 4:51 a.m. Elite asked:
m
"1 last question did u tell them about this email address? please let me no the truth
so at least i could get rid of this if u did.";
(f)
on November 20, 2008 at 10:19 a.m. Elite asked:
"all i want to know is did u give up this email address and my ip adress??";
(g)
on November 21, 2008 at 9:29 p.m., Elite again asked:
"I need to know did u give up this email address and my ip ?? I need to know so i
can be prepared.";
-37(h)
w
on November 21, 2008 at 10:57 a.m., Zentek responded:
"...unofficially, no IP address was given out (except the original server IPs, which
they already had in the first place) as we do not record IP addresses of people
connecting to servers or similar, the email address was. The email address does
not include the IP addresses...we were able to severely restrict what would have
been given out";
w
(i)
(j)
on November 25, 2008 at 9:53 p.m., Elite asked:
w
"I have just seen the court papers , it states you had to give up everything to them.
It states you had to give up all emails between us. Now please tell me the truth.
did you give them up???";
.s
at
on November 27, 2008 at 9:04 a.m., Elite stated:
"After talking with my partner who handles the server's he said you were telling
the truth and no one went into the new server. So thanks for all you did"; and
(k)
sc
on December 6, 2008 at 12:36 p.m., Elite asked "was any emails of us talking
given up?".
am
According to the Elite Access Logs, Elite logged into the Elite Email Account from the 41 IP
Address on November 19-20, 2008 and from the 62 IP Address on November 21, 2008.
96.
s.
co
Based on this evidence, it appears that as soon as Elite learned of the Hong Kong
Judgment on November 19, 2008, he contacted Zentek to determine what information it had
produced to the Plaintiffs. Elite sought confirmation that Zentek had not disclosed the Elite
Email Account and his IP Address to the Plaintiffs and advised Zentek that if the Elite Email
Account had been disclosed he would "get rid" of it.
m
(I)
Substantial Deletion of the Elite Email Account (Information Produced on February
25, 2009)
97.
Rodgers did not disclose the Elite Email Account to the Plaintiffs. To the contrary,
Rodgers stated unequivocally in paragraph 9 of his Affidavit sworn December 17, 2008 that "I
confirm that there are no other email addresses that I use or have ever used" (apart from the ones
listed in his Affidavit). The Elite Email Account was not listed.
-3898.
I am advised by Ms. Goodman that on January 28, 2009, the Plaintiffs served materials
containing numerous email messages obtained by the Plaintiffs from Hushmail between the Elite
Email Account and Zentek.
w
99.
I am advised by Ms. Goodman that on February 25, 2009, counsel for Rodgers provided a
w
password for the Elite Email Account, "felixpotvan". Rodgers therefore only provided the
password to the Elite Email Account after he became aware that the Plaintiffs had already
w
obtained access to the Elite Email Account and the email messages contained in it from
Hushmail directly.
100.
.s
at
On February 26, 2009, I accessed the Elite Email Account using the password
"felixpotvan". The Elite Email Account contained 22 messages in the inbox folder and 8
messages in the sent items folder. None of the messages in the inbox folder contained any of the
sc
Web Sites, customer lists, or sales records. In addition, none of the messages which Hushmail
produced to the Plaintiffs (many of which are attached hereto) were in the Elite Email Account
am
when I accessed it on February 26, 2009. In other words, it appears that substantially all of the
messages contained in the Elite Email Account were deleted prior to Rodgers providing the
Plaintiffs with access to it.
101.
s.
co
Moreover, as of February 26, 2009, the Elite Email Account contained no messages from
Elite to Zentek. There were a few Renewal Messages for some of the Web Sites from Zentek to
Elite, which appear to have been automatically generated by Zentek, but the last of these
messages was dated February 21, 2009.
102.
m
From February 26, 2009 to April 2009, I periodically monitored the Elite Email Account.
There were no messages sent from the Elite Email Account during this time, and the only
messages received by the Elite Email Account during this time appeared to be automaticallygenerated messages. There were no messages from Zentek at all since February 21, 2009. This
suggests that Rodgers discontinued use of the Elite Email Account at or immediately before the
time that he provided the Plaintiffs with access to it on February 25, 2009.
103.
On January 14, 2010, I attempted to access the Elite Email Account but it had been
disabled. This is consistent with Rodgers' statement in an email to Zentek dated November 20,
-392008 in which Rodgers asked Zentek to tell him if it had disclosed the Elite Email Account so
that he "could get rid of it". Attached hereto and marked as Exhibit "44" is a copy of a message
generated by Hushmail when I tried to access the Elite Email Account on January 14, 2010
w
indicating that the account had been disabled.
w
104. Accordingly, (a) Rodgers only disclosed the Elite Email Account (which he used
extensively to communicate with Zentek about the Web Sites) after the Plaintiffs revealed that
w
they were aware of it, (b) Rodgers only provided access to the Elite Email Account after he had
deleted substantially all of the messages contained in it and discontinued using it, and (c) none of
.s
at
the contents of the Elite Email Account to which Rodgers provided access contained any content
of any of the Web Sites, customer lists, sales records, or other relevant information.
(J)
Substantial Deletion of Other Email Account (Information Produced on February
26, 2009)
sc
105. I am advised by Ms. Goodman that, by email message dated February 26, 2009, counsel
am
for Rodgers provided (a) a password for the Tomico-Ind Email Account, the Nagra3 Email
Account and the email account "[email protected] " (the "Nick Email Account"), and (b)
a password for a PayPal account associated with the Nick Email Account (the "Nick PayPal
s.
co
Account"). The password provided for all of these accounts was "felixpotvan".
106. As with the Elite Email Account, Rodgers did not disclose the existence of any of these
accounts or their passwords until after the Plaintiffs had obtained records from third parties and
delivered materials which contained clear evidence that Rodgers used the Tomico-Ind Email
Account and the Nagra3 Email Account.
m
107. I attempted to access the three email accounts using the password provided. I was able to
access the Tomico-Ind Email Account, the Nagra3 Email Account and the Nick Email Account.
However, they contained very few messages and did not contain any of the contents of the Web
Sites, customer lists, or sales records. In particular:
(a)
the Tomico-Ind Email Account (which was an email account that was extensively
used by Rodgers in operating the Tomico businesses and Web Sites) contained
only one message in the inbox folder that was irrelevant. There were no messages
-40in the sent items folder. The registration information for the Tomico-Ind Email
Account indicated that it was registered on December 18, 2004. It is reasonable
to conclude that messages were deleted from the Tomico-Ind Email Account
w
before access was provided to the Plaintiffs;
w
(b)
the Nagra3 Email Account contained 28 messages in the inbox folder and no
messages in the sent items folder; and
(c)
the Nick Email Account contained only one message in the inbox folder which
w
.s
at
was a message from "Windows Live Hotmail Member Services" starting with the
words "Welcome to Hotmail". There were no messages in the sent items folder.
108. As described above, there were no messages in the sent items folder for the Tomico-Ind
sc
Email Account, the Nagra3 Email Account, and the Nick Email Account. Sent messages are
typically saved automatically in the sent items folder. In order for there to be no messages in the
sent items folder, the user would have had to specifically access that folder and manually (i.e.,
intentionally) delete the messages.
am
109. I also attempted to access the Nick PayPal Account associated with the Nick Email
s.
co
Account, but the password provided by Rodgers did not work. I was therefore not able to access
any of the records that might be stored in the Nick PayPal Account.
110. Accordingly, (a) Rodgers disclosed the Tomico-Ind Email Account and the Nagra3 Email
Account only after the Plaintiffs revealed that they had obtained records that linked Rodgers to
m
these accounts, and (b) the access that was provided to the three email accounts and the Nick
PayPal Account did not provide any content of any of the Web Sites, customer lists, or sales
records.
(K) Web Sites With No Content and Passwords That Did Not Work (Information
Produced on February 27, 2009)
111. I am advised by Ms. Goodman that, on February 27, 2009, counsel for Rodgers provided
to BLG the following information:
-41 (a)
a username and password ("user: nick", "pass: felixpotvan") for File Transfer
Protocol access ("FTP Access") (the "FTP Password") to a web server which was
described as providing "access to every site on the server right now except anton-
w
pillar.com";
w
(b)
a note that "it is believed that the databanks are still around for the following
Websites: (1) armulator-sales, (2) nagra3.com , (3) nagraeurorom, (4) elite-
w
technologys, (5) dish-toys, (6) dish-equipment, (7) dish-outlaws, (8) elitecoders.corner, (9) picnicinthesun (on a cd and on the server)";
.s
at
(c)
customer and license information pertaining to "vBulletin" licenses; and
(d)
a list of several email accounts without passwords (the "February 27 Document").
sc
(1)
FTP Access to the New Server and Five Web Sites
112.
On February 27, 2009, I attempted to access the New Server using the FTP Password.
113.
The FTP Password did not provide me with either (a) full access to the New Server, or
am
(b) access to any "databanks" (which I assume to mean databases which are typically used to
s.
co
store the contents of web sites) for the nine web sites listed in the February 27 Document.
Instead, it provided access only to five web sites:
www.dish-equipment.com , www.dish-
outlaws.com, www.dish-toys.com , www.nagraeurorom.com and www.annulator-sales.com , but
none of them had any substantive content.
114.
m
Accordingly, the FTP Password did not provide access to any content of any of the Web
Sites (other than certain files that may have been associated with the Nagra2FixElite Web Site as
described below), customer lists or sales records, or other relevant information. It also did not
provide access to four of the web sites referred to in the February 27 Document, being
"nagra3.com", "elite-technologys", "elite-coders. corner" and "picnicinthesun".
(2)
vBulletin
115. At page 2 of the February 27 Document Rodgers provided customer numbers and
passwords for "vBulletin accounts". vBulletin is a software application that is typically used to
-42create and operate forum web sites. The information provided for vBulletin allowed me to
ascertain through the vBulletin web site that "Frank Mir" owns two vBulletin licenses, one for
the Tomico-Satellites.Net Web Site and one for the Picnic Web Site. However, the vBulletin
w
information provided did not permit me to access those web sites themselves or the databases
associated with them.
116.
w
Accordingly, the vBulletin information did not provide access to any content of any of
w
the Web Sites, customer lists or sales records, or other relevant information.
.s
at
(3)
Additional Email Accounts
117.
At page 3 of the February 27 Document, Rodgers listed four additional email accounts,
"[email protected] ", "[email protected] ", "[email protected]",
sc
and "[email protected] " and one PayPal account associated with the email address
"[email protected] ". However, no passwords were provided for those accounts.
118.
am
I attempted to access each account with the password "felixpotvan", but this password
did not work. In fact, when I attempted to access "[email protected] " and
"[email protected] ", I received error messages stating that the accounts did
s.
co
not exist. Accordingly, I was unable to access any of the accounts listed at page 3 of the
February 27 Document, and Rodgers had not provided access to any of them.
(L) Deletion of Data on the New Server (Information Produced on March 24, 2009)
119.
m
I am advised by Ms. Goodman that, on March 24, 2009, counsel for Rodgers provided
administrative access credentials for the New Server: "user: root, password: 6251" (the "Admin
Password"). The Admin Password provided me with administrative access to the New Server.
However, as described below, the New Server did not contain the Web Sites, other than certain
files that may have been associated with the Nagra2FixElite Web Site, as described below. More
importantly, information relating to some of the Web Sites was in fact deleted from the New
Server 24 hours before access was provided to the Plaintiffs. The New Server also did not
contain any customer lists, sales records, or other relevant information.
-43120. The server that the Admin Password was provided for appeared to be the New Server.
