1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C940322CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) Volume 10 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 20th 14 day of July, 1995, the above-entitled matter came 15 on for Hearing before the HONORABLE ALAN C. 16 BONEBRAKE, a Circuit Court Judge. 17 18 APPEARANCES 19 Thomas J. Tintera Washington County Deputy District Attorney 20 Representing the State of Oregon 21 Marc Sussman Attorney at Law 22 Representing the Defendant 23 24 25 2 1 MORNING SESSION 2 BEGINNING AT 9:45 A.M. 3 JULY 20, 1995 4 5 (Whereupon, the following 6 proceedings were held in 7 open court, the jury being 8 present:) 9 THE COURT: It appears I've received 10 a communication from the jury here. Are you 11 providing counsel with copies? 12 (Laughter) 13 THE COURT: This is probably 14 appropriate to read into the record. Apparently 15 the jury is taking my admonition about not talking 16 about the case at heart and, according to the 17 jurors, the jurors are eating at a lunch counter, 18 Judicial ***Mainstreaming, it's the courthouse 19 cafe, and the waiter/owner apparently is saying, 20 "And please remember my warning to you, don't 21 discuss your orders among yourselves, don't let 22 anyone talk to you about your order, don't form any 23 opinions about your order until it's been presented 24 to you." That's probability a good warning. 25 Thank you, ladies and gentlemen. 3 1 MR. TINTERA: You might want to put 2 in the record the resemblance -- 3 (Laughter) 4 THE COURT: That's two, Mr. Tintera. 5 I wanted to say that you probably 6 note that I do have a sense of humor. I appreciate 7 this. Doesn't detract from the proceedings, 8 especially in a case like this that is rather long 9 and complex and also a case where you have the 10 professionalism that's demonstrated by counsel and 11 everyone is doing their job, extremely good 12 advocates, yet they get along and it's nice to take 13 part and participate in a trial where everyone can 14 get along and even a bit of humor comes up but 15 doesn't detract from the serious nature that we do 16 here. And I do appreciate the fact that you all 17 understand that. Thank you for the cartoon. 18 Mr. Sussman, your next witness. 19 MR. TINTERA: We're at Defendant's 20 Exhibit 112, which I object to as not being 21 relevant to any of the issues involved in this 22 case. 23 MR. SUSSMAN: This is a matter that 24 I understood we were going to take up before we 25 started this morning outside the presence of the 4 1 jury. 2 THE COURT: Let's do it during the 3 recess. That's appropriate for me to take up when 4 the jury is not present. 5 Call your next witness. 6 MR. SUSSMAN: Dave Riss. 7 8 DAVID J. RISS 9 called as a witness on behalf of the Defendant, 10 having been first duly sworn under oath, was 11 examined and testified as follows: 12 13 THE CLERK: State your full name and 14 spell it for the record, please. 15 THE WITNESS: David J. Riss. 16 R-i-s-s. 17 18 DIRECT EXAMINATION 19 BY MR. SUSSMAN: 20 Q Good morning, Mr. Riss. Would you please 21 tell the jury how you are employed? 22 A I'm an engineering manager at Intel 23 Corporation. 24 Q How long have you been employed at Intel? 25 A A little over seven years. 5 1 Q Where, at which location at Intel are you 2 working? 3 A Currently I'm at Jones Farm. 4 Q How long have you been in your present 5 position? 6 A About two months. 7 Q Prior to that, what was your -- 8 A Prior to that, I was at SSD. 9 Q How long were you at SSD? 10 A Probably three and a half years. 11 Q During the time that you were at SSD, did 12 you have occasion to come into contact with Randal 13 Schwartz? 14 A Yes. 15 Q And what was the nature of that contact? 16 What was the nature of -- 17 A Randal was a contractor in my 18 organization. 19 Q And what were his duties as a contractor 20 in your organization? 21 A This is in SSD? 22 Q Well, let's back up. When was he a 23 contractor for you at SSD? 24 A Randal was a contractor for me first in 25 IWARP, secondly in SSD. 6 1 Q Well, let's go back to the beginning. 2 When did you first then hire Mr. Schwartz as a 3 contractor at the IWARP section? 4 A The year escapes me, probably 1988, 1989. 5 ***Buying had just closed and Randal had been 6 working there and he had expertise that I could use 7 and I hired him as a contractor to be Systems 8 Administrator on the IWARP network. 9 Q How long did he work for you as a Systems 10 Administrator on the IWARP network? 11 A About a year to two years. 12 Q And then was he a contractor during that 13 entire time? 14 A Yes. 15 Q And after that particular period, did 16 Mr. Schwartz work for you in any other capacity? 17 A Yes, he did. 18 Q And what was that additional capacity? 19 A I hired Randal to come in and develop -- 20 assist with development of a test system that we 21 put together to test some of our software. 22 Q Do you recall when that was? 23 A Not the year. But had to be a couple 24 years later, year and a half later. 25 Q Was this -- was there a period of time 7 1 that Mr. Schwartz continued to work at IWARP and 2 SSD after you were in a different area? 3 A Yes. See if I can -- my job kind of -- 4 projects don't crisply end. They kind of drag on 5 at different times in the industry. So there was a 6 time when Randal worked for me at IWARP directly 7 and I brought him into Intel. And during 8 reorganization, Randal ended up in another 9 organization called IT, which was the Systems 10 Administration part. Intel coordinated all its 11 Intel Systems Administrator into one organization 12 Intel-wide. After Randal left that organization, I 13 brought him back to do this contract work. 14 I don't know if that answered your 15 question. 16 Q I think so. It was sometime -- you're 17 aware then -- were you aware of the incident where 18 there was a disagreement between Mr. Schwartz and 19 Mr. Poehlitz about the distribution of e-mail 20 and -- 21 A I don't know specifically what it was in 22 regard to, but I do know there were disagreements 23 between Randal's technical direction and the 24 direction that Lou and the others wanted to go. 25 Q And it was at that point that 8 1 Mr. Schwartz terminated his contract at SSD? 2 A Correct. 3 Q And you brought him back sometime after 4 that? 5 A Correct. 6 Q Was he working directly for you or was he 7 working for somebody -- also working for somebody 8 else? 9 A At that time, he was really working for 10 one of my supervisors. 11 Q And who would that be? 12 A Herb Mayer. 13 Q Now, when -- like to take you back for a 14 second now. 15 You mentioned that Mr. Schwartz 16 worked with you at IWARP. Would you describe a 17 little bit about what the working environment was 18 like at IWARP when Mr. Schwartz was there working 19 with you? 20 A Well, we were a small team of about 70 to 21 80 people building one product with one focus. 22 Randal's duties specifically were to keep the 23 network up, make sure that we were building an 24 actual microprocessor. And there was -- I'm trying 25 to explain this correctly. 9 1 There was a lot of activity on the 2 network which required sometimes constant 3 interaction from Randal and others to make sure the 4 network stayed up so people could get their work 5 done and we could actually take chips out. 6 Q Did that work involve in the network -- 7 keeping that going involve setting up a 8 communication link with Carnegie Mellon University? 9 A Well, Randal was involved in setting up 10 links to the Internet at IWARP. One of our main 11 contract partners was CMU, so to make sure that we 12 had activity at CMU was very important. 13 Q How did that link set up? Was it allowed 14 communication both ways? 15 A It allowed communication both ways. 16 Q At IWARP in that period of time, was 17 that -- was there a lot of -- were things at Intel 18 very centralized or was the control at ***IWARP 19 more localized? 20 A The control was localized. 21 Q So how to respond to the local needs of 22 the IWARP group in terms of getting your project 23 done? 24 A That's right. We were separated out even 25 business-wise in Cornell Oaks and we had our own 10 1 network. We had our own routers that connected us 2 to the Internet and to the Intelnet. There were 3 two networks. 4 Q Initially that two-way link that existed 5 between IWARP, although IWARP group and CMU, was 6 that initially by a modem? 7 A Before Randal came on board there was 8 something call and ARPA net. The government funded 9 a network and eventually it turned into what is 10 today, the Internet. 11 At a given period of time, the 12 government decided that they would not pay for and 13 sponsor such a network. This is before Randal had 14 actually worked with me. During that time, we 15 actually set up modem-to-modem connection with 16 Carnegie Mellon to keep communication 17 electronically available so we could pass back and 18 forth information, but I don't remember Randal 19 being involved in that particular time. 20 Q What I was asking about was initially 21 whether the connection was through the use of a 22 modem, a phone, call-in modem? 23 A Initially? 24 Q Yes. The first two-way communication 25 link between Carnegie Mellon and Intel, the IWARP 11 1 group. 2 A I wasn't around at the initial part of 3 IWARP. I don't know. Please rephrase. I'm not 4 exactly sure what you're after. 5 Q I'm sorry. Perhaps I didn't hear part of 6 the ***question. Maybe you had given me the answer 7 to that question already. So no wonder you were 8 confused. 9 Where the connections were made by a 10 phone modem, how secure is access through modem 11 compared to, say, access through the other 12 connections with the Internet? 13 A I'm not sure I can really -- 14 MR. TINTERA: Could we have a 15 timeframe? I think this question changes, 16 depending on what timeframe you are looking at. 17 BY MR. SUSSMAN: 18 Q Talking about the timeframe that you were 19 working with Mr. Schwartz at the IWARP group. 20 A At IWARP? 21 Q Yes. 22 A Was one more secured than the other in 23 terms of -- 24 Q Generally how secure was the modem as -- 25 for the connections. 12 1 MR. TINTERA: Could I ask a question 2 in aid of objection? 3 THE COURT: You may. 4 5 EXAMINATION IN AID OF OBJECTION 6 BY MR. TINTERA: 7 Q Were you involved with security at all? 8 A No. Being a manager, I'm always involved 9 with security, but not per se, no. 10 Q So you had people that would manage the 11 security at various groups? 12 A Intel had security policies we had to in 13 some ways enforce. 14 Q Did you have people that were responsible 15 for security? That's my question. 16 A During what timeframe? 17 Q The IWARP period. 18 A I would say no, I guess not. 19 Q Were you the person that was overseeing 20 security at modems or any of the Internet? 21 A If anyone was, it was me, and we did not 22 have a lot of policy at that time in place. 23 MR. TINTERA: I don't have any 24 objection. Thank you. 25 THE COURT: Proceed. 13 1 BY MR. SUSSMAN: 2 Q In Mr. Schwartz's position, did he have 3 responsibility for maintaining security of the 4 network or the systems that he was working on? 5 A Not initially, but as Intel put policies 6 in place, yes, I think -- pretty sure he was 7 involved in tightening down the security on IWARP. 