IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON AT EUGENE

Transcription

1 Michael R. Seidl, OSB No Jennifer L. Gates, OSB No Landye Bennett Blumstein, LLP 1300 SW 5th Avenue, Suite 3500 Portland, Oregon Phone: (503) Fax: (503) Counsel for Plaintiff Advanced Armament Corporation IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON AT EUGENE ADVANCED ARMAMENT CORPORATION, v. Plaintiff, IAN HALE GARNER, an individual, Case No. 08-CV-6142-TC PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE Defendant. I. INTRODUCTION In order to determine the existence of any relationship between Defendant Ian Garner and any competitor of Plaintiff Advanced Armament Corporation ( AAC ), and thus the applicability of Oregon s anti-slapp statute to this case, the Court ordered the deposition of Defendant Garner with respect to that issue. Although Defendant Garner testified genereally that he has no relationship with any of AAC s competitors, his specific testimony with respect to the source of the defamatory statements he posted on the internet so strains credulity that it raises serious questions as to Defendant Garner s assertion. Page 1 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

2 Defendant Garner claims to have no specific recall as to where or from whom he obtained the information about AAC that he posted on the internet. He contends he may have heard it from strangers while at a shooting range, and that some of the statements were merely his assumptions or based on unverified information from the internet. Despite the fact that he referred to a source and to various connections within the industry in his internet postings, Defendant Garner now denies the plain meaning of both statements. Given what appears to be incredible testimony by the Defendant regarding the source of the information at issue and any relationship he may have with an AAC competitor, the Court should draw the reasonable inference that such a relationship exists, and that the defamatory statements at issue in this case were made to defame Plaintiff s business and create an advantage for Plaintiff s competitors. Oregon s anti-slapp statute should not be applied to this circumstance. II. ARGUMENT A. Garner s Defense is Partially Funded By An AAC Competitor. AAC designs and manufactures flash hiders and silencers. See May 9, 2008 Brittingham Decl. in Support of TRO, 2 (hereinafter May 9, 2008 Brittingham Decl. ). LaRue Tactical is a corporation that designs and manufactures various rifle parts, as well as sells rifle parts manufactured by others, including flash hiders. See Ex. A to Gates Decl., 2 (copy of LaRue Tactical website page offering flash hiders for sale) (printed September 3, 2008). Defendant Garner testified that he had conversations with Mr. LaRue, the operator of LaRue Tactical, over the internet and by telephone. See Transcript of Deposition of Ian Garner 69:17-70:6 (hereinafter Garner Depo. Trans. ). After this lawsuit was filed, Defendant Garner contacted Mr. LaRue to ask him for some help specifically, financial help in order to defend against AAC s claims in this lawsuit. Garner Depo. Trans. 70:7-16. Mr. LaRue offered to help with Defendant Garner s attorney s fees, and currently is doing so. Id. at 71:5-7; 73: Defendant Garner nevertheless claims he does not know Mr. LaRue, did not talk with him until Page 2 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

3 after this lawsuit was filed, and that Mr. LaRue is helping him out only because Mr. LaRue believed the lawsuit to be frivolous and wanted to help one of his customers. Id. at 71: Garner also testified that he d already known the information about AAC that he was posting on the internet in excess of a year. Garner Depo. Trans. 34:5-9. When counsel for AAC inquired as to what motivated Defendant Garner to post this information on the internet more that a year after learning about it, defense counsel instructed Defendant Garner not to answer the question: Q. What motivated you to start making these posts that are at issue in this case after a year had gone by or within after many months had gone by? MR. McGEAN: MS. GATES: MR. McGEAN: MS. GATES: I m going to object. I m sorry. I think that s outside the scope of this deposition, so I m going to ask the defendant not to answer that. You re not going to have him answer what motivated him to the make these posts after he heard the conversation from a random anonymous source in the beginning? Yes. This deposition -- the only reason why you got this deposition was that you speculated to the Court there might have been affiliations between my client and your client s competitors. And I don t see how that question -- although I understand why you believe it goes to the merits of your suit, I don t think that it has to do with the question of affiliation which is why we re here this afternoon. Well, I m trying to find out what motivated him, and it could be his affiliation or some relationship with a competitor that makes him suddenly post this information after he s been aware of it for a year. Garner Depo. Trans. 34:16-35:15. Although Defendant Garner denies any relationship with a competitor, AAC s counsel was not allowed to inquire into what motivated Defendant Garner to post the statements at issue. Garner Depo. Trans. 34:16-35:15. And, because of the stay due to the filing of the anti-slapp motion, AAC has been prevented from conducting any discovery of Defendant Garner s records or computers, or engaging in discovery of third parties in order to obtain evidence to establish Page 3 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

4 any relationship between Defendant and a competitor that may have motivated the internet postings at issue. Given that Defendant Garner is a minor customer of LaRue Tactical he has purchased only a few rifle parts (id. at 71:18-24) its funding of the defense raises a reasonable inference that Defendant Garner is associated in some way with an AAC competitor, particularly when viewed in light of Defendant Garner s dubious assertions about how he came to know the information he posted on the internet, discussed infra. The Court either should make this inference as part of its analysis of Defendant s Motion to Strike or lift the stay of discovery to allow Plaintiff to locate additional evidence of Defendant Garner s association with a competitor. B. Garner s Testimony About the Source of the Statements Is Incredible, Supporting the Inference That Garner has a Relationship With An AAC Competitor. In order to determine if Defendant Garner was fed the defamatory information by, or was posting it on behalf of, an AAC competitor, at deposition AAC s counsel asked about the source of each of the statements posted by Garner on the internet. When asked where he d learned that FN dumped AAC (Ex. A to May 9, 2008 Brittingham Decl.) and that FN had in fact been green lighted to look to companies other than AAC for SCAR suppressors. (Ex. B to May 9, 2008 Brittingham Decl.), Garner repeatedly claimed that he doesn t really recall from whom he received the information, but that he may have heard it from strangers at a shooting range: Q. Who told you that FN dumped AAC? MR. McGEAN: You can answer that one. A. I think I heard it at the range shooting. * * * BY MS. GATES: Q. I want to be sure because this is testimony that is potentially going to be in front of a jury and we re going to discuss with the judge. So when you say you might have heard it at the range, you re not really sure, you heard it for -- I think you said it had been around for a year. You don t remember anything more than that? A. I don t really recall. I mean, it s just, like I said, I have -- I have a lot more important things to do than Internet stuff. I don t really recall exactly where it Page 4 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