This conclusion is based on the following information:
(a)
w
the operating system for the New Server is "FreeBSD" — this is the operating
system that Elite/Rodgers advised Zentek that he wanted to use in email messages
w
(b)
to Zentek dated July 8, 2008;
w
the operating system for the New Server was installed on or about July 20, 2008 —
this is one day after Zentek sent an email message to Elite/Rodgers advising that
.s
at
FreeBSD would have to be installed manually, and the same day that
Elite/Rodgers directed Zentek to "please install it";
(c)
the primary IP Address for the New Server is 210.245.160.6 — this is the same IP
sc
Address that Zentek initially identified in an email dated July 19, 2008 as the
primary IP Address for the New Server it was setting up for Elite/Rodgers; and
(d)
am
the IP Addresses for the nameservers are 203.98.175.6 and 203.98.129.1 — the
first of which is among those identified by Zentek in an email dated July 19,
2008.
s.
co
(The aforementioned email messages between Zentek and Elite/Rodgers can all be found at
Exhibit "37")
121. I reviewed the active files on the New Server and conducted searches of both the active
m
files and the "unallocated space" on the New Server. Unallocated space typically contains the
remains of files that the user or the system has deleted, including copies of web sites, e-mail
messages and discussion forums. Unallocated space often contains only fragments of files and
images. Based on my review of the New Server:
(a)
the New Server did not contain any of the Web Sites, with the exception of
fragments of data from certain of the Web Sites, as described below;
(b)
files relating to some of the Web Sites were previously on the New Server but
were deleted before access was provided to the Plaintiffs;
-44(c)
the New Server contains files that appear to have been attachments to messages
posted in the forum for the Nagra2FixElite Web Site, but does not contain the
messages posted in its forum, the names of forum users and their IP Addresses, or
w
private messages;
w
(d)
(e)
the New Server previously contained web sites including the Anton Pillar Web
Site and the Picnic Web Site that are no longer there;
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these web sites were deleted from the New Server sometime on or after March 23,
.s
at
2009 and before administrative access was provided to the Plaintiffs on March 24,
2009;
(f)
the New Server was accessed from Rodgers' IP Addresses in August 2008 and
February 2009;
(g)
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the user account for "nick" which was provided to the Plaintiffs in the February
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27 Document was created on February 26, 2009, one day before access was
provided to the Plaintiffs; and
(h)
some of the Web Sites on the New Server had generic shopping cart installations
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and associated databases, but there was no substantive content in the databases
(i.e., no customer lists or sales records).
(1)
Massive Deletion of Data From The New Server
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122. The New Server had an email mailbox for the "root" (i.e., administrative) user account on
the New Server (the "Root Mailbox"). The Root Mailbox contains automatically-generated
"daily run output" email messages (the "Audit Emails") which essentially provide a status report
with information on server management, including the amount of used disk space and the
number of user accounts on the New Server each day. Since the Audit Emails are generated
daily, with each Audit Email reviewing the current status and changes made in the preceding 24
hours, they provide a useful method of tracking changes to the New Server from day-to-day.
The time used in the Audit Emails is GMT +8, which I believe to be Hong Kong time, and which
is 12 hours ahead of the time in Toronto (adjusted as necessary for Daylight Saving Time).
-45123.
Attached hereto and marked as Exhibit "45" is a copy the Audit Email for March 24,
2009 with the relevant portion highlighted. The date and time of the Audit Email are March 24,
2009 at 3:01 which would be March 23, 2009 at 15:01 Toronto time. Under "Disk Status" there
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is a table setting out the status of used and available disk space for each partition (i.e. segment of
the disk drive) on the New Server. The New Server was configured to store web sites and
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databases in the "user" partition, which is identified in the "Mounted on" column as "/usr". The
Audit Email indicates that as of March 23, 2009 at 15:01, 13 gigabytes of disk space were used
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in the user partition.
124.
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Attached hereto and marked as Exhibit "46" is a copy the Audit Email for March 25,
2009 with the relevant portion highlighted. The date and time of the Audit Email is March 25,
2009 at 3:01 which would be March 24, 2009 at 15:01 Toronto time. The Audit Email indicates
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that as of March 24, 2009 at 15:01, only 4.1 gigabytes of disk space were used in the user
partition.
125.
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Accordingly, in the 24-hour period before Rodgers provided the Plaintiffs with
administrative access to the New Server, 8.9 gigabytes of data were deleted from the user
partition, which, as noted above, is where web sites and their databases were stored.
126.
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8.9 gigabytes is an enormous volume of data. One gigabyte is 1,073,741,824 bytes and
each byte is equivalent to one character of typewritten text. A typical typed document has
approximately 2800 characters per page single-spaced, and one gigabyte would therefore be the
equivalent of approximately 383,479 typewritten pages. 8.9 gigabytes would be the equivalent
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of approximately 3,412,965 typewritten pages. In other words, in the 24-hour period before
Rodgers provided the Plaintiffs with administrative access to the New Server, the equivalent of
3,412,965 typewritten pages were deleted.
(a)
Web Sites Deleted From the New Server
127.
It is not possible to identify all of the files that were deleted from the New Server
between March 24 and 25, 2009. However, it appears that the deleted files included the Anton
Pillar Web Site and the Picnic Web Site for the following reasons:
-46(a)
fragments of the databases for both the Anton Pillar Web Site and the Picnic Web
Site were found in the unallocated space on the New Server;
(b)
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user accounts for the Anton Pillar Web Site and the Picnic Web Site were deleted
from the New Server on March 23 or 24, 2009, the same time that 8.9 gigabytes
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(c)
of data was deleted; and
the New Server contains email messages sent from the Anton Pillar Web Site and
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the Picnic Web Site to users.
.s
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(b)
Fragments of the Databases Were Found on the New Server
128.
Although neither the Anton Pillar Web Site nor the Picnic Web Site were on the New
Server, I found fragments of the databases for both in the unallocated space of the New Server.
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These fragments contained various messages posted on these web sites along with the IP
Addresses of their users. However, the databases themselves were deleted prior to
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administrative access to the New Server being provided to the Plaintiffs. Examples of these
fragments are described below.
129.
The fragments of the database for the Anton Pillar Web Site contained a message posted
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on March 22, 2009. This indicates that the Anton Pillar Web Site was on the New Server until at
least March 22, 2009. The fragments of the database for the Picnic Web Site contained a
message posted on March 23, 2009. This indicates that the Picnic Web Site was on the New
Server until at least March 23, 2009. Attached hereto and marked as Exhibit "47" are copies of
these messages.
(c)
Deletion of User Accounts
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130. The New Server contains a "user account" for the Anton Pillar Web Site and the Picnic
Web Site. The Audit Email dated March 25, 2009 (Exhibit 46 above) indicates that in the 24hour period preceding March 24, 2009 at 15:01, the user account "antonpillar" (associated with
the Anton Pillar Web Site) and the user account "davinci" (associated with the Picnic Web Site)
were deleted. This indicates that the Anton Pillar Web Site and the Picnic Web Site were on the
-47New Server until at least March 23, 2009 at 15:01, the very day that administrative access to the
New Server was provided to the Plaintiffs.
(d)
Email Messages Sent from the Forums
131.
The Root Mailbox on the New Server also contains messages that were sent from email
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addresses associated with the Anton Pillar Web Site and the Picnic Web Site but which were
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returned to the New Server when they could not be delivered. The fact that these messages were
on the New Server indicates that the Anton Pillar Web Site and the Picnic Web Site were on the
.s
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New Server when the messages were sent. These messages in the Root Mailbox were apparently
not deleted when the Anton Pillar Web Site and the Picnic Web Site were.
132.
Attached hereto and marked as Exhibit "48" is a returned message from "Forums"
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<[email protected] >" to "[email protected]" dated February 12, 2009
advising of a new message posted in the forum for Anton Pillar Web Site. This indicates that as
of February 12, 2009, the Anton Pillar Web Site and its forum were on the New Server.
133.
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Attached hereto and marked as Exhibit "49" are similar messages sent to and from
"Forums" <???@/???.com" to various recipients referring to messages posted on the Picnic
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Web Site. The most recent of these messages is dated February 23, 2009. This message
indicates that as of February 23, 2009, the Picnic Web Site was on the New Server.
(e)
The Anton Pillar Web Site Was Moved to Another Server
134.
Until it went offline in September 2009, DEI periodically monitored the Anton Pillar
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Web Site. On March 23, 2009 at 12:48, DEI confirmed that the Anton Pillar Web Site was
online (i.e., active). However, when DEI next checked the Anton Pillar Web Site on March 25,
2009 at 10:57, it was offline. Thus, I believe that the Anton Pillar Web Site went offline
sometime between March 23, 2009, at 12:48 and March 25, 2009, at 10:57.
135.
Based on (a) the deletion of the user account for the Anton Pillar Web Site in the 24
hours preceding March 24, 2009 at 15:01, and (b) the fact that the fragment of the Anton Pillar
Web Site database contains a message posted on March 23, 2009, I believe that the Anton Pillar
Web Site was deleted from the New Server sometime on March 23 or 24, 2009. This is
-48consistent with the Anton Pillar Web Site going down between March 23, 2009, at 12:48 and
March 25, 2009, at 10:57.
136. On the evening of April 15, 2009, I checked the Anton Pillar Web Site and found that it
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was online. It therefore appears that the Anton Pillar Web Site was removed from the New
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Server one day before Rodgers provided access to the Plaintiffs and subsequently resurrected on
another server.
(2)
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Relevant Tomico Files Deleted from the New Server
.s
at
137. Two files which appear to have been back up files for the Tomico Satellites.Net Web Site
were among the files deleted from the New Server.
138. Attached hereto and marked as Exhibit "50" is a portion of a file transfer protocol
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("FTP") log from the New Server which shows that on July 31, 2008, the user "root" uploaded
the files "tomico-sql.sql.gz" (279434662 bytes) and "tomico-webfiles.tgz" (1307786714 bytes)
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to a backup directory on the New Server. Based on the very large size, the names, and the
storage locations of these files, it appears that these files were backup files for the content of the
forums on the Tomico-Satellites.Net Web Site. The first file appears to be a Sequel (sql)
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language file, which is a software language commonly used for forum web site databases. This
is consistent with the email messages from Elite/Rodgers to Zentek in July, 2008, in which
Elite/Rodgers advised Zentek of his intention to transfer his web sites to the New Server.
139.
I searched the New Server for these files, but they were not there. Therefore these files
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were deleted before administrative access was provided to the Plaintiffs on March 24, 2009.
(3)
Access to the New Server from IP Addresses Used by Rodgers
140. I was able to locate evidence that in August 2008 and February 2009, the New Server
was accessed from the 35 and 62 IP Addresses that were used by Rodgers.
141. Attached hereto and marked as Exhibit "51" is an extract from a log file found on the
New Server showing access from the 62 IP Address by the user davinci. This log indicates that
on August 1, 2, 5 and 18, 2008, the New Server was accessed from the 62 IP Address. davinci is
a username that is associated with the Picnic Web Site and this user uploaded numerous files to
-49the New Server. Among the files uploaded were files with the extension "Jic", which based on
messages posted on the Picnic Web Site, are files used with piracy software.
142. Attached hereto and marked as Exhibit "52" is an extract from a log file found on the
New Server showing access to the New Server from the 35 IP Address by various usernames,
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including anonymous, admin, dishtoys, antonpillar and dishoutlaws. The access was made on
February 27, 2009 between 10:24 and 10:36, but since the New Server time is set as GMT+8
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(Hong Kong time), the access was actually on February 26, 2009 between 22:24 and 22:36
Toronto time (the night before the FTP Password was provided to the Plaintiffs). Based on the
.s
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IP Address, it is reasonable to conclude that Rodgers logged in, or attempted to log in, to the
New Server from the Rodgers Residence using the aforementioned usernames the night before
he provided access to the New Server to the Plaintiffs.
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143. Based on this evidence, it is reasonable to conclude that Rodgers accessed the New
Server on several occasions in August 2008 and February 2009.