8 Q And what did he do to tighten down the 9 security? 10 A Good question. Some things he would do 11 would be to assure if passwords were not very 12 easily -- easy to break. There were other things 13 I'm sure Intel enforced on us in terms of software 14 we would run on our routers so we put up a fire 15 wall to allow people to not be able to get in via 16 any other way besides electronic mail. 17 Q Did Mr. Schwartz run programs to test the 18 security of the passwords? 19 A Sure. 20 Q And what were the programs that he would 21 run? 22 A I don't recall. I know I've heard the 23 word Crack program. 24 MR. TINTERA: I object if the 25 witness doesn't recall. 14 1 THE COURT: Don't guess or 2 speculate. 3 THE WITNESS: At that time, I do not 4 recall. 5 BY MR. SUSSMAN: 6 Q While Mr. Schwartz was working on the 7 contract for you, was he involved with product 8 information or was he working with information and 9 support technology? 10 A Product information? In terms of -- 11 probably in both cases, IWARP and SSD, yes, product 12 information, sure. 13 Q Now, let me go back to this -- the 14 contract that you brought him back to do later 15 on -- let me back up. 16 Were you aware while you were there 17 at IWARP and the project was going on where there 18 was the communication with Carnegie Mellon of 19 the -- Carnegie Mellon's ability to Telnet into 20 IWARP from Carnegie Mellon? 21 A Yes. 22 Q Was Mr. Schwartz involved in setting up 23 that communication? 24 A Probably. 25 MR. TINTERA: Can I ask a question 15 1 in aid of objection? 2 THE COURT: You may. 3 4 EXAMINATION IN AID OF OBJECTION 5 BY MR. TINTERA: 6 Q Do you know, Mr. Riss, or not? 7 A The reason I said "probably" is because 8 Randal knew the network better than anyone. 9 Q The question is, do you have personal 10 knowledge whether he was involved in that or not? 11 A I don't recall. 12 MR. TINTERA: I'd ask that the 13 previous answer be stricken. 14 THE COURT: I'll ask the jury to 15 disregard the last answer by the witness. I'll 16 strike it. 17 BY MR. SUSSMAN: 18 Q Did Mr. Schwartz's responsibilities for 19 you include working on the areas that would set 20 those communication links up? 21 A Yes. 22 Q And Mr. Schwartz was an independent 23 contractor as opposed to an employee? 24 A Yes. 25 Q Was there a difference then as an 16 1 independent contractor in how you were able to 2 direct or control the methods of his work as 3 opposed to employees? 4 A Yes. 5 Q And what were the differences? 6 A Randal had to be able to acquire some 7 income outside of Intel Corporation itself, which 8 means he was employed by others. He had to -- I 9 did not direct him as a staff member. I could not 10 require him to be at staff meetings. I couldn't 11 require him, doesn't mean he didn't show up at 12 times, because he would always be notified. He 13 worked outside of the office at some times 14 remotely. 15 Q When you say "remotely," what does that 16 mean? 17 A Usually from home, would be my guess. 18 Q Did he also work when he was on business 19 elsewhere from sites out of town? 20 A I don't recall him doing that. 21 Q Go ahead. You were saying he was working 22 at sites remotely and -- 23 A There were other bylaws that we had to 24 make sure that the person is truly an independent 25 contractor versus an employee. Such things like no 17 1 benefits, paid by the hour, that kind of stuff. 2 Q And one of the key tests was that you 3 could give him the job to do, tell him what you 4 wanted done and -- 5 MR. TINTERA: Objection to the 6 leading nature, Judge. 7 THE COURT: Sustained. 8 BY MR. SUSSMAN: 9 Q Was there differences then in terms of 10 your -- between an employee and a contractor in 11 terms of setting goals and setting the methods and 12 directing the day-to-day methods of how those goals 13 were accomplished? 14 A Yes. That's true. 15 Q There was a difference. And the 16 difference was what? 17 A With an individual employee, I would have 18 more of a mentor, more of a overseer of day-to-day 19 activities. As an independent contractor, a 20 specific task or tasks would be assigned and that 21 individual was to go off and do that work in some 22 ways without a lot of supervision. 23 Q Now, when you brought Mr. Schwartz back 24 to work on this project in late '92, after you 25 hired him to provide the software support -- 18 1 A Yes. 2 Q -- was that again as a contractor? 3 A Yes. 4 Q And do you recall having any discussions 5 or understanding with Mr. Schwartz about his -- the 6 prospects for coming back after that for continued 7 work with you at SSD? 8 A Yes. 9 Q And what was that? 10 A Randal put together this system and -- I 11 don't remember the crisp end to when he was 12 complete, but the system was up and running, and 13 I'm sure I had conversations then about future 14 work. I always keep contractors available -- 15 MR. TINTERA: Could I ask a 16 question? 17 THE COURT: You may. 18 19 20 21 22 23 24 25 19 1 EXAMINATION IN AID OF OBJECTION 2 BY MR. TINTERA: 3 Q Do you remember a conversation? 4 A Yes. 5 MR. TINTERA: I don't have any 6 objection. 7 THE WITNESS: Yes. I have them with 8 a lot of people. I try to keep contractors 9 available at different times for me if I need them. 10 Instead of going through contract firms, I like to 11 use independent contractors in some ways more 12 because I know their capabilities and their skill 13 sets. 14 BY MR. SUSSMAN: 15 Q Was Mr. Schwartz somebody then that you 16 particularly wanted to bring back? 17 A Yes. 18 Q And why was that? 19 A Because of his skill sets and his ability 20 to be able to get things done on schedule. 21 MR. SUSSMAN: Thank you. 22 23 24 25 20 1 CROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q And you'd bring him back if you needed 4 him? 5 A Yes. 6 Q So the contract was basically at an end 7 when you had this conversation, his job was done? 8 A I can't say that the timeframe it was 9 done or just about done. 10 Q But you mentioned that the contract was 11 complete or his project was complete. 12 A Yes. 13 Q That's the logical time to have that type 14 of conversation. I mean, "You're done here, but I 15 may need you again"? 16 A Right. Or there may have been a problem 17 with what was done. You don't always get the bugs 18 out of a system and I might want to extend it, 19 Q Right. 20 A That's correct. 21 Q We know there is a difference between an 22 employee benefit package at Intel and the 23 contractor who is working under contract at an 24 hourly rate. Did you find in your dealings with 25 Mr. Schwartz in the IWARP division of Intel that 21 1 acknowledging that he was a contractor that ***it 2 was necessary to direct him to stay within the 3 policies of the Intel Corporation? 4 A Yes. 5 Q So you were able to do that? 6 A Oh, yes. 7 Q Can you think of any specific times where 8 you had to do that? 9 A Not from a technology standpoint as much 10 from a personal standpoint in terms of meetings 11 with other people. Sometimes Randal was a little 12 bit abrasive to people in meetings. He did know 13 quite a bit about what was going on on networks 14 about UNIX, and so at times we had discussions 15 about his approach to other people within Intel. 16 Q As his -- the person who brought him on 17 board, did you orient him at all, give him an 18 orientation? 19 A No formal orientation. 20 Q Informal orientation or no orientation? 21 A No orientation. 22 Q And so when you bring someone into the 23 corporate fold of Intel as a contractor, did you 24 feel you were able to direct him to stay within the 25 policies of Intel? 22 1 A Please ask the question again. 2 Q Would you expect him to follow the 3 policies of Intel, of the Intel Corporation? 4 A Yes. 5 Q Even though he was a contractor and not 6 an employee? 7 A Yes. 8 Q Did you feel you had the ability to 9 direct him if he was violating those policies? 10 A Yes. 11 Q This project in late 1992, that was under 12 your supervisor, Herb Mayer? 13 A Yes. 14 Q So that was the TA project? 15 A I guess you would call it the test 16 ***aTom to know. 17 Q Yes? 18 A Sounds right, yes. 19 Q We can't use -- we can't say those big 20 words. 21 A Recalling all those acronyms from 22 sometimes three years ago is difficult. 23 Q We use abbreviations. 24 Did this project at all -- did you 25 authorize Mr. Schwartz to be cracking the 23 1 Supercomputer Division password file in this time, 2 in any timeframe? 3 A Not the Supercomputer Division, no. 4 MR. TINTERA: Thank you. I don't 5 have any other questions. 6 7 REDIRECT EXAMINATION 8 BY MR. SUSSMAN: 9 Q Was there a time when Mr. Schwartz was 10 authorized to run a cracking program against 11 certain password files? 12 A Yes. 13 Q And what was that and when? 14 A That was in terms of IWARP when he worked 15 for me. As I said, when we were putting in 16 security, he was running crack programs on every 17 password to assure that outside folks could not get 18 in and crack passwords easily. 19 Q And the purpose of testing the password, 20 you say so they couldn't get in, how important was 21 the password to the security of -- 22 A How important is the password? The 23 password lets you into someone's area and there is 24 intellectual property rights on disk, so a 25 ****property house low you to get at in case is he 24 1 intellectual passwords property. 2 Q So when you have bad passwords, does that 3 create a risk to the company? 4 A Yes. 5 Q During the time that Mr. Schwartz worked 6 with you, did you ever disseminate to him, give him 7 any policy manuals on Intel security policies? 8 A I did not, no. 9 MR. SUSSMAN: Thank you. Nothing 10 further. 11 12 RECROSS-EXAMINATION 13 BY MR. TINTERA: 14 Q Mr. Riss, when did this -- when you 15 worked at IWARP, when did this authority to crack 16 IWARP's password files that you had given to 17 Mr. Schwartz end? 18 A From my standpoint it ended when he quit 19 working for me in a reorganization. 20 Q When was that? 21 A About a year and a half to two years 22 after he started for me. I put another supervisor 23 in place and she then, during the reorganize, owned 24 Randal and those activities. 25 Q Can you give us -- I don't want the date 25 1 like July 20, 1995 -- can you give me an idea? 2 A It was about a year and a half to two 3 years after I hired him. 4 Q When did you hire him? 5 A 1991, I guess. I'm sorry. Times kind of 6 blend in. 7 Q But it had nothing to do with the 8 Supercomputer Division? 9 A At that time we were just IWARP, that's 10 correct. 11 MR. TINTERA: That's all I have. 12 THE COURT: Mr. Sussman? 13 MR. SUSSMAN: Nothing further. 14 THE COURT: Thank you. You may step 15 down. You're free to go. 16 Call your next witness. 17 MR. SUSSMAN: I'm prepared to call 18 Bob Wilcox. 19 THE COURT: He's not here, 20 Mr. Sussman. 21 MR. SUSSMAN: If I have a moment, I 22 will see who is there. 23 THE COURT: You may. 24 (Pause in the proceedings.) 25 26 1 DR. ROBERT P. DOUGHTON 2 called as a witness on behalf of the Defendant, 3 having been first duly sworn under oath, was 4 examined and testified as follows: 5 6 THE CLERK: State your full name and 7 spell it for the record, please. 