5 came from. Garner Depo. Trans. 21:16-18; 22:8-19. Q. Where did you hear that FN had in fact been green lighted to look to companies other than AAC for SCAR suppressors? A. Same situation with the other question. Out at the range in passing, you know. Q. Was it part of that same conversation where you heard that FN dumped -- A. I would assume so. Q. -- AAC? A. I don t remember exactly. Garner Depo. Trans. 33:1-10. Q. It was at one of these competitions [at the range] that you heard this information? A. Possibly. Q. What else did the person who told you this information say? A. I don t really recall. Q. Did you ask any questions about it? A. No. Garner Depo. Trans. 24:18-25 Q. Did you know the person who told you the information at the time they told it to you? A. No, I don t think so. Q. It was just a stranger? A. Yeah. Garner Depo. Trans. 26: Defendant Garner asserts he now does not recall where he learned the information he posted on the internet, and despite learning information about AAC that he considered important enough to post on the internet, Defendant Garner now cannot remember any details about these conversations, including what was discussed, how many such conversations he participated in, or with whom he was talking. His only recollection appears to Page 5 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

6 be that the conversations occurred in passing at a shooting range. See also 30:5-17; 33:1-10; 40:19-41:5. This failed recollection is difficult to believe in these circumstances, and particularly in light of some of the other postings by Defendant Garner, in which he specifically referred to a source. For example, when asked by another forum participant how he learned of the AAC information, Garner responded, The source is not for public consumption. See Ex. B to May 9, 2008 Brittingham Decl. Now, however, Defendant Garner claims not to know what that phrase means and denies that he was referring to any source: Q. Who were you referring to in this posting as the source? A. It was a general statement. No one in particular. Q. Why would it not be for public consumption? A. Because it was just general recollection. Are you asking me to name somebody that I don t know? I mean, I don t know -- I don t recall any names or the situation, so why would I single out a ghost? * * * Q. Why would you identify a source if you felt like you didn t have a source, if you felt like, as you just said, it was a ghost? A. I didn t identify a source. Q. Well, you said there was a source who was not for public consumption. A. Right. Q. Who were you referring to by the source? MR. McGEAN: You can answer that. A. Who was I identifying? Just the conversations that I had heard out at the ranges, the shoots. BY MS. GATES: Q. What kind of conversations were those again? A. They were just in passing, conversations in passing. Q. Did you hear anything else besides FN dumped AAC? Page 6 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

7 A. When? I m not sure what you re asking me. Q. In that conversation that you re referring to that you said was your source, did you hear anything else besides that FN dumped AAC? A. I don t recall. Garner Depo. Trans. 29:2-10; 29:18-30:15. Similarly, in his internet postings, Defendant Garner also stated Why do I seem to always have the bad news on AAC? Simple, the suppressor industry is largely filled with professionals who are friendly with each other, regardless of whether they are in competing markets. See Ex. B to May 9, 2008 Brittingham Decl. This statement plainly suggests that Defendant Garner obtained the information from industry members. Now, however, Garner denies that he is friendly with anyone in the suppressor industry and denies any involvement in the industry. Garner Depo. Trans. 38:18-39:23. Defendant Garner doesn t recall what he meant by that statement, and now asserts it was just an assumption. Id. On April 28, 2008, again appearing plainly to refer to a source, Defendant Garner posted that, However, let s just say this is not an industry secret and that the rumors have existed since early last year. Until now no one wanted to confirm that FN had in fact been green lighted to look to companies other than AAC for SCAR suppressors. See Ex. B to May 9, 2008 Brittingham Decl. Counsel for AAC inquired of Defendant Garner as to who was now willing to confirm this information, where allegedly it previous was unconfirmed: Q. You said -- I said who now wanted to confirm that FN had been green lighted? A. I don t -- I don t think anybody wanted to confirm it. Q. You say in your sentence -- A. I said until now no one wanted to confirm it. I didn t say anybody confirmed it. Q. Well, you said until now, as in something was different now. A. Right. Well, nobody confirmed it. Until now no one confirmed it. As far as I know, until now nobody has confirmed it. Q. At the time you posted this on April 28, no one had confirmed that? Page 7 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

8 A. I don t think so. Q. Why did you use the phrase until now? A. Because until that time nobody had confirmed it. Q. Was someone confirming it at this time? A. No. Garner Depo. Trans. 32:6-25. Rather than reveal who confirmed the information for him, Defendant Garner denied that anyone confirmed it and denied the plain meaning of his statement. Garner does not rely solely on strangers at a shooting range as his source he also contends that some of his defamatory statements simply were assumptions or things he saw on the internet. For example, after Defendant Garner posted his statements regarding FN dumping AAC, Kevin Brittingham, AAC s President, contacted FN regarding the SCAR Project and received assurances about FN s satisfaction. See August 18, 2008 Brittingham Decl. in Support of Plaintiff s Opposition to Motion to Strike, 13. Shortly thereafter, Defendant Garner posted the statement, when Kevin calls FN acting like a loon it doesn t help an already worsening situation. See Ex. E to May 9, 2008 Brittingham Decl. Garner s explanation for the source of this information pure speculation cannot be believed: Q. Did someone tell you that Kevin had called FN acting like a loon? A. No. Q. No one ever told you that? A. No. Q. What made you think Kevin had called FN? A. I don t know. He says he has a relationship with FN. Wouldn t he call them? * * * Q. So this entire first paragraph of this posting on Exhibit 5 was just based solely on an assumption by your part? A. Yeah. Page 8 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

