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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session

Speakers. Justin Nichols Melissa Kingston Ryan Lurich Attorney for Avi S. Adelman, Defendant Plaintiff Attorney for Plantiff

M2U00082 00:00 Justin Ms. Kingston, directing your attention to Defense Exhibit 5, on the third page there is a phrase highlighted that we talked about at length early in the deposition, regarding Maxine Aaronson, do you see that? I do. And do you see the line above that, where it says that and for those who have lived here a number of years let me sh--, review this quote from another neighbor and it looks, does it appear that hes quoting another, that Avis quoting another neighbor or that thats his statement himself? . yea-I mean he says its quoting another neighbor. Yeah, but you dont believe him? I dont know? Dont know-but you even in that context you still found that to be threatening? . I do. Moving on to what Ive marked as Defense Exhibit D, I am sorry Defense Exhibit 6, which I will represent to yourself and counsel. That it was exhibit D, the defendants Motion to Dismiss, based on the empty spots last year. Can you tell me what you identify this email to be? Im sorry, what this document is? The exhibit, what it appears to be. It appears to be an email sent on September 9, 2012, from the melissakingston. com domain to individuals at or affiliated with Wal-Mart and by and copied to Will Short. And can you review and see if you find anything that you find to be defamatory or derogatory.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin I found the paragraph that starts with, Melissa goes on to complain, to be derogatory. Now do you think---. And I think the entire tone of his email is derogatory and deceptive. I have this pen marked as Defense Exhibit 7. Can you tell me what you recognize this, oh Im sorry if can I go back to Defense Exhibit 6, how is that email signed? . Avi. Lets go to Defense Exhibit 7, can you tell me what you recognize this to be? Your honor, I present Defense Exhibit E the defendants Motion to Dismiss on the basis of the anti-SLAPP statute. I am not sure I recognize it to be anything since I was neither the sender nor recipient of it, but it appears to be an email sent from my domain name. And were you aware of this email when you filed the lawsuit. I cant remember. All right and how is the email signed? Avi. And do you recognize anything in this to be derogatory or defamatory?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00082 05:20 Melissa Yeah, I think the characterization of the lights at the subject Wal-Mart is derogatory and untruthful, and I think that the statement that Wal-Mart, respect dead people in the cemetery more than living people on Belmont Avenue is the same. . And do you think people thought that you were saying these things? I think they could have or that I endorsed it. Are you aware of any instance where they actually did believe that you endorse that? I dont remember the specific emails that people talked to me about... Okay and were you already aware, where is this, how is this email. Im sorry there one is other thing. Aw yes Im sorry. I find his characterization or his alterizationalterization, (is that a word?) altering of the Wal-Mart logo to say, Wal-Mart screwing neighborhoods one house at a time to be very offensive. I think it is also derogatory and deceptive. And its signed by Avi. Ok. And its unb. (Inaudible). And is there anyone else that has used this logo except Avi that you are aware of? Not that I am aware of. Ok. And its signed by Avi, is that what you said? It is. Ok. Lets go to Defense Exhibit 8 which I will represent as exhibit F, (inaudible), can you please tell me what it appears to be to you? . It appears to be an email sent on September 10, 2012 from my domain from an undisclosed list. And again, I want to talk about your say your domain on November 10. Its in my name. But you did not own that domain name? I did not.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Ok, all right, and can you identify any portion of this that is derogatory. I think the characterization of Wal-Marts lighting is derogatory, I think the comments about Wal-Mart respecting dead people more than living ones is derogatory. I think the use of the phrase, we hit their hot buttons today, I encountered a manager and I sincerely hope he is not the store manager, I think that is derogatory. I think the description about his attitude is derogatory. Wait.Im sorry go ahead I see what you saying. I think the comment, Wal-Mart has not been forthcoming with information, is derogatory. In fact I think that entire paragraph is derogatory. And of course I think the altering of the Wal-Mart logo is derogatory. And how is this email signed? Avi. Can you look at exhibit 9..Motion to Dismiss, can you tell me what this appears to be to you? It appears to be an email sent under my domain name on September 10, 2012 to people at or affiliated with Wal-Mart and BCC (d) to a number of people.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00082 10:00 Justin Melissa And is there anything in this that is derogatory in your opinion? Yeah, I think the first; I think all three paragraphs are derogatory and I think the altered Wal-Mart logo, screwing neighborhoods, one house at a time, is derogatory. What is derogatory about the following, or any discussions regarding Wal-Mart to be held between Wal-Mart and its representatives and staff members with the city and its various departments. That first paragraph, whats derogatory about that? I think that directive is impliedly derogatory about me and the work I was doing on behalf of all the neighborhood associations, especially when read in context with the follow-, with the last paragraph. Okay, and uh. And its, go ahead. So it, by saying someones not authorized to speak on my behalf implies in your opinion that that persons work is inadequate. It does, and he didnt just say not authorized to speak on my behalf, he said, he had said that on behalf of other neighbors as well. Assuming that they gave him permission to that say, is that derogatory? Is that what that means? I mean, it doesnt say that your work is subpar anywhere in here does it? It says that I am, it says that I am not authorized to speak on behalf of the neighborhoods. Well no it says that. These above referenced property owners, which was not true. So the above referenced property owners, so which property owner thats referenced above did you actually have permission to speak on behalf of? I had permission on behalf of the Salvaggios and Mr. Davidson. And so its your contention that Mr. Adelman just made that up. I dont believe it to be true. So theres something you believe to be untrue and the rest of it is impliedly derogatory in your opinion. Yeah, I mean the style of his communication is part of the problem. Page 5

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin Melissa Justin: Melissa Justin Melissa Justin Melissa Justin Melissa So you dont like how he writes? I dont like his tone. Okay. I dont like his directives and I dont like him including false information in his communication sent under my domain name. And again your domain name, you did not own it when this was sent? I think weve established that, Justin. You keep calling it your domain name. Its because its my name. Okay. Its my name. So in any of the emails that weve seen, that I presented to you are there any other emails that are you aware were sent from the domain name. I dont remember. Is there any name calling in here? Can you recall seeing, do you recall any names . If you would like me to answer that question, I would have to look through them again; otherwise I can say I dont remember. If you want me to specifically look at the documents and then give you an answer, Im happy to do that. Why dont you look at them. I believe exhibit 5 implies that I would do something unethical because my husband may have been running for city council or was discussing running for city council at the time. But, thats not name-calling. I think its name-calling. So you can impliedly call someone a name? I think hes done exactly that. Very good. Anything else? You want me to continue looking or what?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin: I think there is name calling with Wal-Mart in several of these. I mean the altered logo is name-calling. Okay, anything else? .... What name is that? What. He said, Wal-Mart screws neighbors, neighborhoods one house at a time. Thats name calling. Okay. Thats all I can see at this time. So it was implied that you were unethical and then you consider the alternating of the Wal-Mart logo to be name-calling? I think theres some other name calling of Wal-Mart in there. Okay, did you identify anyone using the word liar in there? You just reviewed them. No (sounding unsure). In your petition it says, in paragraph 14 that these emails containing calling accusing people of being quote, liars. I was just wondering in your review of the emails did you, just now, did you see the word, liar, used anywhere or liars.. If youve got the email that was actually attached, the emails that were actually attached to my petition I would like to take a look at those, but I didnt see, I dont remember seeing that in the emails youve handed me so far, although its certainly implied. Implied, okay. I am going to hand you now what is called Defense Exhibit 11 it was exhibit A to the plaintiff s Motion to Dismiss, would you review it and tell me what it appears to be to you. And for the record, theres a Defense Exhibit 10 that I am not admitting, but will probably skip over for right now. It appears to be an email from you to me dated for September 15, 2012.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00082 20:00 Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Do you remember talking with me on September 14, 2012? Hmmno. You dont remember us, the first time we talked, when I introduced myself? I dont remember it. So how do you think I got your email address? I dont know, how did you get my email address? Ill tell you that you told me what it was, but do you remember telling me what it was? I dont. Hum, do you remember receiving this email? Uh, yeah, I do. And, what did we offer in this email? Hum, you, let me see here, I mean I think the email speaks for itself. Do you want me to read it? . What is the gist of the offer? Whats the gist of the email? In your opinion? It says that Mr. Adelman would agree to surrender the domain Melissa Kingston, although its misspelled to me. Im sorry. And he would agree not to use it during the time period it took to transfer it to me, if I would agree to dismiss the lawsuit with prejudice. And, at the time I sent this email, this email was sent three days after you filed suit, is that right? Yes. And it was sent to you about eight days after Mr. Adelman, do you believe Mr. Adelman purchased the domain names on September 7th. Sounds right. So, throughout the deposition youve been saying its my domain name, all this, do you recall saying that a few times and we talked about that. Why would that not satisfy you? What else did you want? Page 8

