Martin Eberhard v. Elon Musk et al Document 52: Declaration

Filed July 16, 2009

Back to Martin Eberhard v. Elon Musk et al, Superior Court of California, County of San Mateo Case No. CIV484400

DECL: DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLTF OPP TO DEFTS SPEC MOT STRIKE PORTIONS OF COMPL AS SLAPP FILED BY MARTIN EBERHARD

This document includes the key court filings from the 2007 O'Reilly lawsuit against Elon Musk involving the founding of Zip2. It also contains a scanned copy of Musk's University of Pennsylvania diploma for his degree in Economics, and correspondence from Stanford University contradicted by the appendix to Ashlee Vance's biography, which relies on a second letter. The issuance of Musk's Physics degree was separately confirmed by the University of Pennsylvania in 2019.

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Yosef Peretz (SBN 209288)
Emily Knoles (SBN 241671)
Genevieve Guertin (SBN 262479)
PERETZ & ASSOCIATES
22 Battery Street, Suite 202
San Francisco, California 94111
Telephone: (415) 732-3777
Facsimile: (415) 732-3791

Attorneys for Plaintiff MARTIN EBERHARD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
MARTIN EBERHARD,
Civil Case No. CIV-484400
DECLARATION OF YOSEF PERETZ
IN SUPPORT OF PLAINTIFF’S
VS. OPPOSITION TO DEFENDANTS’
SPECIAL MOTION TO STRIKE
ELON MUSK; TESLA MOTORS, INC.; PORTIONS OF PLAINTIFF’S
and DOES 1-20, inclusive, COMPLAINT AS A STRATEGIC
LAWSUIT AGAINST PUBLIC
PARTICIPATION
Plaintiff,
Defendants.
Date: July 29, 2009
Time: 9:00 a.m.
Dep.: 11
Judge: Hon. John L. Grandsaert

I, Yosef Peretz, declare:
1. Iam a partner of the firm Peretz & Associates and am duly licensed to practice law
in the State of California.
2. I represent Plaintiff MARTIN EBERHARD (“Plaintiff”) in this action. I have
personal knowledge of the matters set forth herein and if called upon to testify, I could and
would do so competently.
3. This declaration is given in support of the Plaintiff's Opposition to Defendants
ELON MUSK (“Musk”) and TESLA MOTORS, INC. (“Tesla”) (collectively, “Defendants”)’s
Special Motion to Strike Portions of Plaintiff's Complaint as a Strategic Lawsuit Against
Public Participation.
DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT
ELON MUSK. AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
-1-

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4. One claim in the present lawsuit concerns a letter that Tesla sent to its employees,
investors and customers that stated that Tesla had terminated employees in or around the end of
2007 to ensure “accountability” in the company. See Plaintiff's Exhibit 60. On October 15,
2008, I attended the deposition of Tesla’s former Chief Information Officer, Gene A. Glaudell
(“Glaudell”), in the action entitled Vespremi et al. v. Tesla Motors, Inc., et al., San Mateo
County Superior Court, Case No. CIV-474656 (“Vespremi Action”). A true and correct copy
of excerpts of the deposition of Glaudell is attached hereto as Exhibit “69.”
5. Glaudell stated at his deposition that he attended an executive staff meeting that was
also attended by Musk, Tesla’s then-Chief Executive Officer, Ze’ev Drori (“Drori”), and
Tesla’s Vice President of Finance, Mike Taylor (“Taylor”). Glaudell testified that Musk and
Drori discussed the reasons for terminations of employees by Tesla at that meeting, and that
those terminations were made primarily for financial reasons rather than for performance
issues. However, Musk and Drori stated that did not want to state in public that they were
“making cuts” for financial reasons and that they planned to state that the layoffs were for
“performance and management accountability” reasons despite the fact that Glaudell and
Taylor protested that to make such claims was “not right” (Exhibit 69, p. 81:3-24),
6. Glaudell also testified that he and Taylor told Musk and Drori that it is
inappropriate to discuss performance reasons for employee dismissals in public, as well as to
publish such statements. Glaudell testified that he and Taylor warned Musk and Drori that
they should not do that (Exhibit 69, pp. 80:21-81:2).
7. On December 16, 2008, I took the deposition of Tesla’s General Counsel, Craig
Harding (“Harding”), in the Vespremi Action. A true and correct copy of excerpts of the
Deposition of Harding is attached hereto as Exhibit “70.” At his deposition, Harding testified
that he recalled Taylor making statements in December 2007 that Tesla should not make public
statements that individuals who were laid off were terminated for poor performance (Exhibit
70, p. 217:7-25). Harding also testified that he recalled Musk indicating that he felt it was
better not to characterize Tesla’s dismissals of employees as layoffs because the term “layoff”
was characteristic, in the public’s mind, of a company having financial problems (Exhibit 70,
pp. 218:14-219:8). Finally, Harding also testified that it was his understanding that the layoffs
DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT
ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
-2-

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that took place around the time of the meeting in December 2007 were also made for financial |
reasons (Exhibit 70, p.220:8-24).
8. Attached hereto as Exhibit “71” is a true and correct copy of the Second Amended
Verified Complaint dated, October 5, 2007, in the action entitled John O'Reilly v. Elon Musk,
San Mateo Superior Court Case No. 107 CV 083172 (the “O’Reilly Action”). This Complaint
includes claims for misrepresentation, fraud and deceit and misappropriation of trade secrets
against Musk. The Complaint alleges that Musk fraudulently misappropriated the idea of Zip2
from John O’Reilly (“O’Reilly”) when Musk met with O’Reilly in 1995 under the auspices of
| seeking employment with O’Reilly (Exhibit 71, pp. 3-7, 98-24). The Complaint also alleges
that Musk misrepresented to O’Reilly that Musk was a student at Stanford at that time (Exhibit
71, p. 3, 78).
9. Attached hereto as Exhibit “72” is a true and correct copy of excerpts of the
deposition of Norman Godhinho (“Godhinho”), taken on April 2, 2009, in the O’Reilly Action,
where Godhinho testified that in early 1996 Musk approached Godhinho for a loan to start a
company (Exhibit 72, p. 13:12-17). Godhinho testified that when Musk approached him for a
loan, Musk told Godhinho that he had received admission into Stanford University for a Ph.D.
program (Exhibit 72, p. 23:10-17). Godhinho also testified that in approaching Godhinho for a
loan, Musk told him that he had a scholarship and a grant to do a Ph.D. and that Musk was °
going to study Physics at. Stanford University (Exhibit 72, pp. 23:18-24:16).
10. Attached hereto as Exhibit “73” is a true and correct copy of excerpts of the
deposition of Derek Proudian (“Proudian”), taken on March 25, 2009, in the O’Reilly Action,
at which Proudian testified that he believed that Musk had been at Stanford University in the
Physics Department and that he had dropped out of that program (Exhibit 72, pp. 76:11-78:1).
11. Attached hereto as Exhibit “74” is a true and correct copy of excerpts of the
deposition of Jim Ambras (“Ambras”), taken on April 2, 2009, in the O’Reilly Action, at which
Ambras testified that he met with Musk in April 1996 to discuss working for Zip2 (Exhibit 74,
p. 10:6-19). Ambras also testified that during his employment at Zip2, Musk told him that he
had come to the Bay Area to study high energy physics in a graduate program at Stanford, but
had dropped out to start Zip2 (Exhibit 74, pp. 35:21-36:13).
DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT
ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO. STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
-3-

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12. Attached hereto as Exhibit “75” is a true and correct copy of excerpts of the
deposition of Craig Mohr (“Mohr”), taken on April 2, 2009, in the O’Reilly Action, where
Mohr testified that he thinks that Musk represented that he was a student at Stanford University
(p. 62:5-7).
13. Musk gave deposition testimony in the O’Reilly Action (“Musk Deposition”).
Attached hereto as Exhibit “76” is a true and correct copy of excerpts from the deposition of
Musk, taken on May 7, 2007, in the O’Reilly Action. At Musk Deposition, Musk testified
twice under oath and under penalty of perjury that he received a B.S. in Computational Physics
from the University of Pennsylvania (Exhibit 76, p. 136:12-14; 162:3-4).
14. Musk verified at Musk Deposition that Exhibit 4 to that deposition was the business
plan for the company Global Link (“Global Link Plan”); a business plan that he authored
around December 1995 or January 1996 for the purpose of raising capital for that company
with the intent of ensuring that the document contained true and correct information (Exhibit
76, p. 88:20-90:12). Attached hereto as Exhibit “77” is a true and correct copy of the Global
Link Plan that is attached as Exhibit 4 to the Musk Deposition. On page 14 of the Global Link
Plan, Musk wrote that he has a B.S. degree in Computational Physics.
15. Musk also verified that Exhibit 5 of the Musk Deposition was the kind of “flip-
through” that appears to be a Power Point presentation that would have been used as a tool to
raise capital for Global Link (Exhibit 76, p. 131:22-133:4). On page 15 of the “flip-through”
for Global Link, Musk is described as having a B.S. degree in Computational Physics.
Attached hereto as Exhibit “78” is a true and correct copy of the Zip2 “flip-through” that was
attached as Exhibit 5 to the Musk Deposition.
16. At Musk Deposition he verified Exhibit 7 as a true and correct copy of his
responses to Plaintiffs Form Interrogatories, Set One, in the O’Reilly Action, and testified that
he stated by signing the verification of his responses that all of the information contained
therein was true and accurate (Exhibit 76, pp. 140:25-141:19). In response to Form
Interrogatory 2.6, Musk listed his “present employer or place of self-employment” from 2002
to the present as “SpaceX” only. Musk did not state that Tesla has been his place of
employment at any time. A true and correct copy of Musk’s Responses to Plaintiff's Form
Interrogatories, Set One, in the O’Reilly Action is attached hereto as Exhibit “79.”
DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT
ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
-4-

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17. At Musk Deposition, he verified that Exhibit 10 to the deposition was a true and
correct copy of the only two diplomas that he received from the University of Pennsylvania.
Musk also testified that he has no additional diplomas from the University of Pennsylvania
(Exhibit 76, p. 164:9-17). A true and correct. copy of Musk Deposition Exhibit 10, Musk’s
University of Pennsylvania diplomas, is attached hereto as Exhibit “80.”
18. In response to Form Interrogatory 17.1, Musk stated that he “was accepted” into the
“graduate program for materials science & applied physics at Stanford University in 1995,” |
and that Stanford University would have documents to support this statement. See Exhibit 79.
19. At Musk Deposition, he testified that he never attended a single class at Stanford
University as a graduate student and that he never paid any tuition fees at Stanford for any
graduate programs (Exhibit 76, p. 230:6-11).
20. Attached hereto as Exhibit “81” is a true and correct copy of a Deposition Subpoena
for Production of Business Records in the O’Reilly Action served upon the Custodian of
Records, the Board of Trustees of the Leland Stanford Junior University that requested the
| following information: 1) the date(s) Musk applied to Stanford; 2) the date(s) Musk enrolled at |
|| Stanford; 3) the date(s) Musk attended Stanford; 4) the date(s) Musk deferred his enrollment at
Stanford; 5) the department(s) in which Musk enrolled at Stanford; and 6) the degree(s) Musk
was awarded by Stanford. :
21. Attached hereto as Exhibit “82” is a true and correct copy of a letter dated
December 16, 2008, sent from Judith Haccou, Director of Graduate Admissions of the
Registrar’s Office, Stanford University, written in response to the subpoena attached as Exhibit
81. The letter states that Stanford’s Graduate Admissions Office was unable to locate any
record in its office for Musk.
22. Attached hereto as Exhibit “83” is a true and correct copy of Musk’s ‘verified
Responses to Plaintiffs Requests for Production of Documents, Set One, in the O’Reilly
Action. In response to Request for Production No. 31, Musk stated that he had no documents
in his possession, custody or control responsive to the request for all documents from January
1995 to December 1996 regarding his admission to Stanford University.
23. In response to Plaintiffs Request for Production No. 32 in the O’Reilly Action,
Musk stated that he had no documents in his possession, custody or control responsive to the
DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT
ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
-5-

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request for all documents from January 1995 to December 1996 regarding his enrollment at
Stanford University. See Exhibit 83.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 15th day of July 2009 at San Francisco, California.

Yosef Peretz
DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT
ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
-6-

Page 7 EXHIBIT|/¢9

Page 8 EXHIBIT/69

Page 9 ® —_—_—_@-
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
Page 1
IN AND FOR THE COUNTY OF SAN MATEO
DAVID VESPREMI, GENE GLAUDELL )
and JENNIFER LIVIGNI, )
individually and on behalf of )
all others similarly situated, )
Plaintiffs, )
vs. ) No. CIV-474656
TESLA MOTORS, INC., a Delaware )
corporation; ELON MUSK, an )
individual; ZE'EV DRORI, an )
individual; DARRYL SIRY, an )
individual; and DOES 1-26, )
inclusive, )
Defendants. )
VIDEOTAPED DEPOSITION OF GENE A. GLAUDELL
WEDNESDAY, OCTOBER 15, 2008
PAGES 1 - 323

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Videotaped deposition of GENE A. GLAUDELL,
taken at 601 California Street, Palo Alto,
California, commencing at 11:35 a.m.,
2008,
Wednesday, October 15,
Manning, CSR No. 7645.
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1 APPEARANCES OF COUNSEL:
2 :
3 FOR THE PLAINTIFFS:
° KLETTER & PERETZ |
6 BY: YOSEF PERETZ, ESQ. |
? 22 Battery Street |
Suite 202
9 San Francisco, California 94111
10 415.732.3777
t1 yp@kletterperetz.com
13 FOR THE DEFENDANTS:
14
18 WILSON SONSINI GOODRICH & ROSATI
16 BY: GARY M. GANSLE, ESQ.
1 650 Page Mill Road
18 Palo Alto, California 94304-1050 |
13 650.493.9300 |
ggansle@wsgr.com |
21
22 ALSO PRESENT:
23
JENNIFER LIVIGNI :
2s CHRIS COTTON, VIDEOGRAPHER |
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1 PALO ALTO, CALIFORNIA;
2 WEDNESDAY, OCTOBER 15, 2008; 11:35 A.M.
4 THE VIDEOGRAPHER: Good morning. We are on
S the record at approximately 11:35 a.m. on October 11:35:23
6 15th, 2008. .
7 “My name is Chris Cotton. Here with our
court reporter, Cynthia Manning. We are here from
9 Veritext National Deposition and Litigation Services
at the request of counsel for defendant. 11:35:39 |
il This deposition is being held at 601
12 California Avenue in the City of Palo Alto,
13 California. .
14 , The caption of this case is David Vespremi,
et al., plaintiffs, versus Tesla Motors, Inc., et © 11:35:54
al., defendants. Case No. CIV-474656.
1? This is the videotaped deposition of :
18 Mr. Gene Gaudell.
19 Please note that all audio and video
recording will take place unless all parties agree 11:36:14
to go off the record.
22 Microphones are very sensitive and they
pick up whispers and private conversations.
24 At this time, will counsel and all present
please identify themselves for the record. 11:36:25
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179d05fe-bd28-4ec8-aGf8-fa9663698951

Page 13 1 MR. GANSLE: Gary Gansle for defendants. 11:36:29

Page 5
2 MS. LIVIGNI: Jennifer LiVigni.
3 MR. PERETZ: Plaintiff.
4 Yosef Peretz for plaintiffs.
9 THE WITNESS: Gene Gaudell, plaintiff. 11:36:36
6 THE VIDEOGRAPHER: Thank you.
7 The witness may be sworn in and then we can
proceed.
10 GENE A. GLAUDELL, . 11:36:41

110 having first been duly sworn, testified as
follows:
13
14 EXAMINATION
15 BY MR. GANSLE: 11:36:48
16 Q. Good morning, Mr. Gaudell.
17 A. Good morning, Mr. Gansle.
18 Q. As you know, I represent the defendants,
19 Tesla Motors, Elon Musk, Ze'Ev Drori and Darryl Siry
in the lawsuit that you've brought against them. 11:36:58
al Do you understand the deposition procedure?
22 A. Yes, I believe I do. :
23 Q. You were actually present yesterday during :
24 Mr. Vespremi's deposition?
25 A. That's correct. 11:37:10
_—_

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Page 14 Page 80 }
1 MR. PERETZ: Please. 13:53:08
2 THE WITNESS: We discussed the need for
reduction in spending. We discussed the need for
reductions in staff. We discussed the reasons for -
reductions in staff. We discussed the methods to 13:53:26
decide how to reduce the staff. We discussed
everything that led to a subset of all these actions
here.
9. I mean, we're talking about deciding how we
manage our budgets, how we're going to cut our 13:53:49 )
ii budgets, where we're going to spend money, what we
have to do about our headcount and how we're going
to go do it. So very salient.
14 BY MR. GANSLE:
15 Q. But how is any of that discussion going to 13:54:01
support your claims?
17 MR. PERETZ: Calls for a legal conclusion.
18 You can answer.
19 THE WITNESS: Okay. How is it going to
ne support my claims? Well, how it's going to support 13:54:09
[| 2 my Claims is that, as an example, in meetings, both
22 Mike Taylor and myself told the CEO, Ze'Ev Drori and
23 Elon Musk, the chairman of the board, that it was
inappropriate to discuss reasons for dismissals for
performance of employees in public and certainly 13:54:37

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Page 15 publish it. We warned them that they should not be 13:54:41

Page 81 |

doing that.
3, We also basically talked about why we're ;
letting people go. And the reasons we were letting
S people go were not exclusively for performance 13:54:53
reasons. They were for financial reasons.
7 And we also discussed the fact that we |
didn't want to -- that we didn't -- Ze'Ev Drori and
9 Elon Musk and Darryl Siry did not want to say in

public that Tesla was making cuts for financial 13:55:08
reasons. So there was a discussion that basically .
went: We don’t want to say it's for financial
reasons. This is performance and management
accountability, are the reasons for layoffs. And
1s Mike Taylor and I said that's not right. That's not 13:55:24

true.
17 So I don't know. I think it kind of gets
to the heart of the lawsuit.
Ss BSE OS SLIT Re TU eB ENC SEE

19 Q. So you said in your discussions that it was
20° not -- the RIFs, the layoffs, weren't exclusively 13:55:33
for performance reasons?
22 A. No, in fact, I would say the dominant
Lf
reason was not performance; it was for financial
reasons. |
. RRR, E
25 Q. Did you participate in the conversation 13:55:46
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Page 16 1 STATE OF CALIFORNIA )

Page 318 |.
2 :Ss
3 COUNTY OF SAN MATEO )
74 I, CYNTHIA MANNING, CSR No. 7645, a
° Certified Shorthand Reporter of the State of
6 California, do hereby certify:
7 That the foregoing proceedings were taken
before me at the time and place herein set forth;
that any witnesses in the foregoing proceedings,
prior to testifying, were placed under oath; that a
verbatim record of the proceedings was made by me
using machine shorthand which was thereafter
transcribed under my direction; further, that the
foregoing is an accurate transcription thereof.
15 I further certify that I am neither
(| 16 financially interested in the action, nor a relative |,
a or employee of any attorney of any of the parties.
18 IN WITNESS WHEREOF, I have this date
subscribed my name.
20
21 DATED: October 31, 2008
22
23

CYNTHIA MANNING, CSR No. 7645

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Page 17

Page 18 EXHIBIT {70

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® CRAIG W. HARDING - vecenmasl? 2008

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO .
--000--
DAVID VESPREMI; GENE GLAUDELL;
and JENNIFER LIVIGNI,
individually, and on behalf of
all similarly situated,
No. CIV 474656
Pages 1 thru 255
Volume I
Plaintiffs,
vs.
TESLA MOTORS, INC., a Delaware
corporation; ELON MUSK, an
individual; ZE'EV DRORI, and
individual; DARRYL SIRY, an
individual; and DOES 1 - 20,
inclusive,
Defendants.
wt eee eee ee ee eee ee”

DEPOSITION OF
CRAIG W. HARDING
DECEMBER 16, 2008

Reported by ELIZABETH J. WOOD
License No. CSR-5134
JAN BROWN & ASSOCIATES
CERTIFIED SHORTHAND REPORTERS
701 Battery Street, 3rd Floor
San Francisco, California 94111
(415) 981-3498 or (800) 522-7096
--000--

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498
GxurbXt Jo

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TUESDAY DECEMBER 16, 2008
VOLUME I
PROCEEDINGS
--o000--
THE VIDEOGRAPHER: Good morning. We're going on
the record. Here marks the beginning of Videotape No.
1, Volume I in the deposition of Craig Harding in the
matter of Vespremi, et. al, versus Tesla Motors, et. al,
in the Superior Court of California, County of San
Mateo, Case No. CIV 47656. Today's date is December 16, .
2008, and the time is 10:10 a.m.
The video operator is Gary Brewer of Jan Brown &
Associates, 701 Battery Street, San Francisco,
California, 94111. Telephone No. (415) 981-3498. The
court reporter is Elizabeth Wood of Jan Brown &
Associates.
Would counsel please identify themselves and state
whom they represent?
_ MR. PERETZ: Good morning. Yosef Peretz for
plaintiffs David Vespremi, Gene Glaudell and Jennifer
LiVigni.
MR. GANSLE: This is Gary Gansle for Tesla Motors
and -- et al.
THE VIDEOGRAPHER: If there are no stipulations,
the reporter may administer the oath.