9 Q. You had no information about Kevin Brittingham calling FN whatsoever? A. Right. That s why I said when Kevin calls FN acting like a loon, because I assume that when he calls he acts like he normally does, which is a loon. Garner Depo. Trans. 56:25-57:7; 57: The subject matter and timing of Defendant Garner s internet posting renders his explanation dubious at best. Defendant Garner s deposition testimony regarding the source of the defamatory statements he posted strangers he can t recall, his assumptions, the internet is incredible and should not be credited by the Court in determining whether any relationship between Garner and an AAC competitor existed. C. Garner s Testimony Supports AAC s Prima Facie Case. If the Court concludes that Oregon s anti-slapp statute applies to the circumstances at issue in this case, and then determines that Defendant Garner was speaking in a public forum on a matter of public interest, AAC bears the burden of setting forth substantial evidence of prima facie case. See ORS The primary element of a prima facie case for defamation is the falsity of Defendant Garner s statements about AAC posted on the internet. In its Memorandum in Opposition to the Motion to Strike and the Brittingham Declaration in Support thereof, AAC offers substantial evidence that Defendant Garner s statements are false. Defendant Garner s deposition testimony cited above offers nothing to contradict AAC s evidence that his statements were false, and reveals that his statements were not supported by any reliable sources or research. All of the information Defendant Garner posted about AAC on the internet allegedly came either from strangers he met briefly while at a shooting range, was the product of his own assumptions, or allegedly was a year-old rumor. Garner admits he did not talk to anyone or do anything to confirm the truth of the internet postings at issue in this case. Garner Depo. Trans. 76:1-6. He admits he did nothing to verify the accuracy of information from the internet he claims he relied upon in making the statements. Id. at 62:22-63:2. He also admits he is not a member of the industry and denies knowing anyone involved in the industry. Garner Depo. Trans. 38:18-39:23. Page 9 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

10 These admissions, coupled with AAC s substantive evidence of the falsity of the statements, compel a conclusion that the defamatory statements at issue are false, and that AAC has met its burden to produce substantial evidence of a prima facie case. III. CONCLUSION For the reasons set forth herein and in Plaintiff s Opposition to Defendant s Motion to Strike, Plaintiff Advanced Armament Corporation respectfully requests that the Court deny Defendant s Motion to Strike. DATED this 3 rd day of September LANDYE BENNETT BLUMSTEIN LLP By: /s/ Jennifer L. Gates Michael R. Seidl, OSB No Jennifer L. Gates, OSB No Counsel for Plaintiff Advanced Armament Corp. Page 10 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

11 CERTIFICATE OF SERVICE I hereby certify that on September 3, 2008, I served the foregoing PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE on the following individual(s): Michael H. McGean Francis Hansen & Martin LLP 1148 NW Hill Street Bend, OR Counsel for Defendant Garner by e-filing. LANDYE BENNETT BLUMSTEIN LLP /s/ Lee Ann Mead Lee Ann Mead, Assistant to Jennifer L. Gates Counsel or Plaintiff Page 11 - PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE doc.1

12 Michael R. Seidl, OSB No Jennifer L. Gates, OSB No Landye Bennett Blumstein, LLP 1300 SW 5th Avenue, Suite 3500 Portland, Oregon Phone: (503) Fax: (503) Counsel for Plaintiff Advanced Armament Corporation IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON AT EUGENE ADVANCED ARMAMENT CORPORATION, v. Plaintiff, IAN HALE GARNER, an individual, Case No. 08-CV-6142-TC DECLARATION OF JENNIFER L. GATES IN SUPPORT OF PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE Defendant. I, Jennifer L. Gates, declare the following: 1. I am an attorney licensed to practice in the State of Oregon and represent plaintiff Advanced Armament Corporation ( AAC ) in the above-captioned matter and make this declaration based on personal knowledge. 2. Attached hereto as Exhibit A is a true and correct copy of a page from the LaRue Tactical website ( offering for sale flash hiders, printed on September 3, Attached hereto as Exhibit B is a true and correct copy of excerpts from the deposition transcript of Ian Hale Garner taken on August 18, ///// ///// Page 1 - DECLARATION OF JENNIFER L. GATES IN SUPPORT OF PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE DOC

13 I declare the foregoing to be true and accurate under penalty of perjury. DATED this 3 rd day of September LANDYE BENNETT BLUMSTEIN LLP By: /s/ Jennifer L. Gates. Jennifer L. Gates, OSB Counsel for Plaintiff Advanced Armament Co. Page 2 - DECLARATION OF JENNIFER L. GATES IN SUPPORT OF PLAINTIFF S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE DOC

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16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ADVANCED ARMAMENT CORPORATION, vs. Plaintiff, IAN HALE GARNER, an individual, Defendant. / Case No. 08-CV TC Deposition of IAN HALE GARNER Monday, August 18, 2008, 2:04 p.m. Bend, Oregon

17 Page 21 1 I'm sure you're familiar with them, but I'll let you 2 look at a handwritten copy just in case. She has to 3 mark it first before I can give it to you. 4 (Exhibit No. 1 was marked.) 5 Q. Can you take a minute and look at Exhibit 1, 6 Mr. Garner. 7 A. Uh-huh. 8 Q. Have you had a chance to look at it? 9 A. Sure. 10 Q. Do you see about the middle of the page there 11 is an entry by you ian187 that says, quote, Well, FN 12 dumped AAC so that should free up some spare time to 13 produce the Blackbox, period, end quote. 14 Do you see that? 15 A. Yes. 16 Q. Who told you that FN dumped AAC? 17 MR. McGEAN: You can answer that one. 18 A. I think I heard it at the range shooting. 19 BY MS. GATES: 20 Q. You don't A. I don't really recall. I don't work in the 22 firearms industry, so I don't know. I mean, it's been 23 a rumor that's existed for more than a year, I'd say. 24 I don't know. I mean, it just gets -- I've heard it a 25 number of times, but I can't really say I recall