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Ryan Justin Ryan Objection. I am going to instruct her not to answer that question. On what basis? Objection, form, and Im going to instruct her not to answer that question. Its not a fact in the case. And youre trying to, to discover what her settlement strategy for this case, and I think thats attorney work product and attorney client communication privileged information. Asking her what would she would want and what would satisfy her in order to settle this case, I dont think that is appropriate for a deposition. You can, you can address your settlement inquiries to me, but if you want to ask her factually if that. What are your goals for this litigation? . Thats the same question. We are not going to answer that, thats attorney work product and attorney client privilege information. Whats the relief you are requesting? The petition is in front of you if you need to review it. The petition speaks for itself. And could you restate it for me? The current petition on file seeks, loss of use of the name Melissa Kingston, a loss of identity and reputation, mental anguish, humiliation, frustration, and severe embarrassment. No, those were the causes of action. No, actually thats damages. Okay, so youre asking for damages. Correct. And Im asking for a permanent injunction. And what is the permanent injunction you are asking for? It doesnt say. The pleading says, that Mr. Adelman, being enjoined, and all agents and representatives, servants, employees, affiliates, and anyone with actual constructive knowledge of this injunction be restrain from directly or indirectly engaging in the following acts; and then they are listed a thru h. In the petition hum, I am also asking for a declaratory judgment and I am also for recovery of my attorneys fees, cost of suit, supreme post judgment interest, whatever other relief at equity or at law that I would entitled too. Page 9

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin So a declaratory judgment youre asking the court to declare that you have a right to the domain name? I asking the court to declare whatever it says in the petition in paragraphs 44 thru 46. Youre asking the courts to declare your rights relating to Melissa Kingston.com is that right? In paragraph 45? Thats not a direct paraphrase. I am going to stick to with whats in paragraph 44 through 46. So how does transferring the domain names, not give you the right to manage and have, and hold and do all those things you have asked the court to do anyway? Whats the difference between them?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00082 24:45 Melissa Justin Melissa Justin I dont understand the question. Whats the difference between a declaratory judgment and let me ask you this. If you owned Melissa Kingston.com would you be asking for a declaratory judgment? If youre offering to stipulate to the declaratory judgment, Im sure theres something we can work out, but I mean I dont . My question is how do you want to declaratory judgment, how does the transfer of the domain name if Mr. Adelman gave you the domain name not achieve the goal, the same result as a declaratory judgment would result in? I am also seeking attorneys fees. I know, but just the declaratory judgment. It just doesnt. Its not the same. It does not request the entire relief requested in, under my application for declaratory judgment. But it might address the declaratory judgment, but not the rest of your petition. Objection. Is that what you are saying? No, thats not exactly what I am saying. So what are you saying exactly. I am not sure what your question is exactly. Can you say it again? My question is, does transferring the domain name, would transferring the domain name render a declaratory judgment? No. Why not? Because it doesnt address the remainder of the things I have asked for under my application for declaratory judgment, including attorneys fees. And you asked the court to declare that you are the rightful owner of the domain name Melissa Kingston.com, is that right? Page 11

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(Unknown) Overruled.

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Correct? And does the offer made by Mr. Adelman achieve that goal? Maybe not other goals, but that goal, does it achieve that goal? No. Why not? Because the offer made my Mr. Adelman includes me dismissing my lawsuit with prejudice and if you take his offer in totality, it does not achieve what I am seeking to achieve with the declaratory judgment. Would there be any need for injunctive relief if you owned the domain name? Yeah, I think there is. How so? Hes also enjoined from, I dont have, you know what give me the current agreed temporary injunction and I can tell you how its different. (Justin talking in the background). At this point youre asking for a permanent injunction not the agreed temporary injunction. I have no interest in that becoming permanent; Im just asking what you have applied for in your petition. I mean is it your intention that hes barred from your life, from coming within 1,000 feet of your residence. Are you listening? I am seeking a permanent injunction that would address his ability to come within a certain proximity of my home. How far? The petition says whatever it says, if that was in feet. Are you still requesting it? You know, its what my petition says. So it is 1,000 ft.? But it does, it would keep him from posting any content on the website Melissa Kingston.com wouldnt it? Objection. Would transferring the domain name Melissa Kingston.com to you, would, that would inherently prevent his from posting content on the website, wouldnt it?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa I dont know because Im not as well versed in how website works as Mr. Adelman, and I dont know what rights an owner has verses what rights an administrator or manager has. He used a lot of terminology yesterday where he was talking about being the administrator of websites or domains and being managers, and so I dont know how you merge all that stuff together. Alright. If that makes any sense. But in the gist, the reason that you did accept the offer that I sent you was because it all the relief that you were seeking in your petition. The reason I didnt accept this is because it is not satisfactory. And, do you not say earlier that it didnt address all the relief that you are requesting, for example all of the declaratory relief like attorneys fees, and all that. It also doesnt address all of the requested relief in the petition.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00082 29:45 Justin Melissa Do you expect the court to give you anymore relief than you are pleading for? I dont know. I mean I plead for any such further relief to which Kingston may be entitled at law and equity whether plead for or unplead. So I, you know, I dont have an answer for that. How many times have you seen courts to grant relief thats not plead for. Objective form argumentative. I dont remember.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00083 00:00 Justin Melissa Justin Melissa Justin In your entire practice can you recall a single instance in which a court granted relief that wasnt prayed for, that wasnt overturned on appeal? In my practice if I have seen that it likely been in the representation of another client and I am not going to divulge that clients attorney client privilege. No, I certainly dont want to know the name of the client, I am just saying the procedural. I dont think I can answer that without giving it out so. If you want to ask something that non-argumentative, go ahead. Wait, Im sorry my question was in your practice have you every observed a court whether it be your client, or someone elses client or in the back of a court room or reading case law, ever seen, excluding any privilege communications, seen an instance where a court granted relief that was not prayed for in the suit. I dont know. You dont know? I dont know. You dont recall? I dont know Justin, thats my answer. This has been marked as Defense Exhibit 12, what do you recognize this to be, what does this appear to be? It appears to be an email I sent you with somebody elses handwriting on it, not mine. I now to stipulate that counsel is willing to that I made those notations on the context of attaching this email, to the Anti-SLAPP Motion to Dismiss which later became the subject to the plaintiff s Motion to Exclude Settlement Negotiations. I am not going to stipulate to anything, but you can make whatever representation you want to. Yeah, thats representation you want to make thats fine. Do you send me this email? I did. And you sent it on what day? Page 15