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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@ CRAIG W. HARDING ~- paceman 2008

CRAIG W. HARDING,
called as a witness on behalf of the Plaintiffs, who,
being first duly sworn, was then and there examined and
interrogated as hereinafter set forth.
DIRECT EXAMINATION
BY MR. PERETZ:
Q. Good morning, Mr. Harding. My name is Joseph
Peretz and I introduced myself earlier, but I'll do it
formally for the record. I am a partner at Kletter &
Peretz, a law firm here in San Francisco.
We currently represent David Vespremi, Gene
Glaudell and Jennifer LiVigni in a lawsuit that these
individuals filed with the San Mateo Superior Court
against Tesla Motors, Inc., which is a company that
you're employed with and others.
Are you familiar with the lawsuit?
A. Yes, I am.
Q. Is it your understanding today that you're here
to give your deposition in connection with this lawsuit?
A. Yes.
Q. Okay. Can you please state and spell your name
for the record? Just spell your last name, please.
A. Sure. My name is Craig Harding spelled
H-a-r-d-i-n-g.
Q. Do you have a middle initial?

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

Page 22 @ CRAIG W. HARDING - secant 2008

make statement as if the layoffs is only of individuals
who poor performers, or something to that effect?
A. At a board of directors’ meeting?
Q. Yes.
A. I don't recall Gene Glaudell ever attending a
board meeting.
sca ccs

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Q. Okay. Do you remember any discussion about the
statements that Tesla should or shouldn't make to the
press in any executive staff meeting?
A. Yes.
Q. Okay. And do you remember if Mr. Glaudell made
such a comment?
A. No.
Q. Okay. Did Mike Taylor make a statement in an
executive staff meeting to the extent that Tesla should
not make statements as an organization that the
individuals that were laid off were laid off because of
poor performance?
A. Yes.
Q. What the -- what did -- what did Mr. Taylor say
exactly?
A. I don't recall, other than what you described.
Q. Okay. When did this executive staff meeting
take place?
A. December of 2007.
217

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

Page 23 ®@ CRAIG W. HARDING - vncewne Mae, 2008

oN 99503 Q. So that was before any statements were made to
05:03 2] the press?
05:03 3 MR. GANSLE: Objection. Calls for speculation.
05:03 4 MR. PERETZ:
05:03 5 Q. Okay. Did anyone else responded to Mike
05:03 6 | Taylor's comment?
05:03 9 A. That was -- I think one or two people expressed
05:03 8] concurrence.
05:04 9g Q. Do you remember who those people?
05:0410 A. No, I don't.
05:04 44 Q. Do you remember if Gene Glaudell was one of
05:044121 them?
Cys] A. I don't remember.
| 05:04 44 Q. Do you remember if any executive staff member
| 05:0415 | opposed this comment?
05:0416 A. Opposed Mike Taylor's comment?
05:04 47 Q. Correct.
05:04 48 That his or her opinion was that the press should
05:0419) know or a statement should be made that the employees
05:04 20 | terminated were terminated for poor performance?
05:04 DF A. I remember one participant indicating that he
05:04 22 | felt it better not to characterize this as a layoff.
05:04 93 Q. And who was that?
05:04 94 A. Elon Musk.

Q. Did he say why?
218

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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-Yes.
Q. What did he say?
A. He said that the term layoff, in the public's
mind, was characteristic of companies having financial
problems, and I remember the -- he used, as an example,
General Motors. General Motors would do a layoff.
Tesla is not doing a layoff. Tesla is simply culling
poor performers.
Q. That's what he said?
A. No. That's the general nature of what he said.
The culling term I used.
Q. Okay. Culling meaning c-u-l-l --
A. C-u-l-l, meaning extracting. That General
Motors used.
Q. I see. But he used the GM as an example, a
metaphor?
A. Correct.
Q. Did anyone else make any comments about how the
layoffs should be characterized or discussed in the
press other than the one made by Mike Taylor that one or
two staff members that concurred and Elon Musk? >
A. Not that I recall.
Q. Did you make any comments?
A. That's attorney/client privilege. I'd rather
not say as to what my comment was because that's the
219

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

Page 25 © CRATG W. HARDING - vecevoe MD, 2008

ox 05:06. 4
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nature of legal advice.
Q. Okay. And who participated in this executive
staff meeting?
A. The participants that I gave you.
Q. So I have Drori, Siry, Taylor, Chang or Chiang,
Glaudell, Harding, Tarpenning, Powell and Smith and
obviously Musk, correct?
jamie
A. Correct. My recollection is vague as to
whether this was -- this meeting took place in December,
in which case Lloyd and Colta may have been there, or in
January, after this came out, in which Lloyd and Colta
would not present.
(Brief discussion off the record.)
MR. PERETZ:
Q. And let the record reflect Mr. Harding pointed
to Exhibit 15, correct?
A. Correct. Thank you.
Q. Was it your understanding that Tesla laid off
people in January of '07 because of financial reasons?
MR. GANSLE: Objection. He's already testified at
length that that was one of the ancillary reasons for
it.
THE WITNESS: Yes, that was a secondary reason.
| Secondary benefit, I should say.
MR. PERETZ:
220

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

Page 26 rm ,
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CRATG W. HARDING - DECEMBER 16, 2008

STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA)
I, ELIZABETH J. WOOD, CSR, a Certified shorthand
Reporter, hereby certify that the witness in the
foregoing deposition was by me duly sworn to testify to
the within-entitled cause; that said deposition was
taken at the time and place therein stated; that the
testimony of the said witness was reported by me, a
Certified Shorthand Reporter, and was thereafter
transcribed under my direction into typewriting; and
that the witness was given an opportunity to read, and
| if necessary, correct said deposition and to subscribe
the same.
I FURTHER CERTIFY that I am not of counsel or
attorney for either or any of the parties in the
foregoing deposition and caption named or in any way
interested in the outcome of the cause named in such
caption.
IN WITNESS WHEREOF, I have hereunto set my hand
this date, the 8th day of January, 2008.
ELIZABETH J. WOOD, CSR, License No. C-5134,
County of Contra Costa, State of California.
255

JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

Page 27 EXHIBIT |7}1

Page 28

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JOHN O’REILLY
101 First Street, #294
{| Los Altos, CA 94022
(650) 941-6645
| (650):941-9475 (Fax)
IN PRO PER
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SEU TORRE, CE
aeeirgR COURT OF CA.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA

Case No. 107CV083172
Pometain adn
JOHN O’REILLY, } SECOND AMENDED COMPLAINT
Plaintiff, 1. Misrepresentation, Fraud, and Deceit
2. Fraudulent Concealment
VS. 3. Conspiracy to Defraud
|| ELON MUSK; DOES CONSPIRATORS 1-10,) 4- Misappropriation of Trade Secrets
Inclusive; and DOES GENERAL 11-25, ) 5. State Unfair Competition and
Inclusive, ) Misappropriation .
Defendants. } 6. Restitution, Disgorgement, and Unjust
) Enrichment
3 DEMAND FOR JURY TRIAL eae
Plaintiff JOHN -O’REILLY (hereinafter “Plaintiff’) complains of Defendants named
herein and alleges the following.’

! Plaintiff filed his First Amended Complaint (“FAC”) on July 16, 2007, and Defendant
Musk thereafter demurred. In a ruling filed on September 26, 2007, this Court: (a) over-
ruled the demurrers to the First, Second, Third, Fourth, Fifth, and Seventh Causes of
Action; (b) sustained the demurrer to the Sixth Cause of Action (with leave to amend); and
(c) sustained the demurrer to the entire FAC (with leave to amend) on the ground “that
Plaintiff fails to specifically allege circumstances excusing his delayed discovery of the
injury allegedly caused by Defendant.”
Plaintiff now files this Second Amended Complaint (“SAC”), wherein he: (a) revises Sec-
tion V to cure the single defect this Court cited in Plaintiffs delayed discovery pleading;
(b) withdraws the FAC’s Sixth Cause of Action (with the FAC’s Seventh Cause of Action
becoming the SAC’s Sixth Cause of Action); (c) updates Section VI; and (d) renumbers the
paragraphs. No other portion of the pleading has changed in the transition from the FAC to
the SAC.
Shick 1

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I. GENERAL ALLEGATIONS AND NATURE OF THE CASE
1. That the true names and identities, whether individual, associate, or corporate, of the
Defendants sued herein as DOES CONSPIRATORS 1-10, inclusive, and DOES GENERAL 11-25,
inclusive, and the full nature and extent of the participation of said DOE Defendants in the wrongful
activities and conduct on which this action is based, are presently unknown to Plaintiff, who prays leave
to amend to allege the true names and identities, and the extent of participation in the said wrongful
activities and conduct, when the same shall become known. Each of the DOE CONSPIRATOR
Defendants entered into the conspiracy hereinafter alleged and all DOE Defendants are liable in some
manner to Plaintiff for some or all of the damages and/or other relief claimed herein by Plaintiff.
2, Plaintiff is informed and believes, and thereon alleges (and such allegations will here-
inafter be stated io be “on information and belief’) that Defendants, and each of them, at all times
mentioned herein, were the agents, servants, employees, partners, and joint-venturers of each of the
other Defendants, and at all times herein mentioned were acting within the course and scope of, and
in the transaction of the business of, the said agency, employment, partnership, and joint venture.
3. Plaintiff is; and at all times mentioned herein was, a resident of Santa Clara County,
California. Plaintiffhas a Ph.D. degree in Physics from Stanford University, where his thesis advisor
was Prof. Robert Hofstadter, winner of the 1961 Nobel Prize in Physics. Plaintiff has authored two
computer books and more than 50 technical papers.
4. Defendant Elon Musk (“MUSK”) is a resident of Los Angeles County, Califomia. At
the times the wrongful acts alleged herein occurred, MUSK was a resident of Santa Clara County, Cali-
fornia. MUSK is a founder of Zip2 Corporation (“‘Zip2”) and PayPal (successor-in-interest to X.com).
IL. MUSK’S REPRESENTATIONS TO PLAINTIFF
5. On or about October 3, 1995, Plaintiff received a telephone call from Felipe Lloreda
(“Lloreda”), a Staiford student who had previously worked for Plaintiff: Lloreda stated that another
Stanford student, whom he identified as MUSK, was interested in leaming about Plaintiffs products
and might be interested in working for Plaintiff to sell those products. Lloreda specifically mentioned
that MUSK was interested in Plaintiff's Internet Merchant Channel (‘IMC”), which was Plaintiff's
proprietary, Internst-based mapping and advertising system.

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6. IMC was the culmination of more than 50 man-years of effort that Plaintiff and his
staff had spent developing a variety of mapping and advertising products, including: (a) mapping and
advertising kiosks for Shell Oil and Alamo Rent-A-Car; (b) traveler assistance and advertising
systems for Hyatt Corporation; and (c) real-time flight planning systems for U.S. Navy cruise missiles
and U.S..Air Force cargo aircraft.
7. Scheduled for release in December 1995, IMC provided a highly user-friendly inter-
face that permitted Intemet users to view merchant advertisements (such as restaurant menus) and then
obtain driving directions to those merchants. As of October 1995, IMC contained detailed information
on more than 12,000 merchants in dozens of U.S. cities, with merchants within each city organized into
more than 100 categories, such as restaurants, hotels, car rental firms, airlines, stores, theme parks, and
sporting venues. Because of its features and the breadth of its database, IMC was well positioned to
become the “Yellow Pages of the Internet.” In fact, IMC pre-dated the mapping and advertising
capabilities offered by most current market leaders, including Google, Yahoo!, CitySearch, and
MapQuest. Hereinafter, IMC’s documentation, route-mapping technologies, software, marketing plans,
user interface, merchant database, and other features and characteristics are collectively referred to as the
intellectual property (“IP’’).

8. On. or about October 6, 1995, Plaintiff and MUSK met at Plaintiff's office in Los Altos,
California. During that meeting, MUSK made certain representations that were specific in nature and
directed toward establishing a working relationship with Plaintiff. The representations included: (a)
that MUSK was a Stanford student who sought a job selling IMC advertising to merchants; and (b)
that MUSK had the ability and willingness to sell IMC advertising. As well, when Plaintiff informed
MUSK that IMC was proprietary and confidential, MUSK verbally represented to Plaintiff that he
would keep IMC information in confidence. MUSK’s representations are hereinafter collectively
referred to as the “October Representations.”

25
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Pisa
9. Also during that first meeting — acting in good-faith reliance upon the veracity of the
October Representations — Plaintiff informally interviewed MUSK, during which interview Plaintiff:
e Demonstrated IMC;
e Described IMC’s existing and future merchant base;

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« Discussed IMC’s price schedule, merchant subscription agreement, and
merchant contract; and
¢ Discussed other topics that would permit MUSK to decide if he wished to
sell IMC advertising.
10. Also during that first meeting — acting in good-faith reliance upon the veracity of the
October Representations — Plaintiff showed MUSK the following documents, among others, that
contained information MUSK. would need in order to decide if he wished to sell IMC advertising.
« IMC price schedule, subscription agreement, and contract;
e IMC promotional material;
e IMC market analysis;
« Direction printouts; and
* Merchant usage data and plans for future product enhancements (which
were contained in a document whose cover displayed the words “trade secret”).
11. During the remainder of October 1995, Plaintiff and MUSK met on at least two
additional occasions, during which meetings Plaintiff and MUSK continued to discuss IMC. During
their last meeting, MUSK and Plaintiff agreed to formalize their working relationship upon Plaintiff's
return from an upcoming overseas business trip.
12. Plaintiff departed on his trip on October 27, 1995, and he retumed on November 11,
1995. Upon his return, Plaintiff made frequent, repeated attempts to contact MUSK, but Plaintiff was
never able to reach him. Plaintiff eventually gave up attempting to contact MUSK, concluding that
MUSK either had accepted another job or had decided to focus on his studies at Stanford. At that
time, Plaintiff had no reason to suspect that MUSK was anything but a Stanford student who had
decided not to pursue an opportunity to sell IMC advertising.
il. ZipP2
13. Records on file with the California Secretary of State show that an attorney operating
on MUSK’s behalf incorporated a firm named “Global Link Information Network, Inc.” on November
6, 1995, which was while Plaintiff was on his aforementioned trip. The incorporation document was
signed by MUSK’s attomey and dated November 3, 1995, which was less than two weeks after
MUSK and Plaintiff last met. Additional records lodged with the California Secretary of State show
that MUSK later changed the name of the company to “Zip2.”

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14. Zip2’s business model is described in The PayPal Wars, a book written in 2004 by
Eric M. Jackson.
Elon Musk founded X.com in early 1999 after selling his previous
company, an online map service named Zip2[.]
15. It is clear that Zip2’s business of providing “online map services” (i.e., Internet-based
map services) was highly similar, if not identical, to IMC’s business model. As such, Zip2’s product
‘was a competitor to Plaintiffs IMC.
16. Although the Califomia Secretary of State shows that Zip2 was incorporated in Novem-
ber 1995, Zip2’s published documents show that the firm was actually founded much earlier. For
example, a press release issued by Zip2 in 1997 states the firm was “[flounded in January 1995,” which
was 10 months before MUSK incorporated Zip2 in California.”
17. The ambiguity of Zip2’s start date is resolved in a magazine article in which MUSK’s
brother, Kimbal, explains that he and MUSK had pursued the Zip2 concept since early 1995 — when
they both lived in Canada. (See Kimbal Musk — Entrepreneur, Restaurateur, Rocketman, Renaissance
Man, Inquiry, Summer 2006, p. 30.)
He [Kimbal Musk] and his brother Elon [Defendant MUSK] had tried
and failed to raise venture capital in Canada for an intemet yellow
pages directory that would enable users to locate businesses in
different cities, and also provide maps and directions.
. When Queen’s School of Business Professor John Gordon suggested
venture capital might be easier to come by in Silicon Valley, Kimbal,
then 22, and Elon, 23, moved to Palo Alto, CA. They were soon
joined by Kimbal’s former roommate, best friend and future business
partner, Chris Smith... .
“We didn’t have an apartment, so we used to sleep under our desks
in the office,” Kimbal recalls with a laugh. Armed with only their
references from summer job employers and professors, they endured
many rejections in their quest for US investors ....
Finally, after six months, they scored the financing they needed, and
in late 1995, Zip2 was bom.

? The press release in question is dated January 28, 1997, and is available online at
< http://findarticles.com/p/articles/mi_mOEIN/is_1997_Jan_28/ai_19066392>.

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18. It is now evident that when MOSK met Plaintiff in October 1995, MUSK misrepre-
sented himself as simply a Stanford student seeking an opportunity to sell IMC advertising. In reality,
MUSK had started Zip2 in January 1995 and had spent months in a failed effort to obtain funding for
the firm in Canada. Following that failure, MUSK moved to California to seek funding, but he instead
suffered six more months of rejection. That MUSK spent so much time in an unsuccessful attempt to
raise funds is strong evidence that his Zip2 idea was so flawed that it was simply unfundable.
19. Unable to afford an apartment and forced to sleep under his office desk, MUSK was}
clearly desperate to get Zip2 funded. Upon learning of IMC from Lloreda, MUSK. misrepresented
himself to gain access to the product. On information and belief, MUSK then utilized his newly gained
knowledge of IMC to enhance his Zip2 concept, immediately thereafter raising the funds that had
| eluded him for so long.
20. Further evidence that MUSK misrepresented himself when he met Plaintiff is supplied
by Zip2’s aforementioned incorporation document, which lists the firm’s address as “430 Sherman
Avenue, Suite 300, Palo Alto, California.” This address is that of a small office building that has no |
residential units: That MUSK had this office for Zip2 during his discussions with Plaintiff strongly
indicates that MUSK misrepresented himself as simply a Stanford student when he met Plaintiff.
21. The following illustration shows how Zip2’s funding followed rapidly on the heels of
MUSK’s access to Plaintiffs IP. ,

MUSK fails to secure
funding for Zip2 in Canada 1995
MUSK moves to Palo Alto, but
fails to secure funding for Zip2
MUSK obtains MUSK secures
Plaintiff's IP funding for Zip2
oS
Jan | Feb | Mar | Apr | May |June | July | Aug | Sept | Oct | Nov | Dec

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IV. MUSK’S ENRICHMENT
22. On his current website, MUSK is not meek about advertising the financial benefit he
enjoyed when he eventually sold Zip2.
Mr. Musk co-founded Zip2 Corporation in 1995[.] ... He served as
Chairman, CEO and Chief Technology Officer and in March 1999
sold Zip2 to Compaq for $307 million in an all cash transaction.
www.spacex.com/company.php#spacex_people (underlining added).
23, On that same website, MUSK. explains that he subsequently co-founded PayPal and
then sold that firm. Shortly after that sale, MUSK gave a speech in which he revealed his guiding
principles in founding Zip2 and PayPal.
Common themes between Zip2 and PayPal. ... We didn’t worry
too much about intellectual property, paperwork, legal stuff.
24. MUSK’s simple statement speaks volumes about his disdain for the intellectual
property rights of others. As well, the statement speaks in strong support of Plaintiff's assertion
that MUSK?’s true goal in meeting Plaintiff was to gain access to Plaintiff's IP, with MUSK
unabashedly employing fraud, misrepresentation, deceit, guile, and trickery to do so.
V. PLAINTIFF’S DISCOVERY OF MUSK’S WRONGFUL ACTS
A. The Time and Manner of Plaintiff's Discovery
25. Onor about March 22, 2005, Plaintiff attended a talk given by Denise Pope, author of
a book on high school education. On March 27, 2005, Plaintiff visited Amazon.com’s website to pur-
chase Ms. Pope’s book. To take advantage of Amazon.com’s offer of free shipping on orders above
$25, Plaintiff identified another book of possible interest — the aforementioned The PayPal Wars by
Eric M. Jackson. Plaintiff then purchased both books.
26. Onor about April 15, 2005, while reading The PayPal Wars, Plaintiff encountered the
aforementioned passage that stated MUSK had formed Zip2 and that also described Zip2 as “an online
map service” company. Before reading that passage, Plaintiff had never heard of Zip2. Indeed, it was

3 MUSK’s speech was presented at Stanford University on October 8, 2003. It is available
online at .

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only upon his reading of that passage that Plaintiff first suspected: (a) that he had been injured; and
(b) that it was MUSK who had caused the injury.
B. The Circumstances Excusing Plaintiff’s Delayed Discovery
. 27. Plaintiff is a reasonable, prudent person who, prior to April 2005, had no reason to
suspect that his meetings with MUSK in October 1995 had been anything but cordial, good-faith discus-
sions regarding MUSK’s desire to sell advertising for Plaintiff. Also, for the reasons presented next,
it is unreasonable to assert that Plaintiff (or any other reasonable, prudent person) should have suspected |
or discovered MUSK’s wrongdoing prior to April 2005.
a. Period No. 1: October 1995. As aforementioned, MUSK was introduced to
Plaintiff by Lloreda, a Stanford student who had previously worked for Plaintiff.
Lloreda had told Plaintiff that MUSK was a Stanford student who might be inter-
ested in working for Plaintiff to sell advertising. Since classmate referrals are
commonly used to arrange job interviews, Plaintiff had no reason either to doubt
the sincerity of Lloreda’s introduction or to ascribe nefarious motives to MUSK.