18 1 specifically where it came from. Page 22 2 Q. You have no idea? 3 A. No idea what? 4 Q. Where you heard or who told that you that FN 5 dumped AAC. 6 MR. McGEAN: Objection. That's argumentative. 7 He did answer the question. 8 BY MS. GATES: 9 Q. I want to be sure because this is testimony 10 that is potentially going to be in front of a jury and 11 we're going to discuss with the judge. So when you 12 say you might have heard it at the range, you're not 13 really sure, you heard it for -- I think you said it 14 had been around for a year. 15 You don't remember anything more than that? 16 A. I don't really recall. I mean, it's just, 17 like I said, I have -- I have a lot more important 18 things to do than Internet stuff. I don't really 19 recall exactly where it came from. 20 Q. If you had a lot more important things to do, 21 why were you posting this information on the Internet, 22 especially if you had no idea where it came from? 23 MR. McGEAN: Objection to the form of the 24 question. Argumentative, compound question. 25 MS. GATES: Did you understand my question?

19 1 A. No, I don't think so. Page 24 2 Q. Who do you talk to or who were you talking to 3 at this time when you said it had been around for a 4 year at COSSA? 5 A. Yeah. I mean, just -- I don't know all the 6 competitors' names out there. I really couldn't tell 7 you. 8 Q. Were you in a competition when you heard this 9 information? 10 A. Yeah, yeah. 11 Q. What competition? 12 A. There has been a couple pistol matches and 13 rifle competitions, yeah. 14 Q. When was the first pistol match? 15 A. I don't remember all the dates. I mean, at 16 one point I was shooting every single weekend, so I 17 can't remember. 18 Q. It was at one of these competitions that you 19 heard this information? 20 A. Possibly. 21 Q. What else did the person who told you this 22 information say? 23 A. I don't really recall. 24 Q. Did you ask any questions about it? 25 A. No.

20 1 MR. McGEAN: Yes, I am. Page 26 2 BY MS. GATES: 3 Q. When was the -- do you remember when those 4 pistol matches were that you mentioned? 5 A. I don't remember. There is a match every 6 weekend. 7 Q. Had you known this information that FN dumped 8 AAC for a year before you posted it on the Internet? 9 MR. McGEAN: Same objection. 10 Don't answer. 11 BY MS. GATES: 12 Q. You're not going to answer the question? 13 MR. McGEAN: No, he's not going to answer 14 that. 15 A. No. 16 BY MS. GATES: 17 Q. Did you know the person who told you the 18 information at the time they told it to you? 19 A. No, I don't think so. 20 Q. It was just a stranger? 21 A. Yeah. 22 Q. Did you tell that person that you were going 23 to post that information on the Internet? 24 A. No, I don't think so. I don't recall. 25 Q. Did you know that information for some time

21 Page 28 1 A. Do I know that person? I don't know that 2 person. 3 Q. Did you know the -- I don't know -- I'm sure 4 you have a term for these -- the member name they were 5 using, the screen name? 6 A. Yes. 7 Q. Had you talked with that person? 8 A. No. Never met him. 9 Q. Do you know why the person, the stranger at 10 the competition at the range, gave you this 11 information? 12 A. Are you asking me to guess what other people 13 are thinking? 14 Q. If you know why. 15 A. I don't know. 16 MS. GATES: You can set Exhibit 1 aside. 17 Can you please mark this as Exhibit (Exhibit No. 2 was marked.) 19 BY MS. GATES: 20 Q. Can you take a minute and review Exhibit 2, 21 Mr. Garner. 22 A. Sure. Okay. 23 Q. Do you see a posting made by you about 24 two-thirds of the way down the page that begins, "The 25 source is not for public consumption"?

22 1 A. Yes. Page 29 2 Q. Who were you referring to in this posting as 3 the source? 4 A. It was a general statement. No one in 5 particular. 6 Q. Why would it not be for public consumption? 7 A. Because it was just general recollection. Are 8 you asking me to name somebody that I don't know? I 9 mean, I don't know -- I don't recall any names or the 10 situation, so why would I single out a ghost? 11 Q. Well, why would you single out a ghost? 12 A. I didn't. 13 Q. You seem to be referring to a specific source 14 here. 15 MR. McGEAN: Do you hear a question? 16 THE WITNESS: No. What's the question? 17 BY MS. GATES: 18 Q. Why would you identify a source if you felt 19 like you didn't have a source, if you felt like, as 20 you just said, it was a ghost? 21 A. I didn't identify a source. 22 Q. Well, you said there was a source who was not 23 for public consumption. 24 A. Right. 25 Q. Who were you referring to by the source?