8 THE WITNESS: My name is Dr. Robert 9 P. Doughton. D-o-u-g-h-t-o-n. 10 11 DIRECT EXAMINATION 12 BY MR. SUSSMAN: 13 Q Dr. Doughton, what is your occupation? 14 A I'm a physician in Lake Oswego. 15 Q And do you live in Lake Oswego, also? 16 A Yes. 17 Q Where is your practice? 18 A Right now it's in Lake Oswego, but I used 19 to practice in Beaverton and at the Tuality 20 Hospital and St. Vincent's Hospital in the years of 21 1965 up to about 1980. 22 Q Dr. Doughton, do you happen to know 23 Randal Schwartz? 24 A I know Randal very well. 25 Q How is it that you know Randal Schwartz? 27 1 A Randal is an ex-boyfriend of my daughter 2 Katherine. 3 When she was in college, that's got 4 to be in the young '80s, she brought home Randal as 5 a boyfriend and they were in a relationship for 6 about a year and then they broke up. And my wife 7 and I went to our daughter Katherine and said, "Do 8 you mind if we keep" -- 9 MR. TINTERA: Judge, I think he's 10 answered the question. 11 THE COURT: Sustained. 12 BY MR. SUSSMAN: 13 Q Well, Dr. Doughton, that's how you 14 initially met Mr. Schwartz? 15 A Yes. 16 Q Could you tell the jury then, did you 17 have any -- after he broke up with your daughter, 18 did you have any further contact with him? 19 A Yes. My wife and I went to our daughter 20 and asked if she would mind if we kept Randal as 21 our friend and -- 22 Q Why was that? 23 A We found him an engaging and very 24 intelligent and fascinating person and we liked 25 him. And we have lots of young friends, so we just 28 1 asked if she minded and she thought it over and 2 allowed that she didn't mind. 3 Q And over the years since then, have you 4 had much contact with Mr. Schwartz? 5 A Yes, a lot. Both my wife and I and my -- 6 MR. TINTERA: Judge, I think he 7 answered the question. I object to any further 8 elaboration. 9 BY MR. SUSSMAN: 10 Q What's the nature of that contact, 11 Dr. Doughton? 12 A It's mostly social and also it's involved 13 with several projects. He -- 14 MR. TINTERA: I object to any 15 elaboration, judge. 16 THE COURT: Overruled. He can 17 explain. Go ahead. 18 BY MR. SUSSMAN: 19 Q What kind of projects are you referring 20 to? You don't have to mention anything 21 specifically by name, but just in general what kind 22 of projects? 23 A We have worked on foundations. We worked 24 for a charitable project involving children. We 25 worked on public access television. That's 29 1 probably about it. We also bought some antiques 2 together. 3 Q Now, in the course of your -- the time 4 that you've gotten to know Randal Schwartz, were 5 you able to perform form an opinion about his 6 character for trustworthiness and for honesty? 7 A Yes. 8 Q And what is that opinion, Dr. Doughton? 9 A Randal is innocent. 10 MR. TINTERA: Objection. Judge -- 11 THE COURT: Sustained. I'll ask the 12 jury to disregard the last answer by the witness. 13 BY MR. SUSSMAN: 14 Q Dr. Doughton, what is -- please explain 15 to the jury, we're not asking -- 16 THE COURT: Have you had a chance 17 with this witness about the nature of his 18 testimony, what he would be testifying to and that 19 sort of thing? 20 MR. SUSSMAN: I did, Your Honor. I 21 think the witness is -- was responding in a way 22 different than -- with a different meaning than may 23 have come across here. 24 MR. TINTERA: Would you -- 25 30 1 BY MR. SUSSMAN: 2 Q Dr. Doughton, would you just -- 3 MR. TINTERA: Judge, this area of 4 the law is very narrow and very direct as to what 5 the answer can be and the question can be. If this 6 witness has not been advised of that, then I 7 think -- I would request the Court to allow counsel 8 to have a recess to talk to this witness about what 9 the Evidence Code provides for in this area of a 10 trial. 11 MR. SUSSMAN: Your Honor, I think -- 12 we have spoken about that. I think that was an 13 ***unput choices of words and -- 14 THE COURT: Ask your question again. 15 I think the question, first of all, can be answered 16 yes or no. He asked you if you formed an opinion 17 about his character for trustworthiness, as I 18 recall. 19 MR. SUSSMAN: And for honesty, yes. 20 THE COURT: Can you answer that yes 21 or no? Have you formed an opinion about that? 22 THE WITNESS: Yes. 23 BY MR. SUSSMAN: 24 Q What is your opinion about his character 25 for trustworthiness and honesty? Please understand 31 1 the concern is that there be no comment on the 2 charges. 3 A I didn't mean to be commenting. I'm 4 sorry. 5 Randal has enormous integrity. His 6 character of the highest caliber, totally moral 7 person. And not only that -- 8 MR. TINTERA: Objection. It's not 9 responding to the specific questions. 10 THE COURT: Sustained. 11 MR. TINTERA: I'd ask the Court to 12 have the jury disregard -- 13 THE COURT: I'll strike the answer. 14 The jury will disregard it. 15 MR. SUSSMAN: Your Honor, is the 16 entire answer stricken? 17 THE COURT: Yes. 18 BY MR. SUSSMAN: 19 Q Dr. Doughton, in simpler terms without 20 going on, what is your opinion as to his character 21 for honesty and trustworthiness? 22 A If I say the same things I did before -- 23 I said he was good moral character. 24 MR. TINTERA: Judge, I'd ask for a 25 short recess, please. 32 1 THE COURT: I'm striking that 2 answer. Do you wish to try again or do you wish a 3 recess? 4 MR. SUSSMAN: Let's take a recess. 5 THE COURT: Remove the jury and 6 we'll take a mid-morning recess. 7 You may step down, sir. Have a talk 8 with Mr. Sussman during the recess. 9 (Whereupon, the following 10 proceedings were held in 11 open court, out of the 12 presence of the jury:) 13 MR. TINTERA: Judge, we had a motion 14 in limine about certain things that would come in 15 before the jury and would not. It was violated 16 yesterday when the character witness testified 17 about the charitable project involving children and 18 worldwide scope of this. Charitable project was 19 allowed by the Court and that's fine. 20 It's been violated by this witness 21 again and I talked to counsel this morning about 22 this. I said we had this motion in limine. I 23 thought we had an understanding about what would be 24 admitted and what would not. And he said we did, 25 and so I didn't bring it up again with Your Honor, 33 1 but we have got rules and they're being violated. 2 This area of the law requires, "Do 3 you have an opinion? Is it good? Is it very good? 4 Is it excellent?" It doesn't require a discourse 5 about the foundation for the opinion. 6 THE COURT: Commonly these questions 7 are answered -- when the question is asked, "What's 8 your opinion," they are commonly answered by a 9 witness saying, "My opinion is he's an honest and 10 trustworthy person." In its simplest form. That's 11 the appropriate answer. 12 I'm not suggesting that it's the 13 only appropriate answer, but that's the gist of 14 what is permitted. 15 MR. SUSSMAN: I understand that. 16 THE COURT: Talking about being a 17 moral person and having the highest integrity, 18 those sorts of things, although to a layperson 19 those may be important, those are not permitted 20 because they start getting into the other areas 21 other than permitted for this very narrow issue. 22 Now, do you want to talk to him 23 about that? If he can answer that, we'll give him 24 one more opportunity, and if not, I'm going to 25 excuse him. 34 1 MR. SUSSMAN: No. I'll have a -- I 2 want to talk to him about that. 3 Number one, as far as the witness 4 yesterday regarding the children's project, as I 5 informed Mr. Tintera, I did speak with the witness 6 about that and admonished him not to mention the 7 project by name, simply came out during a question 8 which was in general terms. Even this morning with 9 this witness again, I tried to reiterate that if 10 Your Honor recalled the question and asked him not 11 to specifically mention -- 12 THE COURT: You said he worked on 13 various projects. 14 MR. SUSSMAN: That's right. 15 THE COURT: And that -- 16 MR. SUSSMAN: I believe the Court 17 understands that sometimes witnesses, in -- 18 THE COURT: I'm not suggesting that 19 you did anything inappropriate, Mr. Sussman. This 20 is a common area of difficulty when we call 21 character witnesses, and so I know that defense 22 counsel need to spend extra time talking with 23 character witnesses on this very issue. And I'd 24 like to have you do that so that we can be 25 relatively certain that witnesses -- other 35 1 character witnesses you call will not answer 2 inappropriately. Or at least to reduce that risk. 3 All right. 4 MR. SUSSMAN: Thank you, Your Honor. 5 THE COURT: Take a short break. 6 (Recess taken.) 7 THE COURT: Proceed, Mr. Sussman. 8 MR. SUSSMAN: Thank you, Your Honor. 9 BY MR. SUSSMAN: 10 Q Dr. Doughton, before the break I asked 11 you if you had an opinion about Mr. Schwartz's 12 character for trustworthiness and honesty. You do 13 have an opinion? 14 A I do have an opinion. 15 Q Would you please tell the jury what that 16 opinion is? 17 A Mr. Schwartz is trustworthy and honest. 18 MR. SUSSMAN: Thank you. I have 19 nothing further. 20 MR. TINTERA: Thank you, 21 Dr. Doughton. Sorry for giving you a hard time. I 22 don't have any questions for you. 23 THE COURT: Thank you. You may step 24 down. You're free to go. 25 MR. SUSSMAN: I'd like to call Bob 36 1 Wilcox now. 2 3 ROBERT WILCOX 4 called as a witness on behalf of the Defendant, 5 having been first duly sworn under oath, was 6 examined and testified as follows: 7 8 THE CLERK: State your full name and 9 spell it for the record, please. 10 THE WITNESS: Robert Wilcox. 11 W-i-l-c-o-x. 12 13 DIRECT EXAMINATION 14 BY MR. SUSSMAN: 15 Q Mr. Wilcox, again, you're still working 16 at Intel? 17 A No. What was the question? 18 Q I said are you still working at Intel? 19 A I'm not working at Intel. I quit in 20 January. I'm not an Intel employee. 21 Q At any rate, we brought you back to ask 22 you a few additional follow-up questions about your 23 work with Mr. Schwartz at Intel. 24 First, I'd like to show you what has 25 been marked for identification as Defendant's 37 1 Exhibit 115. If you would just take a look at that 2 for a moment. Do you recognize what that document 3 is? 4 A Yes. 5 Q Please tell the jury what it is. 6 A When Randal first came, I left him this 7 note, I had to leave town, and it gives him a list 8 of things to do in setting up the new computer 9 systems in our department. 10 Q And in giving him that list of things to 11 do, you outlined what was there and just basically 12 gave some general directions? 13 A That's correct. I told him where 14 everything was, where his office was, what he 15 should start working on, getting systems ready, and 16 mentioned our secretary could get him any supplies 17 he needed or answer any questions while I was gone, 18 and then told him to have fun getting to work on 19 it. 20 Q And what did you mean by that? 21 A Well, when we get these new systems, they 22 come in boxes and it's like Christmas and you have 23 to open them up and then you really get to work, 24 although one of the most fun things to do is set up 25 a computer system. 38 1 Q Start playing with it and figuring out 2 what it can do? 3 A First you have to wake it up and install 4 the software and then you have to begin to 5 understand how they work. 6 Q Were you familiar with one of the 7 machines in your system that was referred to as 8 Wyeth? 