During his meetings with MUSK, Plaintiff exercised reasonable judgment
and common sense in discussing IMC, and he provided MUSK with informa-
tion MUSK required to make an informed decision about selling advertising.
At no time during these discussions did Plaintiff have reason to suspect that
MUSK’s actions were anything but an honest, pristine expression of his interest
in selling advertising.
b. Period No. 2; November 1995 to February 1996. Upon returning from his
overseas trip. in November 1995, Plaintiff attempted to contact MUSK. multiple
times, but he gave up after being unable to reach him. Plaintiff reasonably infer-
red that MUSK either had accepted another job or had decided to focus on his
studies. At no point did Plaintiff have reason to suspect that MUSK was any-
thing but a Stanford student who had simply declined to pursue the sales oppor-
tunity. As such, Plaintiff had no reason to expend significant effort to track down
MUSK and grill him about why he wasn’t interested in selling advertising.

Also, given that MUSK had misrepresented his reason for meeting with Plain-
tiff, it is reasonable to conclude that Plaintiff's unsuccessful attempts to contact
MUSK were more indicative of MUSK’s not wanting to be contacted than of
Plaintiff's lack of diligence in trying to contact him.
As well, after February 1996, Plaintiff was not involved with IMC, and he thus
did not stay abreast of related technologies, products, or competitors.
c. Period No 3: March 1996 to February 1999. MUSK incorporated Zip2 in
November 1995 and sold the firm in February 1999. During that interval,
however, the entire country was awash with companies developing what were
purported to be billion dollar products and websites. These companies
were raising massive amounts of venture capital and generating a smothering
blizzard of publicity.

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That Zip2 was dwarfed within this overall market is illustrated by the fact that
the firm raised only $16 million of the $54 billion that was pumped into U.S.
venture deals during Zip2’s 40-month, pre-acquisition life. This amount
represents a scant 0.03% of all venture funds invested during that period,
which is a level that would not have drawn unusual attention to Zip2.
Sunilarly, alihough Zip2 was acquired for $307 million in February 1999,
that same year saw 304 venture-backed companies acquired for a total of $43
billion. Zip2’s acquisition was unremarkable, and the event was simply lost
in the confusing clutter of similar deals.
Moreover, all of these corporate acquisitions paled in comparison to their big
brother — the Initial Public Offering (“IPO”). Indeed, it was the IPOs of the
late 1990s that generated giant headlines and brought the country’s collective
psyche to its capitalistic boiling point. Between 1996 and 1999, some 2,200
IPOs raised more than $195 billion. Solely in 1999, for example, 492 IPOs
raised some $63 billion. Being quietly acquired — instead of generating IPO
hype — was yet another reason Zip2 was simply lost in the frenzy of the largest
economic boom the world has ever seen.
Finally, even if Plaintiff had had the opportunity to read about Zip2’s 1999
acquisition — presumably by reading every press release issued for each of that
year’s 304 acquisitions and 492 IPOs — Plaintiff still would not have suspected
MUSK of wrongdoing because the press release that announced Zip2’s
acquisition didn’t even mention MUSK’s name.
d. Period No. 4: March 1999 to March 2005. On information and belief,
MUSK left Zip2 immediately after its acquisition, and the company there-
after significantly shifted its product focus. At that time, it was thus highly
unlikely that Plaintiff would ever learn of MUSK’s wrongdoing.
28. Given these circumstances, Plaintiff (or any other reasonable, prudent person) could not
reasonably have been expected to ever suspect or discover MUSK’s wrongdoing. Indeed, it was only
by his chancing upon The PayPal Wars in April 2005 that Plaintiff learned of Zip2. Immediately
thereupon, Plaintiff first suspected MUSK of wrongdoing.
29. Plaintiffs circumstances justify his delayed discovery of MUSK’s wrongful acts.
Hence, under California law, the statute of limitations accrued at the time Plaintiff first suspected he
had been injured, ie, on or about April 15, 2005. By filing the initial complaint against MUSK on
Apmil 4, 2007, Plaintiff acted well within the statute of limitations governing the instant causes of action.

4 The financial statistics presented in this section were obtained from:
=
#
="
"
5 See .

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Vi. POST-COMPLAINT SPOLIATION
Description of the Wayback Machine
30. The Wayback Machine is an Internet-based search engine that maintains historical
copies of billions of web pages. The Wayback Machine is operated by the non-profit Internet
Archive (San Francisco, Cal.) in collaboration with the Library of Congress and the Smithsonian Institu-
tion. The Wayback Machine’s contents are available free-of-charge at www.waybackmachine.org,
31. Since becoming operative in 1996, the Wayback Machine has archived more than 80
billion web pages, most of which are from corporate websites. As of July 15, 2007, for example, the
Wayback Machine maintained 1,763 different historical versions of IBM Corp.’s website, which
versions ranged in date from October 22, 1996, to June 15, 2007.
32. Tn recent years, the Wayback Machine has become an integral discovery tool.
At some law firms, litigators now ask researchers, “can you do a Way-
back on that?” The archives are most attractive to specialists in intel-
lectual-property law — in particular, areas such as domain-name battles
— and have been used ‘by companies as diverse as EchoStar Commu-
nications Corp. and Playboy Enterprises Inc. In February, recovered
pages prompted a mistrial in a prominent murder case in Canada.
The archive tools provide lawyers with a quick and inexpensive way to
unearth evidence that otherwise might not be available. Lawyers have
always been able to seek copies of old Web pages in a pretrial phase
known as discovery. But some parties might not save every version of
their Web sites and others might routinely get rid of stored pages.
David Kesmodel, Lawyers’ Delight: Old Web Material Doesn't Dis-
appear, The Wall Street Journal Online, July 27, 2005, com/public/article/SB112242983960797010-qndezZbakQChoXkY1zRS
RibbN6A_20050828.html?mod=blogs>.
Historical Copies of Zip2’s Website were Removed from the Wayback Machine
33. Plaintiff filed his initial complaint on April 4, 2007. Prior to that filing, Plaintiff noted
that the Wayback Machine maintained copies of Zip2’s website that had been obtained on hundreds
of dates during the period from 1996 to 2007. (Herein, the Wayback Machine’s set of information on
Zip2’s website is collectively referred to as the “Historical Record.”) Plaintiff's access to the Historical
Record (or equivalent data) will be a material factor in his ability to litigate this case successfully. 6

° The Histcrical Record contains critically important information on Zip2’s corporate history,
personnel, press releases, copyright and trademark assertions, customers, and product

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34, However, on July 11, 2007, Plaintiff accessed the Wayback Machine and was flabber-
gasted to learn that he could no longer locate or access the Historical Record? On same date, Plaintiff
asked three other individuals to access the Historical Record, with each individual confirming that the
record was unavailable. Indeed, as of July 11, 2007, the Wayback Machine had apparently been
wiped clean of the Historical Record.
35. In his subsequent investigation of the missing Historical Record, Plaintiff learned that
the Internet Archive permits website owners to deny the Wayback Machine permission to archive their
websites. This control is exercised via a specific file (Mamed robots.txt) that resides on the website’
and is created and updated by the person who maintains the website. Before the Wayback Machine
archives a website, it atternpts to read the website’s robots.tt file.
1. Ifthe website does not have a robots.txt file, then the website is archived.
2. Ifa website has a robots.txt file, then the Wayback Machine checks to see
if the file grants or denies it permission to archive the website. If per-
mission is denied, then the Wayback Machine does not archive the website.
36. The Internet Archive’s published policy for archiving websites is as follows.
The Internet Archive is not interested in offering access to Web sites or
other Internet documents whose authors do not want their materials in the
collection. To remove your site from the Wayback Machine, place a
robots.txt file at the top level of your site (e.g. www.yourdomain.com/
robots.txt) and then submit your site below.
The robots.txt file will do two things: [{] 1. It will remove all documents
from your domain from the Wayback Machine. [‘[] 2. It will tell us not to
crawl your site in the future.
www.archive.org/about/exclude.php (underlining added).

pricing. The Historical Record also contains technical details related to Zip2’s product,
including web page structure, user interface (e.g., borders, color scheme, font styles and
sizes, data presentation, dialog box conventions, and frames), user interaction methods,
data entry facilities, hyperlinks to other sites, images, mapping capabilities and limitations,
icon design, source code, source code modification dates, metatags, e-mail addresses,
mapping methodology, web site designer, HTML versions, table structure, scripting
_ languages, security, embedded documentation, customizable attributes, browser compatible,
enhancement history, “help” facilities, city coverage (i.e., For which cities did Zip2 pro- -
vide coverage? When were cities added?), destination coverage (e.g., available restaurants,
hotels, airports, theme parks, restaurants, museums, shopping centers, and colleges), adver-
tisements, advertisers, variable naming conventions, cookie mechanisms, and watermarks.
11

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37. That is, modifying a website’s robots.txt file in a certain manner will cause all docu-

| ments regarding the website to be removed from the Wayback Machine.
. 38. On July 13, 2007, Plaintiff verified that the Historical Record was not available from
the Wayback Machine.’ On same date, Plaintiff accessed and printed a copy of Zip2’s robots.txt file
that was stored (and available to the general public) at www.zip2.com/robots.txt.
39. On July 16, 2007, Plaintiff filed his FAC, therein disclosing that he knew the Historical
Record had been removed from the Wayback Machine. On several later occasions in July 2007,
Plaintiff re-confirmed that the Wayback Machine did not maintain the Historical Record.
40. Then, in early August 2007, Plaintiff accessed the Wayback Machine and was surprised
to find that it did, indeed, display what was purported to be the Historical Record. Plaintiff then
attempted to view Zip2’s robots.txt file to see if its contents had changed. Instead, Plaintiff found that
the robots.txt file no longer existed. It had been deleted! (As aforementioned, the Wayback Machine
archives websites that do not contain a robots. bet file.)
41. In summary:
1. The Historical Record was removed from the Wayback Machine soon
after Plamtiff filed his mitial complaint.
2. Shortly after Plaintiff disclosed in the FAC that he knew the Historical
Record had been removed, Zip2’s robots.txt file was deleted. This de-
letion would have been a signal to the Wayback Machine to commence
archiving Zip2’s website.
42. Plaintiff suggests that the removal of the Historical Record was an act of spoliation
committed to prevent him from obtaiming documents known to be crucial to this case. The subsequent
deletion of Zip2’s obots.txt file may have been an attempt to conceal the details of the initial spoliation.
43. Of critical importance to Plaintiff is that the Wayback Machine’s Zip2 files have been
so seriously corrupted that they are not historically accurate copies of Zip2’s website. For example,
the version of Zip2’s website that the Wayback Machine dates as February 12, 1998, now includes:
(1) corporate agreements that Zip2 did not enter into until February 1999; (2) magazine articles that
were not published until February 1999; and (3) a TV show that did not air until December 1998.

7 At that time, Plaintiff also viewed historical websites for Google, Yahoo, and IBM,
thereby confirming that the Wayback Machine was functioning properly.
12

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44, In summary, the acts of spoliation that apparently have been committed against the
Historical Record may have rendered it useless for discovery purposes. In some instances, in fact, the
spoliation may have compromised, corrupted, or destroyed the sole remaining source of historical
information on Zip2’s website and products, thus drastically hindering Plaintiff's ability to pursue this
action.
Plaintiff’s Remedies
45. It is a fundamental basis of the American judicial system that a plaintiff should have
the ability to complete pre-trial discovery unimpeded by a defendant’s actions. “This broad right of
discovery is based on the general principle that litigants have a right to ‘every man’s evidence,’
[citation] and that wide access to relevant facts serves the integrity and fairness of the judicial process
by promoting the search for the truth.” Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993).
46. One party’s suppression of evidence must be met by the strongest of responses.
“Where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the
court must draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n
of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal. 1987), citing Cecil Corley Motor
Co. v. General Motors Corp., 380 F.Supp. 819, 859 (M.D. Tenn. 1974).
47. The spoliation has caused manifest prejudice to Plaintiff by depriving him of his right
to present to a jury certain evidence of the wrongful acts MUSK committed against him. Although
Plaintiff will seek to discover from MUSK information. equivalent to that which was once contained
in the Wayback Machine, Plaintiff has no assurance that such duplicate material exists or, if it does
exist, that it will not share the fate suffered by the Wayback Machine’s contents.
48, This massive spoliation was nothing less than a flagrant attempt to subvert the
judicial system and usurp the Court’s right to administer justice. The Court, however, has at least
three powerful remedies at its disposal that are relevant in the instant action.
e The Court may enter a default judgment against the party responsible for
the spoliation. Chambers vy. Nasco, Inc., 501 U.S. 32, 45 (1991).
¢ The Court may permit the jury to draw an inference adverse to the party
responsible for the spoliation. Glover v. BIC Corp., 6 F.3d 1318, 1329
(9th Cir. 1993).
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¢ The Court may issue civil contempt sanctions that compensate a plaintiff
for the spoliation. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 516
(9th Cir. 1992).
49. _ Plaintiff may later move the Court to impose such remedies. In the interim, how-
ever, Plaintiff kindly requests that the Court simply consider the motive for the spoliation.
FIRST CAUSE OF ACTION
(Brought by Plaintiff Against All Defendants
' for Misrepresentation, Fraud, and Deceit)
50. Plaintiff repeats and realleges each and every allegation contained in paragraphs
through 49 of the Complaint as though they were fully set forth herein.
51. | MUSK never intended to sell IMC advertising. Instead, MUSK used the October
Representations, as delineated with specificity above, to fraudulently and deceitfully induce Plaintiff
to divulge confidential and proprietary information about the IP. MUSK thereafter fraudulently
exploited the IP to obtain funding for Zip2, later selling the firm for $307 million.
52. | MUSK’s acts satisfy the essential elements for Plaintiff to sustain a claim of fraud
and deceit based upon misrepresentation. Indeed, MUSK’s brother has publicly admitted that he
and MUSK moved to California specifically to raise venture funds for Zip2 in mid 1995. Hence,
when MUSK held meetings with Plaintiff in October 1995, MUSK: (a) knew that he had failed to
raise funds in Canada for Zip2; (b) knew that he had moved to California to raise funds for Zip2;
(c) knew that he iad failed to raise funds in California for Zip2; and (d) intentionally misrepre-
sented his rationale for wanting to meet Plaintiff.
53. Thereby, MUSK’s actions — including his October Representations — satisfy the six
essential elements for Plaintiff to sustain a claim of fraud and deceit based upon misrepresentation.
(BAJI 12.31)
a. Representation of a past or existing material fact. MUSK made the
October Representations regarding his reasons for wanting to learn
about Plaintiff's IP.
b. Falsity of the representation. MUSK’s October Representations
were false. Indeed, MUSK had no intent to sell IMC advertising.
c. Knowledge of the representation’s falsity. MUSK knew the October
Representations were false. That is, MUSK was attempting to obtain
funding for Zip2 while he was falsely representing that he wanted to
sell IMC advertising.
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d. Intent to defraud. MUSK intended to gain access to Plaintiffs IP so
that he could unfairly and unlawfully use the IP to enhance Zip2.
e. Plaintiff's lack of awareness. Plaintiff took MUSK’s October Represen-
tations at their face value, since Plaintiff had no reason to believe they
were untrue. Indeed, MUSK provided himself with the perfect “cover”
when he claimed he was a Stanford student who sought to sell IMC
advertising.

f... Plaintiff was damaged. Plaintiff suffered from MUSK’s wrongful
expropriation of the IP, which expropriation permitted Zip2 to capture
market share that would have otherwise been gained by IMC. As
well, Plaintiff lost substantial time and effort in dealing with MUSK
during October 1995.
54, MUSK ’s actions, in concert with those of his co-conspirators, have caused monetary
damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court.
SECOND CAUSE OF ACTION
(Brought by Plaintiff Against All Defendants for Fraudulent Concealment)
55. Plaintiff repeats and realleges each and every allegation contained in paragraphs
through 49 of the Complaint as though they were fully set forth herein.
56. | MUSK’s acts satisfy the five essential elements for Plaintiff to sustain a claim of
fraudulent concealment. (BAJI 12.35)
a. Concealment of a known fact. MUSK concealed the fact that he
was actively seeking funds for Zip2. He also concealed that his
true goal in meeting Plaintiff was to obtain access to Plaintiffs IP.
b. Duty to disclose. MUSK’s pursuit of funding for Zip2, which pur-
suit was essentially contemporaneous with his meetings with Plain-
tiff made MUS Plaintiff? s competitor. MUSK had a duty to
disclose such a relationship to Plaintiff.
c. Intentional concealment to defraud. MUSK’s concealment was
done to obtain access to Plaintiff's IP. Indeed, if MUSK had dis-
closed his plan to raise funding for Zip2 to Plaintiff, then Plaintiff
would not have provided MUSK with access to the IP.
d. Plaintiff's lack of awareness. Plaintifftook MUSK’s October Represen-
tations at their face value, since Plaintiff had no reason to believe they
were untrue. Indeed, MUSK provided himself with the perfect “cover”
when he claimed he was a Stanford student who sought to sell IMC
advertising.
e. Plaintiff was damaged. Plaintiff suffered from MUSK’s wrongful
expropriation of the IP, which expropriation permitted Zipe
capture market share that would have otherwise been gained by IMC.
As well, Plaintiff lost substantial time and effort in dealing with
MUSK during October 1995.