23 1 MR. McGEAN: You can answer that. Page 30 2 A. Who was I identifying? Just the conversations 3 that I had heard out at the ranges, the shoots. 4 BY MS. GATES: 5 Q. What kind of conversations were those again? 6 A. They were just in passing, conversations in 7 passing. 8 Q. Did you hear anything else besides FN dumped 9 AAC? 10 A. When? I'm not sure what you're asking me. 11 Q. In that conversation that you're referring to 12 that you said was your source, did you hear anything 13 else besides that FN dumped AAC? 14 A. I don't recall. 15 Q. You don't recall hearing anything else? 16 A. I don't recall. I don't -- I don't recall 17 hearing anything else. 18 Q. Is there any reason why you would have 19 considered that not for -- that information that you 20 heard during some conversation that you couldn't 21 recall at a pistol match not for public consumption? 22 A. Just because it would have been identifying no 23 one in particular, so, I mean, it's not for public 24 consumption. 25 Q. Is that what you typically associate with the

24 1 A. Yes. Page 32 2 Q. Who now wanted to confirm that FN had in fact 3 been green lighted to look to companies other than 4 AAC? 5 A. I'm sorry. Repeat that. 6 Q. You said -- I said who now wanted to confirm 7 that FN had been green lighted? 8 A. I don't -- I don't think anybody wanted to 9 confirm it. 10 Q. You say in your sentence A. I said until now no one wanted to confirm it. 12 I didn't say anybody confirmed it. 13 Q. Well, you said until now, as in something was 14 different now. 15 A. Right. Well, nobody confirmed it. Until now 16 no one confirmed it. As far as I know, until now 17 nobody has confirmed it. 18 Q. At the time you posted this on April 28, no 19 one had confirmed that? 20 A. I don't think so. 21 Q. Why did you use the phrase "until now"? 22 A. Because until that time nobody had confirmed 23 it. 24 Q. Was someone confirming it at this time? 25 A. No.

25 Page 33 1 Q. Where did you hear that FN had in fact been 2 green lighted to look to companies other than AAC for 3 SCAR suppressors? 4 A. Same situation with the other question. Out 5 at the range in passing, you know. 6 Q. Was it part of that same conversation where 7 you heard that FN dumped -- 8 A. I would assume so. 9 Q. -- AAC? 10 A. I don't remember exactly. 11 MR. McGEAN: Wait for her question. 12 THE WITNESS: Sorry. 13 MR. McGEAN: Want to take a break? 14 THE WITNESS: No. 15 BY MS. GATES: 16 Q. You don't remember where you heard that FN had 17 been green lighted? 18 A. It would have been in the same conversation, 19 but I don't remember them all that well. 20 Q. You don't remember what all that well? 21 A. The -- I don't know the conversation. Like I 22 said, it had been around for a while, so, I mean, it 23 had been discussed out at the range as far as I know 24 on several occasions, but I don't remember exactly 25 when it was.

26 Page 34 1 Q. On how many occasions do you think this had 2 been discussed? 3 A. I don't recall. It was -- it was several, but 4 I don't remember an exact number. 5 Q. For how long before you started making these 6 postings had that issue been discussed? 7 A. I would assume a year. 8 Q. Why would you assume that? 9 A. Because I think it was in excess of a year. 10 Q. Based on what information do you think it was 11 in excess of a year? 12 A. Just recurring topics. It came up a couple 13 times. 14 Q. So you had multiple conversations about this? 15 A. Yeah, probably. 16 Q. What motivated you to start making these posts 17 that are at issue in this case after a year had gone 18 by or within after many months had gone by? 19 MR. McGEAN: I'm going to object. I'm sorry. 20 I think that's outside the scope of this 21 deposition, so I'm going to ask the defendant not 22 to answer that. 23 MS. GATES: You're not going to have him 24 answer what motivated him to the make these posts 25 after he heard the conversation from a random

27 1 anonymous source in the beginning? Page 35 2 MR. McGEAN: Yes. This deposition -- the only 3 reason why you got this deposition was that you 4 speculated to the Court there might have been 5 affiliations between my client and your client's 6 competitors. And I don't see how that question -- 7 although I understand why you believe it goes to 8 the merits of your suit, I don't think that it has 9 to do with the question of affiliation which is why 10 we're here this afternoon. 11 MS. GATES: Well, I'm trying to find out what 12 motivated him, and it could be his affiliation or 13 some relationship with a competitor that makes him 14 suddenly post this information after he's been 15 aware of it for a year. 16 MR. McGEAN: Well, if that's the question you 17 want to ask, I think you have to narrow it. Just 18 asking broadly about his motivations, I don't think 19 that's fairly within the scope of what Judge Coffin 20 allowed you to do. 21 MS. GATES: I guess you've instructed him not 22 to answer. 23 MR. McGEAN: That particular question, yes. 24 MS. GATES: We'll note it for the record, 25 although I will narrow it.

28 Page 38 1 Q. Looking back at Exhibit 2, the last sentence 2 in the first paragraph of your posting on April 28 3 says that the SCAR -- quote, the SCAR contract belongs 4 directly to FN and it is their discretion who's (sic) 5 suppressor they use, end quote. 6 Do you see that? 7 A. Yes. 8 Q. How did you know that information? 9 A. As far as I know, the SCAR contract is 10 available online. 11 Q. Have you read the SCAR contract? 12 A. Yes, although I can't remember the exact web 13 address for it. It's out there, yeah. 14 Q. Had you read it before you made this posting? 15 A. Yes. 16 Q. So no one told you that? 17 A. No. 18 Q. Do you see the second paragraph that begins, 19 quote, Why do I seem to always have the bad news on 20 AAC? Simple, the suppressor industry is largely 21 filled with professionals who are friendly with each 22 other, regardless of whether they are in competing 23 markets, end quote. 24 Do you see that? 25 A. Uh-huh.