9 A Yes. 10 Q And what kind of computer was that? 11 A I don't recall the specific model of 12 computer that was. That was one of our Sun 13 workstations and that was one of the ones that Mark 14 Morrissey set up and named, because I would not 15 have chosen that name. 16 Q Later on there was another machine that 17 he named called -- a Sun machine that came to be 18 named Snoopy? 19 A Correct. That was also one of Mark's. 20 It could have been the same machine. I wouldn't 21 remember which specific one. Sometimes one would 22 be renamed and become a new name, so I'm not the 23 expert on that. 24 Q Now, do you recall whether in June or 25 July of 1993, during the time that there was -- it 39 1 was in the transition of Mr. Schwartz's 2 responsibilities, a conversation with Mr. Morrissey 3 which he came to you and you said, "I believe it's 4 time," and discussed Mr. Schwartz root privileges? 5 A I don't remember specifically that 6 conversation or when it occurred. I would expect 7 that that kind of conversation would happen and I 8 would expect a transition. 9 Remember, we talked about the three 10 different roles that Randal had? So we'd expect 11 the transition, but I can't remember when it 12 occurred or specifically whether root privilege was 13 discussed as part of that. 14 MR. SUSSMAN: Thank you. I have 15 nothing further. 16 Hold on. I'm sorry. 17 BY MR. SUSSMAN: 18 Q At that time was there still root on the 19 DNS servers? 20 A Yes, because that was Randal's continuing 21 responsibility. 22 MR. SUSSMAN: Thank you. Nothing 23 further. 24 25 40 1 CROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q So it was your understanding of the three 4 areas that you mentioned to the jury last week that 5 eventually Mark Morrissey would take over the 6 Systems Administration duties in your work group 7 from Mr. Schwartz? 8 A For the network management systems, yes, 9 not necessarily the DNS systems. 10 Q Right. And so those who set up the 11 machines, they get to name them, is that how it 12 works? 13 A In my group, that was my policy. I want 14 to empower the people working for me and there is a 15 whole philosophy of choosing names and so people 16 need to learn how to do that for themselves. 17 Q When I think about these machines, it's 18 kind of like the ones you might see at a store in a 19 box. Are these the same type of machines or are 20 they different, these Sun workstations? 21 A You can't go out to the regular computer 22 store and buy them, so they are different in that 23 way. But they are still computers and -- 24 Q Do you have any idea how much these 25 things cost? 41 1 A These were in the range of around 6,000 2 to $10,000. 3 Q I don't think we'll be seeing these at 4 Fred Meyer, are they? 5 A Well, that's what they cost at that time 6 a year and a half ago. They're cheaper now. 7 THE COURT: Computers go down in 8 price. 9 THE WITNESS: Absolutely. 10 THE COURT: Become more obsoleted or 11 replaced by more high-tech models? 12 THE WITNESS: Same performance goes 13 down in price. Higher performance ones are 14 introduced at higher or same price. 15 BY MR. TINTERA: 16 Q Mr. Wilcox, the Defendant's Exhibit 115, 17 the document you wrote out, that was in February of 18 1992? 19 A That's not dated. That would make sense, 20 but I couldn't tell you. It was probably when he 21 first came on. 22 MR. TINTERA: Thank you. No further 23 questions. 24 MR. SUSSMAN: Nothing further. 25 THE COURT: Did you offer 115 or -- 42 1 MR. SUSSMAN: No, I would like to 2 offer that now. 3 MR. TINTERA: I don't object to 4 that. 5 THE COURT: 115 is received. 6 (Whereupon, Defendant's 7 Exhibit No. 115 was received 8 in evidence.) 9 THE COURT: Thank you. You may step 10 down and you are free to go. 11 Call your next witness. 12 MR. SUSSMAN: Like to call Herb 13 Mayer now. 14 15 HERB MAYER 16 called as a witness on behalf of the Defendant, 17 having been first duly sworn under oath, was 18 examined and testified as follows: 19 20 THE CLERK: State your full name and 21 spell it for the record, please. 22 THE WITNESS: My name is Herb Mayer. 23 M-a-y-e-r. 24 25 43 1 DIRECT EXAMINATION 2 BY MR. SUSSMAN: 3 Q Mr. Mayer, I'd like to ask you a couple 4 additional questions. 5 When you were administering or had 6 the contract, had Mr. Schwartz do work for you as a 7 contractor and had the access to the various 8 computers in the group that you were working on, 9 was the password files of those computers readily 10 readable to him at that time? 11 A The password file was and always is 12 publicly readable and accessible. That is quite 13 common and that's one of the curious things about 14 UNIX. Any beginning UNIX programmer knows right 15 away that it exists, where it exists and it's a 16 typical challenge to take a look at it. 17 Q When you say it's a typical challenge, 18 what do you mean? 19 A It's an encoded file. The passwords are 20 all there but encoded, encrypted but not readable. 21 The reason why it's publicly 22 available, one has so much trust and faith in the 23 encryption, it's impossible to decrypt it. But 24 everybody tries to decrypt it. Nobody practically 25 succeeds, so it's a challenge. 44 1 Q So then is it common for people, 2 especially people who have Systems Administrator 3 positions, to run password-cracking programs 4 against these things to test -- 5 A The Systems Administrator should. That's 6 part of a good Systems Administrator job to do it. 7 In fact, the output of that process is to say, 8 "Dear Joe or Jim, you have a bad password because I 9 cracked it. Please choose a better one so the next 10 time around one doesn't have such easy access to 11 it." 12 Q What's the importance of making sure the 13 passwords can be cracked? 14 A Confidentiality of information, which is 15 stored by user. 16 Q So the passwords are sort of the main 17 line of defense for people getting into places they 18 shouldn't? 19 A That's correct. 20 Q So what does that -- what is a bad 21 password or a password that can be readily broken? 22 A There are lots of bad passwords. A 23 typical bad password is that the user with the name 24 Jim uses as a password, again the word Jim. So any 25 password-cracking programs tries as a first line of 45 1 let me decode this, the user ID off of the 2 respective programmer himself. 3 The second bad kind of password is 4 common English names, especially first names of 5 spouse and children. Mayer, Jim, Joe, bad 6 passwords. They are likely members of the family 7 and they are being tested right away in the 8 cracking process. 9 Q What's another common bad password? 10 A Common English nouns. 11 Q Words commonly found in the dictionary? 12 A Exactly. 13 Q Now, you mentioned something about some 14 sort of challenge to trying to crack passwords or 15 something. 16 A Well, anybody with curiosity will say, 17 "You mean there is secret information?" Yet it's 18 available publicly for anybody to look at. There 19 seems to be an apparent conflict. 20 That conflict raises a question mark 21 in most curious people's minds or most intelligent 22 people's minds and they will take a look at 23 resolving the conflict saying what can be there 24 secret if I have public access to this, until one 25 understands it's encoded. Even though you look at 46 1 it, you can't do anything with the information. 2 Q Now, going on to the one other thing, as 3 far as when the contract that you had with 4 Mr. Schwartz was in effect, was there an actual 5 written contract with duration to it? 6 A I'm pretty sure that the -- between the 7 two of us, we never had a written contract and I 8 had assumed and still believe that there was a 9 larger contract that Mr. Schwartz had with Intel in 10 Hawthorn Farms where he was employed as a 11 contractor for -- along that time. Mine was fairly 12 limited and only a small section of that period. 13 Q So it was more like an understanding 14 between the two of you? 15 A That's correct. 16 Q And did that understanding then -- to 17 what extent, if at all, did that understanding 18 extend to the potential for follow-up work? 19 A Well, the potential for follow-up work 20 would always be there and in fact was there if the 21 work delivered would be as it was expected in the 22 beginning. 23 Q And was that communicated to 24 Mr. Schwartz? 25 A I don't remember whether I told him 47 1 explicitly there will be follow-up work. No, I 2 should phrase it differently. I don't remember 3 explicitly whether I told him that he would be the 4 one conducting follow-up work. I know there would 5 be follow-up work. 6 The project, even though limited in 7 time, was simple enough we could do it in short 8 time, yet complicated enough that I knew it would 9 be a living piece of software and it would live 10 forever and lives today and will be maintained 11 today. 12 Q And the work involving the system, the 13 collection of computers also included the computer 14 that was called Brillig? 15 A Yes, it did. That was one of the 16 necessary building blocks. 17 MR. SUSSMAN: Thank you. I have 18 nothing further. 19 20 21 22 23 24 25 48 1 CROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q Mr. Mayer, when did you call Mr. Schwartz 4 back for the follow-up work? 5 A I didn't call him for follow-up work. 6 That's why I was careful phrasing. I don't 7 remember whether I told him that he would be the 8 one to do follow-up work. 9 Q So he wasn't called back? 10 A That's correct. 11 Q And I don't mean to embarrass you, but 12 you seem like a fairly bright individual. 13 A No. 14 Q Are you curious? 15 A Yes. 16 Q So when has your curiosity caused you to 17 run the Crack password program against any password 18 files at the Intel Corporation? 19 A I never ran the Crack program against it. 20 Q Why not? You're curious, aren't you? 21 A Yes. But I looked at it. 22 Q Okay. 23 A In other words, I took a text editor, 24 edited the file itself to gain some understanding 25 of what does this password file look like. 49 1 Q Sure. Where did you copy it to? 2 A Into my private directory, so when you 3 use an editor, you automatically import whatever 4 you look at into your current working environment. 5 Q Did you run Crack against it? 6 A No. 7 Q Why not? 8 A I didn't have the Crack program. 9 Q It's publicly available. 10 A Yes, but there is millions of publicly 11 available programs. Most of them I will never be 12 able to touch due to time limitation or interest 13 limitations. 14 Q Well, you said that -- you referred to 15 the password program as publicly available so I 16 could copy it. 17 A Yes, you can. 18 Q And where would I find that? 19 A In /etc/user. So that's nomenclature in 20 this computer world slash means you started at the 21 topmost level where all directories are and "etc" 22 happens to be one of the main directories where you 23 stuff all the stuff that you don't know where else 24 it should sit. 25 Q So if I had a computer right here in 50 1 front of me, I could access this information? 2 A You bet, without any problem. Unless you 3 had an unconventional or unusual operating system. 