15

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57. MUSK?s actions, in concert with those of his co-conspirators, have caused monetary
damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court.
THIRD CAUSE OF ACTION
(Brought by Plaintiff Against All Defendants for Conspiracy to Defraud)
58. Plaintiff repeats and realleges each and every allegation contained in paragraphs
through 49 of the Complaint as though they were fully set forth herein.
59. MUSK ’s statement that he was a “co-founder” of Zip2 (22) is a clear admission that
the fraud and other wrongful acts he perpetrated against Plaintiff were done in concert with one or more
other individuals. Although the identities of those individuals are not known with certainty to Plaintiff,
they will be ascertained during the course of this litigation. By their actions, MUSK and his co-
conspirators planned and conspired to defraud Plaintiff.
60. MUSK ’s actions, in concert with those of his co-conspirators, have caused monetary
damages to Plaintiif in an amount presently unascertainable, but within the jurisdiction of this Court.
FOURTH CAUSE OF ACTION
(Brought by Plaintiff Against All Defendants
for Misappropriation of Trade Secrets)
61. ‘Plaintiff repeats and realleges each and every allegation contained in paragraphs
through 49 of the Complaint as though they were fully set forth herein.
62. By his aforementioned actions, MUSK misappropriated Plaintiffs IP, which IP
included certain of Plaintiff's trade secrets, including merchant usage data and plans for future product
enhancements. As such, MUSK’s actions violated California’s Uniform Trade Secrets Act, Cal.
Civ. Code §§ 3426 et seg. MUSK’s actions were willful, deliberate, and malicious, and they were
made with the knowledge that they would harm Plaintiff.
. 63. | MUSK’s actions, in concert with those of his co-conspirators, have caused monetary
damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court.
FIFTH CAUSE OF ACTION
(Brought by Plaintiff Against All Defendants for
State Unfair Competition and Misappropriation)
64. Plaintiff repeats and realleges each and every allegation contained. in paragraphs
through 49 of the Complaint as though they were fully set forth herein.
16

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65. As aforementioned, MUSK’s conduct included: (a) the unlawful misappropriation
of trade secrets; (b) unfair, anticompetitive acts to obtain Plaintif? s merchant usage data and related
information; and (c) the fraudulent concealment of MUSK’s on-going effort to raise funds for Zip2.
66. Plaintiff contends that such conduct by MUSK constitutes unlawful, unfair, and
fraudulent business practices within the meaning of Cal. Bus. & Prof. Code §§ 17200 et seg. As
well, Plaintiff asserts that MUSK’s actions were willful, deliberate, and malicious, and that they
were made with the knowledge that they would harm Plaintiff.
67. | MUSK’s actions, in concert with those of his co-conspirators, have caused monetary
damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court.
SUXTH CAUSE OF ACTION
(Brought by Plaintiff Against All Defendants for
Restitution, Disgorgement, and Unjust Enrichment)
68. Plaintiff repeats and realleges each and every allegation contained in paragraphs
through 49 of the Complaint as though they were fully set forth herein.
69. MUSK and his co-conspirators have benefited greatly from their aforementioned
wrongful acts. Plaintiff requests that the Court assign to him all funds arising from MUSK’s sale of
Zip2, since that firm owed its very existence to the wrongful acts.
70. Further, since MUSK used the profits from Zip2 to form PayPal, Plaintiff also asks
the Court to assign to him all funds arising from MUSK’s sale of PayPal.
71. Plaintiff asks the Court to right defendants’ wrongful acts by way of restitution and/or
disgorgement, finding that defendants have unjustly enriched themselves at Plaintiff's expense.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for relief against defendants for all causes of action set
forth above as follows:
1. For damages according to proof;
2 For an award of punitive and exemplary damages as may be proper;
3 For restitution and disgorgement;
4, For sanctions (or equivalent) as a remedy for spoliation;
5
For declaratory and injunctive relief;
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6. For interest, costs of suit, and attorneys’ fees (if any); and
7. For other such other relief that the Court deers just and proper.
» LM
John OReilly
Plaintiff, In Pro Per
DATE: October 5, 2007
18

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I, John O’Reilly, declare under penalty of perjury, that the following statements are true:
1.
2.
3.
Executed this 5™ day of October 2007.
VERIFICATION

Tam the Plaintiff in the Second Amended Complaint;
I wrote the Second Amended Complaint;
To the best of my knowledge, information, and belief, based upon reasonable inquiry,
the Second Amended Complaint is well founded in fact and is warranted by existing
law or by a non-frivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law;
The allegations and other factual contentions have evidentiary support or are likely to
have evidentiary support after a reasonable opportunity for further investigation or
discovery; and
The Second Amended Complaint is not being filed for an improper purpose, such as
to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Ch
ohn O'Reilly
Plaintiff, In Pro Per

Page 48 oC Oo NY DBD MH BP WY NH BS
NO to NO WD tro bo bo bo bo —_ — — — — _ — —_ —
aoa nN DR WN BR WwW NO FSF OD aon HN AN RHR wD NO FF ©

PROOF OF SERVICE ENBOR SED FILED
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA ocT-—5 87
I am employed in the County of Santa Clara, State of California., I Laney vert the age of 18 and am
not a party to the within action. My business address is 13145 Byrd: ELAS CA 94022.
On the date below, I caused to be served by mail the following docament(y Y
SECOND AMENDED COMPLAINT
On the following party:
Mr. Adam C. Belsky
Gross & Belsky
180 Montgomery Street
Suite 2200
San Francisco, CA 94104
I placed a true copy of the above-named documents in an envelope, with postage thereon
fully prepaid. I then sealed the envelope and placed it for collection and mailing in the United States
mail at Los Altos, California, following my ordinary business practices, whereby mail is deposited
in the United States Postal Service the same-day as it is placed for collection.
I declare under penalty of perjury under the laws of the State of California that the afore-
mentioned is true and correct.
Executed on October 5, 2007, at Los Altos Hi

Michael Schoendorf

Page 49 EXHIBIT42

Page 50 EXHIBIT 42

Page 51 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

Page 1)
--000--
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
BLON MUSK,
Respondent. /

DEPOSITION OF NORMAN GODHINHO
SAN FRANCISCO, CALIFORNIA
THURSDAY, APRIL 2, 2009 —
REPORTED BY: E. BRUIHL, CSR NO. 3077

STAR REPORTING SERVICE, INC. (415) 348-0050
J ylulct TZ
Sea aan eR

nares

Page 52 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

Page 2
1 ~-O00--
2 STATE OF CALIFORNIA
3 SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
4 UNLIMITED JURISDICTION
5
6 JOHN O'REILLY,
7 Petitioner,
vs. 107 CV 083172
to
ELON MUSK,
10 Respondent. /
11
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18
19
20 Deposition of NORMAN GODHINHO on behalf of
petitioner on THURSDAY, APRIL 2, 2009, at 12:00
p.m., 1490 El Camino Real, Palo Alto, California,
before Easteller Bruihl, a licensed and Certified

24 California Reporter for Star Reporting Service,
25 Inc., 703 Market Street, San Francisco, California.

patie
STAR REPORTING SERVICE, INC. (415) 348-0050
aaa NNN EE

Page 53 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

Page 11 |
and, you know, talked about what he was doing, what |
he was planning, that he had developed this software
for the internet and the Yellow Pages and so on and,
you know, exact details, I can't remember, but it

was something that I didn't know much about from the
chip industry, and I said, "sounds good but T know
very little about it" and then he was planning to do
a Ph.D. at Stanford and admission but he was trying
to decide whether he should start this company or go
into his Ph.D. and I, personally, as a guy who
started in the '70s, I said -- feel strongly about
it.
13 You know, "go for it" and then I think he
came back and, eventually, I said I'll give him some
money to start, a small amount of money, you know?
16 I loaned him some money to get him started
and so that's how it all came.
18 Q. Thank you, and you said it was late 1995?
19 A. I think if I recall.
20 Q. Can you recall?
21 A. It was late 1995 but the money I didn't -- I
mean that was the first conversation and then,
subsequently, it was '96 and, you know, he came over
and then I met his brother and --
25 Q. Okay. Hold on.

STAR REPORTING SERVICE,. INC. (415) 348-0050

Page 54 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

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-- Kimball.
You are getting ahead of me.
Okay.
oO PO >
So, you had a first meeting with him sometime
in late 1995, correct?
A. Yes. That's my recollection.
Q. I understand.
A. You know, I could be wrong on the exact dates
but I don't recall. It was sometime in that time
frame.
Q. I understand it was a long time ago, so I'm not
trying to pin you down to the exact --
A. Yeah, but I don't keep a diary of all these
things.
Q. That's very understandable, but I'm just trying
to get a sense of what you do recall and to the
extent that you recall the date if not, you, know, so
it sounds like sometime in late 1995 was your first
meeting.
He told you about the company and when --
do you recall when the next meeting was? Was that
before you met Kimbal?
A. I don't recall.
Q. Okay.
A. I mean he may have come back again or I may

Seance ae Te Le RE EE Se Fant on ABE
STAR REPORTING SERVICE, INC. (415) 348-0050

Page 55 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

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Fay oD Songer gRALVGA RAE REI EIaEN RI gS Soevaiis Dreneieaisen Sa RSE
Page 13 |
have called his -- I think that at some point he got
an office here in Palo Alto and I visited that
office but I was just going to the call --
Q. Yeah, I understand.
A. -- but he did’ come over I know a few times and
but the exact dates, I wouldn't know.
Q. Do you think you met Kimbal at some time maybe
in the late 1995 time period?
A. Probably in '96.
Q. Early in '96?
A. Yeah, could be. Yeah.
. . Sy
Q. And at that first meeting, did Elon -- let me
rephrase that. Did Elon approach you for a loan?
A. I think he said he wanted to start the company |
and he needed money because he didn't have very much
money, I guess, and that he had some other investors
as well, other people and others interested and --

Q. Did he tell you who those people were?
A. At that time, I didn't -- I don't know if I can
remember that. He told me a lot but I think I just
said, "hey, I'll give you a small amount of money."
I think it was a small amount, something
like $10,000 or something like that, and "I'll loan
it to you," and then, you know, "if you raise money,
then I will put money into stock into that company."

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PABA PLP SL TEL: OEE DML DE STNE ZS EI WESSEL POR AE HP
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A. He had some other people.
I think his brother, Kimbal, was there and
there was some other people there but I can't
remember.
QO. Thank you. .
Now, when he came to you for the loan, did
he mention any competitors at that time, competitors
with relation to his business -- his idea?
A. I don't recall.
Q. Did he ever mention any work that he was doing
-- when I say "he", I'm referring to Elon. Did he
mention any work Chat he was doing at the Stanford

computer lab?
A. I don't recall. I know that he was -- had got
admission into Stanford University through a Ph.D.
Q. And how do you know that?

A. He told me that. _._t
In fact, that was one of the things that ho7™
had in hand. He said he had a scholarship ona :
grant to do this Ph.D. and, on the other side, he
wanted to start this company and he didn't have the
money and it was, of course, risky as with any
startup and he asked for my advice, you know, and my
advice was, "hey, if you feel strongly about it, go
for it and I'll give you a little money to get

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Page 24
ares,
/
Fadnarnsegting,
EERO races tOmanne ast
started."
2 Q. Do you recall what he was -- what he was going
to study at Stanford?
aim,
4 A. I think it was more in Physics, something in
aie, ama
5 Physics.
TOR Retest ran
6 Q. Had he already started? Or he was --
7 A. No, I don't think he was started. He had
admission.
TEAR,
9 Again, these are all recollections and I
MOSES more at ere
can't, you know -- hold me to those but my and that
was, you know, about that time.
12 . He may have started in September/October is
the, you know, and he may have -- he got admission.
14 He got a grant, and he may have started and he was
debating whether he should start this company or go
into his Ph.D. which was not quite in this area --

17. Q. ~~ Okay. =
18 «A. -- but I think. That's my recollection.
19 Q. And now, did you ever lend Elon more money?
20 A. I don't think I lent him more money but I put
in more money when they raised -- when they had
funding. I don't recall that I lent him more money.
23 It's possible I did.
24 I probably did but then I did -- I know
that in the end, I put in more money like $50,000.
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Page 42}
1 --O00--
2 REPORTER'S CERTIFICATE
3
4 I, BASTELLER BRUIHL, CSR NO. 3077, Certified

5 Shorthand Reporter, certify;
6 That the foregoing proceedings were taken
before me at the time and place therein set forth,
at which time the witness was put under oath by me;
9 That the testimony of said witness, the
questions propounded, and all objections and
statements made at the time of the examination were
recorded stenographically by me and were thereafter

transcribed;
14 That the foregoing is a true and correct
SE RORERTS
transcript of my shorthand notes so taken.
16 I further certify that I am not a relative or
employee of any attorney of the parties nor
18 Financially interested in the action.
19 I declare under penalty of perjury under the
laws of California that the foregoing is true and
correct.
22 Dated this 7TH day of APRIL 2009. fl
23
24
25 EASTELLER BRUIHL, CSR NO. 3077

EI a Sn AS RE Rae OS Sea PR SN
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REPORTER'S CERTIFICATION OF CERTIFIED COPY
I, EASTELLER BRUIHL, CSR NO. 3077, a Certified
Shorthand Reporter in the State of California,
certify that the foregoing Pages 1 through 39,
constitute a true and correct copy of the original
deposition of NORMAN GODINHO, taken on THURSDAY,
APRIL 2, 2009.
I declare under penalty of perjury under the
laws of the State of California that the foregoing
ig true and correct.
Dated this 7TH day of APRIL 2009.
EASTELLER BRUIHL, CSR NO. 3077
Page 43
op ae Ce ERP IE TE

raeee bake fa
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Page 61 EXHIBIT 73

RX
® S

Page 62 DEPOSITION q DEREK PROUDIAN coounent MARCH 25 2009

Page 1
--O00--
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
ELON MUSK,
Respondent. /
DEPOSITION OF DEREK PROUDIAN
SAN FRANCISCO, CALIFORNIA
‘WEDNESDAY, MARCH 25, 2009

ea
REPORTED BY: EH. BRUIHL, CSR NO. 3077

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Page 63 DEPOSITION q DEREK PROUDIAN noownen MARCH 25 2009

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~-O00--
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION

JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
ELON MUSK,
Respondent. /
Deposition of DEREK PROUDIAN on behalf of
petitioner on WEDNESDAY, MARCH 25, 2009, at 10:00
a.m., Rao, Ongaro, Burtt & Tilakos, 595 Market
Street, Suite 610, San Francisco, California, before
Easteller Bruihl, a licensed and Certified
California Reporter for Star Reporting Service,
Inc., 703 Market Street, San Francisco, California.

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Page 76
a different role in the time period that you are
concerned about which was the -- from the first
meeting of the Zip2 entrepreneur.was MDV through the
financing of that event.
My role was primarily one of the supporting
John in whatever he asked me to do. Once we made
the investment and I went on the Board, my role
became very active to help Bill and the management
team and go build the Company but that was sort of
in a subsequent -- subsequent role.

So, I can't recall anything the -- about
other than my -- I do recall that Elon was, I
believe -- I can't remember the universities but he
had been... was it Japan? Or some other university
that was a pretty good school and then he had been
at Stanford in some kind of capacity and it was in
the Physics Department or something like that, is
what I was told..
Q. So, did he tell you that he was at UPenn or
Wharton UPenn?
A. I can't remember how I had that impression but
it was either in his bio or he told me or somehow I

teers
had the impression that he had been at Penn.
Q. And did you have any the impression that he was
a
Pe AN mete nnie Went pen eee
a graduate? That he had graduated?
|

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DEPOSITION q DEREK PROUDIAN capaenl MARCH 25 2009

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:
ne
A. I had that impression. 1
Q. And do you remember on what basis you formed
that impression?
A. I don't recall.
Q. And you said that you were aware he was a i
Stanford student.
A. My recollection is that he had some affiliation
with the Stanford Physics Department.
Q. Do you know what sort of affiliation? Do you |
remember?
A. I don't remember. I can't recall now. I'm
sorry.
Q. Do you remember if he ever told you he was a
Stanford student?
A. I don't recall. I had that impression. i
Q. You had the impression but you are saying you
don't remember on what basis?
A. At this time, I no longer recall. I'm sorry. :
Q. Do you recall Elon ever telling you that he had +
a degree in Physics? |
A. I don't recall, although my -- again, this is |
t
impressions from a long time ago.
|
:
My impression was that he wouldn't have had |
a degree in Physics because he was, you know, he me
gone to Stanford and was -- and basically Groppec |
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| . i
out.
ERNE EL
2 Q. And why do you think -- what made you -- what
gave you the impression that he had gone to Stanford
and dropped out?
5 A. I can no longer -- I can't recall at this point
in time.
7 My... Again, these are impressions of what
8 I thought some time ago but my impression at the
time was that Elon like a number of people in that
time period had decided that the internet was this
next big thing and that they were going to leave
their current jobs or their current situations to go
13 ‘be internet entrepreneurs.
14 Q. I'm just trying to figure out what would give
you that impression, you know, whether that was in
his bio or he give you that impression?
17 A. I can't recall at this time.
18 Q. Okay, and did he ever tell you that he had a
degree in Computational Physics?
20 A. I can't recall.
21 Q. Okay.
22 Then you mentioned that you are in
communication with Kimbal? You have been in
communication with Kimbal?
25 A. Sure.

FoF Casha ENE TORT THF RL EET
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- --000-- .
REPORTER'S CERTIFICATE
I, BASTELLER BRUIHL, CSR NO. 3077, Certified
Shorthand Reporter, certify;
That the foregoing proceedings were taken
before me at the time and place therein set forth,
at which time the witness was put under oath by me;
That the testimony of said witness, the
questions propounded, and all objections and
statements made at the time of the examination were
recorded stenographically by me and were thereafter
transcribed;
That the foregoing is a true and correct
transcript of my shorthand notes so taken.
I further certify that I am not a relative or
employee of any attorney of the parties nor
financially interested in the action.
I declare under penalty of perjury under the
laws of California that the foregoing is true and
correct.
Dated this 30th day of MARCH 2009.
EASTELLER BRUIHL, CSR NO. 3077

STAR REPORTING SERVICE, INC. (415) 348-0050

Page 68 DEPOSITION q DEREK PROUDIAN maownanll MARCH 25 2009 ©

1 ’ REPORTER'S CERTIFICATION OF CERTIFIED COPY
7 I, EASTELLER BRUIHL, CSR NO. 3077, a Certified
8 Shorthand Reporter in the State of California,
certify that the foregoing Pages 1 through 93,
constitute a true and correct copy of the original
deposition of DEREK PROUDIAN taken on WEDNESDAY,
12 MARCH 25, 2009.
if declare under penalty of perjury under the
laws of the State of California that the foregoing
is true and correct.
16
17 Dated this 30TH day of MARCH, 2009.
18
19
20
21
EASTELLER BRUIHL, CSR NO. 3077
22
23
24
25

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Page 70 EXHIBIT (114

Page 71 DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009

Page l
_ =-000--
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
ELON MUSK,
Respondent. /
SAN FRANCISCO, CALIFORNIA
THURSDAY, APRIL 2, 2009
:
DEPOSITION OF JIM AMBRAS
|
REPORTED BY: E. BRUIHL, CSR NO. 3077
' f
,

STAR REPORTING SERVICE, INC. (415) 348-0050
allt 74
Rea aare sda ea Laas RRA

Page 72 DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009

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SFT wo eA Ng SON IND TE SUL UO
--O00--
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
ELON MUSK,
Respondent. /
Deposition of JIM AMBRAS on behalf of
petitioner on THURSDAY, APRIL 2, 2009, at 9:00 a.m.,
1490 El Camino Real, Palo Alto, California, before
Easteller Bruihl, a licensed and Certified
California Reporter for Star Reporting Service,
Inc., 703 Market Street, San Francisco, California.

Page 2}

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Fe Be PR REE TRIE NT OB
DEPOSITION OF JIM AMBRAS, TAKEN mal APRIL 2, 2009
Page 10 f
that point?
A. I was working at Silicon Graphics at the time
and was considering moving to a small startup that
would be involved in web based deck knowledge and
that was the profile of Zip2.

So, IT was not looking for a job at the time
but based upon Derek and that I have a high regard
for him and he recommended that I make this, I
thought this would be an opportunity worth my time.
f
t
g
#
i
F
i
Q. All right. Do you remember you said you met
with the owners of Zip2.
A. I met with the founder of Zip2.
SERIES ee
SA areng
There were three. There were Elon Mosk,
his brother Kimbal Mosk and Greg Kouri that night I
came in after work on a week night and I interviewed |
with all three of them.