29 Page 39 1 Q. How were you getting this bad news on AAC that 2 you referred to in that paragraph? 3 A. I think I already told you. 4 Q. Just from these competitions that you were 5 participating in? 6 A. Yeah. 7 Q. That's the same thing you were referring to in 8 this paragraph? 9 A. Yeah, I guess. I mean, I don't -- yeah, I'd 10 say so. 11 Q. You're not A. Except I don't -- I'm not affiliated with 13 anybody in the silencer industry, so I don't really 14 recall what I meant by it. 15 Q. How do you know that the suppressor industry 16 is largely filled with professionals who are friendly 17 with each other if you don't know anyone in the 18 industry? 19 A. Because I would assume that since most 20 industries are filled with professionals that the 21 silencer industry would be as well. 22 Q. So this is just an assumption? 23 A. Yes. 24 MS. GATES: You can set Exhibit 2 aside. 25 MR. McGEAN: I need to take a break, five

30 1 minutes. Page 40 2 MS. GATES: Sure. 3 (Pause in the proceedings.) 4 MR. McGEAN: Thank you. 5 (Exhibit No. 3 was marked.) 6 BY MS. GATES: 7 Q. Can you take a minute and review Exhibit 3, 8 please, Mr. Garner. 9 A. (Complies with request.) 10 Q. Exhibit 3 is a posting by you on 11 SilencerResearch.com, correct? 12 A. Uh-huh. 13 Q. You state there that "recently FN offered to 14 sell their AAC cans." 15 A. Yeah. 16 Q. Where did you get that information? 17 A. I think that had come out of some of the 18 conversations at the range. 19 Q. So how many conversations did you have about 20 AAC and the SCAR program at the range? 21 A. I don't remember an exact number. 22 Q. Were they regular conversations? 23 A. I don't think they were completely regular, 24 no. 25 Q. And you don't remember who you had them with?

31 Page 41 1 A. No. I mean, it was mainly -- I shoot with 2 mainly strangers out at the range. I really don't 3 know any of these people. 4 Q. You never ask their names? 5 A. First name probably. 6 Q. What made you think this information was 7 reliable if you never asked who the person was 8 providing the information? 9 MR. McGEAN: Object to the form of the 10 question. I think that misstates what he said. 11 MS. GATES: Do you understand the question? 12 MR. McGEAN: You can answer it if you can. 13 THE WITNESS: Can you repeat it? 14 MS. GATES: Sure. 15 BY MS. GATES: 16 Q. What made you think this information was 17 reliable if you never asked who you were having the 18 conversation with? 19 A. Pictures have shown up all over the Internet 20 with AAC silencers and the holes off center to one 21 side. So in combination with the conversation and the 22 pictures that showed up, I think it's a natural 23 assumption that FN would be dissatisfied by receiving 24 defective products. 25 Q. So looking at the photo you say you saw on the

32 Page 42 1 Internet was the only thing you did that confirmed 2 these statements in your mind? 3 A. Yes, uh-huh. 4 Q. And you think someone at the shooting 5 competition told you that recently FN offered to sell 6 their AAC cans? 7 A. I think so, yeah. 8 Q. Would that have been sometime in April 2008? 9 Because this posting looks like it was made April 19, A. I think so. I'm not exactly sure of the 12 dates. I think it was within the first quarter of 13 '08, maybe the last quarter of '07. I'm going on 14 memory here, so I'm not -- I didn't write any of this 15 down, so I can't recall. 16 Q. Do you remember what the person looked like 17 who told you this information? 18 A. No, not exactly. 19 Q. Do you remember any A. There was any number of a group of people that 21 discussed it, so I don't recall specificly who it was. 22 Q. Were all the statements that we've looked at 23 so far in Exhibits 1, 2 and 3 all part of one 24 conversation you had at the range? 25 A. I don't think so.

33 Page 43 1 Q. Do you remember anyone that was participating 2 in those conversations? 3 A. No, no. 4 Q. You couldn't describe their appearance for 5 anyone that participated? 6 A. I could describe the appearance of people that 7 I shot with, but I don't recall if that was the person 8 I had the conversation with, because a lot of stuff is 9 anecdotal or, you know, sidebar to the shooting, so 10 you take a second out of shooting. I don't remember 11 the exact time line on it. 12 Q. And were any of those people female? 13 A. No, I don't think so. 14 Q. Well, at least we can eliminate half the 15 population. 16 A. Or more depending on which country you're in, 17 right? 18 Q. Exactly. 19 It says in the next sentence, quote, Looks 20 like SF has gotten the nod as the replacement, end 21 quote. 22 What did that mean? 23 A. I was under the impression that SureFire, SF, 24 had been the replacement. 25 Q. And how did you get that impression?

34 Page 44 1 A. Because that was the -- I mean, that was in 2 the conversation. 3 Q. As far as you know, are there any employees of 4 SureFire that participate at the COSSA or Redmond Rod 5 & Gun ranges? 6 A. No. 7 Q. You're not aware of any? 8 A. No. 9 Q. How about any KAC employees? 10 A. No. 11 Q. The next paragraph in your April 19th posting 12 from Exhibit 3 states that the guys you spoke with 13 last year involved with FN mentioned accuracy issues 14 and personal conflicts with ownership at AAC. 15 Do you see that? 16 A. Uh-huh. 17 Q. You seem to be making a distinction here 18 between the guys you spoke with last year versus some 19 more recent information you might have attained from 20 other people. 21 A. Right. 22 Q. Who were the guys you spoke with last year? 23 A. I think that that had been some conversations 24 on a number of different websites. 25 Q. So you didn't actually speak with anyone?

35 Page 52 1 Internet. I don't know if they made those pictures 2 available or not. As far as I know, there's no name 3 associated with who put them out. But they're on the 4 end of SCAR rifles. However, FN sold those rifles to 5 outfits like AAC, so I don't know who took the 6 pictures. 7 Q. Did you do anything to verify that there were 8 alleged accuracy issues and personal conflicts with 9 ownership at AAC? 10 MR. McGEAN: I'm going to object to that. I 11 don't see what that has to do with -- are you 12 asking about his affiliation with competitors? 13 MS. GATES: I'll be more specific. 14 BY MS. GATES: 15 Q. Did you talk to anyone, be it or 16 telephone or in person, to verify that there were 17 alleged accuracy issues and personal conflicts with 18 ownership at AAC? 19 A. No. People had publicly stated that there 20 were problems with AAC silencers. 21 Q. Which people? 22 A. People on the Internet. 23 Q. People you know? 24 A. I don't know. Various anonymous users on web 25 forums have publicly stated that they have problems