(4)
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Creation of the nick User Account for Production to the Plaintiffs
144. Each of the Web Sites on the New Server has an associated user account on the New
Server. The dates that these user accounts were created can be determined from the Audit Email
Messages. Attached hereto and marked as Exhibit "53" are copies of the Audit Email Messages
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dated July 23 and 26, 2008 (with relevant portions highlighted). These messages indicate that
the user accounts for elitetechnologys, antonpillar, armulatorsales, dishoutlaws, nagraeurorom,
dishtoys, dishequipment were created in the 24-hour period preceding July 23 and 26, 2008
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(allowing for the 12-hour time difference), because they were listed under the heading "tomicbsd
passwd diffs" which lists new user accounts created since the previous daily Audit Email
Messages. The creation of these users accounts on these dates is consistent with the email
correspondence between Elite/Rodgers in July 2008 regarding the "new server" being set up.
145. As described above, the FTP Password provided in the February 27 Document provided
limited access to the New Server through the user account for nick. This user account was only
created on February 26 or 27, 2009, just prior to being disclosed. Attached hereto and marked as
Exhibit "54" is a copy of the Audit Email dated February 28, 2009. Taking account of the time
-50difference, these events occurred within 24 hours prior to February 27, 2009 at 15:01.
Accordingly, it appears that the nick user account was created specifically for production to the
Plaintiffs. As described above, the nick user account did not provide access to any content of any
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of the Web Sites (other than certain files that may have been associated with the Nagra2FixElite
Web Site as described below), customer lists or sales records.
(5)
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Private Messages from dano About Deleting the Web Sites
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146. The fragments of the Anton Pillar Web Site include a log file for AE Detector (the "Log
.s
at
File"). The AE Detector is a tool to identify when different users log in to the Anton Pillar Web
Site from the same computer. It functions by creating a so-called "cookie", that is a unique file
containing information that identifies the username used to log in to the Anton Pillar Web Site by
the username's assigned identification number. It places the cookie on the user's computer, to be
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used in the future to identify the computer, and the Log File is periodically updated with the
information contained in the cookie. If a user logs into the Anton Pillar Web Site from the same
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computer, but using a different username, the different username's assigned identification
number is also stored in the cookie and in the Log File. This makes it possible to identify
instances where the same computer has been used to log into the Anton Pillar Web Site under
multiple usernames.
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147. The Log File contained entries dated from July 31, 2008, to February 17, 2009, which
indicate that the usernames S.Rodgers and dano logged into the Anton Pillar Web Site from the
same computer. S.Rodgers was assigned identification number 18, and dano was assigned
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identification number 1734, both of which are displayed in the Log File. Attached hereto and
marked as Exhibit "55" are copies of the username profiles containing the identification
numbers of S.Rodgers and dano, and a copy of the Log File with the relevant portions
highlighted. Further, as described below, there is evidence that S.Rodgers and dano used the
same IP Addresses. It is therefore reasonable to conclude that Rodgers accessed the Anton Pillar
Web Site using the name dano.
148. The fragments of the Anton Pillar Web Site include various private messages sent from
and to dano. I have configured the private messages to display as if they were being viewed on
-51the Anton Pillar Web Site by their sender or recipient. Among the private messages from dano
were:
(a)
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a message dated March 19, 2009, at 9:51 p.m., to the user Frank:
"we are on a tight deadline all has to be done by the end of this weekend.
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we are going to move apo to j's server for now.
we are going to move picnic and the coder site to panama.
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Then clean the rest and give it all up.
.s
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here is what u need for panama go check it out get it ready if u need anything put
in a ticket or let me know.
[url]http://store-int-01.hostingpanama.com/cp/g.cgi/k,accsum/id,4833[/url]
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user:[email protected]
pass:ilikeul969
Once i get this new business up and runing i will give u some cash for all u do. if
u need a server for your home get one from j he has 7 of mine u can have 1."; and
(b)
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a message dated March 23, 2009, at 7:03 p.m., to the user Frank:
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"1. take a complete back up of everything on the server and burn it to cd or on
your comp .
2. picnic is not going to be called picnic anymore so make it a ip for now. The
first night i gave u access to the panel at panama in there u will see 2 domains
circus something thats going to be new picnic name and the other domain park
something will be coder site.
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3. once u have a complete back up of the server , delete apo , picnic, coder site.
4. erase all ips that track to u on the server , but keep all the carts from before and
elite-tech site on the server and change the root access to root/6251 and make sure
all traces are gone from u so i can give the server up.
5. if u dont understand any of this let me know".
Attached hereto and marked as Exhibit "56" are copies of these private messages.
-52149. Attached hereto and marked as Exhibit "57" are copies of posts by ThEmAdHaTtEr
dated March 8, 2009, in which he states: "We will be moving servers again to a different 1 in a
different country... We like to move every 6-9 months".
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150. Based on these private messages from dano, it appears that:
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(a)
(b)
on March 19, 2009, Rodgers advised Frank that he intended to move the Anton
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Pillar Web Site to another server, and then "clean the rest and give it all up"; and
on March 23, 2009, Rodgers instructed Frank to create a backup of the complete
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contents of the New Server, delete the Anton Pillar Web Site and the Picnic Web
Site, change the access credentials for the New Server to the username root and
the password 6251, and "make sure all traces are gone...so I can give the server
up."
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151. I am advised by Ms. Goodman that, on March 24, 2009, counsel for Rodgers provided
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counsel for the Plaintiffs with the username root and the password 6251 to provide
administrative access to the New Server.
RODGERS HAS CONTINUED TO ENGAGE IN PIRACY ACTIVITY
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152. As described below, there is evidence that after Rodgers was found in contempt of the
Anton Piller Orders:
(a)
Rodgers operated or administered the following web sites:
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(i)
the Picnic Web Site;
(ii)
the Tomico-Satellites.Net Web Site;
(iii)
the Nagra2Fix Elite Web Site and the Nagra2-Software Web Site;
(iv)
the Nagra2Elite Web Site;
(v)
the Nagra3 Web Site; and
(vi)
the Anton Pillar Web Site;
- 53 (b)
Rodgers used several usernames on the Anton Pillar Web Site and the Picnic Web
Site, including ThEmAdHaTtEr, Retired fellow, TheWarden, Nagra3.com , Vic
Damone, dano, and Dish-outlaws, all of whom used the same IP Addresses as
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Rodgers;
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(c)
Rodgers used various usernames to:
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(i)
(ii)
(d)
offer Piracy Technology in return for "donations" to his "legal fight" and
"battle with the providers"; and
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sell Piracy Technology; and
Rodgers engaged in and promoted efforts to compromise the Plaintiffs'
encryption technology, including the development of receivers, piracy devices,
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and software "hacks", and IKS servers to permit persons to steal DISH Network
Programming and ExpressVu Programming.
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(A) Rodgers Administered, Moderated and Posted Messages on the Anton Pillar Web
Site and the Picnic Web Site Under Various Usernames
153.
As described above, even though extensive content from the New Server was deleted
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before access was given to the Plaintiffs, I was able to recover fragments of the databases for the
Anton Pillar Web Site and the Picnic Web Sites that were in the unallocated space on the New
Server.
154.
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I searched the fragments of the database for the Anton Pillar Web Site that were available
on the New Server to determine which users had posted messages on or administered or
moderated the Anton Pillar Web Site from the IP Addresses linked to Rodgers. Attached hereto
and marked as Exhibit "58" are copies of the IP Address searches for the Rodgers' IP Addresses
on the Anton Pillar Web Site. These searches reveal that:
(a)
from the 35 IP Address (the Rodgers Residence):
(i)
S.Rodgers posted messages on the Anton Pillar Web Site 63 times;
(ii)
TheWarden administered the Anton Pillar Web Site 35 times; and
- 54 (iii)
(b)
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from the 62 IP Address (7 Holly Meadow, the residence of Rodgers' Aunt):
(i)
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(ii)
S.Rodgers posted messages on the Anton Pillar Web Site 39 times;
TheWarden administered the Anton Pillar Web Site 1,793 times and
moderated it 191 times; and
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(iii)
(c)
dano moderated the Anton Pillar Web Site 3 times;
dano posted messages twice, administered the Anton Pillar Web Site 311
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times and moderated it 54 times;
from the 170 IP Address (7 Holly Meadow, the residence of Rodgers' Aunt);
(i)
S.Rodgers posted a message on the Anton Pillar Web Site one time; and
(ii)
TheWarden administered the Anton Pillar Web Site 428 times and
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moderated it 97 times;
(d)
from the 173 IP Address:
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S.Rodgers posted messages on the Anton Pillar Web Site 49 times;
(ii)
TheWarden administered the Anton Pillar Web Site 1,598 times and
moderated it 264 times; and
(iii)
(e)
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(i)
Warden administered the Anton Pillar Web Site 153 times; and
from the 41 IP Address:
(i)
1,734 times; and
(ii)
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dano administered the Anton Pillar Web Site 87 times and moderated it
IwuzB4Him posted a message on the Anton Pillar Web Site one time.
155. Rodgers' IP Addresses were used by S.Rodgers, TheWarden, dano, and IwuzB4Him to
post messages on (and in the case of TheWarden and dano to administer and moderate) the
-55Anton Pillar Web Site both before and after Rodgers was incarcerated, but not during. DEI has
created a graph which depicts activity on the Anton Pillar Web Site from each of the five
Rodgers' IP Addresses, a copy of which is attached hereto and marked as Exhibit "59" together
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with a list of the entries that are graphed. Other than one use of the 62 IP Address on December
21, 2007, there was regular access to the Anton Pillar Web Site up to and including December
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19 2007. After that day, use of the Rodgers' IP Addresses completely stopped until April 28,
2008 when usage spiked.
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156. I also searched the fragments of the database for the Picnic Web Site that were available
.s
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on the New Server to determine which users had posted messages on or administered or
moderated the Picnic Web Site from the IP Addresses linked to Rodgers. Attached hereto and
marked as Exhibit "60" are copies of the IP Address searches for the Rodgers' IP Addresses on
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the Picnic Web Site. These searches reveal that:
(a)
from the 35 IP Address:
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(i)
Retired fellow posted messages on the Picnic Web Site 13 times; and
(ii)
ThEmAdHaTtEr posted messages on the Picnic Web Site once and
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administered the Picnic Web Site 58 times;
(b)
from the 62 IP Address:
(i)
Retired fellow posted messages on the Picnic Web Site 602 times;
(ii)
ThEmAdHaTtEr posted messages on the Picnic Web Site 154 times,
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administered the Picnic Web Site 6,026 times and moderated the Picnic
Web Site 308 times;
(iii)
Vic Damone posted messages on the Picnic Web Site 49 times and
moderated the Picnic Web Site 5 times;
(iv)
Nagra3.com posted messages on the Picnic Web Site 10 times; and
(v)
Dish-outlaws posted messages on the Picnic Web Site 16 times;
-56(c)
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from the 170 IP Address:
(i)
Retired fellow posted messages on the Picnic Web Site 24 times;
(ii)
ThEmAdHaTtEr administered the Picnic Web Site 1,517 times and
moderated the Picnic Web Site two times; and
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(d)
(iii)
Vic Damone administered the Picnic Web Site 33 times;
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from the 173 IP Address ThEmAdHaTtEr administered the Picnic Web Site 1,914
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times and moderated it once; and
(e)
from the 41 IP Address:
(i)
ThEmAdHaTtEr posted messages on the Picnic Web Site 204 times,
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administered the Picnic Web Site 211 times and moderated it 21 times;
and
(ii)
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Dish-outlaws posted a message on the Picnic Web Site 1 time.