Q. And do you remember the date, approximately?
A. It was around April of '96, late March or :
April, that time frame. 4
Q. Okay. Do you remember what -- can you tell me
everything you remember about the meeting?
A. Yeah.
I came in around 6:00 or 7:00 p.m. and,
initially, I met Elon and Elon told me what Zip2 was
about, what they were doing which was an online

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Page 74 DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009

>
Page 34
directions before he worked for Zip2?
2 A. No.
3 Q. Okay.
4 I'm going to have the Court Reporter mark
as Exhibit 3....
6 Counsel, this is the article -- first page
of the article from The Daily Duck. This was froma
previous deposition?
9 MS. NUGENT: I have that. Thank you.
10 (THE DATLY DUCK ARTICLE MARKED EXHIBIT NO. 3)
11 Can you just take a look at this document
and then focus on the last paragraph and tell me
when you are through.
14 Can you read the first sentence of the last
paragraph, starting with "Kimbal says"?
PEE CPT PS EFL SETS TOS FR NCL OS EEL SLE RS IE RATS FGI AT SISO NTE SR CORE EET EERO COLOSSUS SA
16 A. "After college, my brother and
17 I moved to California. We got
jobs at an early internet
startup that provided on-line
maps and directions."
21 Q. Do you have any reason to dispute that :
sentence?
23 MS. NUGENT: Objection, lacks
foundation.

25 THE WITNESS: That's the first time I

Be eR ES REET ee et Taree aaa TSCA ae ae Tee Sa RRC
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Page 75 DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY , APRIL 2, 2009

ASE
Page 35
have heard of that.
2 MS. KOHN:
3 Q. Okay.
4 Did Elon ever tell you that he was a
graduate of any college?
6 A. Yes.
7 Q. And where did he tell you he graduated from?
8 A. Most recently a boarding -- yeah, a board --
the University of Pennsylvania, a boarding school
there.
11 Q. When did he tell you that he had -- when did he
tell you that he had graduated? That's confusing.
13 A. That is ambiguous.
14 Q. When did you have the conversation that you
learned he was a graduate?
160—CO A. I don't recall.
17 Q. Do you recall when he told you he had, indeed,
in fact, graduated from college?
19 A. Early on when I joined Zip2 but I don't recall
the date, being that this was thirteen years ago.

SRA ELENA OFSTUPCD LoL R cd AREO ESTAS WDE EAR. TANFL OEA ELOY LE BS GLP SO GAG OHSS SR TAPE APES TOSTT OA SCPC OER EIST SSE REELED TOOL RCI RS POTN ST CEOS AE SAN ON SRINIVAS HOGS
21 Q. Did he ever tell you that he was or had been a
22 Stanford student?
x
23 A. Yes, and, in fact, he had, I think, mentioned
that during the night of the interview that he had

i
come to the Bay Area to attend Stanford, a graduate |

z
ot
dee cvechtegest?
Sen aidtcine

[LEO RLM ES IRR SERRE RN

Sig a ATA AE TB ROR SEIS SC AL Be aS EE a a PRET ca RT
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Page 36}
school. ~— :
Q. Was he -- as far as you knew, was he in
Stanford graduate school when you met him?
A. My understanding was that he had dropped out to
start Zip2.
Q. And was that understanding based on what he
told you?
A. It was based upon what he told me and based
upon what other people had told me such as Derek
Proudian.
Q. Did he tell you what he was studying at
Stanford?
A. High energy physics.
Q. Did he ever tell you that he had a degree in
Physics?
A. No.
Q. And since 1999, have you had any communication
with Elon Mosk?
A. Yes.
Q. Well, it has been a long time. So, what's your
most recent communication with him?
A. The most recent communication was I asked him ‘
for basic information about what this lawsuit was,
that -- after having received a contact by John
O'Reilly.

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Page 52
1 -—~OO0--
2 REPORTER'S CERTIFICATE
3
4 I, EASTELLER BRUIHL, CSR NO. 3077, Certified
5 Shorthand Reporter, certify;
6 That the foregoing proceedings were taken
before me at the time and place therein set forth,
at which time the witness was put under oath by me;
9 That the testimony of said witness, the
questions propounded, and all objections and
statements made at the time of the examination were
recorded stenographically by me and were thereafter
transcribed;
14 That the foregoing is a true and correct
15 ‘transcript of my shorthand notes so taken.
16 I further certify that I am not a relative or
employee of any attorney of the parties nor
financially interested in the action.
19 I declare under penalty of perjury under the
laws of California that the foregoing is true and
correct.
22 Dated this 6th day of APRIL 2009.
23
24 EKASTELLER BRUIHL, CSR NO. 3077
25

Te aa a ae ed NS CRISS BTA DD © PDS SE GONE ao RO prt crete
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TV EEO E EUS aS ARI EDA PON SOT SEE Ea RR aR SS SRP SO Ra PT
STAR REPORTING SERVICH, INC. (415) 348-0050
REPORTER'S CERTIFICATION OF CERTIFIED COPY
I, EASTELLER BRUIHL, CSR NO. 3077, a Certified
Shorthand Reporter in the State of California,
certify that the foregoing Pages 1 through 53,
constitute a true and correct copy of the original
deposition of JIM AMBRAS taken on THURSDAY, APRIL 2,
2009.
I declare under penalty of perjury under
laws of the State of California that the foregoing
is true and correct.
Dated this 6TH day of APRIL 2009.
EASTELLER BRUIHL, CSR NO.

the
3077
Page 53 |

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Page 81 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

Page l
--O00--
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION ;
JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
ELON MUSK, :
Respondent . /
DEPOSITION OF CRAIG MOHR |
SAN FRANCISCO, CALIFORNIA
THURSDAY, APRIL 2, 2009
,
REPORTED BY: E. BRUIHL, CSR NO. 3077 |

SES RIE OA I eS OEE
STAR REPORTING SERVICE, INC. (415) 348-0050.
Ex lily 4 7S)

Page 82 DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009

Page 2
1 --O00-- !
2 STATE OF CALIFORNIA
3 SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
4 UNLIMITED JURISDICTION
5
6 JOHN O'REILLY,
7 Petitioner, .
8 . vs. 107 CV 083172
to
ELON MUSK,
10 Respondent. /
11
12
13
14
15
16
17
18
19
20 Deposition of CRAIG MOHR on behalf of
petitioner on THURSDAY, APRIL 2, 2009, at 1:00 p.m.,
22 1490 El Camino Real, Palo Alto, California, before |
23 Fasteller Bruihl, a licensed and Certified
24 California Reporter for Star Reporting Service,
25 Inc., 703 Market Street, San Francisco, California.

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Page 62
1 A. No.
2 Q. Did Elon ever tell you that he was a graduate
of any college?
4 A. No.
WOO TTE
5 Q. Did he ever tell you that he was a Stanford

student?
7 A. I think he did.
8 It's -- you know, Elon and I didn't really
talk very much. He wasn't a very talkative person,
and so I can't say that he told me anything about
his -- his college career. I don't know. I'm
12 SOrry.
13 Q. But you had an impression that he was a
14 Stanford student? :
15 A. That's just it. There was mention of Stanford
but I don't know whether it had to do with --
whether it had anything to do with him saying that
he had gone there.
TagnneetrAt,
19 Q. Okay. Did he ever tell you that he hada
degree in Computational Physics?
pin. beaten a eon errno
21 A. No.
cement
22 Q. Have you had any communication with Rlon since
23 1999?
24 A. No.
25 Q. What about Kimbal? Have you had any

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Page 84 mM i?

DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009
Page 71
1 --O00--
2 REPORTER'S CERTIFICATE
3
4 I, BASTELLER BRUIHL, CSR NO. 3077, Certified
5 Shorthand Reporter, certify;
6 That the foregoing proceedings were taken
before me at the time and place therein set forth,
at which time the witness was put under oath by me;
9 That the testimony of said witness, the
questions propounded, and all objections and
statements made at the time of the examination were
recorded stenographically by me and were thereafter
transcribed;
14 That the foregoing is a true and correct
transcript of my shorthand notes so taken.
16 I further certify that I am not a relative or
employee of any attorney of the parties nor
financially interested in the action.
19 I declare under penalty of perjury under the
laws of California that the foregoing is true and
correct.
22 Dated this 7TH day of APRIL 2009. i
23 |
24
25 EASTELLER BRUIHL, CSR NO. 3077 :
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Page 72
1 REPORTER'S CERTIFICATION OF CERTIFIED COPY
7 I, EASTELLER BRUIHL, CSR NO. 3077, a Certified
8 Shorthand Reporter in the State of California,
certify that the foregoing Pages 1 through 72,
constitute a true and correct copy of the original
deposition of CRAIG MOHR, taken on THURSDAY, APRIL
12 2, 2009.
13 I declare under penalty of perjury under the
laws of the State of California that the foregoing
is true and correct.
16
17 Dated this 7TH day of APRIL, 2009.
18
19
20
21
‘ EASTELLER BRUIHL, CSR NO. 3077
22
23

24
25

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Page 86 EXHIBIT '76/

Page 87 EXHIBIT 41

Page 88 DEPOSITION OF e. MUSK, TAKEN ON verone MAY 7, 2009

Page 1
Se
STATE OF CALIFORNIA
SUPERIOR COURT OF THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
JOHN O'REILLY,
Petitioner,
vs. 107 CV 083172
ELON MUSK,
Respondent. /
DEPOSITION OF ELON MUSK
LOS ANGELES, CALIFORNIA
THURSDAY, MAY 7, 2009

REPORTED BY: E. BRUIHL, CSR NO. 3077

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Page 89 DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009

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Nonappearance, Dr. O'Reilly got a telephone call.
They indicated they'd be here in about fifteen
minutes.
[RECESS]
MR. ONGARO: ~ Swear in the witness,
please.
ELON REEVE MUSK,
having first been duly sworn and/or affirmed to tell
the truth, the whole truth and nothing but the
truth, under oath, testified as follows:
EXAMINATION BY MR. ONGARO
QO. Good morning, sir.
Can you please state and spell your full
name for the record?
A. Elon Reeve Musk, E-l-o-n, R-e-e-v-e, M-u-s-k.
Q. And, Mr. Musk, have you had your deposition
taken before?
AL Only once.
Q. Only once?
A. Yeah.
Q. Okay, and I take it you have had the
opportunity to meet with your attorney to prepare
for today's deposition?

Page 90 DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009

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Page 88
Q. And you were talking -- talked about some
litigation?
A. About an interview venture. It was a long
interview. We might have touched on litigation.
Q. Okay.
Okay. Do you recognize what we have marked
as Exhibit 4?
(STEPHEN SAPERSTEIN NOVEMBER 7, 2008
CASE NO. 107CV083172 DOCUMENT
MARKED EXHIBIT NO. 4)
I don't intend for you to read the whole
document, sir. So; feel free to flip through it and
make yourself comfortable.
MR. LEDAHTL: Do you have another copy?
THE WITNESS: I haven't seen this ina
long long time. This is an horrendous business
plan.
MR. ONGARO:
Q. And whose business plan is this?
A. This is a business plan that was written
between -- with Steve Saperstein, Kimball and myself
and I think Greg may have contributed as well. It's
embarrassingly bad.
Q. And this was so all three of you had input into

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eh Page 89 ;
fv .
Wo. A. Well, this is four people.
20 Q. I'm sorry. All four of you?
3 A. I think so.
4 Q. Okay, and there’ are portions that -- I think
that you wrote?

6 A. Yes.
7 Q. Okay, and this was the something that you wrote
that's to disseminate out into the venture capital
world, is that correct?
10 A. Well, yeah.
11 Anyone we pitched to, we would offer the
business plan but, as I mentioned earlier, what was
always remarkable is that you mentioning lack of
interest of venture capitalists and business plans.
15 Q. But you did, in fact, give this to some
entities, correct?
17 A. I didn't give this to any entities.
18 Q. But Zip2 --
19 A. Steve Saperstein may have given it to people.
20 Q. Right, and your brother may have given that to
people as well, correct?
22 A. He may have.
23 MR. LEDAHT: ' Calls for.speculation.

MR. ONGARO.

And you wanted to make sure that everything in

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Page 92 DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009

ak : Page 90
this document was accurate because you guys were, in
essence, looking for money based on this document.
3 Is that correct?
4 A. Certainly, the aspiration would have been
accuracy. IT mean, reading this thing, it's
ludicrously bad.
7 Q. Well, I'm not whether the contents was good or
bad.
9 I'm asking you: It's true that it was your
intent to make sure that the information that was
being disseminated was true and correct?
12 A. O£ course.

13 Q. Now, turning back to Exhibit 3, which is this
exhibit --
15 A. Is this the same as the Executive Summary on...
is it the same one? No, no, it is different,
slightly different.
18 Q. Going back to Exhibit 3 and I want to put you
into focus that if somebody was given Exhibit No. 3
in January of 1986, would it be true that Global
21 Link had developed a product on the internet ‘
duplicating the Real World Cities to create the next
generation of local business advertising at that
point in time, January of 1996?
$25 A. I think that would probably be a generous

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DEPOSITION OF @.. MUSK, TAKEN ON THURSDAY, MAY 7, 2009

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Page 130
A. No. I don't recall.
Q. Okay.
(POWER POINT FLIP-THROUGHS
MARKED EXHIBIT NO. 5)
Going back to what we have marked as
Exhibit No. 5, do you recognize this document?
A. No.
Q. Was this the flip-throughs that you were
talking about your brother would present to the
venture folks?
A. I don't know.
MR. LEDAHL: Calls for speculation.
MR. ONGARO:
Q. You don't know? Do you know whether what we
have marked as Exhibit No. 5 ive was ever given to
potential customers?
MR. LEDAHL: Calls for speculation.
THE .WITNESS: I don't know.
MR. ONGARO:
Q. Okay, and going to the first page, it says:
"Tnteractive Local Business
Directory, Natural Language
Search Engine incorporated
Into a powerful Geographical
Information System."

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Page 94 DEPOSITION OF 9. MUSK, TAKEN ON THURSD.
, MAY 7, 2009

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4 25
Did -- in 1996, January 1996, did Zip2 have
a natural language search engine?
A. Not -- well, natural language means different
things to different people.
Q. It has got -- let me try it this way.
The industry has a certain definition of a
natural language search engine, correct?
A. There is a ~~ well, there are different
interpretations of natural language engines and, for
instance, geography is considered by some to be a
natural language search engine but not by others and
I think how else would it have been considered by
some to be a natural search engine but not by
others.
Q. Is there a generally accepted definition that
you are aware of in the industry for what a natural
language search engine was?
MR. LEDAHL: Asked and answered.
THE WITNESS: No.
MR. ONGARO:
Q. Okay. —_
Okay. I want to just turn you to the next
page. I just want you to take a look at some of the
titles of these different slides or flip-throughs.
The first one is "Focused Internet

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DEPOSITION OF ®. MUSK, TAKEN ON THURSDAY, MAY 7, 2009

—" Page 132 :

refresh your recollection at all that this was the
Tr Advertising vs. Generic Presence", and the next, ‘.
simple, Exciting Business Search System". The next |
is "The System Tools". The next is "Target Market- i
4 Internet Users". The next is "Target Market-
5 Internet Businesses". The next is "Potential
6 Marketing Strategies". The next is "Competition".
7 Looking at those headings, does that
flip-through that you were referring and your
brother would present to potential folks?
121 A. You know, it is hard to tell because the

flip-through -- was it some other flip-through? You
-13 know, what date and time, I don't know.
ee
14 Q. Okay.
15 A. Iomean, it is a flip-through, fourteen-year old
flip-through range and I don't know.
Cae
17 QO. Does it look. like it is familiar as the

flip-through your brother was using?
19 MR. DLEDAHL: Vague and ambiguous.
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20 THE WITNESS: I wound say it is
familiar.
22 MR. ONGARO:

23 Q. Okay, and given that the headings does not
refresh your recollection, is this something that

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Page 133
MR. LEDAHT: Asked and answered, calls
ee AE TISTDN
for speculation.
THE WITNESS: It is something that
could have been used. Was it used? ‘tT don't know.

5 MR. ONGARO:
6 Q. Okay.
7 Now, going through the Competition page
about midway in, keep going. Starting from the one
on top that says "Competition".
10 A. Uh-huh, I'm there.
11 Q. Okay. Here, it indicates that Nynex --

| 12 AW "Nynex",
“13 Q. --.Nynex-is one of the potential competitors,
correct?
15 MR. LEDAHL: According to this
document?
17 THE WITNESS: According to this
document, yes.
19 MR. ONGARO:
20 QO. Okay, and you put that in your business plan,
correct?
22 MR.. LEDAHL: Objection. Misstates the
testimony.
24 . THE WITNESS: I don't recall.
25 MR. ONGARO:

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oy Page 134 |
1 Q. Okay. Let's turn to --
2 A. I mean. i
3 Q. And did you back in '96 identify Nynex as one

of your potential competitors?
5 A. It appears to be the case.
6 Q. Okay, and then three bullet points down, it
says a "number of smaller unfundeds". Do you see
2
that?
9 A. Yes.
10 QO. And do you know who the small unfundeds were
that you were referring to or that Zip2 was
nie Nee
referring to in this Competition?
143 "MR. LEDAHL: Lacks foundation.
14 THE WITNESS: Not really.
15 There were, you know, several other
start-ups, you know, that were trying to do
something similar as it was the case particularly in
ee eee
18 Tech manager.
19 MR. ONGARO:
ne
20 QO. Well, as you sit here today, were there any
others?
22 A. Big Book.
23 Q. Okay: Any others?
24 A. Well, it depends on which point in time.
25 There was kind of a Map Quest. I'11 just
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Page 135
say as I think back here when we came to the-
ECan een eae
internet, I believe there was a 411. I mean that's
-- I don't know. It was so long ago.
Q. Do you remember this document from O'Reilly's
company?
A. I don't, actually.

Q. Do you ever remember meeting Dr. O'Reilly?
A. You know, it is one of those things do I
remember or don't I?
I met so many people in that time frame. I :
certainly don't remember him, particularly.
Q. Now, turning to the last page of this
fFlip-through, it has got the biographies and,
technically, the one identity that was in the
business plan.
When you did the business plan and you
EC USEN SOA CBE SANDS GS EET SAR REE RMS EE
converted it -- actually, why don't we do this? Why
See eee
don't we go to Page 14 of the business plan which is
Page 4?
SL
A. More bad news.
Q. Sir, I would like you to turn to Exhibit No. 4
SELL ne eR
for me, the last page which should be Page 14 and
you had previously testified that you wrote portions :
of this business plan.
I take it that you provided or wrote the

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Q. Granting you a B.S. Degree in -- granting you

Page 136
information regarding your background for the
business plan, is that correct?
A. Probably. That's what they contributed to.
OQ. And do you have -- as you sit here today, do
you have any recollection of anyone else writing
your biography for the business plan?
A. No. That doesn't mean that I wrote it.
Q. And as.you read the bio. for you and the
business plan on. Page 14, is everything in that bio
true and correct?
A. Yeah. Yes.
Q. Okay. So, you received a B.S. in Computational
Physics from Penn?
A. Yeah.
Q. Okay, and when you worked at Microsoft advanced
products --
A. Actually, I should be clear about that.
So, I obtained the one Graduate degree in
Business and Physics but and an agreement with the
-- with the University of Pennsylvania.
They said that I could have -- I could
complete the Engiish and History credit when I was
no longer a student at Stanford. So, they would
delay transmitting the degree until I had done that.