36 Page 53 1 with them and, again, pictures of broken AAC products. 2 Q. And specifically are you talking about the 3 silencers and flash hiders designed for the SCAR 4 program? 5 A. Yes. 6 MS. GATES: You can set Exhibit 3 aside. 7 (Exhibit No. 4 was marked.) 8 BY MS. GATES: 9 Q. Can you take minute and look at Exhibit 4, Mr. 10 Garner. 11 A. Sure. 12 Q. Exhibit 4 is an April 24th, 2008, posting by 13 you on SilencerResearch.com; is that right? 14 A. Yes. 15 Q. You state someone -- let me scratch that 16 question. 17 A poster before you had asked whether the SCAR 18 program or SCAR silencers was off. And you responded 19 quote, Nope, the program is still on... just without 20 AAC, period, end quote. 21 Do you see that? 22 A. Yes, correct. 23 Q. Where did you get the information that the 24 SCAR program was still on but without AAC? 25 A. Regardless of AAC's relationship with FN, the

37 Page 54 1 SCAR program would be on because that contract between 2 FN and the government still exists out there. As far 3 as I know, FN has the contract for the silencers, so 4 no matter what they're doing, the SCAR program, as far 5 as I know, is still on with or without AAC. Without 6 AAC is what I said, but -- 7 Q. And how did you know it was on without AAC? 8 A. Because it's on no matter what. I mean, it's 9 a contract between FN and the government. 10 Q. Let me be more specific. How did you know 11 that the program was going forward without AAC as 12 opposed to with AAC? 13 A. Like I said, it's been discussed. I don't 14 remember a specific person, if that's -- are you 15 asking me for a specific person? 16 Q. A specific person, an entity, any A. I don't remember a specific person or entity. 18 Q. So you have no idea where you got the 19 information other than some random poster on the 20 Internet that the SCAR program was going forward 21 without AAC? 22 A. Yes. 23 MR. McGEAN: Object to the form of the 24 question before he answers that. That's -- I don't 25 think that's -- I think that mischaracterizes his

38 Page 55 1 testimony because he previously in this deposition 2 was talking about shooting ranges and -- if that's 3 what you're referring to. 4 MS. GATES: Did you understand my question? 5 THE WITNESS: No. 6 BY MS. GATES: 7 Q. Did anyone at the shooting ranges tell you 8 that the SCAR program was going forward without AAC? 9 A. No. It's an assumption because the SCAR 10 rifle -- or the SCAR program, as far as I know, is 11 still going forward. And if what I had read was true 12 and there is trouble with AAC, it would go forward 13 without them. 14 Q. Did you talk to anyone, , telephone, in 15 person, to confirm that what you had read was true? 16 A. No. 17 MS. GATES: You can set Exhibit 4 aside. 18 Could you please mark that as Exhibit (Exhibit No. 5 was marked.) 20 BY MS. GATES: 21 Q. Have you had a chance to look at Exhibit 5, 22 Mr. Garner? 23 A. Yes. 24 Q. Is this a posting by you on 25 SilencerResearch.com on May 2, 2008?

39 1 A. Yes. Page 56 2 Q. Do you see where you state that Kevin had 3 called FN, quote, acting like a loon? 4 A. Yes. 5 Q. Where did you get the information -- actually, 6 scratch that question. 7 Who is the Kevin that you're referring to? 8 A. Kevin Brittingham. 9 Q. And who is that? 10 A. The owner of AAC. 11 Q. Okay. And A. I assume he's the owner of AAC. I don't know 13 that for sure, but that's what he claims publicly. 14 Q. And where did you get the information that 15 Kevin had called FN acting like a loon? 16 A. Well, I would assume that when he calls at FN 17 he acts like a loon because the time that he called my 18 wife's cell phone he was acting like a loon. 19 Q. So other than your assumption that when he 20 calls FN acting like a loon, do you have any more 21 specific information than that? 22 A. His public behavior is pretty disjointed, so I 23 would assume that he acts that way to everybody and 24 it's not just special to the Internet. 25 Q. Did someone tell you that Kevin had called FN

40 1 acting like a loon? Page 57 2 A. No. 3 Q. No one ever told you that? 4 A. No. 5 Q. What made you think Kevin had called FN? 6 A. I don't know. He says he has a relationship 7 with FN. Wouldn't he call them? 8 Q. Why did you make a post stating that when 9 Kevin calls FN acting like a loon, it doesn't help an 10 already worsening situation? 11 A. Because there is public documentation of 12 damaged or defective AAC products and he calls my 13 wife's cell phone acting like a loon and he acts 14 really unprofessionally in public. I would assume 15 when he calls FN he acts the same way. 16 Q. So this entire first paragraph of this posting 17 on Exhibit 5 was just based solely on an assumption by 18 your part? 19 A. Yeah. 20 Q. You had no information about Kevin Brittingham 21 calling FN whatsoever? 22 A. Right. That's why I said when Kevin calls FN 23 acting like a loon, because I assume that when he 24 calls he acts like he normally does, which is a loon. 25 Q. And what interactions have you had with Kevin

41 Page 61 1 Q. So your statements in Exhibit 5 are just based 2 on assumptions based on your knowledge of how 3 businesses usually work? 4 A. Yeah. 5 Q. And what were you referring to when you used 6 the phrase "the AAC SCAR debacle"? 7 A. It seems like it would be a debacle to deliver 8 a bunch of defective product to your customer. 9 Q. How did you know a bunch of defective product 10 was delivered to AAC's customers? 11 A. It's available online. 12 Q. Where? 13 A. On various web forums. I think even Oakley 14 has produced pictures of SCAR silencers with holes off 15 center. 16 Q. You keep referring to pictures of SCAR 17 silencers with holes off center. 18 A. Yes. 19 Q. Did you do anything to verify that those 20 pictures accurately depicted what they purported to 21 be? 22 A. I don't think that -- I don't think that 23 Oakley would modify pictures. Is that what you mean? 24 MR. McGEAN: Just answer her questions. 25 BY MS. GATES:

42 1 Q. Did you do anything to verify that? Page 62 2 A. Oh, no, no. 3 Q. You just made the assumption that that posting 4 was accurate? 5 A. Yes. 6 Q. Besides that posting you keep referring to 7 with the picture of the SCAR silencer with the hole 8 off center, is there anything else? 9 A. There are various photos -- I shouldn't say 10 various. There is photos of FN or AAC flash hiders 11 that are damaged that are on SCAR rifles. 12 Q. Are there -- do you know how those got 13 damaged? 14 A. They look like they were worn out. 15 Q. And how does that help -- how do you reach the 16 conclusion that AAC provided defective product to its 17 customers based on that? 18 A. Well, I mean, sending somebody silencers with 19 holes off center and having flash hiders that are 20 cracked on SCAR rifles seems like it would be 21 defective products to me. 22 Q. Did you do anything, talk to anyone A. No. 24 Q. -- to verify that the picture or pictures of 25 the cracked flash hiders were accurately representing

43 1 what they purported to be? Page 63 2 A. No. 3 MS. GATES: You can set aside Exhibit No (Exhibit No. 6 was marked.) 5 BY MS. GATES: 6 Q. Can you take a minute and look at Exhibit 6. 7 A. Okay. 8 Q. What does "better pack a lunch" in your 9 posting on May 3rd, 2008, mean? 10 MR. McGEAN: I'm objecting. 11 Don't answer that. 12 That's blatantly outside the scope of what the 13 judge is allowing you to take his deposition here 14 for today. 15 MS. GATES: I have no idea what that phrase 16 means. 17 MR. McGEAN: Well, it obviously doesn't MS. GATES: Why does it obviously have nothing 19 to do with it? 20 MR. McGEAN: This exhibit and that question 21 doesn't have anything to do with your client's 22 competitors' affiliations or lack thereof with my 23 client. 24 MS. GATES: In fact, it does. This is the 25 exhibit where your client indicates that he's

44 Page 68 1 MS. GATES: You can set Exhibit 6 aside. 2 Can we take a break? I'm going to go through 3 my notes. I probably have a few more questions, 4 but it shouldn't be too much longer. 5 (A recess was taken.) 6 MS. GATES: I just have a few more questions. 7 BY MS. GATES: 8 Q. Do you know anyone that works at FN? 9 A. No. 10 Q. Have you ever spoken or ed with someone 11 who claims they work at FN? 12 A. No. 13 Q. Do you have any connection with FN other than 14 reading posts on the Internet? 15 A. No. 16 Q. That was not a very well-asked question. 17 Posts on the Internet by people who claim to 18 work for FN. 19 A. No. 20 Q. Of all the statements we've talked about, that 21 information you had in making those statements, did 22 any of that information come from any source other 23 than these conversations at rifle or shooting 24 competitions? 25 A. No.

45 Page 69 1 MR. McGEAN: Except for the Internet sources 2 that he talked about, right? 3 THE WITNESS: Yeah. I'm sorry. 4 MR. McGEAN: You are including that, too? 5 THE WITNESS: Public information. Sorry. 6 None of it came from FN. 7 BY MS. GATES: 8 Q. Do you know anyone that works at SureFire? 9 A. No. 10 Q. Have you ever met anyone that works at 11 SureFire? 12 A. No. 13 Q. What about Gemtech, same question. Do you 14 know anyone that works there? 15 A. I've called and ordered some stuff, but I 16 don't think I know them. 17 Q. Do you know Mark Larue (phonetic)? 18 A. Yes. Well, back up. I've talked to him. I 19 don't know him personally. 20 Q. You've talked to him using what type of 21 technology? 22 A. Telephone. 23 Q. Did you also with him? 24 A. No. 25 Q. Do you exchange postings with him on the

46 1 Internet? Page 70 2 A. Exchange postings? Yeah, I think I've -- we 3 have conversed publicly back and forth on the 4 Internet, sure. 5 Q. Have you ever called him or does he call you? 6 A. I've called him, yeah. 7 Q. Why did you call him? 8 A. Well, I asked him for some help. 9 Q. For what purpose? 10 A. For financial help. 11 Q. Why? 12 A. Why? Because I don't have $20,000 in my 13 pocket to fend off a ridiculous lawsuit. 14 Q. So you asked him for help paying for defending 15 this lawsuit that we're in right now? 16 A. That's correct. 17 Q. Why did you ask Mark Larue for that help? 18 A. Because I don't have $20,000 to -- is that 19 what you're asking me? I don't have 20 grand or 20 whatever to MR. McGEAN: Let's take a break. 22 (A recess was taken.) 23 BY MS. GATES: 24 Q. Why did you call Mark Finger as opposed to a 25 friend or --

47 1 A. I've never called Mark Finger. Page 71 2 Q. I'm sorry. Strike that question. 3 Why did you call Mark Larue as opposed to 4 anyone else? 5 A. After Robert Silvers announced publicly they 6 were suing me, Mark Larue offered to help with 7 attorneys' fees. 8 Q. Why did he make that offer, if you know? 9 A. I don't know. 10 Q. You never asked him? 11 A. Are you asking me to speak on his behalf? I'm 12 not exactly sure. 13 Q. Did you ever ask him why he was offering to 14 help you? 15 A. Yeah, because he thought that it was frivolous 16 and unfair and he wanted to help one of his customers 17 out. 18 Q. So you're a customer of Mark Larue's? 19 A. Yes. 20 Q. What type of equipment do you buy from him? 21 A. Scope mounts. 22 Q. That's all? 23 A. Boy, I've bought a few scope mounts. Yeah, 24 scope mounts, rifle parts. 25 Q. Did you and Mark Larue -- excuse me. Did Mark