157. Rodgers' IP Addresses were used by Retired fellow, ThEmAdHaTtEr, Vic Damone, and
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Dish-outlaws to post messages on (and in the case of ThEmAdHaTtEr and Vic Damone to
administer and moderate) the Picnic Web Site (formerly the Nagra2FixElite Web Site) both
before and after Rodgers was incarcerated, but not during. DEI has created a graph which
depicts activity on the Picnic Web Site from each of the five IP Addresses, a copy of which is
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attached hereto and marked as Exhibit "61" together with a list of the entries that are graphed.
There was regular access to the Picnic Web Site up to and including December 19, 2007. After
that day, use of the Rodgers' IP Addresses completely stopped until April 21, 2008 when usage
spiked.
158. As stated above, the fragments for the Anton Pillar Web Site and the Picnic Web Site that
I found in the unallocated space of the New Server were only partial fragments of the databases.
The actual number of logins and posts made by the aforementioned users from Rodgers' IP
Addresses could in fact be higher than the number of instances disclosed by the fragments that I
located.
-57159. The IP Address searches described above reveal that TheWarden/Warden and dano were
administrators on the Anton Pillar Web Site and ThEmAdHaTtEr and Vic Damone were
administrators on the Picnic Web Site. These users accessed these web sites from Rodgers' IP
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Addresses. Based on this evidence, it is reasonable to conclude that Rodgers used these
usernames and had administrative access to both web sites. This conclusion is bolstered by the
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facts that:
(a)
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the Anton Pillar Web Site and the Picnic Web Site were stored on the New Server
prior to March 23, 2009, and then deleted before the Plaintiffs were provided with
.s
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administrative access to the New Server by Rodgers on March 24, 2009; and
(b)
messages posted by these users appear to admit that they worked together,
including:
(i)
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a message posted by ThEmAdHaTtEr dated January 9, 2007, on the Picnic
Web Site which stated: "If u guys are afraid of being a target start post
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new files under the tomico name , thats already a target so no worrys
there. keep yourselfs private and let us take the blame...", a copy of which
is attached hereto and marked as Exhibit "62"; and
(ii)
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messages posted by ThEmAdHaTtEr dated January 5, 2007, on the Picnic
Web Site which stated "Guys tomico satellites will be down for a bit , we
are moving servers" and which responded to a question "where is tomico's
site? been down for a week" with the answer: "changing server", a copy of
which is attached hereto and marked as Exhibit "63".
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(B)
Rodgers Offered Piracy Technology in Return for "Donations" on the Anton Pillar
Web Site and the Picnic Web Site and Received the Proceeds
(1)
The Anton Pillar Web Site
160. In 2007 and 2008, Rodgers and other users on his behalf solicited "donations" on the
Anton Pillar Web Site for Rodgers' "legal fight". However, many of the "donations" appear to
have been attempts to conceal sales of Piracy Technology. A message posted by
-58ThEmAdHaTtEr dated January 9, 2007, on the Picnic Web Site stated: "i would say to everyone
here all money made put in the forms of donations, it is not against the law to accept donations."
(see Exhibit "62")
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161. At various times, the home page of the Anton Pillar Web Site (which displayed
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immediately after the user logged in) had a section entitled "Donations" with the heading
"Donations to Help S.Rodgers with his fight" which stated, in part: "If you want to send CASH
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or BLANK MONEY ORDER send it to : The Legal Fight 2007, P.O Box 1128 STN B, Weston,
Ontario M9L 2R8". The home page also stated: "We have received $1250 in donations towards
.s
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our goal of $10000". The Anton Pillar Web Site provided a "button" entitled "Make A
Donation". When I clicked on the button it took me to a PayPal page for donations to
"[email protected] " (the "Legal Fight PayPal") which stated "Please enter your
donation amount..." Rodgers admitted in his Affidavit sworn October 15, 2008 that the Legal
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Fight PayPal belonged to him. Attached hereto and marked as Exhibit "64" is a copy of the
home page of the Anton Pillar Web Site as of June 2, 2008, and a copy of the PayPal donation
page.
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162. Attached hereto and marked as Exhibit "65" are copies of various messages posted on
the Anton Pillar Web Site by TheWarden regarding the "donations". These messages include:
(a)
s.
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a message dated October 22, 2007: "We need to level the playing field. Guys like
Corkz and S.rodgers need are help to battle the giant Dishnetwork, Bell and
Nagrastar...So we have had them set up a paypal account and a P.o box to have
all donations to go the legal fight";
(b)
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a message dated October 24, 2007: "We have installed a paypal button at the top
of the Forum to donate with. If you want to send CASH or BLANK MONEY
ORDER send it to the legal fight 2007, P.O. Box 1128 STN B, Weston, Ontario
M9L 2R8"; and
(c)
a message dated April 30, 2008: "Ok guys I think we need to help out in the fight
against the providers. Even $5 donation goes along way. The providers have gone
to war with us and we need to fight back".
-59163. Around the same time as donations were first solicited on the Anton Pillar Web Site,
users on the Tomico-Satellites.Net Web Site offered to send Armulators and software to
"donors" in return for donations at the Anton Pillar Web Site. Attached hereto and marked as
w
Exhibit "66" are copies of the following messages posted on the Tomico-Satellites.Net Web
Site:
w
(a)
a message from Team Armulator dated October 22, 2007: "We have given you
w
continued support for the armulator for a year now and will continue till the arm
is dead. If you want to make sure that happens...please donate at www.anton-
.s
at
pillar.com and keep freeware alive";
(b)
a message from PIMPINnagravision dated November 4, 2007: "We were given a
few of the new ARMULATORS before they go on sale. For the next hour anyone
sc
who donates at least $120cdn to the www.anton-pillar.com fight will get one";
(c)
a message from PIMPINnagravision dated November 13, 2007: "Ok guys I have a
am
batch of the new v2 armulators here...For the next 24 hours anyone who goes to
www.Anton-pillar.com and donates to the fight $125cdn will get a new
ARMULATOR shipped to your door";
(d)
s.
co
a message from PIMPINnagravision dated November 14, 2007: "Don't make it
exactly $125 each one go up or down a bit so that there is no link to donating and
the arm give away";
(e)
m
a message from Nagra3.com dated November 16, 2007: "I see that Pimpin and
this site donated free new Armulators for donations to the fight at anton
pillar...From today till Monday at midnight Everyone who donates at least
$100cdn will get 1 year package for our private software FREE. Go to
www.Anton-pillar.com donate to there fight...";
(f)
a message from PIMPINnagravision dated December 10, 2007:
"As you all know it's getting harder to support freeware with Nagra going around
and sueing everyone... We need to all help out together to make sure that this
place is around for years to come, and that we continue to support and Release
-60freeware. We ask every member here and every member of any sites out there to
go to www.anton-pillar.com and donated to their fight...Even $5 guys will
help....we need to stand up and help the fight against the providers If we want to
continue to watch tv..."; and
w
(g)
a message from PIMPINnagravision dated December 11, 2007: "After seeing how
well the nagra2elite free software for donations at anton-pillar went they want to
w
help the cause to over there. From today till Friday at midnight. Go to
w
www.anton-pillar.com Donate $135cdn and you will receive 1 free new Rc2
Armulator..."
164.
.s
at
In the same time period, PIMPINnagravision started numerous "auctions" on the Tomico-
Satellites.Net Web Site. For example, attached hereto and marked as Exhibit "67" are copies of
messages posted by PIMPINnagravision from December 8 to 13, 2007, in which he started
sc
approximately 12 auctions for Armulators, ISO programmers, Nagra2Elite Software, Rags,
Atmegas, and Emulation packages.
165.
am
Attached hereto and marked as Exhibit "68" is a copy of a message posted on the
Tomico Satellites.Net Web Site dated December 11, 2007 from PIMPINnagravision, which
stated:
s.
co
"I got a pm from the owner of anton-pillar today here is what it said.
I like to thank you and your staff for helping with the fight, there is just 1 problem
if people are going to donate have them donate . Do not write in message that this
is for software or arm or any other satellite device. We are a legit legal site and do
not condone the use of these products or service. We will be deleting any
transaction from our donations that has anything to do or is said about anything
piracy related. Thanks theWarden"
166.
m
I am aware of a user named PIMPINnagravision who participated in the piracy forum
web site www.satscams.com (the "Satscams Web Site") in 2007. In March 2009, the former
owner and administrator of the Satscams Web Site, Jeffrey Reason, provided me with his login
credentials, and I used them to acquire the entire Satscams Web Site, including its databases. I
searched the Satscams Web Site database for the 173 IP Address and a copy of the search result
is attached hereto and marked as Exhibit "69". This search reveals that PIMPINnagravision
-61used the 173 IP Address to access the Satscams Web Site four times between March 20 and
April 29, 2007.
167.
As set out above, the user Nagra3.com posted messages 10 times on the Picnic Web Site
w
from the 62 IP Address. Attached hereto and marked as Exhibit "70" is a list of uses by
w
Nagra3.com on the Picnic Web Site from the 62 IP Address, between October 31, 2007 and May
8, 2008, with no actions whatsoever between December 6, 2007 and April 30, 2008.
168.
w
Based on this evidence, it is reasonable to conclude that Rodgers used the usemames
.s
at
PIMP1Nnagravision on the Tomico Satellites.Net Web Site and Nagra3.com on the Picnic Web
Site to offer Piracy Technology in return for donations to his "legal fight".
(2)
The Picnic Web Site
169.
The fragments for the Picnic Web Site that I recovered from the New Server include
sc
numerous messages in which various users, including Retired fellow, ThEmAdHaTtEr and Vic
am
Damone started threads for the "auction" or "raffle" of Armulators, ROM cards, and Piracy
Technology in exchange for "donations" to Rodgers' "legal fight" on the Anton Pillar Web Site.
Attached hereto and marked as Exhibit "71" are two indexes of discussion threads in the Picnic
s.
co
Web Site, as of March 23 or 24, 2009, all of which appear to relate to auctions, raffles, donations
and fundraisers.
170.
Attached hereto and marked as Exhibit "72" are copies of various messages from the
Picnic Web Site, including:
(a)
m
a message from Retired fellow dated October 31, 2007: "Over at www.antonpillar.com they are fighting a big battle with the providers , we want to help them
out with it. From today till Nov 15, 2007 we will be giving away Extra keys for
donations to there fight...Just go to there site donate and then pm us the paypal
receipt...";
(b)
a message from Retired fellow dated April 20, 2008:
"The arm team emailed the madhatter
-62Madhatter how have you been? Now that the tomico site is gone now and
romlOx is down where can we donate some product to help out steve rogers and
the rest of the guys in court battles?
w
Madhatter told them they could do it here. So here is the info for customers here.
They have donated 40 armulators , $100 cdn each shipped with 100% going to the
fight.
w
(c)
Pm me if you want to buy any . ...";
w
messages from Retired fellow dated May 9 and 10, 2008: "Lifetime dealer
package for Only $300cdn...For anyone else who wants in on this great deal here
.s
at
is how you get it. Donate to the cause at anton-pillar.com , Then pm me paypal
prrof you donated...You help them and help yourself at the same time.";
(d)
a message from Retired fellow dated June 2, 2008 in a thread called "Where is a
sc
good Place to buy some ARM's: "I will donate 20 of them to the fight at antonpillar . $100 cdn each donation gets 1 arm shipped";
(e)
am
a message from Retired fellow dated June 10, 2008:
"How can we donate to the fight against the providers...
s.
co
Do we still have any ARmulators for sale?? Yes $100us shipped";
(f)
a message from Retired fellow dated July 1, 2008 called "Blind donation drive":
"Blind donation drive
m
We have deicide to have a blind donation drive. What a blind donation drive is,
you donate a certain amount not knowing what the thank you gift is. This way
you are donating from the heart and not just buying something. We like to thank
mauisun, the arm team, nagraeurorom and dish outlaws for donating these great
thank you gifts. So not only do you get a nice gift but you also get to help out in
the fight against the providers. If you don't want to donate for a gift you can just
donate $5 to help the fight it's all up to you. Let's see this great site come up and
help when help is needed.