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin: Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Ryan Melissa Justin Melissa September 18th. And did anything in particular happen on September 17th. I dont know it was Monday. Not that I know of. Anything of note to a member of your family. I dont know what you are getting at Justin. What there any major life event that happened to you or a member of your family on the 17th of September? Not that I can think of. For example, did a member of your family decided to file a campaign treasurer appointment for Dallas City Council to day before you sent this? Okay, if you say so, I dont know. I dont know what date he filed that. Ill just give you what has been marked as Defense Exhibit 10, what does this appear to be to you? I dont know, I have never seen this. Its a titled appointment of a campaign treasure by candidate. You havent seen the pleadings, did you see the Motion to Dismiss it that was filed? Oh, it is attached to that? It is. I dont remember seeing it, lets put it that way. Whats the file date? September 17th. And is it your testimony that on September 17th, were you aware that Philip Kingston was running for Dallas City Council? Objective, I am going to instruct the witness that you can answer that question to the extent that youre not violating a husband/wife privilege. I cant answer that question. Did you receive any phone calls from friends congratulating you or mentioning a form of candidacy for city council on the 17th. No.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Ryan Melissa Justin: So its your testimony that until this was filed, on a Motion to Dismiss you had no idea this document existed. Same instruction. I cant answer that. Wait, I am going to press that a little bit, asking whether she knew the document existed has nothing to do with the disclosure of communication between, Im not asking her did Mr. Kingston show you this, did . Youve asked it in a clever fashion, but the answer may still derive from a communication she received from her husband and thats privileged. Her awareness of the existence of a document? If her awareness of came from and I dont know the answer to this question, but if her awareness came from a communication with her husband it is privileged. Are you opposed to giving a ruling on that real fast? Its your deposition. On September 17th, did you know Philip Kingston was running for city council? Instruct the witness, if you can answer that question without violating the husband/ wife privilege, then you can answer it. I cant answer that question.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00083 05:00 Justin So if there was no, if there was no and this is interesting because if there was no answer to that question except an answer that would violate the husband, the spousal privilege, then I would, would I be incorrect in assuming then that hum, the conversation you admitted to having with Angela Hunt and Paul Sims, about Mr. Kingstons candidacy occurred after that? I dont remember when I talked to them. So are you aware on the 17th , then you can answer whether or not you are aware of it, a candidacy on the 17th in any form, even though its a limited objection, isnt it counsel. Ive made my instruction to my client. Wait so, Im just trying to make sure if there was, for the record of Angela Hunt called on September 16th to say congratulations on Philip filing for city council. You would not objection to that. You havent even ask that question. So did Angela Hunt called you on September 16th. I dont remember. You dont remember? When was the first time, this is a publicly reported document was it not? I have no idea. I, its file marked, so . From whom? City secretary. And in your practice of law or in your knowledge as an attorney are documents filed with city secretaries particularly campaign documents subject to the public information act. I dont know the answer to that Justin, I would assume since you got it, somehow that you got it through some sort of public means; in fact I think I heard yesterday Avi say something about that. I dont . So my question is when did first become aware of this document in a non-privileged way. I mean if youve seen it today, it isnt privileged, so is today the first time youve seen it. Today is the first time I remember seeing it. If you say it was attached to a pleading then I probably saw it before and I just dont remember. Page 18

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Lets go back to Defense Exhibit 12. Ive highlighted the important portions that I would like to discuss, lets talk about. Now do you remember talking to me on September 15th, the day that we had that hearing, the very first time on this case? I dont. Do you remember ever saying to me, that youre looking for a more global solution. Do you remember using that term? No. Are you interested in a global solution through this lawsuit? I dont know what youre talking about Justin. Alright. Whats number 1C there on exhibit 12? It says turnover the administration and registration of the domain Philip Kingston. net, and Philip Kingston.org, to Philip Kingston as soon as quickly at his expenses. Did you request that in your lawsuit? No, I did not. And do you expect the court to grant that? Not as it is currently pleaded. Any plans to amend that? Objection, instruct the witness to not answer that question. Did you have authorization to make this demand on anyones behalf? Instruct the witness not to answer that on the grounds that it would violate the husband/wife privilege. Or maybe his mom asked her too. I cant do that question without violating the privilege. 1D, what is that one? To redirect Philip Kingston.net and Philip Kingston.org to Yahoo.com with a search for Philip Kingston in the meantime. And did you ask for that in your lawsuit? I dont believe I did. And did you have authorization from anyone to make that demand? Page 19

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Ryan Justin Ryan Instruct the witness to not ask that on the ground as it would violate the husband/ wife privilege. Can you answer it, her mom might have told her that and thats not privileged. Thats not a question to me, Im not being examined here, I get to given the witness my instruction to the question, pending if you have a different question, then we will see where that leads to.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00083 09:50 Justin Ryan Justin Ryan Justin Ryan Justin Ryan Did anyone besides Philip Kingston tell you to make this demand in 1D? Instruct the witness not to answer that question on multiple grounds that it would potentially violate the attorney client privilege, as well as the husband/wife privilege. Did anyone besides Philip Kingston or a member of your legal team direct you to make this demand, or authorize you to make this demand? Same objection, same instruction. She cant answer that question without divulging husband/wife privilege or attorney client privilege communication. I said-. Either way she answers it that divulges some type of privileged information. So the question is not subject to being able to be answered without violating the privilege. So you are saying if I asked if anyone tell you to make this demand besides your lawyer or husband. A no answer would imply then that the husband gave authorization, so she is not answering it; and a yes answer would mean that she is taking instructions from someone that probably has the authority to give that instruction. So she is not answering that question. What is not that a fair question to ask? I dont think it is, thats way I have instructed my client not to answer it. Whats G? G states not to ever register or use in any fashion the name of any family or any member of my family; including Philip Kingston and his law firm, or any iteration thereof as part of a domain name, email address, or other similar communication tools. So you were making a demand for/ to include Philip Kingston and his law firm. Is that right? Thats what it says. Are either one of them part of the lawsuit? Mr. Kingston or his firm, his entities? Are you asking me if they are parties to the lawsuit? Uh-huh. Not right now. Page 21

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin Melissa Justin Did you ask forso the answer is no? Right? Thats right? Did you ask for this relief in this petition? Not specifically. Not specifically? No. So, all this stuff, it is your contention that all this stuff is in that mother covered in the I pray for any other relief, plead or unplead, that it might fall under that portion of your petition? Objection, form. I didnt say that. This is a settlement offer. I understand that. This is not a recitation of the relief I requested in the petition. So what I am curious ask is what goals through your lawsuit does this accomplish? You said, you testified previously that you are seeking damages, injunctive relief, declaratory relief, and attorneys fees. Which one, are there any other goals you are trying to achieve through the lawsuit? I plead for the relief I requested. That was not my question. Okay, then I dont understand your question. You have sought injunctive relief, correct? I have. And have you sought declaratory relief? I sought a declaratory judgment. Declaratory judgment, and have you sought attorneys fees? I have. And have you sought damages? Yes, I have. And my question to you is which one of those things, those four things, are you requesting anything else through your lawsuit? Page 22