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Page 140
1 A. B-l-a-s-t-a-r.
2 QO. Okay, and then it says your first company was
founded at age eighteen. What company was that?
4 A. That was a company at Queens, just reselling
computer equipment.
6 Q. Okay.
7 Did you ever hear of a company called
"Remote Telecom"?
9 A. That name rings a bell.
10 QO. Okay, and do you recall -- well, do you recall
when you first heard about Remoté Telecom?
12 A. No.
13 Q. Do you have any recollection of what they do?
14 A, Not really. /
15 Q. Do you have any recollection of applying for’ :
work there?
17 A. No.
18 Q. Okay, and in January of '96 had you heard of 7
the Internet Merchant channel?
20 A. I don't remember that.
21 Q. Okay.
22 (DEFENDANT'S RESPONSES TO PLAINTIFF'S
23 FORM INTERROGATORIES, SET ONE MARKED
24 EXHIBIT NO. 7) _
25 I'll represent to you, sir, that these are |
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ww oO Aa nN HD Nn Ff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tt Se nem te 1 sme eee Bem me mr oe a ore Yosef Peretz (SBN 209288) Emily Knoles (SBN 241671) Genevieve Guertin (SBN 262479) PERETZ & ASSOCIATES 22 Battery Street, Suite 202 San Francisco, California 94111 Telephone: (415) 732-3777 Facsimile: (415) 732-3791 Attorneys for Plaintiff MARTIN EBERHARD SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO MARTIN EBERHARD, Civil Case No. CIV-484400 DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF’S VS. OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE ELON MUSK; TESLA MOTORS, INC.; PORTIONS OF PLAINTIFF’S and DOES 1-20, inclusive, COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION Plaintiff, Defendants. Date: July 29, 2009 Time: 9:00 a.m. Dep.: 11 Judge: Hon. John L. Grandsaert I, Yosef Peretz, declare: 1. Iam a partner of the firm Peretz & Associates and am duly licensed to practice law in the State of California. 2. I represent Plaintiff MARTIN EBERHARD (“Plaintiff”) in this action. I have personal knowledge of the matters set forth herein and if called upon to testify, I could and would do so competently. 3. This declaration is given in support of the Plaintiff's Opposition to Defendants ELON MUSK (“Musk”) and TESLA MOTORS, INC. (“Tesla”) (collectively, “Defendants”)’s Special Motion to Strike Portions of Plaintiff's Complaint as a Strategic Lawsuit Against Public Participation. DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT ELON MUSK. AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION -1-

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NO oO c6o& SI NHN AW LS WW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. One claim in the present lawsuit concerns a letter that Tesla sent to its employees, investors and customers that stated that Tesla had terminated employees in or around the end of 2007 to ensure “accountability” in the company. See Plaintiff's Exhibit 60. On October 15, 2008, I attended the deposition of Tesla’s former Chief Information Officer, Gene A. Glaudell (“Glaudell”), in the action entitled Vespremi et al. v. Tesla Motors, Inc., et al., San Mateo County Superior Court, Case No. CIV-474656 (“Vespremi Action”). A true and correct copy of excerpts of the deposition of Glaudell is attached hereto as Exhibit “69.” 5. Glaudell stated at his deposition that he attended an executive staff meeting that was also attended by Musk, Tesla’s then-Chief Executive Officer, Ze’ev Drori (“Drori”), and Tesla’s Vice President of Finance, Mike Taylor (“Taylor”). Glaudell testified that Musk and Drori discussed the reasons for terminations of employees by Tesla at that meeting, and that those terminations were made primarily for financial reasons rather than for performance issues. However, Musk and Drori stated that did not want to state in public that they were “making cuts” for financial reasons and that they planned to state that the layoffs were for “performance and management accountability” reasons despite the fact that Glaudell and Taylor protested that to make such claims was “not right” (Exhibit 69, p. 81:3-24), 6. Glaudell also testified that he and Taylor told Musk and Drori that it is inappropriate to discuss performance reasons for employee dismissals in public, as well as to publish such statements. Glaudell testified that he and Taylor warned Musk and Drori that they should not do that (Exhibit 69, pp. 80:21-81:2). 7. On December 16, 2008, I took the deposition of Tesla’s General Counsel, Craig Harding (“Harding”), in the Vespremi Action. A true and correct copy of excerpts of the Deposition of Harding is attached hereto as Exhibit “70.” At his deposition, Harding testified that he recalled Taylor making statements in December 2007 that Tesla should not make public statements that individuals who were laid off were terminated for poor performance (Exhibit 70, p. 217:7-25). Harding also testified that he recalled Musk indicating that he felt it was better not to characterize Tesla’s dismissals of employees as layoffs because the term “layoff” was characteristic, in the public’s mind, of a company having financial problems (Exhibit 70, pp. 218:14-219:8). Finally, Harding also testified that it was his understanding that the layoffs DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION -2-

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o fe N DH OH FP WY YN NO NO NO WN PH PO HR RO RO mm mm ine So NN Dn nN F&F WD NYO —|&§ DF BO FH HN HDB A FP WwW NYO KH CS that took place around the time of the meeting in December 2007 were also made for financial | reasons (Exhibit 70, p.220:8-24). 8. Attached hereto as Exhibit “71” is a true and correct copy of the Second Amended Verified Complaint dated, October 5, 2007, in the action entitled John O'Reilly v. Elon Musk, San Mateo Superior Court Case No. 107 CV 083172 (the “O’Reilly Action”). This Complaint includes claims for misrepresentation, fraud and deceit and misappropriation of trade secrets against Musk. The Complaint alleges that Musk fraudulently misappropriated the idea of Zip2 from John O’Reilly (“O’Reilly”) when Musk met with O’Reilly in 1995 under the auspices of | seeking employment with O’Reilly (Exhibit 71, pp. 3-7, 98-24). The Complaint also alleges that Musk misrepresented to O’Reilly that Musk was a student at Stanford at that time (Exhibit 71, p. 3, 78). 9. Attached hereto as Exhibit “72” is a true and correct copy of excerpts of the deposition of Norman Godhinho (“Godhinho”), taken on April 2, 2009, in the O’Reilly Action, where Godhinho testified that in early 1996 Musk approached Godhinho for a loan to start a company (Exhibit 72, p. 13:12-17). Godhinho testified that when Musk approached him for a loan, Musk told Godhinho that he had received admission into Stanford University for a Ph.D. program (Exhibit 72, p. 23:10-17). Godhinho also testified that in approaching Godhinho for a loan, Musk told him that he had a scholarship and a grant to do a Ph.D. and that Musk was ° going to study Physics at. Stanford University (Exhibit 72, pp. 23:18-24:16). 10. Attached hereto as Exhibit “73” is a true and correct copy of excerpts of the deposition of Derek Proudian (“Proudian”), taken on March 25, 2009, in the O’Reilly Action, at which Proudian testified that he believed that Musk had been at Stanford University in the Physics Department and that he had dropped out of that program (Exhibit 72, pp. 76:11-78:1). 11. Attached hereto as Exhibit “74” is a true and correct copy of excerpts of the deposition of Jim Ambras (“Ambras”), taken on April 2, 2009, in the O’Reilly Action, at which Ambras testified that he met with Musk in April 1996 to discuss working for Zip2 (Exhibit 74, p. 10:6-19). Ambras also testified that during his employment at Zip2, Musk told him that he had come to the Bay Area to study high energy physics in a graduate program at Stanford, but had dropped out to start Zip2 (Exhibit 74, pp. 35:21-36:13). DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO. STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION -3-

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Oo fo NN Dn WO FF WO NO — Ny NYO DY NY NY NY NY NY NO | Fe FO Fe Fe PFO Re OO Ee le ao NT HD AW FF WH HPO |§ FD CO GB SI DH nm FP WD NY S| OC @ @ 12. Attached hereto as Exhibit “75” is a true and correct copy of excerpts of the deposition of Craig Mohr (“Mohr”), taken on April 2, 2009, in the O’Reilly Action, where Mohr testified that he thinks that Musk represented that he was a student at Stanford University (p. 62:5-7). 13. Musk gave deposition testimony in the O’Reilly Action (“Musk Deposition”). Attached hereto as Exhibit “76” is a true and correct copy of excerpts from the deposition of Musk, taken on May 7, 2007, in the O’Reilly Action. At Musk Deposition, Musk testified twice under oath and under penalty of perjury that he received a B.S. in Computational Physics from the University of Pennsylvania (Exhibit 76, p. 136:12-14; 162:3-4). 14. Musk verified at Musk Deposition that Exhibit 4 to that deposition was the business plan for the company Global Link (“Global Link Plan”); a business plan that he authored around December 1995 or January 1996 for the purpose of raising capital for that company with the intent of ensuring that the document contained true and correct information (Exhibit 76, p. 88:20-90:12). Attached hereto as Exhibit “77” is a true and correct copy of the Global Link Plan that is attached as Exhibit 4 to the Musk Deposition. On page 14 of the Global Link Plan, Musk wrote that he has a B.S. degree in Computational Physics. 15. Musk also verified that Exhibit 5 of the Musk Deposition was the kind of “flip- through” that appears to be a Power Point presentation that would have been used as a tool to raise capital for Global Link (Exhibit 76, p. 131:22-133:4). On page 15 of the “flip-through” for Global Link, Musk is described as having a B.S. degree in Computational Physics. Attached hereto as Exhibit “78” is a true and correct copy of the Zip2 “flip-through” that was attached as Exhibit 5 to the Musk Deposition. 16. At Musk Deposition he verified Exhibit 7 as a true and correct copy of his responses to Plaintiffs Form Interrogatories, Set One, in the O’Reilly Action, and testified that he stated by signing the verification of his responses that all of the information contained therein was true and accurate (Exhibit 76, pp. 140:25-141:19). In response to Form Interrogatory 2.6, Musk listed his “present employer or place of self-employment” from 2002 to the present as “SpaceX” only. Musk did not state that Tesla has been his place of employment at any time. A true and correct copy of Musk’s Responses to Plaintiff's Form Interrogatories, Set One, in the O’Reilly Action is attached hereto as Exhibit “79.” DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION -4-

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— No N N bo N N N No N _ — _ — = = Se = = oe ~~ aN —~ - we BO — QS \O oe —~ nN wa - uo N = oS oOo feo NY DH WwW BB WW WN a& e 17. At Musk Deposition, he verified that Exhibit 10 to the deposition was a true and correct copy of the only two diplomas that he received from the University of Pennsylvania. Musk also testified that he has no additional diplomas from the University of Pennsylvania (Exhibit 76, p. 164:9-17). A true and correct. copy of Musk Deposition Exhibit 10, Musk’s University of Pennsylvania diplomas, is attached hereto as Exhibit “80.” 18. In response to Form Interrogatory 17.1, Musk stated that he “was accepted” into the “graduate program for materials science & applied physics at Stanford University in 1995,” | and that Stanford University would have documents to support this statement. See Exhibit 79. 19. At Musk Deposition, he testified that he never attended a single class at Stanford University as a graduate student and that he never paid any tuition fees at Stanford for any graduate programs (Exhibit 76, p. 230:6-11). 20. Attached hereto as Exhibit “81” is a true and correct copy of a Deposition Subpoena for Production of Business Records in the O’Reilly Action served upon the Custodian of Records, the Board of Trustees of the Leland Stanford Junior University that requested the | following information: 1) the date(s) Musk applied to Stanford; 2) the date(s) Musk enrolled at | || Stanford; 3) the date(s) Musk attended Stanford; 4) the date(s) Musk deferred his enrollment at Stanford; 5) the department(s) in which Musk enrolled at Stanford; and 6) the degree(s) Musk was awarded by Stanford. : 21. Attached hereto as Exhibit “82” is a true and correct copy of a letter dated December 16, 2008, sent from Judith Haccou, Director of Graduate Admissions of the Registrar’s Office, Stanford University, written in response to the subpoena attached as Exhibit 81. The letter states that Stanford’s Graduate Admissions Office was unable to locate any record in its office for Musk. 22. Attached hereto as Exhibit “83” is a true and correct copy of Musk’s ‘verified Responses to Plaintiffs Requests for Production of Documents, Set One, in the O’Reilly Action. In response to Request for Production No. 31, Musk stated that he had no documents in his possession, custody or control responsive to the request for all documents from January 1995 to December 1996 regarding his admission to Stanford University. 23. In response to Plaintiffs Request for Production No. 32 in the O’Reilly Action, Musk stated that he had no documents in his possession, custody or control responsive to the DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION -5-

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oo ee N DBD A F&F WY NO NO po NO NO NO WN NHN NO HNO we we ee ee So NN DN wT FP WO NY |§ TD OBO fF HN DB An HR WO HPO KH OD request for all documents from January 1995 to December 1996 regarding his enrollment at Stanford University. See Exhibit 83. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 15th day of July 2009 at San Francisco, California. Yosef Peretz DECLARATION OF YOSEF PERETZ IN SUPPORT OF PLAINTIFF MARTIN EBERHARD’S OPPOSITION TO DEFENDANT ELON MUSK AND TESLA MOTORS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION -6-

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EXHIBIT|/¢9

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EXHIBIT/69

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® —_—_—_@- IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA Page 1 IN AND FOR THE COUNTY OF SAN MATEO DAVID VESPREMI, GENE GLAUDELL ) and JENNIFER LIVIGNI, ) individually and on behalf of ) all others similarly situated, ) Plaintiffs, ) vs. ) No. CIV-474656 TESLA MOTORS, INC., a Delaware ) corporation; ELON MUSK, an ) individual; ZE'EV DRORI, an ) individual; DARRYL SIRY, an ) individual; and DOES 1-26, ) inclusive, ) Defendants. ) VIDEOTAPED DEPOSITION OF GENE A. GLAUDELL WEDNESDAY, OCTOBER 15, 2008 PAGES 1 - 323 a OL ee Tae enn ar Veritext National Deposition & Litigation Services 866 299-5127 = Wily LL ly A . 179d05fe-bd28-4ec8-a6f8-fa9663698951 aWgh

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10 11 “12 13 14 15 16 17 18 19 20 21 22 23 24 25 Videotaped deposition of GENE A. GLAUDELL, taken at 601 California Street, Palo Alto, California, commencing at 11:35 a.m., 2008, Wednesday, October 15, Manning, CSR No. 7645. Fa Eee Sa MASE OE NEO SE OORT SG PEL SE RS RE A a Veritext National Deposition & Litigation | Services 866 299-5127 Toe TE ES aa Page 2 Cee eee eee before Cynthia POP AIR IC SRE OS ANTE SE SEBEL EERE EEE ae Se eA LDR DA OPULENCE 179d05fe-bd28-~4ec8-a6f8-fa9663698951

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| 24 rage 3 1 APPEARANCES OF COUNSEL: 2 : 3 FOR THE PLAINTIFFS: ° KLETTER & PERETZ | 6 BY: YOSEF PERETZ, ESQ. | ? 22 Battery Street | Suite 202 9 San Francisco, California 94111 10 415.732.3777 t1 yp@kletterperetz.com 13 FOR THE DEFENDANTS: 14 18 WILSON SONSINI GOODRICH & ROSATI 16 BY: GARY M. GANSLE, ESQ. 1 650 Page Mill Road 18 Palo Alto, California 94304-1050 | 13 650.493.9300 | 20 ggansle@wsgr.com | 21 22 ALSO PRESENT: 23 JENNIFER LIVIGNI : 2s CHRIS COTTON, VIDEOGRAPHER | eee LAME MMEe cc MLSE Uy RANA oa SE SD SME EN HCC NTIS FS UN SLM USSD TNL ERE CEU AN Ce ES ESSE un DEIR ES CORLEONE AREER ONE SSSA Veritext National Deposition & Litigation Services 866 299-5127 179d05fe-bd28-4ec8-a6f8-fa9663698951

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e _@ Page 4 | 1 PALO ALTO, CALIFORNIA; 2 WEDNESDAY, OCTOBER 15, 2008; 11:35 A.M. 4 THE VIDEOGRAPHER: Good morning. We are on S the record at approximately 11:35 a.m. on October 11:35:23 6 15th, 2008. . 7 “My name is Chris Cotton. Here with our 8 court reporter, Cynthia Manning. We are here from 9 Veritext National Deposition and Litigation Services 10 at the request of counsel for defendant. 11:35:39 | il This deposition is being held at 601 12 California Avenue in the City of Palo Alto, 13 California. . 14 , The caption of this case is David Vespremi, 15 et al., plaintiffs, versus Tesla Motors, Inc., et © 11:35:54 16 al., defendants. Case No. CIV-474656. 1? This is the videotaped deposition of : 18 Mr. Gene Gaudell. 19 Please note that all audio and video 20 recording will take place unless all parties agree 11:36:14 21 to go off the record. 22 Microphones are very sensitive and they 23 pick up whispers and private conversations. 24 At this time, will counsel and all present 25 please identify themselves for the record. 11:36:25 Ln * Nine Tse Ca SUCH mr ONS AION Neo Ee IOS REG OLS EEMINCLGE LL akan eA Deh SoPMR CAST NATE ae RIE oem oe _| Veritext National Deposition & Litigation Services 866 299-5127 179d05fe-bd28-4ec8-aGf8-fa9663698951

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1 MR. GANSLE: Gary Gansle for defendants. 11:36:29 Page 5 2 MS. LIVIGNI: Jennifer LiVigni. 3 MR. PERETZ: Plaintiff. 4 Yosef Peretz for plaintiffs. 9 THE WITNESS: Gene Gaudell, plaintiff. 11:36:36 6 THE VIDEOGRAPHER: Thank you. 7 The witness may be sworn in and then we can 8 proceed. 10 GENE A. GLAUDELL, . 11:36:41 110 having first been duly sworn, testified as 12 follows: 13 14 EXAMINATION 15 BY MR. GANSLE: 11:36:48 16 Q. Good morning, Mr. Gaudell. 17 A. Good morning, Mr. Gansle. 18 Q. As you know, I represent the defendants, 19 Tesla Motors, Elon Musk, Ze'Ev Drori and Darryl Siry 20 in the lawsuit that you've brought against them. 11:36:58 al Do you understand the deposition procedure? 22 A. Yes, I believe I do. : 23 Q. You were actually present yesterday during : 24 Mr. Vespremi's deposition? 25 A. That's correct. 11:37:10 _—_ Se La ENaC NL eC acca cc acacia Scaiicacc in vec montane nanicncaisan in Ghar omni iii neiti Gane nnn Veritext National Deposition & Litigation Services 866 299-5127 178d05fe-bd28-4ec8-a6f8-fa9663698951

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Page 80 } 1 MR. PERETZ: Please. 13:53:08 2 THE WITNESS: We discussed the need for 3 reduction in spending. We discussed the need for 4 reductions in staff. We discussed the reasons for - 5 reductions in staff. We discussed the methods to 13:53:26 6 decide how to reduce the staff. We discussed 7 everything that led to a subset of all these actions 8 here. 9. I mean, we're talking about deciding how we 10 manage our budgets, how we're going to cut our 13:53:49 ) ii budgets, where we're going to spend money, what we 12 have to do about our headcount and how we're going 13 to go do it. So very salient. 14 BY MR. GANSLE: 15 Q. But how is any of that discussion going to 13:54:01 16 support your claims? 17 MR. PERETZ: Calls for a legal conclusion. 18 You can answer. 19 THE WITNESS: Okay. How is it going to ne support my claims? Well, how it's going to support 13:54:09 [| 2 my Claims is that, as an example, in meetings, both 22 Mike Taylor and myself told the CEO, Ze'Ev Drori and 23 Elon Musk, the chairman of the board, that it was 24 inappropriate to discuss reasons for dismissals for 25 performance of employees in public and certainly 13:54:37 a = EBA SRE BUSAN Ra GN a HN SAR SSO GREE USES SORES SBR IB th SOS AN TN WA MRS SDS SSS UO SC ER ES SSE BAI TASES TASS SRM CAAA NAT SEAR St RINE ESRC ES I aE SNCS RIA SADR IS NSA il Veritext National Deposition & Litigation Services 866 299-5127 179d05fe-bd28-4ec8-a6f8-fa9663698951

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publish it. We warned them that they should not be 13:54:41 Page 81 | doing that. 3, We also basically talked about why we're ; 4 letting people go. And the reasons we were letting S people go were not exclusively for performance 13:54:53 6 reasons. They were for financial reasons. 7 And we also discussed the fact that we | 8 didn't want to -- that we didn't -- Ze'Ev Drori and 9 Elon Musk and Darryl Siry did not want to say in 10 public that Tesla was making cuts for financial 13:55:08 11 reasons. So there was a discussion that basically . 12 went: We don’t want to say it's for financial 13 reasons. This is performance and management 14 accountability, are the reasons for layoffs. And 1s Mike Taylor and I said that's not right. That's not 13:55:24 16 true. 17 So I don't know. I think it kind of gets 18 to the heart of the lawsuit. Ss BSE OS SLIT Re TU eB ENC SEE 19 Q. So you said in your discussions that it was 20° not -- the RIFs, the layoffs, weren't exclusively 13:55:33 21 for performance reasons? 22 A. No, in fact, I would say the dominant Lf 23 reason was not performance; it was for financial 24 reasons. | . RRR, E 25 Q. Did you participate in the conversation 13:55:46 SL A TN SUIS DEERE OA SIN AR ETRE ea TS RA AL ST REDE OO USER NE PML SS OREO Veritext National Deposition & Litigation Services 866 299-5127 179d05fe-bd28-4ec8-a6f8-fa9663698951