Donation amounts
$30 CDN
$40 CDN
- 63 $50 CDN
$80 CDN
$100 CDN
$200 CDN
w
Lifers can only donate$30540/$80
w
If you trust me and this site you know when I say the thank you gifts are great. So
come out and help with the fight against the providers.
w
To donate either go to www.anton-pillar.com and press the donate button on the
home page or donate with PayPal id [email protected] .
Remember if you are donating using the second way please put donation in the
details thanks.
.s
at
This will run till July 14 2008. So let's show them that this site is number one
and we help our own.";
(g)
sc
a message from Retired fellow dated July 21, 2008 called "Prizes" with the "list
of prizes from the blind donation drive" which included Armulators;
(h)
am
a message from ThEmAdHaTtEr dated July 26, 2008 called "Auctions":
"Auctions with all money going to the fight of the providers, Since this site did so
good on the blind donation drive I thought I would auction off a few items.
s.
co
Action 1 (Unmodded 322 Receiver)...
Auction 2 (Unmodded 322 Receiver)...
Auction 3 (Extreme iso and Cyclone unlocker)...
Auction 4 (Armulator)...
Auction 5 (1 Lifetime membership to this site)...
Auction 6 (J-interface)...
Auction 7 (armulator donated by gidy.up)...";
(i)
a message from ThEmAdHaTtEr dated July 26, 2008:
"Cyclone and Extreme iso
Place bids here Till Thursday";
(j)
m
messages from ThEmAdHaTtEr dated July 26 and 27, 2008, called "Armulator"
and stating "Place bids";
(k)
several messages from Retired fellow dated August 4, 2008 auctioning
"armulator", "iso+unlocker", and "rom 103 rev 300";
- 64 (1)
a message from Retired fellow dated August 6, 2008:
"Armulators $64 cdn plus $10 shipping in Canada
$15 shipping in U.S
w
Pm me if you want any.";
w
(m)
(n)
(o)
a message from ThEmAdHaTtEr dated August 27, 2008:
w
"We are going to raffle off
1 222 receiver with autoroll .
The auto roll is made up of another hardware and some really good coding to
make it happen no need to reprogram the card.
$5 a ticket
or 5 for $20";
.s
at
messages dated between August 27, 2008 and September 1, 2008 in which:
sc
(i)
ThEmAdHaTtEr states: "We are doing vip mods again. $125 each plus
shipping. Pm me if you want them done. You win on this one, you donate
and help the cause and get something great in return.";
(ii)
mrmonster asks: "How exactly does this stuff work? You pay $125, mail a
stock VIP receiver somewhere, get it back modded with everything
working?"; and
(iii)
ThEmAdHaTtEr states: "yup plus shipping";
am
s.
co
a message from ThEmAdHaTtEr dated September 8, 2008 called "Blind Donation
drive": "It's been almost 2 months since we did so well on the first one. I'm so
proud of everyone who donated and helped the legal fight. Here we go again and
the prizes are good ones"; and
(p)
m
a message from ThEmAdHaTtEr dated September 9, 2008: "To everyone who is
straped for cash I understand I would help out more to if I could. But I'm feeling
good tonight so I will donate Armulators to the fight. Donate $100 and I will send
you one."
171. It appears that some members of the piracy community were aware that the "donations"
being sought by Rodgers were really sales of Piracy Technology. For example, attached hereto
and marked as Exhibit "73" is a copy of a message posted by the user "JT" (whose identity is
-65unknown to me) in a thread entitled "Free Arm with Donation. Today Only" on the piracy forum
web site www.dssftp.com dated November 14, 2007:
w
"I think I said it wrong when I said this was a scam. What I meant to say is...it
looks like Tomico is selling V2 armulators for $125. (or at least that's what he's
promising to ship to you if you order) I don't see where this has anything to do
with a legal defense fund. I knew a second version of the arm was coming out, I
just havn't seen them advertised anywhere else yet. I think this is a marketing
ploy by someone who has a history of similar tactics."
w
w
172. Attached hereto and marked as Exhibit "74" are copies of various messages from a
.s
at
thread on the Picnic Web Site created by Vic Damone called "Very important please read please
read", in which Vic Damone asked members to contact him by private message urgently
concerning their "donations" to the Legal Fight PayPal. These messages included:
(a)
sc
a message dated December 5, 2008:
"Anyone who donated using paypal in the last 8 months please pm me today ,
everyone who used paypal to donate for any cause please pm me today. Do not
wait please i need to clear something up this is for the safety of this site and its
members."; and
(b)
am
a message dated December 15, 2008:
s.
co
"Members have pm'd me that Steve Rodgers (the owner of the paypal account we
donate to) on the site anton-pillar.com site. I heard it is him and his lawyers
sending the emails , so I hope everyone who gets one is smart enough and keeps
this site private and just states it was just a donation. If anyone is dumb enough to
mention something bad your info will be given by steve's lawyers I would think,
so please just reply with a it was for the fight or was just a donation. Don't be
stupid guys".
m
173. Based on this evidence, it is reasonable to conclude that Rodgers used these usernames
on the Picnic Web Site to offer Piracy Technology in return for "donations" to his "legal fight",
and later asked the users who donated to keep the Picnic Web Site "private" and "just state it was
a donation" rather than "something bad".
-66(3)
Rodgers Received "Donations" from Piracy Technology Sales
174. The messages on the Anton Pillar Web Site and the Picnic Web Site provided the Legal
Fight PayPal as one method of making a "donation". I am advised by Ms. Goodman that BLG
w
obtained from PayPal the records for the Legal Fight PayPal from inception to May 12, 2008,
w
copies of which are attached hereto and marked as Exhibit "75". The records include:
(a)
w
the account information which indicates that the Legal Fight PayPal:
(i)
is in the name of "Steven Rodgers";
(ii)
was created on October 22, 2007;
(iii)
uses the Legal Fight Email Account;
(iv)
uses the phone number 705-725-0680;
(v)
lists an "active contact" address of "Steven Rodgers, 5 Hollmeadow rd,
.s
at
sc
am
barrie, Ontario L4N8s1, Canada";
(vi)
lists a bank account number 00292-003-5157433 in the name of "Steven
s.
co
Rodgers" with the Royal Bank ("Rodgers Bank Account");
(vii)
lists a Mastercard credit card in the name of "Steven Rodgers"; and
(viii) had received a total amount of USD $26,300.82 as of May 14, 2008;
(b)
the activity log which indicates that the Legal Fight PayPal:
(i)
Address; and
(ii)
m
was created by the user of the Legal Fight Email Account from the 35 IP
was accessed from the 35 IP Address on dozens of occasions from
October 22, 2007 to May 12, 2008;
(c)
the transaction log which indicates that the Legal Fight PayPal was used, among
other things, for:
- 67 (i)
payments from various persons to the Legal Fight PayPal from October
22, 2007 to May 12, 2008;
w
(ii)
w
a payment of $270.00 from "pohmin sim" on December 11, 2007 with the
notation, in part, "Arm Team — After seeing how well the nagra2elite free
software for donations at anton-pillar went they want to help the cause to
over there. From today till Friday at midnight. Go to www.anton-
w
(iii)
pillar.com. Donate $135cdn and you will receive 1 free new Rc2
Armulator....";
.s
at
approximately 35 payments from various persons to the Legal Fight
Account in amounts of $100.00, $120.00, $125.00, $135.00, or amounts
slightly in excess of these amounts;
(iv)
sc
numerous payments to the Legal Fight PayPal in which the persons
making payment included their shipping addresses;
(v)
am
approximately 12 payments from "mauisun computers" between
November 5, 2007 and April 28, 2008 in amounts ranging from $600.00 to
s.
co
$1,067.00, and which total in excess of $10,000.00;
(vi)
approximately 34 withdrawals of funds that appear to have transferred the
balance in the Legal Fight PayPal to the Rodgers Bank Account (i.e., the
funds paid into the Legal Fight PayPal were periodically transferred to
m
Rodgers' Bank Account in order to "empty" the Legal Fight PayPal ); and
(vii) no withdrawals from the Legal Fight PayPal to any other bank account,
and no transfers of funds out of the Legal Fight PayPal to any other PayPal
account.
175. I am advised by Ms. Goodman that the Plaintiffs obtained email messages for the
LegalFight Email Account from Hushmail. These email messages revealed numerous payments
made to the Legal Fight PayPal in the summer and fall of 2008. Attached hereto and marked as
Exhibit "76" are copies of certain email messages including:
-68(a)
emails dated from August 9, 2008 to October 17, 2008 confirming payments with
notes such as "the new N2EF", "raffle", "raffle...5 tickets", "5 tickets/vip
service", "dishnetguy Raffle #2", "raffle 1 and raffle 2", "auction 4",
w
"aution/donation dive at RealN2", and "auction for lifetime";
w
(b)
email dated October 13, 2008, in which the sender states "here is my address
where to send the goods"; and
(c)
emails dated October 3, 2008, pertaining to a payment dispute in which PayPal
w
.s
at
advised Rodgers that the sender of the payment complained that he "never
received the item" and Rodgers refunded the sender his money.
176. In paragraph 28(c) of Rodgers' Affidavit sworn October 14, 2008, Rodgers claimed that
sc
the LegalFight PayPal was "set up for administrative purposes" and "not an account that I used".
177. Based on this evidence, it appears that the Legal Fight PayPal:
am
(a)
belongs to Rodgers;
(b)
was created from the 35 IP Address and accessed from it on dozens of occasions;
(c)
received payments from persons who responded to offers of Armulators and
s.
co
software on the Tomico Satellites.Net Web Site in connection with "auctions" and
"raffles";
m
(d)
was used to transfer these payments to the Rodgers Bank Account;
(e)
received a total of USD $26,300.82 in payments from October 22, 2007 to May
12, 2008; and
(f)
continued to be used after May 12, 2008 until at least October, 2008.
- 69 (C)
Rodgers Sold Piracy Technology After the Anton Piller Orders and Judgments
(1)
The Picnic Web Site and the Fun Web Site
w
178. The Picnic Web Site and the Fun Web Site were "private" forum web sites, in that only
invitees were able to establish a username and participate in them. DEI obtained posts and other
information about the Picnic Web Site from two sources: (a) fragments of the Picnic Web Site
w
w
on the New Server (as described above), and (b) through the login credentials of a user named
"checker" which I obtained from a public web site, as described below.
.s
at
179. In January 2009, I conducted a "google" search for "picnicinthesun2008". My search
returned a reference to the Picnic Web Site on the web site www.bugmenot.com which describes
itself as a web site where people can post and share login information for web sites that require
sc
registration. Login information was posted for the Picnic Web Site for the user "checker". I
used this information to access the Picnic Web Site (as "checker") and obtain messages that were
posted there. Messages that I obtained using the "checker" credentials are found in a number of
am
exhibits to this Affidavit and message threads state "Welcome, checker" at the top right corner of
the first page.
s.
co
180. As described above, the Picnic Web Site contained numerous messages from Retired
fellow, ThEmAdHaTtEr, and Vic Damone offering Piracy Technology in exchange for
"donations". These users posted messages on and/or moderated or administered the Picnic Web
Site from Rodgers' IP Addresses.
m
181. The Picnic Web Site and the Fun Web Site also contained numerous messages in which
various users linked to Rodgers were engaged in selling Piracy Technology outright (i.e., not
simply in exchange for "donations"). For example:
(a)
Retired fellow and Nagra3.com posted messages on the Picnic Web Site in which
they offered for sale software support (including a 3 month package for
USD$125) and Armulators (for various prices including USD$125), provided
information, advice, and assistance on Piracy Technology, and referred to piracy
software files and "coders" who they were in contact with. Attached hereto and
marked as Exhibit "77" are copies of posts dated April 16, August 9, 20, 23, 25,
-7028, 30, September 1, September 2, October 24, November 6, 7, 22, 25 and 28,
2007, and July 6, 7, 9, and 30 2008, by Retired fellow and Nagra3.com on the
Picnic Web Site that pertain to Piracy Technology and piracy-related activities;
w
(b)
Dish-outlaws, another username that can be linked to Rodgers through the 62 IP
w
Address, posted messages on the Picnic Web Site in which he offered for sale
Armulators, ISO programmers, Cyclone unlockers, receivers, and ROM 102 and
w
241 cards. Attached hereto and marked as Exhibit "78" are copies of posts dated
June 23, 25-27, July 19, 30, August 2, October 17, and November 8, 2008 by
.s
at
Dish-outlaws on the Picnic Web Site that pertain to the sale of Piracy Technology.