4 Q How would I be able to use this 5 information at Intel Corporation? 6 A You probably couldn't. 7 Q Why would that be? 8 A Because it's encrypted. The information 9 that is there is encrypted so you cannot see the 10 meaning of it. You see strange characters, strange 11 sequences of characters. 12 Q You seem to give me the impression that 13 anyone could go into the Intel network and access 14 the Intel network. 15 A If I ever gave that impression, that must 16 have been a mistake and I would like to correct 17 that impression. Not anybody can go into the Intel 18 network. They take great pains of making sure that 19 nobody can go into the Intel network. However, 20 once you have already legal access to one of the 21 computers, once you have any access to new -- to 22 one of the computers of Intel's network, then you 23 can look at any file that is available in and 24 throughout the network. 25 Q So you were assuming that I had legal 51 1 access to an Intel computer? 2 A Correct. 3 Q Well, that's an important assumption. So 4 that your understanding of public knowledge assumes 5 a legal access to the computer? 6 A Correct. 7 Q So it's not public in the sense that it's 8 in a public library that anybody with a library 9 card -- well, you need the library card for it to 10 be public access and that's what Intel gives you to 11 access their system, is that fair, as a contractor 12 or employee? 13 A Your impression is right. Joe Smith off 14 the street cannot look at the file simply because 15 that person doesn't even have access to the 16 keyboard. There is a security guard, you cannot go 17 into the building, folks. 18 But if you were inside the building 19 and -- you wouldn't be able to sit down at any of 20 the computers and you have -- you have the right to 21 log in to any of the computers on the network, then 22 you can look at this password file, which again is 23 encrypted. 24 Q So if your account hasn't been disabled, 25 you can look at it because you would not have 52 1 access then to those? 2 A When your account is disabled, you can't 3 do anything. 4 Q So it would have been on an account that 5 you are authorized or have a valid password for? 6 A Delicate question. Whether authorized or 7 not, as long as you have some access to the 8 network, authorized or not, then you can look at 9 it. 10 The reason why I'm making that fine 11 point is apparently that's an issue here in this 12 case, whether or not one is authorized. 13 MR. TINTERA: Thank you. 14 15 REDIRECT EXAMINATION 16 BY MR. SUSSMAN: 17 Q Just to clarify a couple things. So if 18 one has an active password on any computer, that 19 allows access? 20 A Right. 21 MR. SUSSMAN: Thank you. Nothing 22 further. 23 24 25 53 1 RECROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q Does that automatically mean you're 4 authorized to access that computer? 5 A Good. This point came up two days ago 6 when I was here for the first time. 7 There is no need to and there is no 8 capability of authorization one doesn't need to. 9 It really means the access is there free for 10 anybody. If you can do anything with that computer 11 at all, you can look at that password file. There 12 is no process in place saying you have formal 13 authorization to look at it. There is no such 14 process in place. It is publicly readable. It is 15 stored in ETC. It is stored in the container that 16 says, "Well, I don't know where it really should 17 belong, throw it in here," this file that anybody 18 can look at. It is that freely available to 19 anybody who can do anything with the computer at 20 all. 21 Q Right. 22 MR. TINTERA: Thank you. 23 MR. SUSSMAN: Nothing further. 24 THE COURT: Thank you. You may step 25 down. You're free to go. Thank you for being here 54 1 again. 2 Mr. Sussman. 3 MR. SUSSMAN: We'd like to call 4 Russell Schwartz, if he's gotten here yet. 5 6 RUSSELL SCHWARTZ 7 called as a witness on behalf of the Defendant, 8 having been first duly sworn under oath, was 9 examined and testified as follows: 10 11 THE CLERK: State your full name and 12 spell it for the record, please. 13 THE WITNESS: Russell Schwartz. 14 S-c-h-w-a-r-t-z. 15 16 DIRECT EXAMINATION 17 BY MR. SUSSMAN: 18 Q Mr. Schwartz, where do you live? 19 A I live at 12290 Southwest Butner Road. 20 Q And do you live there alone? 21 A No. 22 Q Who do you live with? 23 A My brother, Randal Schwartz. 24 Q Randal Schwartz sitting next to me is 25 your brother? 55 1 A Yes. 2 Q Were you home at that residence on 3 November 1st, 1993, when the search warrant was 4 executed at the residence? 5 A Yes, I was. 6 Q Where were you when that search warrant 7 was executed? 8 A When? 9 Q When the police arrived at the house. 10 A I was upstairs. 11 Q And what is upstairs in the house? 12 A It's a two-floor building and it's 13 upstairs from the main level of the building. 14 Q And do you have any particular types of 15 rooms up there? 16 A Yeah, it's the rear room, which is known 17 as the computer room. 18 Q And how is that set up? Is that a place 19 where you had a workstation, Randal had one, or 20 both of you? 21 A Yeah. 22 Q Please explain to the jury how that was 23 set up. 24 A Basically I had my own computer sitting 25 in one location and then there is another desk in 56 1 the room that had my brother's equipment in it. 2 Q Aside from the computer, what other kind 3 of equipment or materials of yours were up there? 4 A There is all the stuff, things for my 5 computer, including various programs and things 6 and -- 7 Q Did you have disks or diskettes 8 containing information up there? 9 A Yes. 10 Q And did you have very many? 11 A I had a lot. 12 Q What's a lot? 13 A Several hundred disks. 14 Q Now, at some point in time, did you 15 assist the officers in conducting the search? 16 A Yes, I did. 17 Q And what did you do? 18 A I pointed out which equipment was 19 Randal's and which was mine. 20 Q And did you point out which disks were 21 Randal's and which were yours? 22 A Yes. 23 Q And what is your -- were most of the 24 disks up there, did they belong to you or Randal? 25 A The majority would be mine. 57 1 Q And were those taken? 2 A No. 3 MR. SUSSMAN: Thank you. I have 4 nothing further. 5 MR. TINTERA: Good morning, 6 Mr. Schwartz. I don't have any questions for you. 7 THE COURT: Thank you. Thank you, 8 you may step down. 9 Mr. Sussman. 10 MR. SUSSMAN: Your Honor -- 11 THE COURT: You have that look as 12 though you've run out of witnesses. 13 MR. SUSSMAN: I have one other 14 witness who is a character witness and because he 15 has just come into town this morning -- 16 THE COURT: You'd like to talk to 17 him. 18 MR. SUSSMAN: I think it would be a 19 good idea to talk to him before I go any further. 20 THE COURT: We'll take another short 21 break before we call that witness. Thank you. 22 Remove the jury. 23 24 25 58 1 (Whereupon, the following 2 proceedings were held in 3 open court, out of the 4 presence of the jury:) 5 MR. SUSSMAN: When we come back 6 before the jury comes back in it would be 7 appropriated to take up the Exhibit 112 and I have 8 a matter relating to the offer of proof. 9 THE COURT: Okay, we'll do that. 10 Take a recess. 11 (Recess taken.) 12 THE COURT: We're back on the 13 record. The jury is not here. 14 First of all, let's take up Exhibit 15 No. 112. It was offered when Mr. John Gray, 16 defense witness, was on the stand. I understood 17 him to say that this was -- it was guidelines for 18 Systems Administrator and something that was 19 adopted, I believe, after the defendant was 20 employed, as I recall, in the IWARP group. 21 Like to clarify that, Mr. Sussman? 22 MR. SUSSMAN: Yes. I was looking 23 for the document. 24 THE CLERK: I have it here. 25 THE COURT: I believe the testimony 59 1 was that that was not a document that was in place 2 at the time the defendant worked for IWARP, but 3 after, sometime after he concluded, I don't recall 4 whether concluded his employment with IWARP or 5 something else, but the defendant was no longer 6 there. 7 MR. SUSSMAN: That's correct, Your 8 Honor, but what we're offering this exhibit for is 9 to show that it is circumstantial evidence of the 10 distribution of security policies, what the 11 particular policies were. 12 We intend to show that Mr. Schwartz 13 had not received or been shown such a basic 14 document for Systems Administrators who were 15 working at Intel at that time. So the key thing 16 was to have the witness identify what the document 17 was and we intend to offer it to show what policies 18 were, in fact, in place. 19 THE COURT: Policies in place after 20 the defendant was no longer employed there? How is 21 that relevant? 22 MR. SUSSMAN: Your Honor, these were 23 not just policies, as I understood. I'm sorry. 24 THE COURT: Well, I could be 25 corrected on that, too. The gist of it was that 60 1 this guidelines -- I haven't looked at it, but the 2 State's policies, but it was a document that was 3 prepared to memorialize, apparently, some sort of 4 guidelines or policies, but it wasn't drafted until 5 after the defendant -- his contract or employment 6 had been terminated. 7 MR. SUSSMAN: That's correct. In 8 effect, also shows what was not communicated and 9 what were the policies not implemented during the 10 time that Mr. Schwartz was there. I'm sorry that I 11 did not articulate that. 12 THE COURT: Did the witness identify 13 which of those were not in place when he was 14 working there? 15 MR. SUSSMAN: He said this was 16 established after Mr. Schwartz had left SSD. 17 THE COURT: Maybe I should hear from 18 Mr. Tintera. 19 MR. TINTERA: I don't see how it's 20 helpful or relevant to the jury and I would liken 21 it to Oregon Evidence Code Rule 407, which deals 22 with subsequent or remedial measures. That's not 23 admissible in a civil trial. 24 I think that philosophy can be 25 carried over when you look at the relevance in a 61 1 criminal trial that if, in fact, this is the policy 2 of the Supercomputer Division now, without the 3 defendant having been appraised of it or even 4 existing while he was there, how is this helpful 5 for the jury to determine his authorization at the 6 time? 7 MR. SUSSMAN: Not so much that it 8 goes to authorization but as much as it goes to 9 understanding and the issue of what security 10 policies were in place and disseminated. And this 11 was -- because that goes to evidence of 12 Mr. Schwartz's state of mind and understanding of 13 what the policies were as it affected him at the 14 time of his contract. 15 THE COURT: Do you object to 112? 16 MR. TINTERA: I do. 17 THE COURT: I'm not receiving 112. 18 It's not that I buy your argument about them being 19 similar to subsequent remedial measures of it. 20 That's a good try. 21 I thought -- somewhere I learned 22 that the public policy reason for not admitting 23 evidence of subsequent remedial measures was that 24 we wanted producers of products, goods and that 25 sort of thing, equipment, machinery at some point 62 1 to -- in particular if at some point it was 2 determined that there was some dangerousness 3 involved, to be encouraged to take remedial 4 measures. And if, in fact, that could be used as 5 evidence against them, likely they never would. 