I, John A. Deep, the undersigned declare:
1. I am the plaintiff in the matter, Deep v. The Recording Industry, et al., Case No. 1:05-cv-205, which I filed as an adversary proceeding in the United States Bankruptcy Court of the Northern District of New York, on February 11, 2004. I am also named as a party to the matter In re Aimster Copyright Litigation, MDL No. 1425, transferred to the Northern District of Illinois on November 16, 2001. I am also the debtor-in-possession in the bankruptcy case In re John A. Deep, Case No. 02-11552, filed in the United States Bankruptcy Court of the Northern District of New York on March 11, 2002, and now closed. I make this declaration in support of my Motion for Order to Show Cause re Sanctions. Unless otherwise indicated, I know all of the following facts of my own personal knowledge and, if called and sworn as a witness, could and would competently testify thereto.
I. Boies-Schiller’s Representation of My Interests
A. Dec. 2000 – My Disclosure of Confidential Information to Boies-Schiller
2. On November 15, 2000, David Boies wrote a letter to me on the letterhead of the law firm of Boies, Schiller and Flexner or “Boies-Schiller.”
3. Attached hereto as Exhibit 1 is a true and correct copy of a letter addressed to me, signed by David Boies and dated November 15, 2000.
4. The letter refers to the receipt of “Datamine’s 15% equity interest.” The letter concludes, “I look forward to working with you and your team.”
5. On December 13, 2000, David Boies flew to Albany, New York, to attend a meeting with me, at which I provided confidential information and documents to David Boies about the use of my proprietary method for “targeted” marketing of discounted prices, which I had branded as “Aimster.”
6. Attached hereto as Exhibit 2 is a true and correct copy of an excerpt from the book “v. Goliath” that narrates David Boies’ itinerary on December 13, 2000, including that day’s trip to Albany, New York, and back.
7. Between November 2000 and now, I provided confidential documents or information about my proprietary Aimster method to David Boies, whom I know by name and title as Chairman of Boies-Schiller, and to Boies-Schiller lawyers or staff supervised by David Boies, including George Carpinello, Kathleen Franklin, Michael Endler, Robert Silver, David Barrett, Christopher Boies, Adam Shaw, Martin Deptula and Kate Basal.
B. Trans World Entertainment’s Offer to Purchase
8. Previously, in September 2000, in a meeting at the corporate headquarters of Trans World Entertainment Corporation in Albany, New York, which included Trans World Entertainment Chairman and President Robert Higgins and Trans World Entertainment Chief Financial Officer John Sullivan, I provided to Trans World Entertainment my presentation of the general features of my proprietary Aimster method, including its “sharing with buddies” concept, but did not disclose confidential information necessary to enable or implement my method.
9. During the meeting, Robert Higgins introduced me to Bill Duker.
10. After the meeting, in a private discussion with me, Robert Higgins proposed to purchase an interest in my proprietary Aimster method, and told me that he would ask Bill Duker to represent him in the purchase.
11. I promised Mr. Higgins to meet with Bill Duker to consider his proposed purchase.
12. Shortly thereafter, Bill Duker contacted me and asked me to meet him at the Steuben Club in Albany, New York, a private club where Bill Duker said he was a member.
13. At the meeting, Bill Duker described his role as an agent for Robert Higgins who set up legal entities and transactions drawing on his legal experience and analyzing Trans World Entertainment’s special needs, and received a commission as a percentage of the profit of the entities. Bill Duker admitted that at Robert Higgins direction he utilized such “Special Purpose” entities for the benefit of Robert Higgins, and specifically described “Media Logic,” an advertising agency controlled by Robert Higgins.
14. Trans World Entertainment’s special purpose entities such as Media Logic are paid by Trans World Entertainment’s vendors, who are primarily the major music and movie distributors, in return for promotion of the vendors’ CDs and DVDs in Trans World Entertainment’s stores.
15. I proposed that my proprietary Aimster method could maximize the value of in-store and online promotions, by “targeting” the discounted price that any given Internet customer was willing to pay, so that the discounted price could be advertised or promoted as a “special” low price to that given customer.
16. Bill Duker represented to me that Robert Higgins authorized him to set up a special purpose entity, similar to Media Logic, under the control of Robert Higgins, to which Robert Higgins proposed that I license my proprietary Aimster method.
17. I conveyed to Robert Higgins through Bill Duker my promise that I would consent to such a transaction, provided that I could share in the control of and profit from my proprietary Aimster method. As consideration, I promised that I would also share in any loss arising from the development of my proprietary Aimster method.
18. Bill Duker then advised me that I engage Boies-Schiller as my lawyers. Bill Duker also promised me that he would contact David Boies on my behalf.
19. On information and belief, it was as a result of Bill Duker’s promise to me in September 2000 that David Boies sent his letter to me dated November 15, 2000.