In the threads containing these posts, Retired fellow and ThEmAdHaTtEr posted
messages promoting the products and prices being offered by Dish-outlaws;
(c)
sc
ThEmAdHaTtEr posted messages on the Picnic Web Site in which he offered for
sale Armulators, Cyclone unlockers, ISO programmers, modified receivers, ROM
am
103 cards, and referred to piracy software files, "our coders" and support that he
and his team were providing for piracy software, including the Nagra2Elite
Software. Attached hereto and marked as Exhibit "79" are copies of posts dated
s.
co
January 21, February 24, and May 6, 2007, and July 29, August 27, September 6,
September 12, October 6, and 19, 2008 by ThEmAdHaTtEr on the Picnic Web
Site;
(d)
Vic Damone posted messages on the Picnic Web Site in which he offered for sale
m
numerous kinds of Piracy Technology and provided information pertaining
thereto. Attached hereto and marked as Exhibit "80" are messages posted by Vic
Damone on the Picnic Web Site and the Fun Web Site which include:
(i)
from the 62 IP Address, a message dated September 18, 2008:
"Armulators $100 shipped.
J-interface ( best j-tag ) $100 shipped.
Iso programmers $40 shiped.
Cyclone unlockers $ 40 shipped.
Both above iso + unlocker $70 shipped.
So Cards $40 Shipped. Virgin so 1 606";
-71(ii)
a message dated September 19, 2008 called "Red Cyclone settings" in
which a user stated "I got a red cyclone, but I don't know the settings..."
and Vic Damone responded: "2 and 5 down most times , pot around 220.";
w
(iii)
w
a message dated September 23, 2008 called "Rom 103's": "A member
sent me 3 Rom 103 cards to put here for sale...Money order , Cash or
Western union only";
w
(iv)
a message dated September 23, 2008 called "Software update" which
.s
at
provides "answers to the questions I've been getting":
"Whats the perks of being a lifer??...
- Next support carried ie N3, or something else you get a discount.
- Unlimited loads and all with N2 till the end.
- 10% off when you buy anything on this site.";
(v)
sc
a message dated September 26, 2008 called "Auction1": "Rom 103 rev
am
300 opened virgin. Start the bidding at $100.";
(vi)
a message dated December 8, 2008 called "Would you ??":
"I want to know would you pay $20 to
Unloop a rom 102 or 103 ?
Unlock a high Rev Rom 103 ?
Unlock any damaged Rom 102 card or Rom 103 Card ?
Unlock and Dump any So Card ?";
(vii)
s.
co
a message dated January 6, 2009 called "Cards for sale": "2 virgin
m
unlocked rom 103 cards $100 cdn shipped each, 2 virgin rom102's $75
cdn each shipped each.";
(viii)
a message dated January 19, 2009 called "Armulators":
"Well since all the new hacks are blockerless that makes the Armulator God, for
all of you guys who don't got one here is the time to buy one. There is only 100
left in the world until N3 comes out of something changes. We can get a hold of
the 100 for us if we buy them all. Who wants one ? $100 cdn with xpresspost
shipping in Canada or us. We are accepting Western union only at this time.";
-72(ix)
a message dated January 24, 2009 called "Armulators": "$100 cdn shipped
only 100 left"; and
w
(x)
a discussion thread started April 1, 2009 on the Fun Web Site called
"Cleaning out my drawer" that pertains to the sale of Armulators,
w
including:
w
(i)
a message dated April 1, 2009:
"100 So cards $1500 for all
Armulators Rc2 $100 (will be alot more money when n3 is relesed)
4100 Receivers $20 each
Virgin Rom 102 cards $50
Virgin Rom 103 cards $50";
.s
at
(ii)
sc
a message dated April 4, 2009:
"Guys here is the deal
I take only western union or you can make a deal with maui and pay with
paypal.
am
But if you do pay with western union I will make the arms $85cdn so I
take some of the western union fee's.";
(iii)
a message dated April 14, 2009:
s.
co
"I will have the western union info for everyone who pm me in the next
day or so sorry for the delay.
In the mean time can you all please post how many want so I know how
many to pick up from them on wed thanks."; and
(iv)
a message from dated April 15, 2009:
"ok guys western union info
m
send to
Edward miller
Hamilton, ontario
make sure to you the question and answer option no id required.
then pm me the amount, name of sender, place, question and answer and
mtcn number."
- 73 182. ThEmAdHaTtEr posted several messages in the aforementioned discussion thread called
"Cleaning out my drawer" in which he answered users' questions concerning Armulators, and
several users appeared to place orders. It appears that Vic Damone and ThEmAdHaTtEr sold
w
between 21 and 41 Armulators on the Fun Web Site from April 2 to 29, 2009.
w
183. Several of the messages posted by usernames linked to Rodgers and referred to in this
Affidavit suggest that Western Union is a preferred method of payment for Piracy Technology.
w
Attached hereto and marked as Exhibit "81" are the following messages:
(a)
.s
at
a message dated November 8, 2007, from Retired fellow: "Western union is for
the safety of us and our customers."; and
(b)
a message dated November 8, 2007, from Nagra3.com: "As soon as the money is
sc
collected all the evidence is gone. It never happened."
184. Attached hereto and marked as Exhibit "82" are copies of posts by other users on the
am
Picnic Web Site (now the Fun Web Site) that pertain to Piracy Technology. I have reviewed this
content and it includes:
(2)
(a)
messages attaching files that, from their names, appear to be piracy software files;
and
(b)
comments, advice, and instructions for users of the Armulator.
The Tomico-Satellites.Net Web Site
s.
co
m
185. Attached hereto and marked as Exhibit "83" are messages posted by users on the
Tomico-Satellites.Net Web Site between January 1 to 28, 2008. I have reviewed this content and
it includes:
(a)
numerous statements that Tomico-Satellites.Net Web Site is the "home of the
armulator" and the "official armulator support site", including the following
statement from a message posted January 7, 2008:
"Tomico Satellites IS THE OFFICIAL ARMULATOR SUPPORT SITE of
TEAM ARMULATOR, therefore If your going to find any LEGITIMATE
-74NEWS or UP-DATES regarding the Armulator, "YOU WILL ONLY FIND IT
RELEASED AT TOMICO SATELLTES FIRST, PERIOD"! ! !"
(b)
w
(c)
promises to release "new firmware";
references to the "initial development" of a "Smart Card Virtualization platform";
w
(d)
(e)
a statement by a user named "pohminski" confirming "I just got the armulators by
expressmail";
w
reports, advice and updates on whether Armulator devices are being used to
.s
at
obtain the Plaintiffs' programming;
(f)
messages offering Piracy Technology for sale as follows:
(i)
pm);
(ii)
sc
"Any one need rom 1 0 unlocked cards i got Some" (January 1, 2008 7:14
am
"I have 2 Unlocked 102 cards for sale $185 each shipped from USA $200
US FUNDS each Shiped to Canada I will Take paypal..."; (January 18,
2008 12:12 am);
(iii)
s.
co
"I have forsale a couple 301.013 receivers up to date with current
firmware, they come with a married image, but no card ... again no card,
but can supply the sub married image. Also come with the remote. These
are like new. Sales and ship to US only. Payment can be US postal
m
money order or cash. NO PAYPAL....Would also trade for rom102
rev 1 Oc cards" (January 5, 2008 3:14 pm); and
(g)
messages attaching piracy software files.
186. PIMPINnagravision also posted messages on the Tomico-Satellites.Net Web Site in 2007
in which he offered advice, assistance, and information to other users on piracy-related issues.
Attached hereto and marked as Exhibit "84" are posts by PIMPINnagravision dated from June
27, 2007 to December 13, 2007, in which he provided advice on updates to receivers, use of
Armulators, upgrades to Armulators, "fixes" for Armulators (stating "We are now the official
-75Armulator Support site"), changes made by Bell ExpressVu to its "stream", "private blockers"
being run by "nagra3", and emulation for Bell ExpressVu.
(3)
The Nagra 2 FixElite Web Site and Nagra2-Software Web Site
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187. Attached hereto and marked as Exhibit "85" is a copy of an Affidavit sworn by Gavin
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Phillips (with certain pages from exhibits "D" and "E" thereof), a private investigator with King-
w
Reed & Associates Inc. Mr. Phillips deposes that in March 2007, he purchased piracy software
called Nagra2FixElite v.1.0.1. through a web site called www.DSSDooda.com and, after paying,
.s
at
was provided with a username and password to download the software from the Nagra2FixElite
Web Site. Mr. Phillips' Affidavit further reveals that he was then directed to the Nagra2Software Web Site and its content appeared to be the same as the content he had observed on the
Nagra2FixElite Web Site the previous day.
sc
188. Attached hereto and marked as Exhibit "86" is content posted on the Nagra2FixElite
Web Site and the Nagra2-Software Web Site on March 17 and April 28, 2008.
am
189. The Nagra2-Software Web Site offered "support" for "private rom 102 software" known
as "nagra2fixelite" or "nagra2elite" ("the Nagra2Elite Software"). The Nagra2Elite Software
s.
co
appears to be designed to program access cards for DISH Network and Bell ExpressVu. It also
appears to be the same software that the users Nagra3.com and PIMPINnagravision referred to in
their offers of software in return for "donations" described above.
190. Messages posted on the Tomico-Satellites.Com Web Site by Rodgers and others in
m
December, 2006, appear to discuss the Nagra2Elite Software. Attached hereto and marked as
Exhibit "87" are copies of the following messages:
(a)
message dated December 15, 2006, from K-OS which refers to "private rom 102
software" which is "so far very nice";
(b)
message dated December 17, 2006, from Nagra3.com: "We are just finishing are
sites up. But in the mean time we are talking to other dealers who want to carry
this software";
-76(c)
message dated December 19, 2006, from Tomico-ind: "I have just got a copy
tonight , very nice so far I must say...Dish and bell will wish they never heard of
me";
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(d)
message dated December 24, 2006, from Tomico-ind: "there site is not up yet, but
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(e)
you can pm them to buy the software for now";
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message dated December 24, 2006, from mauisun: "I will be carrying their
software also so anyone needing help pm Tomico or myself and we can get you
set up"; and
(f)
.s
at
message dated December 24, 2006, from Nagra3.com which states, in part: "We
support both Bell and dishnetwork Rom 102... We have our own Privaye support
site for support www.nagra2fixelite.com ".
sc
191. The Nagra2-Software Web Site directed users to the Nagra3 Web Site and other
am
"resellers" to purchase the Nagra2Elite Software, and included the statement that "Nagra 2 Fix
does not sell anything on this site, this site is for support only..To purchese this software go to
nagra3.com ....". It therefore appears that as of March and April 2008, the Nagra2FixElite Web
s.
co
Site was providing support for piracy software and directing prospective purchasers to the
Nagra2-Software Web Site and the Nagra3 Web Site to purchase the software.