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa I think so, Id have to go back and look at it, but I mean whatever I have requested is in the lawsuit. I know, that why I asking I mean that is why I deposition, so if you will look and see what else is there. Sure. I have also request cost of suit, pre-imposed judgment and interest. And are the domains, Philip Kingston.net and Philip Kingston.com. And excuse me, exemplary damages. Exemplary damages. Are they relating to just your domain name or anyone else? The exemplary damages? Uh-huh. Its related to the pleading too, yes. Just for you? Im the only plaintiff. So which one of those things do they domain name Philip Kingston.net and Philip Kingston.org fall under? Which one of what things? The things that, the relief that your seeking. I dont understand your question. Can you restate it?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00083 15:00 Justin Melissa Justin You testified that youre seeking exemplary damages, cost of suit, cost of litigation. Okay. Injunctive relief, damages, and a declaratory judgment. If you were to be awarded the domain name Philip Kingston.com, Philip Kingston.org, under which category of the reliefs would you press, would such an award or judgment fall under. I am not sure it would fall under any of those. Looking at defensive exhibit 12, paragraph M, what is that? It says not to publish in writing or on the internet disparaging statements about me, my law firm, members of my law firm, and/or my family including and without limitations my husband Philip Kingston. Now you contend that, is it your intention to quash any of Mr. Adelmans free speech, freedom of the first amendment right through the use of this lawsuit? . No. Now, do you think prohibiting someone from writing disparaging statements about a city council candidate , imminent , or an office holder, if a court entered that judgment would that be a violation of the first amendment right. It would depend on the circumstances. Do you think people are going to write, I mean being aware Mr. Adelman doesnt support your husband running for city council. I think hes made that fairly clear. Make it a record, why did you make this demand? Objection. This goes to intent, I think the court has already ruled on this, Ryan. No, I dont think the court has ruled on that. I think that question involves an amount of attorney client work product information and privilege communication. So is that your instruction that she not answer? Yes. Shouldnt Mr. Adelman be able to write about your husbands candidacy for city council if he chooses?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Ryan Melissa Justin Ryan Melissa Justin Melissa Justin Melissa Justin I dont know how to answer that, I am not aware of anything that prohibits him from doing it right now. In an ideal world would you like that? I dont think anybody would. I mean in that ideal world, would you like to see Mr. Adelman be contractually, or by court order, enjoined from writing anything disparaging about your husband. Objection. I dont know how to answer that question. I dont know how to answer those questions. You asked me more than one. Tell the jury, what you meant by number M, or by paragraph M. You can answer it, what you meant by it. I meant what it says, a non-defamation, I mean a non-disparagement clause in the settlement agreement. What it your intent to not disparaged one another over future conduct or just past conduct or what was the scope of that? I think I thought about that... .... And I suppose that could have been the subject of negotiation if it had gotten that far. Does Mr. Adelman.... Do I have a constitutional right to write my opinion about Mr. Kingstons candidacy for city council? You know what, thats probably confusing. Does ....

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00084 00:00 Justin Melissa Justin Melissa Referring back to paragraph M on that Defense Exhibit 12,. Yes. What does this paragraph have to do with this lawsuit? If any? With this settlement, my goal is to try to buy the peace between my family and Mr. Adelman. In my experience, you dont buy the peace very well, the next thing that happens is everybody gets into mudslinging fight. Alright. If Mr. Adelman had agreed to this, do you think he still would have been able to comment about opposing Mr. Kingston in his council race? I think that would have been a matter of negotiation. I see. But if he had agreed to do it as exactly as it is written, do you think he would have been able to? I guess it probably would depend on the statements, I would certainly see a way that he could violate, if he entered into this contractual provision and then said the things that were disparaging about the specific people listed in that provision, then yes, that could be a violation of the contractual provision. I see. And then going on to paragraph four on page three of this email you requested that Mr. Adelman release you and Mr. Kingston from his law firm and your law firm and all the lawyers in your firm, why would Mr. Adelman release non-parties. Again, I what I was attempting to do was buy the peace and not have the next avenue for a fight with him. But you werent buying the peace, you wanted Mr. Adelman to buy the peace with paying you $10,000 in the paragraph above, is that right? I dont agree with that. You certainly werent agreeing to pay anything. Right? I was giving up and compromising my claims in the lawsuit. I see. How much have you paid your lawyers for the representation in this suit? I dont know the amount of attorneys fees have been incurred. Have you written any checks to Friedman and Feiger or another attorney in relation to your representation in this lawsuit? I have and I dont remember how much that was. Page 26

Justin Melissa Justin Melissa

Justin

Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Can you remember the date? No. Can you remember if it was before or after the suit was filed? After. Have you written just one or more? That I dont know. Id have to look. Have you made any credit card or automatic bank withdrawal payments to Freedman and Feiger? No. Have you write a check to Freedman and Feiger. I made a payment to Freedman and Feiger, but I cant remember if it was cash or check. It was to the law firm. And have you made any money withheld from your paycheck from Freedman and Figer in exchange to put towards the payment of legal fees in relation to this lawsuit. Uh..no. The payment that you made, or payments, do you remembering making a payment for more than $10,000 or a single check for more than $10,000? . No. Do you remember making one for more than $100? No. $100,000? No, $100? No, I dont remember the amount. But do you remember if it was, did you write a check for $2.00? It was more like $2.00 wasnt it? Justin, I dont remember the amount. I am trying to narrow it down to a range though. Okay.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Okay, because theres going to be a reasonable range that we know. I mean it wasnt a million, probably wasnt two, so what I am trying to narrow it down to the best of your memory, what within the range how you paid your lawyers? Thats a fair question. I dont know. So you have no idea how much you have paid your lawyers? I dont remember. Is that because it is a nominal amount or is that because you write so many checks you just dont remember? I just dont remember, Justin.

Melissa Justin Melissa Justin Melissa

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00084 05:00 Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melisa Justin Melissa Justin Melissa Justin Melissa Justin: Melissa Justin Lets go back to your count one. Did you ever file a complaint with ICANN, about the domain name? . No, I havent. Do you know what the Internet Corporation for Assigned Names and Numbers otherwise known as, ICANN is? No, I dont. Are you aware whether or not they have administrative procedure for resolving disputes over domain names. I think I heard about that yesterday but Im not familiar with that. Before filing this lawsuit, did you ever contact Mr. Adelman to ask him to stop using them? No. Did you ever send a letter to him telling him to stop using them? No. Did you ever consider any course of action other than filing this lawsuit; in order to solve this without litigation? . I dont understand your question. Did you consider any course of action other than filing a lawsuit, before you actually filed this suit? Yes. And what were those courses of action you considered? I considered filing a complaint with the police department, I considered filing a complaint with the Federal Communications Commission. Okay. I considered filing a complaint with the Texas Attorney Generals Office. Okay. I think there two other governmental agencies that I considered filing a complaint with. And did you ever file a complaint? Page 29

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa I filed a complaint with every one of those. Every one of those? Did you have a copy of those? I have received certain confirmations, but I dont have any of it with me. Oh well I know you dont, but do you have copies or preps from those governmental agencies. Some of it was online; I will have to look and see if I have a copy of it or if I just got a receipt. Did you receive a response from any of them? I have. Which one? I received a noticed from the AGs office and I dont remember what it said. And I received a response from the Dallas Police Department, and I received a response from the Federal Communications Commission. And what, do you remember the content of any of those responses? The gist of the Dallas Police Department was this is not really something they are going to get involved in. The Attorney General is investigating and the Federal Communication Commission is investigating. I see. So they just sent letters saying we received your complaint and we going to look into it or did they affirmatively say they were opening some kind of formal investigation? I dont remember what the AGs letter said; the Federal Communication Commission called and got a statement me and I sent them the lawsuit and I am waiting to hear back from them. And you have copies of those documents? I havent thrown anything away, so to the extent I have a copy of it, I have it. And referred to your count 1 Claim of Misappropriation of your name. Did Mr. Adelman use your name or likeness to promote his business or product? Yeah he did. How so? Hes in the business of if you ask him, of being a neighborhood activist and he used my name in order to deliver his messages to Wal-Mart and others. Page 30