6 They would leave the dangerous product out there 7 because they wouldn't want somebody to sue them and 8 say, "Look, see what happened afterwards," and that 9 they correct the problem. 10 I doubt that same public policy 11 would apply in this case. I don't see the 12 relevance of a document that was drafted after the 13 defendant's employment had ended in this case, 14 although it may state some guidelines for Systems 15 Administrators, some policies. Some of those 16 apparently were in place and some of them may not 17 have been in place at the time of the defendant's 18 employment and I don't think it's helpful to the 19 jury, so I'm not receiving it. 112 is not 20 received. 21 Do you have another matter? 22 MR. SUSSMAN: Just something 23 regarding the offer of proof that was made with 24 respect to Tanya Herlick's testimony and I want the 25 record to reflect certain comments and 63 1 qualifications on the limit of that offer of proof 2 so that I had that clearly stated on the record at 3 some point and I apologize for not doing it at the 4 time. 5 The offer of proof was offered for 6 these limited purposes. First to show how Tanya 7 Herlick found out about Mr. Schwartz running the 8 Crack program. Second, to show that he contacted 9 O'Reilly immediately. Third, that she cancelled 10 his account initially. That she spoke with him and 11 that the statements about the conversation were 12 offered not for the truth of them, but to show why 13 she did what she did in reinstating the account and 14 not, at that point -- and there was some initial 15 lead-in to that in terms of how she found out about 16 Mr. Schwartz running the Crack program, which was 17 not the specific and the key points of the offer of 18 proof, so I want the record to be clear on that and 19 clearly state that, the specific purposes of the 20 offer. 21 THE COURT: Well, the record will 22 show the stated purpose today. Unfortunately -- 23 well, the Court always has the option of modifying 24 its prior rulings on matters. I'm declining to do 25 that. And while I appreciate the fact that we all 64 1 have clearer thinking sometimes over the evening, 2 it isn't particularly helpful to me when the 3 witness is on the stand one day and then I get a 4 clarification of the offer of proof the next day. 5 And the witness wasn't on the stand. 6 It was done telephonically. If I did wish to 7 modify the decision I previously made, I understand 8 from your prior representation, she wouldn't even 9 be available now, so pretty well limits what I 10 could do if you convinced me that I overlooked 11 something or that I had ruled incorrectly 12 previously. I couldn't change my ruling at this 13 time. 14 MR. SUSSMAN: Well, because we may 15 be running into next week, we might be able to 16 contact her later on and that certainly remained an 17 option, or that the offer of proof that -- the 18 statement of the testimony could be presented 19 through a transcript. Truthfully, ***I was not 20 bringing it up now to ask you -- necessarily to 21 invite you to change the ruling. I understand the 22 Court had made its ruling, but that it may not have 23 been clear at the time, and so for purposes of 24 making the record clear, if for no other purpose 25 than for clarifying the record. 65 1 THE COURT: Sure. And you do have 2 the opportunity to do that. 3 MR. SUSSMAN: That's what I wanted 4 to do. 5 MR. TINTERA: You did represent to 6 me that she would not be available later and that's 7 the reason we took her telephonically. 8 MR. SUSSMAN: That's correct. But 9 at that point, we thought we would be finished this 10 week. 11 THE COURT: That's true. Anything 12 else? 13 Bring in the jury and let's proceed. 14 (Whereupon, the following 15 proceedings were held in 16 open court, the jury being 17 present:) 18 THE COURT: We're ready to proceed. 19 Call your next witness. 20 MR. SUSSMAN: Larry Wall. 21 22 23 24 25 66 1 LARRY WALL 2 called as a witness on behalf of the Defendant, 3 having been first duly sworn under oath, was 4 examined and testified as follows: 5 6 THE CLERK: State your full name and 7 spell it for the record, please. 8 THE WITNESS: Larry Wall. 9 ****W-a-m-l. 10 11 DIRECT EXAMINATION 12 BY MR. SUSSMAN: 13 Q Mr. Wall, where do you live? 14 A Mountain View, California. 15 Q And what is your occupation? 16 A My occupation is software engineer 17 currently, with mixed-in Systems Administrator 18 duties. 19 Q Where are you employed? 20 A I work for Seagate ***Manufacturer. 21 Q And what kind of place is this and where 22 is it? 23 A It's a software engineering firm. It was 24 a startup about six years ago and we were recently 25 acquired by Seagate. We do network management 67 1 software and basically help companies keep track of 2 where all their machines are and what they're 3 doing. 4 Q Can you tell me a little bit about your 5 background? You said you have worked as a network 6 software ***engineer and done some Systems 7 Administrator work? 8 A Yes. I originally got into computers 9 about 21 years ago and almost immediately, this was 10 at Seattle Pacific University, I was the Systems 11 Administrator there for about three years. And 12 then after graduate school, I went to work with 13 what was then SDC, which was acquired by Burroughs, 14 which turned into ***Unisys, and I was a Systems 15 Administrator there, too. 16 And then from there, I went to the 17 Jet Propulsion Laboratory in Pasadena, California, 18 and I was there four years as a Systems 19 Administrator. 20 Q Now, you've had some extensive experience 21 as a Systems Administrator. Let me ask you couple 22 questions about that. 23 Are there any particular qualities 24 that are required to be a good Systems 25 Administrator? 68 1 A You have to have a lot of qualities. 2 Nobody has them all, but you kind of have to be a 3 jack-of-all-trades because you're the backstop. 4 You have to -- whenever someone has a problem, they 5 don't know what to do, they come to you and you 6 either have to know the answer to the problem or 7 know where to look for the answer to the problem. 8 So you have to be able to deal with a steady stream 9 of people coming in and out and asking questions 10 sometimes repetitively. 11 And on the other hand, when there 12 aren't people coming in and asking questions or 13 there isn't an immediate problem, then your job is 14 to sort of deal with the long-term planning for the 15 way the systems are going to be used and to just 16 try to be -- the buzz word in the industry is 17 "proactive" nowadays, but just try to figure out 18 ahead of time what's going to go wrong and try to 19 fix it before you get there. 20 Q As a Systems Administrator, are there any 21 particular tools that are used to test security -- 22 A Yeah. 23 Q -- of your systems? 24 A Yeah. There are a number of tools that 25 have been released over the years. There is a 69 1 couple tools from Dan Farmer. Cops is the name of 2 one of them. 3 Q What is that? 4 A ***Cops. It's -- 5 Q What is that? 6 A It's a suite of programs that helps the 7 administrator. It looks for places where there 8 might be security difficulties and tells him so he 9 can fix them up. 10 There is another program called 11 Crack which is -- it was written by a fellow named 12 ***Alec Muffet, and that was also intended to be 13 used by Systems Administrators. 14 Q Just out of curiosity, are these 15 programs, are they written in some kind of computer 16 language? 17 A Some of them are written in C. Crack is 18 written in C. ***Cops is written in Pearl. 19 Q Is that in an area that you have any 20 particular expertise in? 21 A Well, it happens I wrote the Pearl 22 computer language. I developed it and I gave it 23 away and people use it quite a bit. 24 Q Just out of curiosity, the Crack program 25 as a tool, is that particularly a good one for 70 1 Systems Administrators and is it good for other 2 purposes? 3 A It's good for figuring out whether you've 4 got a good password program, basically. That's 5 what Systems Administrators use it for. It's a 6 validation tool, basically. You put a password 7 program in there to let people change their 8 passwords and they won't necessarily pick very good 9 passwords. In fact, historically speaking, people 10 tend to pick lousy passwords. And the reason Crack 11 was written was to let Systems Administrators find 12 those lousy passwords. 13 I don't think it's the best way to 14 do it, because I think it's better to go ahead and 15 put a good password in and outlaw the bad passwords 16 in the first place. 17 Q Is Crack a program that can be used 18 effectively by somebody trying to break into a 19 system? 20 A Oh, if they were stupid, they might. 21 Q Why do you say that? 22 A It's not really -- it's not a real good 23 tool for that. In the first place, it's a real 24 heavy-duty program. It chews up your CPU. 25 Q What does that mean? 71 1 A If anybody were trying to do anything 2 else on the system, they would notice that there 3 was a heavy load on the system and probably check 4 and see there was a program out there running named 5 Crack. It's way too obvious to be used as a 6 system-cracking tool. In fact, the author of it 7 himself said he sort of misnamed it. He said it 8 should have been called "Password Check," or 9 something like that. But, yeah -- 10 Q Is it a program that can be hidden 11 easily? 12 A Not really, no. It really puts a load on 13 your system and I don't think -- if I were 14 interested in breaking security, I sure wouldn't do 15 it that way. There is lots of easier ways that are 16 known throughout the community and are -- that 17 Systems Administrators -- every System 18 Administrator worth his salt knows the company 19 ***national call lays of ways to break into the 20 systems, and that's why there is other programs 21 like Cops to help them patch these holes. 22 But Crack is not at all a stealthy 23 program. You talk about -- you think about stealth 24 fighter jets and things, but you can't hide it. 25 Q Mr. Wall, do you know Randal Schwartz? 72 1 A Yes, I do. 2 Q And how do you know Randal Schwartz? 3 A Well, I first became acquainted with him 4 in about 1987, and I had just then published the 5 Pearl programming language and I noticed that 6 the -- I noticed on the networks that certain 7 people repeatedly were helping other people out and 8 had already learned Pearl as soon as I put it out. 9 Randal was one of those people. He was -- he had 10 gotten ahold of it as soon as I put it out there 11 and learned how to use it and was already trying to 12 teach other people how to use it. 13 Q When you say you first published this and 14 put it out there, what are you referring to? 15 A Pearl is one of the kind of programs that 16 are called freeware. It's freely redistributable. 17 You can think of it as kind of like public domain. 18 And sometimes people ask me why I put that sort of 19 thing out, but I just like to do that sort of 20 thing. 21 Q Where was this published? 