(4)
The Nagra2Elite Web Site
m
192. Attached hereto and marked as Exhibit "88" is content posted on the Nagra2Elite Web
Site on March 17, 2008. I have reviewed this content and it indicates that potential purchasers of
piracy software were referred to the Nagra3 Web Site and packages for software support were
offered for sale.
-77(5)
The Nagra3 Web Site
193. As stated above, the Nagra2FixElite Web Site and the Nagra2Elite Web Site directed
potential purchasers of piracy software to the Nagra3 Web Site. Attached hereto and marked as
Exhibit "89" is content posted on the Nagra3 Web Site on April 28, 2008. I have reviewed this
w
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content and it includes the following statement:
w
"Welcome to Nagra 3
Your number 1 stop for the number 1 Software around.
.s
at
We use only Accept WESTERN UNION at the moment , paypal and C.O.D. are
way to risky.
Need to contact us [email protected]
sc
We test all products before shipping , So for everyone's safety we do not have a
return address, We are totally offshore and 100% safe."
am
194. The products available for sale on the Nagra3 Web Site included "Dealer Package",
"Armulator" and support packages for 3 months, 6 months and one year. There were also
categories for "Access Cards", "ISO Programmers", "Unlockers", "Boards" and "Private
Software", but these products were not available for sale as of April 28, 2008.
(6)
The Elite Email Account
s.
co
195. The emails produced by Hushmail reveal that after Rodgers was released from prison, he
continued to offer and promote Piracy Technology and seek "coders" to assist with writing
m
piracy software. For example, attached hereto and marked as Exhibit "90" are copies of the
following messages:
(a)
an email message from the Elite Email Account to "[email protected] "
dated November 12, 2007 in which Elite states: "30 arms were sent express post
tracking 0081-0024-9430 u know how to send payment";
(b)
email messages between the Elite Email Account and "[email protected] "
dated April 21-22, 2008 in which Elite indicates on April 21, 2008 that he has
-78"been in hiding for a bit" and asks on April 22, 2008 "so how is business? did i
send u arms before i left in dec?";
(c)
w
an email message from the Elite Email Account to "[email protected] " dated
May 21, 2008 providing instructions to visit the Nagra2 Software Web Site to
w
(d)
download software and requesting that the person send Elite his "keys". Based on
the evidence that the Nagra2 Software Web Site offers piracy software for
w
download, it is likely that this email message pertains to piracy software; and
.s
at
an email message from the Elite Email Account to "[email protected] " dated
June 29, 2008 in which Elite states that "no other s/w sells like n2 does". "n2" is
an abbreviation that is used for the "Nagra2FixElite" software;
(c)
sc
an email message from the Elite Email Account to "[email protected] " dated
June 29, 2008, in which Elite asks satvia: "u interested in just coding anoymous
for me just blockers no need to answer questions or anything just supply my app
am
guy the blockers under a new name. 25% of the action just to supply blockers";
and
(d)
s.
co
email messages from the Elite Email Account to "[email protected] " dated
June 30 and July 1, 2008, in which Elite states: "We reopened the coders site give
me a name u want to use and I will set u up" and provides satvia with the web site
"wvvw.elite-coders-corner.tv ".
m
196. Based on this evidence, it is reasonable to conclude that Rodgers continued to offer, sell,
and distribute Piracy Technology, provide information and support for Piracy Technology, and
operate numerous of the Web Sites for these purposes, in 2006, 2007, 2008, and 2009, and that
his piracy-related activities continued even after he was found in contempt and sentenced to a
term of imprisonment.
(D) Rodgers' Continuing Efforts to Develop An N3 "Hack", "Boxes", and IKS Server
197. Beginning in mid-2008 and continuing in 2009, Rodgers posted messages on various web
sites and sent email messages stating that he was involved in an "N3 project" that included
-79developing a "hack", producing "boxes", and setting up a "private IKS" server to permit
customers to receive DISH Network and ExpressVu Programming, and seeking assistance with
these and other piracy-related activities. Attached hereto and marked as Exhibit "91" are the
w
following messages:
w
(a)
messages on the Picnic Web Site from ThEmAdHaTtEr dated July 28, 2008: "Our
future plans if nagra 3 don't get hacked is a private iks which we already have in
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place if need be. So there will not be a time without tv here...we have had an iks
working for 3 years now so it's here if we need it.";
(b)
.s
at
messages on the Picnic Web Site from ThEmAdHaTtEr dated October 6, 2008: "I
have a N3 venture...There is a product which I beleive is going to be the future on
N3 ... I want to see seripus people pm me so we can get this deal done and make
sc
some cash and be watching N3 with no problems.";
(c)
a message on the Picnic Web Site from ThEmAdHaTtEr dated October 11 and 12,
am
2008: "N3 project...It's a private Iks system that uses no card just Dishnetwork
Receiver or a Bell Receiver and the little box they built for it...I think if we can
have this out before anyone else has a N3 soloution we can rack the money in.
But still being anoymous";
(d)
s.
co
messages on the Picnic Web Site from ThEmAdHaTtEr dated October 12, 2008:
"Here is a few things I'm looking into...So card programming, 241 cards ( very
rare), New N3 armulator when it becomes available...When the New N3
m
Armulator hits the market I think 1000 right off the begining will sell and the
people doing thta will make a fortune";
(e)
a message on the Picnic Web Site from ThEmAdHaTtEr dated October 13, 2008:
"I was talking to a group who built a rom 240/241 loader , I'm trying to get him to
let us invest in it.";
(f)
messages on the Picnic Web Site from ThEmAdHaTtEr dated October 13 and 27,
2008 listing "Members of the Investors group" and stating: "We have now gotten
our $50k";
- 80 (g)
messages on the Picnic Web Site from ThEmAdHaTtEr dated October 18, 2008:
"What N3 support is. A private iks system 100% controled by us so no worrys
there about dish and ip logs. There will not be any ip logs on our server... The best
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part is you use your own Dishnetwork or Bell receiver to run this...both providers
will be available either on 1 server or on 2...";
w
(h)
a message on the Picnic Web Site from ThEmAdHaTtEr dated October 19, 2008:
w
"There is no bell box dish box it's 1 box with your year support you can use it
anyway you want...It will work with all dish and bell receivers";
(i)
.s
at
messages on the Picnic Web Site from ThEmAdHaTtEr dated October 20, 23 and
28, 2008:
"N3 Time Line
sc
1.Start collecting money from investors
2. Buying whats needed to run the system ie Servers etc
3. Set up all the servers
4. Start to collect the pre sale money
5. Meet up with the builders and get the box prototype
6. Get them built in China
7. Set it all up with the open cards and subs to get Nfl and others.
8. Send out the boxes to the pre-sale guys.
9. Get batch to built in china and send out second batch
10. Sit back and enjoy Tv
am
s.
co
...1 , 2 and 3 are done so we need 4 done asap so we can get this up and
running...almost 300 sold in the forums ";
(j)
m
messages on the Picnic Web Site from ThEmAdHaTtEr dated October 22 and 24,
2008:
"We will be starting to collect the presales now, the faster we collect...the faster
we will get this up and running...We want this project 100% anoymous so all
transactions will be done with fake names using Western union...we already
invested $70k in this we need to collect to keep building... We are preselling only
300 after that it's full price...Step 1 pick 1 of our fake names to send to below
Edward miller city: Hamilton";
(k)
a message on the Picnic Web Site from ThEmAdHaTtEr dated October 28, 2008:
"What makes ours better then all the rest is the built in proxy service so no ones ip
-81is transfered to the server. Meaning ours is safe , ours can also work with fta
iks... so no ip's can be gotten by dish if they take down any iks servers that the
customer is using our box";
w
(1)
a message on the Picnic Web Site from ThEmAdHaTtEr dated October 30, 2008:
w
(m)
"We are working day and night to hack the cards so we can have it here running
on our system.";
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a message on the Picnic Web Site from ThEmAdHaTtEr dated October 29, 2008
.s
at
listing names of customers and stating: "Your name is here if you bought a box
and we picked up the money" which was "Last edited by Vic Damone";
(n)
a message on the Picnic Web Site from ThEmAdHaTtEr dated November 3,
sc
2008: "...you can see aprox 300 boxes sold";
(o)
an email message from Elite/Rodgers to "[email protected] " dated November
am
3, 2008, in which Rodgers states: "Since the new cards have to be blockerless ,
seems private support is coming to an end for a while. We built a private iks
system with a special box that hides ips for the members and everything. If u guys
want to resell to your members we can talk";
(p)
s.
co
a message on the Picnic Web Site from ThEmAdHaTtEr dated December 16,
2008 called "N3 update":
"Ok guys I know you are all wondering whats up. Well we hit a snag with the
hong kong thing. What we mean is we bought servers in hong kong for $6k and
was getting ready to set it all up and test our new prototype...but then we saw
dish go into hong kong and win a court case there so that to me makes it unsafe to
have our iks server there. Since then we have been testing and researching where
to put it....Anyway thats that we are trying our best to come out , but we will as
soon as we have it all put up and ready to go.";
(q)
m
a message on the Anton Pillar Web Site from Rodgers dated July 29, 2009 at
12:06 p.m.:
"I was thinking about Iks and how the providers hate it , and have good reason
to...with Iks for now their is no hacking or tampering with trademark. You are
paying the montly fews on the subs they are using. So if it don't say In the
-82-
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customer agreement I can't let my friends watch free of charge my sub then how
can IKS be illegal... So if a guy is paying for his sub which they are then where
does it say I can't let others watch it via the net...Basically all the lawsuits this far
have been about access channels without paying for them, in this case they are
being paid for and nothing else is being offered. I think this is a good thing to
look into and discuss."; and
w
(r)
a message on the Anton Pillar Web Site from Rodgers dated July 29, 2009 at 5:29
p.m.: "...why does DISHNETWORK sell a product that can break their own
rules...If thats ok then why isn't Iks , you are sharing it with others in the pivacy
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.s
at
of their homes.".
RODGERS' COMPUTERS
198. On August 3, 2006, I attended at the Rodgers Residence to execute the Anton Piller
sc
Orders. DEI identified five computers at the Rodgers Residence, but only three of the computers
contained hard drives. The other two computers at the Rodgers Residence had no hard drives in
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them. I am advised by Ms. Goodman that on September 14, 2006, Rodgers was examined under
oath and stated "you didn't get any hard drives from my computer". Attached hereto and marked
as Exhibit "92" is a copy of the transcript of the examination of Rodgers dated September 14,
2006 at p. 125, q. 771.
s.
co
199. On May 5, 2009, I accessed Rodgers' profile on the web site www.facebook.com (the
"Facebook Profile"). A copy of certain pages from Rodgers' Facebook Profile as of May 5,
2009 is attached hereto and marked as Exhibit "93". Rodgers' Facebook Profile includes a
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photograph of an open white Macintosh laptop computer. It appears that the photograph was
taken inside the Rodgers' Residence.
RODGERS' DEFIANT ATTITUDE
200. In 2007, 2008, and 2009, Rodgers posted numerous messages as S.Rodgers, TheWarden
PIMPINnagravision, ThEmAdHaTtEr, and Vic Damone on the Anton Pillar Web Site and other
web sites pertaining to the litigation and his "battle" or "fight" against "the providers". As
described above, there is evidence that all of these usernames were used by Rodgers.