Justin Melissa

Justin

Melissa

Justin Melissa Justin Melissa Justin Melissa

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin So your, you believe that uh, his business on the confounds of my question was his business of being a neighborhood activist. So is that how you define it? I think thats one way he used it, yes. You believe you were identified on publication? Yes. But the only way you were identified was the second part of the email address Avi@ MelissaKingston.com? He was using my domain name. Okay, but were you identified in the emails in anyway? Some of the emails identified me by name. They referenced you, but did they identify you? I dont understand the difference. Did he ever sign an email that youve seen that said Melissa Kingston since your name is Melissa Kingston. Not in the emails youve shown me. Okay, and do you believe he received some benefit or advantage? Yes. How so?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00084 09:45 Melissa I think that he was attempting to and did interfere with my negotiations with Wal-Mart, put me in a bad light with Wal-Mart, and the other neighborhood organizations. And he was attempting to and did cause confusion, and cause people to think or question whether I was sponsoring his communications. And you believe that was a benefit to him? I do. Any monetary benefit you think that he received? I dont know. So the advantage with not have been like a competitive advantage in a business setting , but a competitive advantage in how seriously Wal-Mart took you in negotiations, perhaps? Thats probably accurate. And what injury did you suffer? I dont understand your question. Did you suffer any injury from his use, from the misappropriation of your name? If you mean injury in a broad sense, yes. Did you suffer any monetary injury? I dont know if I know the answer to that yet. Do you have any evidence? Other than he knows of, weve incurred attorneys fees and expenses in the litigation. Okay. And. Before you filed the lawsuit? You say that you damaged in your petition. Yes, thats correct. So before you filed it, what injury had you suffered or damages did you suffer? He had diluted my mark, he had disparaged me, he had used my name to disparage others, potentially exposing me to liability, and he caused me mental anguish. But you testified earlier you dont recall being under any mental anguish September 7th, 8th, 9th, and 10th. Page 32

Justin Melissa Justin Melissa Justin

Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Thats not what I said. September 8th, 9th, 10th. Thats not. Up until you discovered the email on the evening of the 10th. Is that an about accurate recollection of your testimony? . I dont think thats an accurate description of my testimony. What I said was until I found out he was using my name, I couldnt associate any mental anguish with his use of my name. And my question was, were you suffering mental anguish on September 7th through the time before you discovered that it, that he had purchased the domain name, whether or not you could contribute it to cause of you suffering any mental anguish at that time? I dont remember. But thats the end, you do remember when we talked about how you suffered injury from any use, the misappropriation of the use of your name thats mental anguish is an element of, thats what your claiming? It is an element. Is there a dollar amount for damages for misappropriation of name. We can put a dollar amount on the damages and part of the cost associated with attorneys fee and part association with the fees of litigation, I think it is within the jurys purview to define mental anguish and other non-economic damages and. Have you suffered any economic damages? I dont know the answer to that. Why not? In part because discoverys been stated in this lawsuit since you filed your AntiSLAPP Motion a month after it was filed and I havent gotten to do the discovery I would ordinarily do. I believe that I have lost the opportunity to do certain business transactions. So you believe that had I not filed Anti-SLAPP Motion, you would have been discovered from Mr. Adelman whether or not you suffered damages? No, No. I think I might have discovered it from non-parties. I see. Do you have any guesses who those non-parties would be? Page 33

Justin

Melissa Justin

Melissa Justin Melissa

Justin Melissa Justin: Melissa

Justin Melissa Justin

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin I think that any discovery we would be planning on doing would probably be covered by the attorney work product privilege. Who are the non-parties, are there any non-parties, any persons who have knowledge, pertinent knowledge about whether youve suffered damages and to what extent that are not a party to this lawsuit? I believe there are. Can you name those people? I dont know that I could name all of them. Some of them. Ask me the question again. Are you aware of persons with any knowledge of your damages or the extent of the damages that youve suffered as the result of Mr. Adelmans conduct that are not a party to this suit? I believe there are, and Im struggling with I dont know the name, I dont if I could quantify who they are at this time. Are they gamblers up in Oklahoma, are they people in a call center in India, are they neighbors, are they co-workers, what class of people would you say they are, category of people.

Melissa Justin Melissa Justin Melissa Justin

Melissa Justin

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00084 15:15 Justin Melissa Justin Melissa Would you like me to restate it? Yes, please? What category of people would you put, what category of people would you use to describe the people who might have knowledge of damages? I think they are people at Wal-Mart, I think they are business owners in and around Lower Greenville, and I think there are neighborhood residents that are within categories of people that might have that information. Is it your contention, that because you filed this lawsuit or this ordeal has ensued, that has damaged you or that the emails are what caused the damage? My contention in the lawsuit is that the emails and his use of my name is whats caused the damage. And that theres neighbors, business owners, and Wal-Mart employees who would have knowledge and be able to testify to that? I think that right. Can you name any of the neighbors? I think that the presidents of the homeowners associations would be on my list. Okay. There may be some other neighbors, Id have to give it some thought, I havent given that much thought. Lets move on to count number two, Injury to Your Business Reputation, now um, you not self-employed are you? Im sorry, are you self-employed? I do a number of things that are not affiliated with my firm. When I asked you earlier at the beginning of this deposition do you practice law for any other person or entity for a fee and you said, no, do you recall that? No. So when you say business reputation, are you talking about your employer, or what entity, including yourself, who reputation are you talking about? Business reputation are you talking about? I was certainly talking about my reputation. Yours as an individual? Page 35

Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin

Melissa Justin

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Correct. You contend that Freedman and Feiger has sustained any damages? Were not pleading that at this time? Today as you sit here, do you believe that? I dont know. Do you consider yourself or the name Melissa Kingston.com famous and distinctive? Do you consider it distinctive? I do. Do you consider it famous? I dont know, I dont know. How do you define famous? How do you define it, whatever definition-. I think that the name is known and well-known in the Dallas Area, particular in the lower Greenville, and in other historic neighborhoods, with the Dallas Homeowners League, with members of city staff, but if youre asking me do I think people would recognize it like Angelia Jolie, then no I dont think so. I wouldnt. Now you agree that the domain MelissaKingston.com didnt exist until September 7 when it was purchased or do you not agree with that? Not that I know of. You dont agree with that? No, I dont know that it had existed prior to that time. But did the mark, at what and thats what I want to focus on when Im asking this line of questions, I just want to focus on MelissaKingston.com domain. and you consider that domain to be a famous domain or do you not? . No, I consider Melissa Kingston. Just the name? The mark. Just the name? Correct. But is MelissaKingston.com a mark? Or is it a logo associated with this Melissa Kingston? I mean how is this domain name unmarked is what I am asking? Page 36

Justin Melissa Justin Melissa Justin

Melissa Justin Melissa Justin Melissa Justin

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin I dont, I dont know. I dont allege that it is. Melissa Kingston is the mark. And did Mr. Adelman use your mark, do you allege Mr. Adelman used your mark for a commercial purpose? I think that he did, and I think that he also used it for, never mind. Yes, I think he did. Im sorry?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00084 20:00 Melissa Justin Melissa I think he did. How so? What commercial endeavor was he engaged in? By taking my mark hes prevented me from having it and prevented people from contacting me through it, and he has used it to further his own agenda which you heard him testify yesterday, he said hes a freelance guy that works for restaurants and bars in the area, and I think he believes that using my name furthers his freelance business. So you believe the reason he did it was to, that he bought the domain name was was for commercial. For a commercially related motive; the purchase of the domain? I dont know why he did it. He said he did it because he could. Do you have any, do you have any evidence that suggests that he obtain a commercial benefit from the use of the emails and the use of the domain name? Only what Ive just got. And did he purchased the mark before, not the mark, we dont concede that its a mark but after he purchased the domain name, what the domain already famous at that time when he purchased it? The domain famous, no I dont think so. It didnt exist. Lets go to count 3, the Common Law Mark, now what purpose are common law marks? I dont know. Youre asking me about legislative history or . What do you understand it to be, I mean it could be no right or wrong, what do you understand it to be? I dont know. I dont know if I have an understanding of what it is. You sued for it so? Yeah. So what is the common law mark? My name is a common law mark. Okay, and what is a common law mark? A name is an example of a common law mark.