22 A On the network. You put it out and you 23 send it, there is various ways of publishing it. 24 Nowadays you probably put it on the Web but -- the 25 Worldwide Web, but back then we didn't have the 73 1 Worldwide Web. 2 Q The Worldwide Web refers to what? 3 A It's a mechanism for people to explore 4 the Internet and find things that they are looking 5 for. But back then what we had was a network 6 called Usenet, which still exists. But what I did 7 was publish it on Usenet and it has what's called a 8 flooding and sends it everywhere where everyone 9 subscribes to it. It's like a bulletin board all 10 over the country and now all over the world. 11 Q Anybody could get on the Usenet or 12 Internet and communicate about things with anybody 13 else in the world? 14 A Yeah. And there are various different 15 areas, various different discussion groups that 16 people have on these things. And some of these 17 discussion groups are more closely related to the 18 sort of things that you might want to do as Pearl. 19 And this is where I first got to know Randal, over 20 the network. He was ***working with people and 21 they would ask a question about how do you do this 22 and -- 23 MR. TINTERA: Your Honor, I object. 24 I think the question has been answered. 25 THE COURT: Sustained. 74 1 BY MR. SUSSMAN: 2 Q So you first got to know Randal Schwartz 3 over, you indicated, communication on the Internet? 4 A Yes. 5 Q After that, what further contact did you 6 have with him? 7 A After a while, Randal approached me with 8 the ideas of writing a book. A publisher had, in 9 fact, approached Randal. Tim O'Reilly is the 10 publisher of his book. 11 MR. TINTERA: Objection. That can 12 only be based on hearsay. 13 THE COURT: Sustained. Ask another 14 question. 15 BY MR. SUSSMAN: 16 Q What was your next contact with 17 Mr. Schwartz after he contacted you about writing a 18 book? 19 A Then we corresponded with great frequency 20 over the Net about how we would go about organizing 21 this book and what would be the best way to present 22 the materials to people. We met in person for the 23 first time while we were organizing the writing of 24 the book, and then we actually finished the book 25 over the network. 75 1 Q So most all of this communication between 2 you and Mr. Schwartz about doing this book was over 3 computers? 4 A Yes. At that point, yes. Some by 5 telephone, of course. 6 Q Where were you living at the time? 7 A At the time, I was living in Panorama 8 City, LA, basically. 9 Q And Mr. Schwartz was up here in Oregon? 10 A Yes. 11 Q And then what further contact or how else 12 do you know Mr. Schwartz? 13 A Well, when the book finally came out -- 14 the name of the book, by the way, is Programming 15 Pearl. When the book finally came out, we had a 16 signing party, I believe this was in Dallas, Texas, 17 and we had a good opportunity to gab a lot there. 18 And then since that time over the years, we have 19 continued corresponding over the networks and we 20 have met in person many times since then. 21 Randal often teaches classes in 22 programming Pearl and some of those are down in the 23 area where I live and very often he invites me in 24 to meet with his class at the end of their course 25 session. And we often do dinner, too, and have him 76 1 over to the house. 2 Q How would you describe Mr. Schwartz's 3 level of skill in programming, whether it be with 4 Pearl or in other areas? 5 A Very high. 6 Q In your opinion, does Mr. Schwartz have a 7 level of skill to run a program that would try to 8 break into somebody's passwords in a way that could 9 not be noticed or couldn't be discovered? 10 A Certainly. 11 Q Based upon your associations with 12 Mr. Schwartz, your familiarity with him over the 13 Net and over this world of the Internet or these 14 different networks and your personal dealings with 15 him, have you been able to form an opinion about 16 Mr. Schwartz's character for honesty and -- excuse 17 me, honesty and trustworthiness? 18 A I have. 19 Q And what is that opinion? 20 A I have seen no evidence whatsoever of any 21 untrustworthiness. He has -- 22 MR. TINTERA: Objection to any 23 elaboration, Judge. 24 THE COURT: Sustained. 25 77 1 BY MR. SUSSMAN: 2 Q And your opinion about his character for 3 honesty? 4 A He's always told me the truth and -- 5 MR. TINTERA: Objection. 6 Unresponsive. 7 THE COURT: Sustained. 8 BY MR. SUSSMAN: 9 Q In terms of general character for 10 honesty? 11 A Yeah, -- 12 THE COURT: Sometimes witnesses like 13 to use the word "honest" in answering the question. 14 Do you think he's an honest person or dishonest? 15 THE WITNESS: Well -- well, I've 16 seen -- yes, I think he's a very honest person. 17 MR. SUSSMAN: Thank you very much. 18 No further questions. 19 THE COURT: Mr. Tintera. 20 21 22 23 24 25 78 1 CROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q Mr. Wall, in a UNIX system, who can 4 access the password file? 5 A Anybody who -- well, that's one of those 6 "it depends" questions. On some systems 7 historically particularly, anybody can access the 8 password file. The passwords, however, are only 9 stored encrypted, so they are generally of little 10 use to most people. 11 The idea is that hopefully the 12 encryption on them is strong enough that it doesn't 13 matter if the encrypted password is -- 14 Q So are you saying they are public access, 15 anyone publicly can access the password file? 16 A Yes. 17 Q Do you have to have any access rights to 18 a password file? 19 A No. Other than having a basic account on 20 the machine, no. 21 Q So you do need something else on the 22 machine? 23 A Yeah, or you have to have privileges that 24 are -- sometimes when you talk about the machine, 25 you're talking about a collection of machines that 79 1 are logically behaving at one machine. 2 Q So it's not public access. You have to 3 have an account on the machine? 4 A Generally speaking, yes, but really 5 depends on what the other privileges that are 6 granted by the Systems Administrators. 7 Q So it requires some grant of permission 8 by a Systems Administrator? 9 A Not always explicitly, no. But -- 10 Q The machine has to know who you are? 11 A Yeah. 12 Q The machine has to know who you are -- 13 A Yes. 14 Q -- to let you access the password file? 15 A Yes. 16 Q It doesn't let strangers in? 17 A Not unless the Systems Administrators has 18 specifically given away that. 19 Q Not unless he's opened the flood gate to 20 let everybody in? 21 A Right. 22 Q So in some sort of secure machine, in a 23 minimum of security, it's not going to let a 24 stranger in; is that fair? 25 A That is how it's designed to work, yes. 80 1 Q Can you usually write to a password file? 2 A No, not unless you're the superuser. 3 Q Right, Systems Administrator? 4 A Yeah. 5 Q And in regard to gaining access, this is 6 unauthorized access, how many passwords would you 7 need to know to gain unauthorized access to a 8 system? 9 A Only one. 10 Q One? 11 A Only one. But you -- by and large you 12 wouldn't be able to do much with that. 13 Q My question is how many, and your answer 14 is? 15 A One. 16 Q Sure. And if your password -- let's 17 assume you had an account on a machine and that 18 password is disabled, is that account for all 19 intents and purposes for you gone? 20 A Essentially, yes. 21 Q And as a Systems Administrator, isn't it 22 true that the use of the Crack program for systems 23 security in administration is nil if, in fact, you 24 don't follow up? 25 A Yes, that's correct. 81 1 Q Now, you mentioned that the Crack 2 program -- I liken computers to engines, it's kind 3 of like running your air conditioning. It puts a 4 drain on your engine? 5 A Uh-huh. 6 Q So if you were wanting to run the Crack 7 program and not have whoever was using that engine 8 notice the drain, you would -- you could copy that 9 or you would copy that to a different system to run 10 the Crack program; isn't that true? 11 A That could be done, yes. 12 Q And then the drain on the system wouldn't 13 be noticed, would it? 14 A Well, it would be noticed on the other 15 system. 16 Q But not the one that is the target of the 17 Crack program, would it, if it's taken away and 18 copied? 19 A That's correct. 20 Q And so someone who wanted to crack a 21 program and not be noticed would copy that file 22 away from the target system to an area that is away 23 from there, is not associated with that system so 24 it wouldn't be noticed, is that fair? 25 A That's fair. 82 1 MR. TINTERA: That's all I have. 2 Thank you. 3 THE COURT: Redirect? 4 5 REDIRECT EXAMINATION 6 BY MR. SUSSMAN: 7 Q Mr. Wall, in a system that you've 8 administered, you have a number of passwords, bad 9 passwords, would you consider those passwords a 10 benefit or a liability to your system? 11 A Bad passwords are a liability. 12 MR. SUSSMAN: Thank you. Nothing 13 further. 14 MR. TINTERA: I don't have any other 15 questions. 16 THE COURT: Thank you. You may step 17 down. And you're free to go. 18 MR. SUSSMAN: Thank you, Your Honor. 19 That concludes the witnesses that I have for this 20 morning. 21 THE COURT: We'll be in recess until 22 1:30, ladies and gentlemen. Remove the jury. 23 (Luncheon recess.) 24 25 83 1 AFTERNOON SESSION 2 BEGINNING AT ***{^____________ 3 JULY 20, 1995 4 5 (Whereupon, the following 6 proceedings were held in 7 open court, the jury being 8 present:) 9 THE COURT: Ladies and gentlemen. 10 We have been talking about scheduling. One of the 11 things I said, if we didn't conclude, we would go 12 over to Monday. 13 I neglected to check my own 14 calendar. I have a matter set in a criminal case 15 where the defendant is set -- is in jail and it's 16 been set for a long time and I have to do that 17 Monday. If this case doesn't conclude this week, 18 it will be Tuesday. 19 We have conferred and we're certain 20 that Tuesday will be the last day. Except for 21 Mr. Speck, any of you that couldn't be here 22 Tuesday? I know this has gone on longer than 23 anticipated and I can tell you that we have a 24 policy in this county when you serve on juries for 25 long periods of time that you are excused for a 84 1 long period of time, so you don't have to serve for 2 the rest of the term. 3 If you wish, you might -- you could 4 come in for the rest of the term, if that's what 5 you want to do, but if you want to be excused for 6 the rest of the term, those that have been here for 7 the two weeks may. 8 All of you except for Mr. Speck 9 could be here Tuesday; is that right? 10 Mr. Speck, we have talked about how 11 to handle your case. We are relatively certain 12 that we won't finish Friday. That being the case, 13 although you probably -- you may have found this 14 case to be interesting, seems if you want to, 15 because we know we're not going to finish the 16 trial, if you want to, I would consider excusing 17 you now and having your place taken by 18 Mr. ***Merritt, who is our alternate. 19 You told us you have tickets for 20 your vacation that are non-refundable and your 21 family is going and you'd like to be with them, 22 apparently. I want to leave that to you. You tell 23 people what you want to do. 24 JUROR: We were going to drive up 25 there and it wasn't the tickets as much as the 85 1 reservations. I consider the issues in the case to 2 be highly significant, and although it's not really 3 what I would have wished, I would very much like to 4 be part of the decision-making process. 