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1 STATE OF CALIFORNIA ) Page 318 |. 2 :Ss 3 COUNTY OF SAN MATEO ) 74 I, CYNTHIA MANNING, CSR No. 7645, a ° Certified Shorthand Reporter of the State of 6 California, do hereby certify: 7 That the foregoing proceedings were taken 8 before me at the time and place herein set forth; 3 that any witnesses in the foregoing proceedings, 10 prior to testifying, were placed under oath; that a 11 verbatim record of the proceedings was made by me 12 using machine shorthand which was thereafter 13 transcribed under my direction; further, that the 14 foregoing is an accurate transcription thereof. 15 I further certify that I am neither (| 16 financially interested in the action, nor a relative |, a or employee of any attorney of any of the parties. 18 IN WITNESS WHEREOF, I have this date 19 subscribed my name. 20 21 DATED: October 31, 2008 22 23 CYNTHIA MANNING, CSR No. 7645 Veritext National Deposition & Litigation Services 866 299-5127 179d0Sfe-bd28-4ec8-a6f8-fa9663698951

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EXHIBIT {70

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om, & WN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ® CRAIG W. HARDING - vecenmasl? 2008 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO . --000-- DAVID VESPREMI; GENE GLAUDELL; and JENNIFER LIVIGNI, individually, and on behalf of all similarly situated, No. CIV 474656 Pages 1 thru 255 Volume I Plaintiffs, vs. TESLA MOTORS, INC., a Delaware corporation; ELON MUSK, an individual; ZE'EV DRORI, and individual; DARRYL SIRY, an individual; and DOES 1 - 20, inclusive, Defendants. wt eee eee ee ee eee ee” DEPOSITION OF CRAIG W. HARDING DECEMBER 16, 2008 Reported by ELIZABETH J. WOOD License No. CSR-5134 JAN BROWN & ASSOCIATES CERTIFIED SHORTHAND REPORTERS 701 Battery Street, 3rd Floor San Francisco, California 94111 (415) 981-3498 or (800) 522-7096 --000-- JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498 GxurbXt Jo

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on — 10: 10 10: 10: 10: 10: 10: 10: eon 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: :08 “40: 08 08 08 o oO NI DH OF F&F W DN oO oO Oo \o Oo 0341 0949 0343 0914 0945 02146 O17 03918 0949 0999 0991 0999 0993 0994 0995 @ CRAIG W. HARDING - oncom 2008 TUESDAY DECEMBER 16, 2008 VOLUME I PROCEEDINGS --o000-- THE VIDEOGRAPHER: Good morning. We're going on the record. Here marks the beginning of Videotape No. 1, Volume I in the deposition of Craig Harding in the matter of Vespremi, et. al, versus Tesla Motors, et. al, in the Superior Court of California, County of San Mateo, Case No. CIV 47656. Today's date is December 16, . 2008, and the time is 10:10 a.m. The video operator is Gary Brewer of Jan Brown & Associates, 701 Battery Street, San Francisco, California, 94111. Telephone No. (415) 981-3498. The court reporter is Elizabeth Wood of Jan Brown & Associates. Would counsel please identify themselves and state whom they represent? _ MR. PERETZ: Good morning. Yosef Peretz for plaintiffs David Vespremi, Gene Glaudell and Jennifer LiVigni. MR. GANSLE: This is Gary Gansle for Tesla Motors and -- et al. THE VIDEOGRAPHER: If there are no stipulations, the reporter may administer the oath. JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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him, 10 10: 10: 10: 10: 10: ow 10: “10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: -. 10: Oo uo A WD BH 3:10 7 10 g 10 9 1049 1044 1049 1043 1014 1045 1016 1047 1018 1049 1090 10914 1099 10 93 1194 1195 @ CRAIG W. HARDING ~- paceman 2008 CRAIG W. HARDING, called as a witness on behalf of the Plaintiffs, who, being first duly sworn, was then and there examined and interrogated as hereinafter set forth. DIRECT EXAMINATION BY MR. PERETZ: Q. Good morning, Mr. Harding. My name is Joseph Peretz and I introduced myself earlier, but I'll do it formally for the record. I am a partner at Kletter & Peretz, a law firm here in San Francisco. We currently represent David Vespremi, Gene Glaudell and Jennifer LiVigni in a lawsuit that these individuals filed with the San Mateo Superior Court against Tesla Motors, Inc., which is a company that you're employed with and others. Are you familiar with the lawsuit? A. Yes, I am. Q. Is it your understanding today that you're here to give your deposition in connection with this lawsuit? A. Yes. Q. Okay. Can you please state and spell your name for the record? Just spell your last name, please. A. Sure. My name is Craig Harding spelled H-a-r-d-i-n-g. Q. Do you have a middle initial? JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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@ CRAIG W. HARDING - secant 2008 make statement as if the layoffs is only of individuals who poor performers, or something to that effect? A. At a board of directors’ meeting? Q. Yes. A. I don't recall Gene Glaudell ever attending a board meeting. sca ccs 05:02 44 05:02 12 05:02 43> \~ 05:02 14 05:0245 05:0246 05:02 17 05:02 18 05:02 49 05:02 20 , 05:03 94 05:03 99 05:03 93 05:03 94 05303 25 Q. Okay. Do you remember any discussion about the statements that Tesla should or shouldn't make to the press in any executive staff meeting? A. Yes. Q. Okay. And do you remember if Mr. Glaudell made such a comment? A. No. Q. Okay. Did Mike Taylor make a statement in an executive staff meeting to the extent that Tesla should not make statements as an organization that the individuals that were laid off were laid off because of poor performance? A. Yes. Q. What the -- what did -- what did Mr. Taylor say exactly? A. I don't recall, other than what you described. Q. Okay. When did this executive staff meeting take place? A. December of 2007. 217 JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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®@ CRAIG W. HARDING - vncewne Mae, 2008 oN 99503 Q. So that was before any statements were made to 05:03 2] the press? 05:03 3 MR. GANSLE: Objection. Calls for speculation. 05:03 4 MR. PERETZ: 05:03 5 Q. Okay. Did anyone else responded to Mike 05:03 6 | Taylor's comment? 05:03 9 A. That was -- I think one or two people expressed 05:03 8] concurrence. 05:04 9g Q. Do you remember who those people? 05:0410 A. No, I don't. 05:04 44 Q. Do you remember if Gene Glaudell was one of 05:044121 them? Cys] A. I don't remember. | 05:04 44 Q. Do you remember if any executive staff member | 05:0415 | opposed this comment? 05:0416 A. Opposed Mike Taylor's comment? 05:04 47 Q. Correct. 05:04 48 That his or her opinion was that the press should 05:0419) know or a statement should be made that the employees 05:04 20 | terminated were terminated for poor performance? 05:04 DF A. I remember one participant indicating that he 05:04 22 | felt it better not to characterize this as a layoff. 05:04 93 Q. And who was that? 05:04 94 A. Elon Musk. Q. Did he say why? 218 JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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05: OS: 05: oo, 05: os, O05: 05: 05: 05: 05: 05: 05: OS: 05: Q5: . 05: io on Dd WO F W 0540 0541 0549 0543 0544 0545 0546 OS 17 0518 0649 0699Q 0694 06992 0693 0694 0695 . @ CRAIG W. HARDING - once, 2008 -Yes. Q. What did he say? A. He said that the term layoff, in the public's mind, was characteristic of companies having financial problems, and I remember the -- he used, as an example, General Motors. General Motors would do a layoff. Tesla is not doing a layoff. Tesla is simply culling poor performers. Q. That's what he said? A. No. That's the general nature of what he said. The culling term I used. Q. Okay. Culling meaning c-u-l-l -- A. C-u-l-l, meaning extracting. That General Motors used. Q. I see. But he used the GM as an example, a metaphor? A. Correct. Q. Did anyone else make any comments about how the layoffs should be characterized or discussed in the press other than the one made by Mike Taylor that one or two staff members that concurred and Elon Musk? > A. Not that I recall. Q. Did you make any comments? A. That's attorney/client privilege. I'd rather not say as to what my comment was because that's the 219 JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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© CRATG W. HARDING - vecevoe MD, 2008 ox 05:06. 4 05:06 9 05:06 3 05:06 4 05:06 5 05:06 6 05:07 4 [OST s | 05:07 9g 05:07 49 05:07 44 05:07 49 eo 05:07 43 | 05:07 14 05:0745 05:07 46 05:07 49 05:07 4g 05:07 49 05:08 99 } 05:08 94 | 05:08 9 | 05:08 93 | 05:08 24 ( © 00208 25 nature of legal advice. Q. Okay. And who participated in this executive staff meeting? A. The participants that I gave you. Q. So I have Drori, Siry, Taylor, Chang or Chiang, Glaudell, Harding, Tarpenning, Powell and Smith and obviously Musk, correct? jamie A. Correct. My recollection is vague as to whether this was -- this meeting took place in December, in which case Lloyd and Colta may have been there, or in January, after this came out, in which Lloyd and Colta would not present. (Brief discussion off the record.) MR. PERETZ: Q. And let the record reflect Mr. Harding pointed to Exhibit 15, correct? A. Correct. Thank you. Q. Was it your understanding that Tesla laid off people in January of '07 because of financial reasons? MR. GANSLE: Objection. He's already testified at length that that was one of the ancillary reasons for it. THE WITNESS: Yes, that was a secondary reason. | Secondary benefit, I should say. MR. PERETZ: 220 JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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rm , : . , o Oo NH FOF UW FF W WN NHN NHN NY NO NY FP BP RP BP BR Hp Be pe pe BP ~* W NY FP © © © I WA OT B® WDNY HO Ny ol CRATG W. HARDING - DECEMBER 16, 2008 STATE OF CALIFORNIA ) ) ss. COUNTY OF CONTRA COSTA) I, ELIZABETH J. WOOD, CSR, a Certified shorthand Reporter, hereby certify that the witness in the foregoing deposition was by me duly sworn to testify to the within-entitled cause; that said deposition was taken at the time and place therein stated; that the testimony of the said witness was reported by me, a Certified Shorthand Reporter, and was thereafter transcribed under my direction into typewriting; and that the witness was given an opportunity to read, and | if necessary, correct said deposition and to subscribe the same. I FURTHER CERTIFY that I am not of counsel or attorney for either or any of the parties in the foregoing deposition and caption named or in any way interested in the outcome of the cause named in such caption. IN WITNESS WHEREOF, I have hereunto set my hand this date, the 8th day of January, 2008. ELIZABETH J. WOOD, CSR, License No. C-5134, County of Contra Costa, State of California. 255 JAN BROWN & ASSOCIATES (800) 522-7096 or (415) 981-3498

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EXHIBIT |7}1

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10. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 | 25 26 27 28 JOHN O’REILLY 101 First Street, #294 {| Los Altos, CA 94022 (650) 941-6645 | (650):941-9475 (Fax) IN PRO PER SPA DSE SEPA ae Ge La r oma wt io eu SEU TORRE, CE aeeirgR COURT OF CA. _ 6. OR SélaINGQUYOEA ¥ . _PEPUTY Ec SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA Case No. 107CV083172 Pometain adn JOHN O’REILLY, } SECOND AMENDED COMPLAINT Plaintiff, 1. Misrepresentation, Fraud, and Deceit 2. Fraudulent Concealment VS. 3. Conspiracy to Defraud || ELON MUSK; DOES CONSPIRATORS 1-10,) 4- Misappropriation of Trade Secrets Inclusive; and DOES GENERAL 11-25, ) 5. State Unfair Competition and Inclusive, ) Misappropriation . Defendants. } 6. Restitution, Disgorgement, and Unjust ) Enrichment 3 DEMAND FOR JURY TRIAL eae Plaintiff JOHN -O’REILLY (hereinafter “Plaintiff’) complains of Defendants named herein and alleges the following.’ ! Plaintiff filed his First Amended Complaint (“FAC”) on July 16, 2007, and Defendant Musk thereafter demurred. In a ruling filed on September 26, 2007, this Court: (a) over- ruled the demurrers to the First, Second, Third, Fourth, Fifth, and Seventh Causes of Action; (b) sustained the demurrer to the Sixth Cause of Action (with leave to amend); and (c) sustained the demurrer to the entire FAC (with leave to amend) on the ground “that Plaintiff fails to specifically allege circumstances excusing his delayed discovery of the injury allegedly caused by Defendant.” Plaintiff now files this Second Amended Complaint (“SAC”), wherein he: (a) revises Sec- tion V to cure the single defect this Court cited in Plaintiffs delayed discovery pleading; (b) withdraws the FAC’s Sixth Cause of Action (with the FAC’s Seventh Cause of Action becoming the SAC’s Sixth Cause of Action); (c) updates Section VI; and (d) renumbers the paragraphs. No other portion of the pleading has changed in the transition from the FAC to the SAC. Shick 1

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | 27 28 I. GENERAL ALLEGATIONS AND NATURE OF THE CASE 1. That the true names and identities, whether individual, associate, or corporate, of the Defendants sued herein as DOES CONSPIRATORS 1-10, inclusive, and DOES GENERAL 11-25, inclusive, and the full nature and extent of the participation of said DOE Defendants in the wrongful activities and conduct on which this action is based, are presently unknown to Plaintiff, who prays leave to amend to allege the true names and identities, and the extent of participation in the said wrongful activities and conduct, when the same shall become known. Each of the DOE CONSPIRATOR Defendants entered into the conspiracy hereinafter alleged and all DOE Defendants are liable in some manner to Plaintiff for some or all of the damages and/or other relief claimed herein by Plaintiff. 2, Plaintiff is informed and believes, and thereon alleges (and such allegations will here- inafter be stated io be “on information and belief’) that Defendants, and each of them, at all times mentioned herein, were the agents, servants, employees, partners, and joint-venturers of each of the other Defendants, and at all times herein mentioned were acting within the course and scope of, and in the transaction of the business of, the said agency, employment, partnership, and joint venture. 3. Plaintiff is; and at all times mentioned herein was, a resident of Santa Clara County, California. Plaintiffhas a Ph.D. degree in Physics from Stanford University, where his thesis advisor was Prof. Robert Hofstadter, winner of the 1961 Nobel Prize in Physics. Plaintiff has authored two computer books and more than 50 technical papers. 4. Defendant Elon Musk (“MUSK”) is a resident of Los Angeles County, Califomia. At the times the wrongful acts alleged herein occurred, MUSK was a resident of Santa Clara County, Cali- fornia. MUSK is a founder of Zip2 Corporation (“‘Zip2”) and PayPal (successor-in-interest to X.com). IL. MUSK’S REPRESENTATIONS TO PLAINTIFF 5. On or about October 3, 1995, Plaintiff received a telephone call from Felipe Lloreda (“Lloreda”), a Staiford student who had previously worked for Plaintiff: Lloreda stated that another Stanford student, whom he identified as MUSK, was interested in leaming about Plaintiffs products and might be interested in working for Plaintiff to sell those products. Lloreda specifically mentioned that MUSK was interested in Plaintiff's Internet Merchant Channel (‘IMC”), which was Plaintiff's proprietary, Internst-based mapping and advertising system.

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10 11 12 13 14 15 16 Y 17 18 19 20 21 23 . 24 6. IMC was the culmination of more than 50 man-years of effort that Plaintiff and his staff had spent developing a variety of mapping and advertising products, including: (a) mapping and advertising kiosks for Shell Oil and Alamo Rent-A-Car; (b) traveler assistance and advertising systems for Hyatt Corporation; and (c) real-time flight planning systems for U.S. Navy cruise missiles and U.S..Air Force cargo aircraft. 7. Scheduled for release in December 1995, IMC provided a highly user-friendly inter- face that permitted Intemet users to view merchant advertisements (such as restaurant menus) and then obtain driving directions to those merchants. As of October 1995, IMC contained detailed information on more than 12,000 merchants in dozens of U.S. cities, with merchants within each city organized into more than 100 categories, such as restaurants, hotels, car rental firms, airlines, stores, theme parks, and sporting venues. Because of its features and the breadth of its database, IMC was well positioned to become the “Yellow Pages of the Internet.” In fact, IMC pre-dated the mapping and advertising capabilities offered by most current market leaders, including Google, Yahoo!, CitySearch, and MapQuest. Hereinafter, IMC’s documentation, route-mapping technologies, software, marketing plans, user interface, merchant database, and other features and characteristics are collectively referred to as the intellectual property (“IP’’). 8. On. or about October 6, 1995, Plaintiff and MUSK met at Plaintiff's office in Los Altos, California. During that meeting, MUSK made certain representations that were specific in nature and directed toward establishing a working relationship with Plaintiff. The representations included: (a) that MUSK was a Stanford student who sought a job selling IMC advertising to merchants; and (b) that MUSK had the ability and willingness to sell IMC advertising. As well, when Plaintiff informed MUSK that IMC was proprietary and confidential, MUSK verbally represented to Plaintiff that he would keep IMC information in confidence. MUSK’s representations are hereinafter collectively referred to as the “October Representations.” 25 26 27 28 Pisa 9. Also during that first meeting — acting in good-faith reliance upon the veracity of the October Representations — Plaintiff informally interviewed MUSK, during which interview Plaintiff: e Demonstrated IMC; e Described IMC’s existing and future merchant base;

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10 12 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 28 « Discussed IMC’s price schedule, merchant subscription agreement, and merchant contract; and ¢ Discussed other topics that would permit MUSK to decide if he wished to sell IMC advertising. 10. Also during that first meeting — acting in good-faith reliance upon the veracity of the October Representations — Plaintiff showed MUSK the following documents, among others, that contained information MUSK. would need in order to decide if he wished to sell IMC advertising. « IMC price schedule, subscription agreement, and contract; e IMC promotional material; e IMC market analysis; « Direction printouts; and * Merchant usage data and plans for future product enhancements (which were contained in a document whose cover displayed the words “trade secret”). 11. During the remainder of October 1995, Plaintiff and MUSK met on at least two additional occasions, during which meetings Plaintiff and MUSK continued to discuss IMC. During their last meeting, MUSK and Plaintiff agreed to formalize their working relationship upon Plaintiff's return from an upcoming overseas business trip. 12. Plaintiff departed on his trip on October 27, 1995, and he retumed on November 11, 1995. Upon his return, Plaintiff made frequent, repeated attempts to contact MUSK, but Plaintiff was never able to reach him. Plaintiff eventually gave up attempting to contact MUSK, concluding that MUSK either had accepted another job or had decided to focus on his studies at Stanford. At that time, Plaintiff had no reason to suspect that MUSK was anything but a Stanford student who had decided not to pursue an opportunity to sell IMC advertising. il. ZipP2 13. Records on file with the California Secretary of State show that an attorney operating on MUSK’s behalf incorporated a firm named “Global Link Information Network, Inc.” on November 6, 1995, which was while Plaintiff was on his aforementioned trip. The incorporation document was signed by MUSK’s attomey and dated November 3, 1995, which was less than two weeks after MUSK and Plaintiff last met. Additional records lodged with the California Secretary of State show that MUSK later changed the name of the company to “Zip2.”