Justin Melissa Justin Melissa Justin

Melissa: Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin So every person thats born immediately has a common law mark once its on the birth certificate? I dont know. I mean that sounds like a legal question I would have to research. Is the purpose of a common law mark to aid consumers in distinguishing goods and services? It sounds like a purpose. A purpose? Now before Mr. Adelman bought it, had you attempted to use the domain? No. I dont think so. And had you ever attempted to purchase it? No. Had you ever tried to see if it was even available for purchase? Hmm, I dont think so. Not that I remember. So your employer is Freedman and Feiger, LLP, and you believe that if you have Melissa Kingston .com they would, you would use that domain to reach out to potential clients, or consumers to retain your services. My employer is Freedman and Feiger.com, and I believe that his commandeering of domain prevents me using it, and prevents people from getting in touch with me because when you go to it , it goes it a dead website. And previous it was being directed to his Barking Dog; before the injunction. Previous, as of September 7th. Before the court ordered him to stop. Do you have any evidence that someone might have tried to reach you through Melissa Kingston.com and then they had to go an extra step or two effort to actually reach you? I dont, I was told that people went to that website and that it was being redirected to Mr. Adelmans. And why did they go to it? I dont know. But I mean did they go to it because they received the email or .

Melissa

Justin Melissa Justin

Melissa Justin Melissa Justin

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa You asking me to speculate really why someone did that and I dont know the answer to that. Do you have any greater right to the domain name Melissa Kingston than the many other persons name Melissa Kingston? I dont know the legal answer to that. I mean I think that calls for a legal conclusion and I dont know the answer to that.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00084 24:45 Justin Is there nothing in the temporary injunction prevents Mr. Adelman from selling or transferring the domain, or giving the domain to anybody is there? That you are aware of? I dont have the injunction in front of me, but ... So what if he gave it to Melissa Kingston in Des Moines, Iowa? Id have to look at the injunction, it doesnt sound right. Do you have a copy of it? It is my original if you dont mind just looking at it and handing it back, or you know what, it is temporary. Are you looking at for the agreed temporary? The Agreed Temporary Injunction. Yeah. I got a copy of it. Justin, Ive got a copy of it. Ok. I guess it depends on what he did with it. . I mean I would argue that using my name for any commercial purpose, and I think given what he typically does with websites, selling them, giving them away, in order to aggravate other people is his business model; so I would certainly argue that if he gave it to somebody or sold it to somebody that it would violate paragraph of the agreed temporary injunction. So you believe that his business model or commercial purpose includes any of his regularly engaged activities? I believe that Mr. Adelman buys domain names. Okay. In order to use them to either sell them, advertise them for sale, or use them as one of his vehicles for harassing people and otherwise disrupting people in order to extort something he wants out of them. My question is, what if he just gave it to Melissa Kingston in Des Moines, Iowa? And I am telling you it would be my position thats a violation of the injunction. So you want the domain? Page 41

Melissa Justin Melissa Justin Melissa Justin Melissa Ryan Justin Melissa Justin Melissa

Justin Melissa Justin Melissa

Justin Melissa Justin

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Yes. Ive plead for it. And do you think you have, your more deserving of it than any other Melissa Kingston? At this point, yes. So like, you are THE Melissa Kingston? . If you are asking me if there are other Melissa Kingstons, I am sure there are. There are, I mean I know that. So. My question is why do you get it if you never tried to purchase it . I plead for it. But at the time the lawsuit was filed or Mr. Adelman bought it you testified you had never tried to buy it or looked into to buying it. Thats true. Had it not been for Mr. Adelman bringing it to your attention, you may have well not been the first person or first Melissa Kingston to purchase it. Thats true. Lets talk about count number 4, Texas Theft Liability Act. Yeah. Now you said you filed a complaint with the Dallas Police Department, so did you file it for theft, or what did you filed it for? . Identity Theft. And they decided that it wasnt theft and it wasnt enough evidence or what did they say? They directed me to the AGs office. And do you believe Mr. Adelman stole the domain? I think he stole my identity. But do you think he stole, or is identity theft the penal code identity theft to your knowledge is identity theft one of the types of theft referred to in the Texas Theft Liability Act? I dont remember. Page 42

Melissa

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Do you contend that Mr. Adelman engaged in any kind of theft, other than identity theft in relation to count 4. Count 4 specifically says he stole my name, thats the contention.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00085 00:00 Justin Melissa Melissa Justin Melissa Justin But is your name like a trade secret, tangible, oh yes, its a mark. Its a mark. Its an intangible property right. So your name has an intangible property right. Heck for all I know it could be tangible, I have to look that up actually. I dont know honest with you. A person commits an offense if they engage in, or if he unlawfully appropriates property with the intention of depriving the owner of the property, so you say he stole your mark, which was the domain name. Is it the name or the domain name that he stole? Because the domain name was different from your name, would you agree? I mean you had your name before the domain name existed. Which of those four questions are you asking me? Would you agree that your name is distinct and different? Separate from the domain name MelissaKingston.com? Yes. And which one do you allege that Mr. Adelman stole? The petition says he stole my name. Yes, so he did not steal the domain name, he just stole your name? Do you want to make any actual allegations than whats in the petition right now? . You know I dont know, I dont know if Ive thought of that. Thats something that I would probably want to research and talk to my lawyer about before I took a position on that. And youre asking me for a legal conclusion. Youre asking me for the legal arguments supporting my claim for Texas Liability Theft Act and youve quoted the statue to me. I dont think thats a fair question in a deposition. And I dont think I would want to answer that without being given the opportunity to review the act, review the legislation. Did you review the Texas Theft Liability Act before you sued Mr. Adelman for it? At some I have? So, when you plead it, you believe hed stole something from you? Its a good faith pleading if thats what youre asking me. I am. So . Page 44

Melissa Justin Melissa Justin Melissa Justin Melissa

Justin Melissa Justin Melissa Justin

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Its a good faith pleading. So you believed he had committed a theft of some kind? It is a good faith pleading that he committed a violation of the Texas Theft Liability Act? Which means theres two elements to that, would you agree that he has to commit a theft as defined by the act and you have to sustain damages as well as the result of the theft? I am not going to agree with you on what the specific elements of a cause of action is in a deposition without any kinds of materials in front of me. Thats fine. Would it help to see the Texas Theft Liability Act? I mean, I dont think it is going to change my answer. I am not going to give you our ultimate legal position. What Im asking, was did Mr. Adelman steal? He stole my name. Did he steal the domain name Melissa Kingston.com? That I dont know if I could answer today? Id have to think about it and research it. But at the time the suit was filed, you did not own Melissa Kingston.com did you? No, he owns it. I see, so before he owned it did you own it? No. And do you believe he stole it from GoDaddy or anyone else? No. Id like to ask you about Tortuous Interference which is count number 6. Lets go to count number 6, Business Disparagement. Now did Mr. Adelman make any public disparaging words about your economic interest? . Yes. How so? We looked at an example earlier where he called into question my ethics in continuing to represent the neighborhood in their Wal-Mart negotiations once my husband became appointed a city council person or became a candidate for city council. Page 45

Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin

Melissa Justin Melissa

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00085 05:00 Justin Melissa Justin Melissa And what interest, economic interest do you have in your husbands candidacy for city council? I dont understand that question. Do you have any economic interest in your husbands city council campaign? Yeah, probably you know, were spending money on it. I dont understand your question. And I dont think it has a hill of beans to do with this lawsuit. But when he calls me unethical to potential clients, when he yes, when he calls me unethical, when he implies, that I have a conflict of interest, that I am not addressing to what could be thousands of people who live in the area, business owners, including the people at Wal-Mart, then yes, that is a disparaging comment that affects my business and my economic interest. And he published, words or did he publish words that implied that you were unethical? I think those were words say what they say and thats an example. Okay, I need to know all the words that you claim he published about your economic interest that were disparaging. Mr. Adelman has called me dishonest, he . And on, while using the domain name? I dont believe that business disparaging was limited to using the domain name. So you are... Its not plead that way. So who did he, how did he publish, its not enough to just say well maybe, I let you testify, what disparaging words has he published and where was it published? Which question would you like me to answer? What disparaging words did he publish about your economic interest? He has called me dishonest. Did he published that in any document? Id have to look. Some of them might be in email, other are things that he has said,. Okay. Orally. Page 46

Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin Melissa Justin Melissa Any other disparaging words? He has said that I am unethical. Okay. He has said that.... Verbatim, he said Melissa Kingston is unethical? No. Was that verbal or... Without having documents in front of me is hard for me to uh, parse it, but generally hes accused me through of being unethical, dishonest not disclosing material facts to my clients. Um, thats what I can think of at this time. Any other instance of publishing any disparaging words? Thats all I can think of at this time. And uh, who did he publish them too? People in the neighborhood, businesses in the neighborhood, . And do you have evidence of that? I do. Whats that? We looked at an example earlier I am sure I have other things. That I dont have the exact specifics at hand. Okay. And we havent, this is kind of early in the case, so... So you contend that if you objected to your represented, your community represented the neighborhood associations to Wal-Mart that is an economic interest of yours. I dont agree with that statement. I dont believe thats what I said. Do you suffer any damages as a result of on, as a result of the alleged publication of the words? Yes, I think those words are damaging per say . Okay. You call a lawyer unethical, you call a lawyer dishonest, thats damaging per se. Page 47

Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin

Melissa Justin Melissa Justin Melissa

Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Melissa Justin And did he use words of defamation per say? Damages are presumed. In defamation per say, there is a per se that Business Disparagement? . I dont understand your question. Youve sued for business disparagement, Ive never heard, I am not familiar with business disparagement. I am a relatively new lawyer, and I am asking if you have sued for business disparagement per se or if you have specific evidence of damages? I dont understand your question.

Melissa

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00085 10:00 Justin Melissa Justin Do you have specific evidence of damages, other than per say damages or the cause of action business, of business disparagement? . What do you mean specific evidence of damages? Do you have a doctor bill, if you have mental anguish, do you have any counseling bills you had to incur as a result of any trauma; anything prior to the lawsuit being filed. I mean you said you have damages, you said you suffered damages, and Im curious can you put a dollar amount on them? I think with regards to something like mental anguish thats within the jurys purview to decide in terms of dollars. But you have not sought medical assistance for the mental anguish? Or have you? I have not seen a psychologist or psychiatrist. Have you seen any other medical professional for the treatment of mental anguish or mental pain? Not specifically no. Were the words Mr. Adelman published false, were they absolutely false? About you being unethical? Im not implying your unethical, I just asking . It sounded like it. All I am saying is that youve alleged that Mr. Adelman called you unethical and that unethical and... Dishonest. Dishonest. Im asking were those allegations untrue? I believe so. And I apologize if I implied otherwise I do. Any belief that Mr. Adelman had no privilege to publish or say those things about you? I am unaware of any privilege that would apply to what he said. And you dont have the... you are not aware of any documents that, where he said that Melissa Kingston is dishonest or... Id have to go back and look, I dont; hes said some things in writing that were problematic.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Melissa Justin Do you have something that could pinpoint immediately without having to go back and look. I dont have any of my documents with me. And lets go on to count number 7 for Tortuous Interference. Now what perspective, what their perspective without identifying the parties, where there perspective business relationships that you had that you specifically, that you claim Mr. Adelman interfered with. Yes. And can you describe those? Yes, generally there are businesses or individuals who live in the Lower Greenville area. And how many would you say there were? I dont know if I have that number. Well.... Lets say half a dozen. And all those half dozen people received is this one related to emails or is it just related in general to this cause of action for Tortuous Interference? It is not limited to emails. And how do you allege that Mr. Adelman tortuously interfered? He says defamatory things about me and my business and that prevents me from getting business from people whove heard it, thats an example. When he steals my name and have exclusive use of it, through other people cant get in contact with me and therefore I am not able to do business with those people, thats another example. Did anyone come to you and say to the effect, Mrs. Kingston we were going to hire you but because of what we heard from Avi, your no longer in a consideration to be our lawyer? No, no one has said that. Did anyone come say Melissa Kingston because Avi owns the domain name Melissa Kingston.com we dont want to enter into a business relationship with you and have you be our lawyer? No, no one has said that. Have they said anything to do effect? Page 50

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Ive had a couple business owners or residence say that words to that effect. Are you able to identify those people? I dont know the name of the gentleman at one of the restaurants in Greenville, and I know that another gentleman at another restaurant in Greenville said that, words yeah, I meanThe answer is no, I cant remember either one of those names. Can you remember any residents? I dont know if Id know that yet. I had some residents express concern, I dont know if Id. I have to think about if they would actually be clients. And what types of cases would they have been? Commercial litigation or maybe business structuring? Do you recall in general terms the subject matter, some might say a bar directory in a very broad categories of law would it have might been. Probably landlord tenant, land use.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00086 00:00 Justin Mrs. Kingston, Im wondering if you have an estimate of how much, in your suit it appears in paragraph 22, you allege that the defendant was aware that they current or prospective business relationships existed and that he tortuously interfered with current business relationships in an attempt to harm your business. So can you describe the existing business relationships that he interfered with? Certainly I had existing business relationships with the five neighborhood organizations that I was representing. But you were doing that for free werent you? So. But I mean, you were doing those for free right? This particular representation, yes. I am trying to establish if you lost any money from that business relationship, any income. I dont know the answer to that yet. And, any other existing business relationships that. Thats all I can think of at this time. And your mentioning it was landlord/tenant issues that the potential clients, business clients may have hired you for. Thats an example. Do you have an estimate of how much income had they hired you, you would have made? I dont have that information here with us today. No. And I know you dont want to disclosure your salary, but I mean just for the record. Is it your position to not disclose your salary with Freedman and Feiger? Thats right. And I would object to this non-responsive, does your salary depend without disclosing the amount of your salary, does your salary depend on how many clients you bring in. For example, would you have been paid, are you being paid the same now or would if those businesses had hired you for landlord tenant matters.