-83201. Attached hereto and marked as Exhibit "94" are copies of the following messages, all of
which were posted on the Anton Pillar Web Site unless otherwise noted:
(a)
w
a message posted by ThEmAdHaTtEr dated January 9, 2007 on the Picnic Web
Site: "i will asure u that tomico would go to jail before he gives up the site or
w
(b)
anyone else for that matter. Team tomico is tight and will never give up anyone or
any site they run with." (see Exhibit "62");
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messages posted by Rodgers dated May 26, 2007 called "The Day I got Anton
.s
at
Pillered":
(i)
"At the end of all this they got shit 2 boxes, ... So as you can see they got
nothing from my house"; and
(ii)
sc
"They asked my where stuff was, I told them I have no idea where
anything is, I know nothing and no one...they asked me who nick and
am
mike were I said don't talk to me. They asked about phone numbers, I said
don't talk to me";
(c)
a message posted by Rodgers dated June 10, 2007: "If one morning we got pissed
s.
co
off at the providers. And we boarded a plane to anywhere in the world except
north america, got there released the sw-02 and 206 card hacks. Then came back
that would have nothing to do with out court cases, since there only in Ontario. I
think that would piss off alot of people but nothing could be done";
(d)
m
a message posted by Rodgers dated June 10, 2007 at 7:10 p.m.: "Judges are bias ,
If you represent yourself they go against you on most decision's...there's days
like I got last wednesday where the plaintiffs are wrong but the judge doesn't care
about what you have to say. He made his disission before he even came out there.
Very sad that these judges alow this kind of manipulation of the courts by
B.L.G.";
(e)
a message posted by Rodgers dated June 11, 2007: "Went into court on a motion
to have my sick mother go to an exam. Well judge didn't care that i was right and
- 84 went in favour of blg...Thats what happens when blg has connections all threwout
the courts.";
(0
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a message posted by Rodgers dated June 14, 2007: "Nagra will wish they never
heard of me when I'm done, that's not a threat it's a promise.";
w
(g)
a message posted by Rodgers dated June 19, 2007: "In November 2006 , I was
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offered a Settlement... [The Plaintiffs] replied we want all the coders and dealers
you know...I replied with a ya right , that will never happen";
(h)
.s
at
a message posted by Rodgers dated August 8, 2007:
"this community gives Nagrastar to much info...This community has never won a
single Apo case against the sat proviers , because no one works together. How
does the industry expect to win one when you do what dish wants you to do,
separate. Now I have from day one worked as a unit , I have helped every busted
dealer and will continue to. I know everything there is to know about D.E.I.,
B.L.G. and the providers. It's sad and many can vouch for this I know what
B.L.G. is going to do before they do it. I can tell anyone just by looking at there
case exactly what dish is going to do before they do it. Sad , but true... We are all
in this together...";
sc
(i)
am
s.
co
a message posted by TheWarden dated September 7, 2007:
"S. Rodgers had nothing to lose by just giving up. He owned nothing no house,
car or banks accounts. He chose to fight for his family and for the rights of
canadians and most importantly this industry. It's sad to see this industry didn't
back him in his battle . If he wins, and I mean IF he wins , this industry will owe
him alot, anton-pillers will be alot harder to get and you will see a lotless of them
in the future...who else is going to fight for our rights ? If I lose this case , this
industry is doomed.";
(j)
m
a message posted by PIMPINnagravision dated November 12, 2007: "I noticed
that S.Rodgers is going to court at the end of the month to see if he gets jail time
for not giving up records. If indeed he had records and didn't to me is a stand up
guy. Protecting the end user is always number 1...";
(k)
a message posted by Rodgers dated November 21, 2007 at 9:37 pm.:
- 85 "Well guys just got off the phone with my lawyer, he is pissed . We lost the anton
piller challenge . The judge is bias but I will keep it at that for now since i have
my sentencing hearing next week. She basically said who cares to the lies that
chad did to get the apo.
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I have decided that I cannot win in the court room and have a legal better way to
beat them. So I will be taking away my defence and giving them default
judgment. Getting rid of me will not do a thing , Team tomico will continue to
code the arm. Tomico-ind will continue to post nothing will change after this
since I'm not any of the people they think I am. I will post a bunch of proof later
this week to show you all the truth . If the judges are not going to look at the
evidence at least you guys will. I found something I believe is great news and
once I have the proof I'm going to the media. I have blg hiding evidence that they
no clears me but hide it. I'm close to priving it and like I said as soon as I have it
, the media will have it. I will be a thorn in there back forever , they wanted a war
now they got it. I will never rest , I will expose it all.";
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(1)
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.s
at
a message posted by Rodgers dated November 21, 2007 at 9:51 p.m.: "I will not
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settle like the rest and become rats and work for them...that will never happen";
(m)
am
a message posted by TheWarden dated November 22, 2007: "we knew going in
that it would be hard to win with judge pepall aka blg's bestfriend being the
judge...I must say she is dead wrong ...";
(n)
s.
co
a message posted by TheWarden dated November 25, 2007: "The plaintiffs...say
he has not given up and customer records , no website db's or any information at
all...In my books after all he has done to help out everyone in there cases and If
he is who they say he is I say good job for not giving up any info. If only there
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were more people in this industry that would risk jail time to protect everyone
then we would be in a better place...";
(o)
a message posted by TheWarden dated April 26, 2008 under the topic "S.Rodgers
update": "Boudreau and ezdish went to jail because the evidence was destroyed.
S.rodgers went to jail for giving up nothing thats why he could go back to jail";
(p)
a message posted by TheWarden dated May 6, 2008 under the topic "Congrads":
. ..
tell jj gee to buy this place I want 3.7 mil , he gets the domain and db
[database] minus ip's";
-86(q)
a message posted by TheWarden dated May 28, 2008 under the topic "Time to
help": "S.Rodgers ... went to jail to save every member , or customer or person
that even came into contact with team tomico";
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(r)
a message posted by Vic Damone on the Picnic Web Site from the 62 IP Address
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(s)
dated July 1, 2008:
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"This kid Steve Rodgers has fought these guys from day one giving up no info to
the providers. This year he has gone to jail for 4 months for not giving up the data
banks and customer info for aprox 10 websites. I was reading that they are going
for another year in jail this summer if he doesn't give up the info and db's. Wow
to me this kid is a hero, I wish a lot more site owners would do this. He is fighting
once again not to give up any of the info, so he might be going to jail once again
for the cause...I bet most of us have been involved in one of the sites he won't
give up, so in a sense he is fighting to save us...";
.s
at
sc
a message posted by ThEmAdHaTtEr on the Picnic Web Site dated November 19,
2008: "We are not like other sites , money is no object when it comes to safety.
am
We knew ahead of time this was going to happen so all sites were moved off that
server. So dish won and got shit , nothing is on that server.";
(t)
a message posted by Rodgers dated December 5, 2008 at 12:27 a.m.:
(i)
didn't";
(ii)
s.
co
"Dishnetwork is trying to frame me for doing wrongs when in fact I
"Blg you know as well as I know I ain't mike and that most of the
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evidence you bring is fake and bullshit so why do you keep going? You
won leave it at that already trust me I have evidence that will blow this
case apart"; and
(iii)
"...the whole Nick could not run tomico is a load of bullshit that holds no
water";
(u)
a message posted by Rodgers dated December 5, 2008 at 12:31 a.m.:
-87(i)
"I...went to jail for nothing I want to show you all I wasn't lying and
that blg likes to bullshit the sad thing is my lawyers wont appeal for me
because they don't want to piss off the courts. Wtf is up with that ??"; and
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(ii)
w
(v)
"the courts don't give a shit about me , they labelled me a liar and told the
world that. Now when I prove I was telling truth what do I get?? Nothing ,
will the courts apologize to me??? I bet I don't get a sorry";
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a message posted by ThEmAdHaTtEr on the Picnic Web Site dated December 21,
.s
at
2008: "We bought our own servers 7 of them. The reason we did this was because
we will encrypt every hard drive so if dish ever gets them they can't get in at all.
So the drives will be useless.";
(w)
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a message posted by Rodgers dated January 1, 2009 at 4:29 a.m.:
"Once again I hope you are ready to appologize to me in public for this one, and I
will not stop till I get it. Let it be known that this is false and I will be demanding
an appology for the 4 months I did in jail for this error I law. It will be done in
the courts or if need be in the media but the frith is here and I finally got it , took
me over 2 years and a false imprisonment to get it but now 2009 I will get the
justice I was to get in the first place and an appology by the courts";
(x)
am
s.
co
a message posted by Rodgers dated January 1, 2009 at 4:41 a.m.: "But what I
would like to know is who is going to clean up the fact that I was called a liar to
the world by a judge that was clearly wrong? Who? How will this be repiad to
me?";
(y)
m
a message posted by Rodgers dated January 1, 2009 at 4:57 a.m.: "The realfacts
will be coming and it don't look good for the plaintiffs but far worse for the
courts";
(z)
a message posted by ThEmAdHaTtEr dated March 9, 2009: "After seeing all
these sites give up their databases and all these email providers like
hotmail,yahoo,rogers,bell,hushmail,gmail all give up all info and emails to the
providers very easy I thought to myself how can we make everyone more safe and
fuck the providers";
-88(an) a message posted by Rodgers dated July 17, 2009: "Something is important . I
would listen to your lawyers and shut up. In the long run it's not a free country I
learned that the hard way, But I noticed since I stopped posting about my case like
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my lawyers said to do I haven't gotten in any trouble. So posting is your worst
enemy";
w
(bb) a message posted by Rodgers dated July 27, 2009 at 5:43 p.m.:
w
"Every single dealer or web owner that gave up anyones person info without a
fight is a rat...to all who have just given up their info is a rat plain and simple.
When someone gives you their info as a stand up guy you should do whatever it
takes to keep that info private...Everyone busted since 2006 to now in Canada
gave up everything mostly without a fight which is wrong on many counts. I'm
not saying destroy it or hide it , I'm saying fight it in court till the end. You lose in
provincial go above.";
.s
at
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(cc) a message posted by Rodgers dated July 27, 2009, at 5:47 p.m.: "It's sad to see
that every dealer that got busted I talked to gave up everyones info like it was
am
nothing. Their it's not me attitudes make me sick to be alive sometimes.";
(dd) a message posted by Rodgers dated July 31, 2009 at 8:14 p.m.: "The contempt
deals with customer list , the tomico databank from 2006-2008 and all info about
s.
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this industry that tomico did or dealt with...If I get found liable...or they get the
stuff from the contempt I mentiond above or I sign a deal with dish to end it all . I
will be man enough to come on here and post how I'm a little bitch...";
m
(ee) a message posted by Rodgers dated July 31, 2009 at 8:30 p.m.: "WIN=Not giving
up customer lists, not giving up The tomico DB from 206-2008, and not signing a
deal with Nagra and being found liable for zero dollars out of the 20 Million.
LOSS=Giving up customer lists , Giving up the Tomico Db 06-08, Signing a deal
with Nagra or being found liable for even 1 Dollar.";
(f0
a message posted by Rodgers dated August 1, 2009: "big bad Dish and Bell can
manipulate the courts all day long but in the end their cases are so weak that they
lose them all...Took almost 3 years, but David finally beat Goliath."; and
- 89 -
(gg)
messages posted by Just Tomico on the web site www.meetmeinto.com (which
username I am advised by Ms. Goodman that Rodgers admitted to using) dated
September 12, 2009:
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"...N2 was cracked by tomico-ind and his group in april 2005. It became
dealerware in june 2005 and sept 2005 FTA came out.They got sued for 20 mil
and I went to jail. I don't think you will see them cracking N3 this time around
and Most of the real hacker group have retired or gone into hidding or now work
for dish....
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...In the history of satellite piracy I'm the only person not to settle and go to work
for them...".
.s
at
SWORN BEFORE ME at the City
of London, in the Province of Ontario,
this 2nd day of February, 2010
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JANET SUSANNE JOY FRASER, a Coninlesfoner, etc.,
County of Minx, for Behr Law Finn,
Banisters and Mims.
Expires December 5, 2012.
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ECHOSTAR COMMUNICATIONSCORPORATION, et al.
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PROCEEDING COMMENCED AT TORONTO
STEVEN RODGERS, et al.
CommercialList No. : 06-CL-6575
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