5 THE COURT: So? 6 JUROR: So if it does go until 7 Tuesday, I would like to participate in the 8 deliberation process. 9 THE COURT: Actually, counsel 10 suggested I approach it this way, and I'm glad they 11 did. I had a reading from you that you couldn't be 12 here and they suggested that I put it to you and 13 make certain that -- as to what your desire was. 14 Now I hear you saying even though it 15 would be a sacrifice, you could be here. 16 JUROR: For a day, I could. 17 THE COURT: Earlier you thought 18 Monday, now it's Tuesday. 19 JUROR: I'll commit to that. 20 THE COURT: You're not going to be 21 worrying about that now and not -- I want to be 22 sure that your mind is on this and not missing your 23 vacation for a couple days. 24 JUROR: Oh, it is. 25 THE COURT: It is. You find the 86 1 case to be interesting. I hope the manner in which 2 the sides are presenting this to you that you all 3 find it interesting. 4 With that in mind, I'll leave you 5 here. Unless you bring it to my attention again, I 6 won't talk to you about that, excusing you, because 7 of your vacation plans. As I understand it now, 8 you've told me that you could be here Tuesday. 9 JUROR: It would be an imposition if 10 it extended even further past that. 11 THE COURT: I don't think it will. 12 The way witnesses are scheduled, I believe that 13 we're going to finish with all the evidence 14 tomorrow and it would be argument and instruction 15 and your deliberation on Tuesday. I would say the 16 only possibility -- I always think of loose ends 17 for some reason -- deliberation, you weren't able 18 to conclude on Tuesday, but I'll suggest that's 19 seldom. If we had most of the day, I think there 20 is not much chance of that. I think the jury is 21 going to be able to deliberate in this case and 22 reach a verdict. 23 So with that then, unless counsel 24 has something else. 25 MR. SUSSMAN: No. I understand 87 1 Mr. Speck's circumstances and I -- 2 THE COURT: Do counsel want to ask 3 questions? 4 MR. SUSSMAN: Mr. Tintera mentioned 5 something about deliberation also. 6 MR. TINTERA: Right. 7 MR. SUSSMAN: Both of us would be 8 concerned, Mr. Speck, that given the sacrifice 9 you've made so far, that once you get there Tuesday 10 and if we run into the situation where the 11 complexity of the issues involved and the length of 12 case and number of issues took a longer time than 13 normal for deliberation in the case so that, who 14 knows, it could run over and how that would -- 15 THE COURT: I need to bring up one 16 additional fact, and that is you may not know 17 Oregon law doesn't provide for alternates to take 18 the place of jurors during deliberation once the 19 jury begins deliberation and you have to continue. 20 MR. SUSSMAN: We would both be 21 concerned that the deliberation not be rushed 22 because of the pressure of your schedule. We want 23 to make sure we have all the time you need. 24 JUROR: I would give it as much 25 seriousness that I would want if I were in that 88 1 position. 2 MR. SUSSMAN: Thank you. 3 THE COURT: In order to try to 4 accommodate people, too, we could -- I can work 5 with counsel, talk with the jury about this, too, 6 even consider trying to start earlier on Tuesday so 7 they can begin earlier. Make sure I don't have a 8 9:00 o'clock on Tuesday. 9 I have an appearance. We can set a 10 schedule if it's argument and instructions, counsel 11 and I can sit down and set a schedule, what we have 12 typically done in those kind of cases, even if it 13 runs into the noon hour, if we can set a schedule 14 so we can get the argument done and instruct, even 15 though it might be 12:30, 1:00 o'clock, run through 16 the noon hour, provide lunch to you and let you 17 begin your deliberation. 18 Let's think in those terms. We 19 appreciate the time and consideration and effort 20 that are going into this case because it's 21 technical and the fact that it's taken longer than 22 we have anticipated. Although pretty much in the 23 time frame, taking longer, I'm speaking for all 24 parties and the Court staff, we appreciate you 25 folks. 89 1 We're ready to proceed then, and you 2 may call your next witness. 3 MR. SUSSMAN: Thank you. We'd call 4 Andrew Johnson-Laird. 5 ANDREW JOHNSON-LAIRD 6 called as a witness on behalf of the Defendant, 7 having been first duly sworn under oath, was 8 examined and testified as follows: 9 10 THE CLERK: State your full name and 11 spell it for the record, please. 12 THE WITNESS: Andrew Johnson-Laird. 13 J-o-h-n-s-o-n - L-a-i-r-d. 14 15 DIRECT EXAMINATION 16 BY MR. SUSSMAN: 17 Q Mr. Johnson-Laird, what's your 18 occupation? 19 A Forensic software analyst. 20 Q Why don't you explain to jury at this 21 point what does that mean? What is a forensic 22 software -- 23 A What I do is I preserve and analyze and 24 then explain, if necessary, computer-based 25 evidence. Sometimes for litigation and sometimes 90 1 merely to people in management who are interested 2 in the problems that it's caused. 3 Q And what's involved in doing that? 4 A Essentially a good understanding of the 5 way computers work, good understanding of the way 6 computers store data, good understanding of the way 7 computers don't do what you think they do in terms 8 of deleting files and so on. In terms of the 9 ability to analyze it, fair amount of compute power 10 sometimes that didn't need to do a lot of number 11 crunching. You get a lot of database these days. 12 In terms of explaining it, that's fairly 13 self-evident. 14 Q Where do you live? 15 A I live in Portland. My office is at 850 16 Northwest Summit Avenue. 17 Q And what kind of background, training or 18 experience do you have that brings you to the point 19 of becoming a forensic computer analyst? 20 A Software analyst, Counsel. Basically, I 21 started in the computer industry fresh out of 22 college. In fact, unfortunately for me and for 23 them, my father died when I was in college and I 24 got a job with a company called National Cash 25 Register, ***all boob it in London. They put me in 91 1 charge of operating a mainframe computer that would 2 probably just fit in this room. My job was to run 3 other programmers' work and I used to do that. 4 I favored the night shift because I 5 discovered that if I was lucky and got everything 6 to work right, by 2:00 or 3:00 in the morning, I 7 would have completed all those tasks and when I 8 asked the manager what do I do then, they said, 9 "Play with the computer." 10 So I'm afraid that sounds like a 11 confession, but that's when I started hacking 12 computers in the old sense of the word. Learning 13 them, trying to find out everything I could, trying 14 to teach myself how to program. 15 Following that, I was asked by the 16 same company to go teach people how to program 17 which, I found interesting both because it was a 18 compliment that I obviously understood these 19 machines well enough to go teach people. And then 20 they asked me to help them work on something called 21 the operating system, which is a piece of software 22 that actually makes the computer work. 23 After about three years there, I 24 moved out into the commercial work, I helped write 25 and design software for what we call building 92 1 societies. Over here, I think you call them 2 mortgage companies and savings and loans. No 3 negative connotation, they are just a combined 4 operation. 5 From that point on, I guess it was 6 in 1972, I went to work for Control Data 7 Corporation, but the European office in France and 8 there my job was when supercomputers were made by 9 Control Data, when they broke or when people 10 thought they broke, I would have to go out and try 11 and diagnose what the problem was, train the 12 customer, train the people how to use them if it 13 had been a problem that the customer had caused. 14 They then asked me whether I would 15 transfer to Control Data Toronto in Canada, and I 16 worked again for the supercomputer group working on 17 some fairly specialized software. My job, among 18 other things, was to push the software to the 19 limit, basically to break it, to use the word we 20 use, to see why it would fail. 21 We also were operating a computer 22 network and my job, among other things, was to try 23 to push that to the limit as well. 24 I also got to work on some programs, 25 we call them text editors, nowadays they are word 93 1 processors, you sit and type letters and documents 2 into the computer. 3 From there, I think we moved down to 4 the States and that would have been in '77, '78, 5 and at that point in time, the microcomputer 6 industry had just come into being. No one knew who 7 Bill Gates was. That was the test. He was running 8 a small company in New Mexico at the time and I got 9 to work with some of his products. This was the 10 hobby stage of the microcomputer business. 11 I started a company, among other 12 things specializing in installing operating 13 systems, which was an area of my specialty, and we 14 relocated that to Portland and we have been here 15 ever since. 16 Q Since you've come to Portland, what has 17 been your experience? 18 A Well, the company that we started 19 blossomed. We ended up starting two other 20 companies, simultaneously. One was in Portland and 21 the other one was in England. And we were doing 22 such things as installing operating systems. 23 We put the operating system on the 24 IBM personal computer before it was announced. 25 This wasn't Microsoft, this was an opposing -- as 94 1 it is now, an opposing operating system with a 2 different name, but it was the then standard. This 3 was before Microsoft took off and became the 4 powerhouse that it is now. And we develop various 5 other products. 6 We also were providing consulting 7 service to companies, big companies, Shell Canada, 8 among others, Xerox Corporation. So we were 9 working with them, if it's possible to describe 10 that. We were a very small company and they were 11 very large companies, obviously, but doing 12 consulting work for them. 13 Q You mentioned, of course, that you are a 14 forensic software analyst, and perhaps to help the 15 jury understand a little more about what that 16 involves, would you please tell them what kind of 17 experience you have doing forensic software 18 analysis? 19 A The reason I got into forensic software 20 work was that computer software for a long time 21 really wasn't subject to very strong intellectual 22 property law like copyright. 23 MR. TINTERA: I object. I don't 24 think that's responsive to the question. The 25 question asks for his specific experience in 95 1 forensic software analysis. 2 THE COURT: I think he's getting 3 there. Overruled. Go ahead. 4 THE WITNESS: As I was saying, this 5 was an area where there was considerable confusion 6 among the attorneys of the world and also among the 7 software developers. So the kind of work I was 8 doing would be people would call me up, sometimes 9 attorneys, sometimes not, and say, "We think 10 someone else has copied our software. Would you 11 have a look at it and see what you think?" Or "We 12 had an employee leave yesterday and a day later 13 he's advertising he has a competitive product. We 14 think he to