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa If I had retained a client. Im sorry, if a client had hired me and my law firm, then yes, that could impact my income with my law firm. If I took an engagement that was not within my law firm, then it would not affect my law firm, what my law firm pays me. Does that answer your question? It does. So does there is a relation to the amount of business your bringing in and your salary. It could impact what I make every year, yes. Has Mr. Adelmans actions caused you not to lose income or not reach the full potential of your income, thru the interference of business relationships? I dont know the answer to that yet. I do think that he is impacted my ability to do certain pro-bono work or non-paid work that I do which then could impact paid work that I do if that makes any sense. And I mean it is fair to say that any volunteer work that you come in contact the people and they may have eventually become clien. Right and it also impacts whats on my resume and what else I might have the opportunity to do as a result. I see, but as far as perspective relationships, it is your testimony that they because of Avis use or because of Avis conduct we just dont think you should be our lawyer. Nobody used those exact words but that was; the because I would have this happen to me, they didnt want to get involve with me because they did want to be tainted up with him. Did these conversation occur after Avi bought the domain? After it became known. After it became known, but before you filed the lawsuit? No, not probably not? I think it became known to me. Obviously I would have known about it right. I understand. And you say that you have suffered potential loss costs in paragraph 43 of your petition, lost profits and exemplary damages. How do you suffer from exemplary damages?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00085 05:00 Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin Melissa Justin If the jury finds that he torturously interfered with my business, and economic relationships, then they can decide to award exemplary damages. You havent suffered exemplary damages. You havent suffered exemplary damages have you? Thats probably not an artful way to say it. No. I think it should say that I am seeking economic damages, including lost cost. Thank you, Im sorry. Yeah. What is the amount you would estimate in dollars as loss profits? I dont have that information at this time. What is the amount of economic damages you would estimate? Again, I dont have that information at this time. And just lastly what is the amount of loss cost in dollars that you would estimate at this time. I dont know that right now. And I want just to be clear, the damages that you are ascertaining are not ascertaining are sustained by anyone but you and any entity but you? Correct. The damages-I am only seeking to recovery for myself. For yourself. And, how do I investigate if you want tell me your salary, how do I investigate what those damages are if I dont know the number that you started with and the number your making. Youre asking me to tell you how to conduct a discovery in this lawsuit? No, Im asking you to tell me, if you, now what was the grounds that you wont tell me your salary? I think its, I cant remember what we said this morning, but confidential and proprietary information. Its proprietary how much Freedman and Feiger pays you. Correct. So how did you intend to prove that you suffered damages? Page 54

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Melissa Justin Melissa Justin Melissa Justin Melissa I think that is probably a discussion for me and my lawyer. It calls for information would be attorney, protected by the attorney work product privilege. Please tell the jury or judge how much money you would like them to award you in a judgment for this case? . I dont think I know that information at this time. How much? If the trial took place today, how much would you ask the jury to award you? I cant answer that. How is the jury to know how much money youre asking them to award you if you cant answer that? Justin, we havent even begun to do discovery in this case really. We done a little party discovery, a little non-party discovery, and havent had the chance to develop all of my theories, claims, and damage model. And this deposition is supposed to be related to the Anti-SLAPP lawsuit, so your Anti-SLAPP issues. Youre asking me to speculate when I havent had a fair opportunity to do what the rules would allow me to do. And I cant do that. Did you understand that the intent of the Citizen Participation Act is to put a quick end to lawsuit filed in response or related to the exercise of Free Speech? Is that your understanding of the statue? No, I dont think thats accurate. Do you believe if Avi had sent the emails that we reviewed today, if he had sent those exact same emails from Avi@AviAdelman.com, would those be protected by the first amendment? Not all of them. Which ones would be and which ones would not be? I dont know, Id have to go back and look at it and probably have to do a little research on the first amendment. But I would say generally if he is using his name or my name to tortuously interfere with my business or to defame me, then those would not be protected any first amendment rights. I understand that but Im just, Im just Im focusing on the domain name and just the emails, those with the same verbiage in it, do you believe he would still might have tortuously interfered with your business by sending those emails? It could be yeah. Page 55

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin Are there things in those emails that the first amendment protects if it has been Avi@AviAdelman.com views, perspectives and ideas that he expressed, how he done that at Avi@AviAdelman.com. Do you believe those would have been protected by the first amendment? There is probably some stuff that he said by not using my domain name that wouldnt have been actual. Ok. So . I dont know about protected by the first amendment, but I dont know. Ok. I dont know if I know enough to answer that. I guess my question is has there been some discussion about whether or not you intend to suppress Mr. Adelmans free speech; or whether or not and what I want to do is explore whether or not this lawsuit was filed in response to an exercise of free speech. Even if that exercise, the portion of it may have not been kind or classy, I am curious if you would identify any thing in this emails that have been admitted today in exhibits 3 thru 9, that would have been unlawful. I understand you disagree, but do you contend that it is unlawful for him to use Avi@MelissaKingston.com , but which statement would have been unlawful had he used Avi@AviAdelman.com. Which statements and if you need a minute you can. Youre going to have to restate that question because I dont even know how to begin to know how to answer that. If Mr. Adelman had used assuming that all the emails that we discussed today, Defense Exhibit 3-9, has been sent from Avi@AviAdelman.com , are there any portions of that email that you can identify that would have still been unlawful for him to make? Unlawful? Objection, form. So youre asking for me for my legal opinion about emails he wrote. No. No No. Sounds like it. Let me put this different way. Okay. Page 56

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin If he had said it from Avi@AviAdelman.com would you have considered. I guess what I am asking is, is the @MelissaKingston.com the only part of the emails that make the basis of your suit. Would you have filed suit if he had written these same emails, but from Avi@AviAdelman.com. I dont know. I would have been less likely to file it. So the real instigator was the purchase of the domain name MelissaKingston.com? And the use of it. Had Mr. Kingston purchased Melissa Kingston.com but not used it, you still could have go to a who is to research who owed it before filing suit? I probably would have sued my own husband no,. I am sorry should have reserved objection. In your question you said Mr. Kingston. Okay, Im sorry. If Mr. Adelman has registered MelissaKingston.com and done nothing with it, not forward it, to his website, not send any emails, using it would you have filed this lawsuit. I dont know. Probably. Going back briefly and talking about identity theft, which is what you alleged Mr. Adelman has done; do you recall that you asked me to find you a definition for which to word. Do you recall that?

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session M2U00085 15:15 Melissa Justin No. How do you define, would you agree that this definition, Ill represent to you that Ive type in define, identity theft in Google and I dont even know what, this is the definition, I dont know the source, but would you agree that, Identity theft is a noun that means the fraudulent possession and use of a persons identifying information, usually for financial gain. I think that can be a definition. Did Mr. Adelman steal any of your property? Your Social Security Number? Your Drivers License Numbers? To your knowledge, did he steal any of that information? Not that I know about. Had he used it, that you know about for any financial gain or any other gain? Used what? Your personal identifying information. You mean other than my name? Like unique numbers to your name? Like what? Social Security Numbers, Tax IDs, Date of Birth, Drivers License numbers, medical insurance , policy numbers, those types of things. No. Not that I know of. So, when you say identity theft. He stole my name. Oh, your name and thats the only form of that your aware of, that you contend he stole your identity? Thats the basis. Yeah. But he hasnt, has he ever pretended to be you? I think those emails do just that. Even though he signed them with his own name at the bottom? They appear though that they are coming from me. From a website or a domain that I own and established and that I endorsed. Page 58

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Melissa Kingston, Deposition 1/9/2013 - Part 2/Afternoon Session Justin But at best, its that just confusion, not necessarily him actively pretending to be you. I mean if you were pretending to be me, would you sign your own name at the bottom of the letter or would you sign mines. Objection forward. I would be pretend to be you Mr. Nichols. Thats quite fine, you should try. Have you given any second thought to the terms Community Well Being and how you would define that? I actually havent.

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