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10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 14. Zip2’s business model is described in The PayPal Wars, a book written in 2004 by Eric M. Jackson. Elon Musk founded X.com in early 1999 after selling his previous company, an online map service named Zip2[.] 15. It is clear that Zip2’s business of providing “online map services” (i.e., Internet-based map services) was highly similar, if not identical, to IMC’s business model. As such, Zip2’s product ‘was a competitor to Plaintiffs IMC. 16. Although the Califomia Secretary of State shows that Zip2 was incorporated in Novem- ber 1995, Zip2’s published documents show that the firm was actually founded much earlier. For example, a press release issued by Zip2 in 1997 states the firm was “[flounded in January 1995,” which was 10 months before MUSK incorporated Zip2 in California.” 17. The ambiguity of Zip2’s start date is resolved in a magazine article in which MUSK’s brother, Kimbal, explains that he and MUSK had pursued the Zip2 concept since early 1995 — when they both lived in Canada. (See Kimbal Musk — Entrepreneur, Restaurateur, Rocketman, Renaissance Man, Inquiry, Summer 2006, p. 30.) He [Kimbal Musk] and his brother Elon [Defendant MUSK] had tried and failed to raise venture capital in Canada for an intemet yellow pages directory that would enable users to locate businesses in different cities, and also provide maps and directions. . When Queen’s School of Business Professor John Gordon suggested venture capital might be easier to come by in Silicon Valley, Kimbal, then 22, and Elon, 23, moved to Palo Alto, CA. They were soon joined by Kimbal’s former roommate, best friend and future business partner, Chris Smith... . “We didn’t have an apartment, so we used to sleep under our desks in the office,” Kimbal recalls with a laugh. Armed with only their references from summer job employers and professors, they endured many rejections in their quest for US investors .... Finally, after six months, they scored the financing they needed, and in late 1995, Zip2 was bom. ? The press release in question is dated January 28, 1997, and is available online at < http://findarticles.com/p/articles/mi_mOEIN/is_1997_Jan_28/ai_19066392>.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. It is now evident that when MOSK met Plaintiff in October 1995, MUSK misrepre- sented himself as simply a Stanford student seeking an opportunity to sell IMC advertising. In reality, MUSK had started Zip2 in January 1995 and had spent months in a failed effort to obtain funding for the firm in Canada. Following that failure, MUSK moved to California to seek funding, but he instead suffered six more months of rejection. That MUSK spent so much time in an unsuccessful attempt to raise funds is strong evidence that his Zip2 idea was so flawed that it was simply unfundable. 19. Unable to afford an apartment and forced to sleep under his office desk, MUSK was} clearly desperate to get Zip2 funded. Upon learning of IMC from Lloreda, MUSK. misrepresented himself to gain access to the product. On information and belief, MUSK then utilized his newly gained knowledge of IMC to enhance his Zip2 concept, immediately thereafter raising the funds that had | eluded him for so long. 20. Further evidence that MUSK misrepresented himself when he met Plaintiff is supplied by Zip2’s aforementioned incorporation document, which lists the firm’s address as “430 Sherman Avenue, Suite 300, Palo Alto, California.” This address is that of a small office building that has no | residential units: That MUSK had this office for Zip2 during his discussions with Plaintiff strongly indicates that MUSK misrepresented himself as simply a Stanford student when he met Plaintiff. 21. The following illustration shows how Zip2’s funding followed rapidly on the heels of MUSK’s access to Plaintiffs IP. , MUSK fails to secure funding for Zip2 in Canada 1995 MUSK moves to Palo Alto, but fails to secure funding for Zip2 MUSK obtains MUSK secures Plaintiff's IP funding for Zip2 oS Jan | Feb | Mar | Apr | May |June | July | Aug | Sept | Oct | Nov | Dec

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10 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. MUSK’S ENRICHMENT 22. On his current website, MUSK is not meek about advertising the financial benefit he enjoyed when he eventually sold Zip2. Mr. Musk co-founded Zip2 Corporation in 1995[.] ... He served as Chairman, CEO and Chief Technology Officer and in March 1999 sold Zip2 to Compaq for $307 million in an all cash transaction. www.spacex.com/company.php#spacex_people (underlining added). 23, On that same website, MUSK. explains that he subsequently co-founded PayPal and then sold that firm. Shortly after that sale, MUSK gave a speech in which he revealed his guiding principles in founding Zip2 and PayPal. Common themes between Zip2 and PayPal. ... We didn’t worry too much about intellectual property, paperwork, legal stuff. 24. MUSK’s simple statement speaks volumes about his disdain for the intellectual property rights of others. As well, the statement speaks in strong support of Plaintiff's assertion that MUSK?’s true goal in meeting Plaintiff was to gain access to Plaintiff's IP, with MUSK unabashedly employing fraud, misrepresentation, deceit, guile, and trickery to do so. V. PLAINTIFF’S DISCOVERY OF MUSK’S WRONGFUL ACTS A. The Time and Manner of Plaintiff's Discovery 25. Onor about March 22, 2005, Plaintiff attended a talk given by Denise Pope, author of a book on high school education. On March 27, 2005, Plaintiff visited Amazon.com’s website to pur- chase Ms. Pope’s book. To take advantage of Amazon.com’s offer of free shipping on orders above $25, Plaintiff identified another book of possible interest — the aforementioned The PayPal Wars by Eric M. Jackson. Plaintiff then purchased both books. 26. Onor about April 15, 2005, while reading The PayPal Wars, Plaintiff encountered the aforementioned passage that stated MUSK had formed Zip2 and that also described Zip2 as “an online map service” company. Before reading that passage, Plaintiff had never heard of Zip2. Indeed, it was 3 MUSK’s speech was presented at Stanford University on October 8, 2003. It is available online at .

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only upon his reading of that passage that Plaintiff first suspected: (a) that he had been injured; and (b) that it was MUSK who had caused the injury. B. The Circumstances Excusing Plaintiff’s Delayed Discovery . 27. Plaintiff is a reasonable, prudent person who, prior to April 2005, had no reason to suspect that his meetings with MUSK in October 1995 had been anything but cordial, good-faith discus- sions regarding MUSK’s desire to sell advertising for Plaintiff. Also, for the reasons presented next, it is unreasonable to assert that Plaintiff (or any other reasonable, prudent person) should have suspected | or discovered MUSK’s wrongdoing prior to April 2005. a. Period No. 1: October 1995. As aforementioned, MUSK was introduced to Plaintiff by Lloreda, a Stanford student who had previously worked for Plaintiff. Lloreda had told Plaintiff that MUSK was a Stanford student who might be inter- ested in working for Plaintiff to sell advertising. Since classmate referrals are commonly used to arrange job interviews, Plaintiff had no reason either to doubt the sincerity of Lloreda’s introduction or to ascribe nefarious motives to MUSK. During his meetings with MUSK, Plaintiff exercised reasonable judgment and common sense in discussing IMC, and he provided MUSK with informa- tion MUSK required to make an informed decision about selling advertising. At no time during these discussions did Plaintiff have reason to suspect that MUSK’s actions were anything but an honest, pristine expression of his interest in selling advertising. b. Period No. 2; November 1995 to February 1996. Upon returning from his overseas trip. in November 1995, Plaintiff attempted to contact MUSK. multiple times, but he gave up after being unable to reach him. Plaintiff reasonably infer- red that MUSK either had accepted another job or had decided to focus on his studies. At no point did Plaintiff have reason to suspect that MUSK was any- thing but a Stanford student who had simply declined to pursue the sales oppor- tunity. As such, Plaintiff had no reason to expend significant effort to track down MUSK and grill him about why he wasn’t interested in selling advertising. Also, given that MUSK had misrepresented his reason for meeting with Plain- tiff, it is reasonable to conclude that Plaintiff's unsuccessful attempts to contact MUSK were more indicative of MUSK’s not wanting to be contacted than of Plaintiff's lack of diligence in trying to contact him. As well, after February 1996, Plaintiff was not involved with IMC, and he thus did not stay abreast of related technologies, products, or competitors. c. Period No 3: March 1996 to February 1999. MUSK incorporated Zip2 in November 1995 and sold the firm in February 1999. During that interval, however, the entire country was awash with companies developing what were purported to be billion dollar products and websites. These companies were raising massive amounts of venture capital and generating a smothering blizzard of publicity.

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10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28> That Zip2 was dwarfed within this overall market is illustrated by the fact that the firm raised only $16 million of the $54 billion that was pumped into U.S. venture deals during Zip2’s 40-month, pre-acquisition life. This amount represents a scant 0.03% of all venture funds invested during that period, which is a level that would not have drawn unusual attention to Zip2. Sunilarly, alihough Zip2 was acquired for $307 million in February 1999, that same year saw 304 venture-backed companies acquired for a total of $43 billion. Zip2’s acquisition was unremarkable, and the event was simply lost in the confusing clutter of similar deals. Moreover, all of these corporate acquisitions paled in comparison to their big brother — the Initial Public Offering (“IPO”). Indeed, it was the IPOs of the late 1990s that generated giant headlines and brought the country’s collective psyche to its capitalistic boiling point. Between 1996 and 1999, some 2,200 IPOs raised more than $195 billion. Solely in 1999, for example, 492 IPOs raised some $63 billion. Being quietly acquired — instead of generating IPO hype — was yet another reason Zip2 was simply lost in the frenzy of the largest economic boom the world has ever seen. Finally, even if Plaintiff had had the opportunity to read about Zip2’s 1999 acquisition — presumably by reading every press release issued for each of that year’s 304 acquisitions and 492 IPOs — Plaintiff still would not have suspected MUSK of wrongdoing because the press release that announced Zip2’s acquisition didn’t even mention MUSK’s name. d. Period No. 4: March 1999 to March 2005. On information and belief, MUSK left Zip2 immediately after its acquisition, and the company there- after significantly shifted its product focus. At that time, it was thus highly unlikely that Plaintiff would ever learn of MUSK’s wrongdoing. 28. Given these circumstances, Plaintiff (or any other reasonable, prudent person) could not reasonably have been expected to ever suspect or discover MUSK’s wrongdoing. Indeed, it was only by his chancing upon The PayPal Wars in April 2005 that Plaintiff learned of Zip2. Immediately thereupon, Plaintiff first suspected MUSK of wrongdoing. 29. Plaintiffs circumstances justify his delayed discovery of MUSK’s wrongful acts. Hence, under California law, the statute of limitations accrued at the time Plaintiff first suspected he had been injured, ie, on or about April 15, 2005. By filing the initial complaint against MUSK on Apmil 4, 2007, Plaintiff acted well within the statute of limitations governing the instant causes of action. 4 The financial statistics presented in this section were obtained from: = # =" " 5 See .

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10 Ll 12 13 14 15 16. 17 18 19 20 21 22 23 24 25 26 27 28 Vi. POST-COMPLAINT SPOLIATION Description of the Wayback Machine 30. The Wayback Machine is an Internet-based search engine that maintains historical copies of billions of web pages. The Wayback Machine is operated by the non-profit Internet Archive (San Francisco, Cal.) in collaboration with the Library of Congress and the Smithsonian Institu- tion. The Wayback Machine’s contents are available free-of-charge at www.waybackmachine.org, 31. Since becoming operative in 1996, the Wayback Machine has archived more than 80 billion web pages, most of which are from corporate websites. As of July 15, 2007, for example, the Wayback Machine maintained 1,763 different historical versions of IBM Corp.’s website, which versions ranged in date from October 22, 1996, to June 15, 2007. 32. Tn recent years, the Wayback Machine has become an integral discovery tool. At some law firms, litigators now ask researchers, “can you do a Way- back on that?” The archives are most attractive to specialists in intel- lectual-property law — in particular, areas such as domain-name battles — and have been used ‘by companies as diverse as EchoStar Commu- nications Corp. and Playboy Enterprises Inc. In February, recovered pages prompted a mistrial in a prominent murder case in Canada. The archive tools provide lawyers with a quick and inexpensive way to unearth evidence that otherwise might not be available. Lawyers have always been able to seek copies of old Web pages in a pretrial phase known as discovery. But some parties might not save every version of their Web sites and others might routinely get rid of stored pages. David Kesmodel, Lawyers’ Delight: Old Web Material Doesn't Dis- appear, The Wall Street Journal Online, July 27, 2005, . Historical Copies of Zip2’s Website were Removed from the Wayback Machine 33. Plaintiff filed his initial complaint on April 4, 2007. Prior to that filing, Plaintiff noted that the Wayback Machine maintained copies of Zip2’s website that had been obtained on hundreds of dates during the period from 1996 to 2007. (Herein, the Wayback Machine’s set of information on Zip2’s website is collectively referred to as the “Historical Record.”) Plaintiff's access to the Historical Record (or equivalent data) will be a material factor in his ability to litigate this case successfully. 6 ° The Histcrical Record contains critically important information on Zip2’s corporate history, personnel, press releases, copyright and trademark assertions, customers, and product

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10 11 12 13 14 15 16 17 18 - 19 20 21 22 23 24 25 26 27 28 34, However, on July 11, 2007, Plaintiff accessed the Wayback Machine and was flabber- gasted to learn that he could no longer locate or access the Historical Record? On same date, Plaintiff asked three other individuals to access the Historical Record, with each individual confirming that the record was unavailable. Indeed, as of July 11, 2007, the Wayback Machine had apparently been wiped clean of the Historical Record. 35. In his subsequent investigation of the missing Historical Record, Plaintiff learned that the Internet Archive permits website owners to deny the Wayback Machine permission to archive their websites. This control is exercised via a specific file (Mamed robots.txt) that resides on the website’ and is created and updated by the person who maintains the website. Before the Wayback Machine archives a website, it atternpts to read the website’s robots.tt file. 1. Ifthe website does not have a robots.txt file, then the website is archived. 2. Ifa website has a robots.txt file, then the Wayback Machine checks to see if the file grants or denies it permission to archive the website. If per- mission is denied, then the Wayback Machine does not archive the website. 36. The Internet Archive’s published policy for archiving websites is as follows. The Internet Archive is not interested in offering access to Web sites or other Internet documents whose authors do not want their materials in the collection. To remove your site from the Wayback Machine, place a robots.txt file at the top level of your site (e.g. www.yourdomain.com/ robots.txt) and then submit your site below. The robots.txt file will do two things: [{] 1. It will remove all documents from your domain from the Wayback Machine. [‘[] 2. It will tell us not to crawl your site in the future. www.archive.org/about/exclude.php (underlining added). pricing. The Historical Record also contains technical details related to Zip2’s product, including web page structure, user interface (e.g., borders, color scheme, font styles and sizes, data presentation, dialog box conventions, and frames), user interaction methods, data entry facilities, hyperlinks to other sites, images, mapping capabilities and limitations, icon design, source code, source code modification dates, metatags, e-mail addresses, mapping methodology, web site designer, HTML versions, table structure, scripting _ languages, security, embedded documentation, customizable attributes, browser compatible, enhancement history, “help” facilities, city coverage (i.e., For which cities did Zip2 pro- - vide coverage? When were cities added?), destination coverage (e.g., available restaurants, hotels, airports, theme parks, restaurants, museums, shopping centers, and colleges), adver- tisements, advertisers, variable naming conventions, cookie mechanisms, and watermarks. 11

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10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 37. That is, modifying a website’s robots.txt file in a certain manner will cause all docu- | ments regarding the website to be removed from the Wayback Machine. . 38. On July 13, 2007, Plaintiff verified that the Historical Record was not available from the Wayback Machine.’ On same date, Plaintiff accessed and printed a copy of Zip2’s robots.txt file that was stored (and available to the general public) at www.zip2.com/robots.txt. 39. On July 16, 2007, Plaintiff filed his FAC, therein disclosing that he knew the Historical Record had been removed from the Wayback Machine. On several later occasions in July 2007, Plaintiff re-confirmed that the Wayback Machine did not maintain the Historical Record. 40. Then, in early August 2007, Plaintiff accessed the Wayback Machine and was surprised to find that it did, indeed, display what was purported to be the Historical Record. Plaintiff then attempted to view Zip2’s robots.txt file to see if its contents had changed. Instead, Plaintiff found that the robots.txt file no longer existed. It had been deleted! (As aforementioned, the Wayback Machine archives websites that do not contain a robots. bet file.) 41. In summary: 1. The Historical Record was removed from the Wayback Machine soon after Plamtiff filed his mitial complaint. 2. Shortly after Plaintiff disclosed in the FAC that he knew the Historical Record had been removed, Zip2’s robots.txt file was deleted. This de- letion would have been a signal to the Wayback Machine to commence archiving Zip2’s website. 42. Plaintiff suggests that the removal of the Historical Record was an act of spoliation committed to prevent him from obtaiming documents known to be crucial to this case. The subsequent deletion of Zip2’s obots.txt file may have been an attempt to conceal the details of the initial spoliation. 43. Of critical importance to Plaintiff is that the Wayback Machine’s Zip2 files have been so seriously corrupted that they are not historically accurate copies of Zip2’s website. For example, the version of Zip2’s website that the Wayback Machine dates as February 12, 1998, now includes: (1) corporate agreements that Zip2 did not enter into until February 1999; (2) magazine articles that were not published until February 1999; and (3) a TV show that did not air until December 1998. 7 At that time, Plaintiff also viewed historical websites for Google, Yahoo, and IBM, thereby confirming that the Wayback Machine was functioning properly. 12

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44, In summary, the acts of spoliation that apparently have been committed against the Historical Record may have rendered it useless for discovery purposes. In some instances, in fact, the spoliation may have compromised, corrupted, or destroyed the sole remaining source of historical information on Zip2’s website and products, thus drastically hindering Plaintiff's ability to pursue this action. Plaintiff’s Remedies 45. It is a fundamental basis of the American judicial system that a plaintiff should have the ability to complete pre-trial discovery unimpeded by a defendant’s actions. “This broad right of discovery is based on the general principle that litigants have a right to ‘every man’s evidence,’ [citation] and that wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth.” Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993). 46. One party’s suppression of evidence must be met by the strongest of responses. “Where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court must draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal. 1987), citing Cecil Corley Motor Co. v. General Motors Corp., 380 F.Supp. 819, 859 (M.D. Tenn. 1974). 47. The spoliation has caused manifest prejudice to Plaintiff by depriving him of his right to present to a jury certain evidence of the wrongful acts MUSK committed against him. Although Plaintiff will seek to discover from MUSK information. equivalent to that which was once contained in the Wayback Machine, Plaintiff has no assurance that such duplicate material exists or, if it does exist, that it will not share the fate suffered by the Wayback Machine’s contents. 48, This massive spoliation was nothing less than a flagrant attempt to subvert the judicial system and usurp the Court’s right to administer justice. The Court, however, has at least three powerful remedies at its disposal that are relevant in the instant action. e The Court may enter a default judgment against the party responsible for the spoliation. Chambers vy. Nasco, Inc., 501 U.S. 32, 45 (1991). ¢ The Court may permit the jury to draw an inference adverse to the party responsible for the spoliation. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). 13

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10 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | ¢ The Court may issue civil contempt sanctions that compensate a plaintiff for the spoliation. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 516 (9th Cir. 1992). 49. _ Plaintiff may later move the Court to impose such remedies. In the interim, how- ever, Plaintiff kindly requests that the Court simply consider the motive for the spoliation. FIRST CAUSE OF ACTION (Brought by Plaintiff Against All Defendants ' for Misrepresentation, Fraud, and Deceit) 50. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 of the Complaint as though they were fully set forth herein. 51. | MUSK never intended to sell IMC advertising. Instead, MUSK used the October Representations, as delineated with specificity above, to fraudulently and deceitfully induce Plaintiff to divulge confidential and proprietary information about the IP. MUSK thereafter fraudulently exploited the IP to obtain funding for Zip2, later selling the firm for $307 million. 52. | MUSK’s acts satisfy the essential elements for Plaintiff to sustain a claim of fraud and deceit based upon misrepresentation. Indeed, MUSK’s brother has publicly admitted that he and MUSK moved to California specifically to raise venture funds for Zip2 in mid 1995. Hence, when MUSK held meetings with Plaintiff in October 1995, MUSK: (a) knew that he had failed to raise funds in Canada for Zip2; (b) knew that he had moved to California to raise funds for Zip2; (c) knew that he iad failed to raise funds in California for Zip2; and (d) intentionally misrepre- sented his rationale for wanting to meet Plaintiff. 53. Thereby, MUSK’s actions — including his October Representations — satisfy the six essential elements for Plaintiff to sustain a claim of fraud and deceit based upon misrepresentation. (BAJI 12.31) a. Representation of a past or existing material fact. MUSK made the October Representations regarding his reasons for wanting to learn about Plaintiff's IP. b. Falsity of the representation. MUSK’s October Representations were false. Indeed, MUSK had no intent to sell IMC advertising. c. Knowledge of the representation’s falsity. MUSK knew the October Representations were false. That is, MUSK was attempting to obtain funding for Zip2 while he was falsely representing that he wanted to sell IMC advertising. 14

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10 i1 12 13 14 15 16 17 18 13 20 21 22 23 24 25 26 27 28 d. Intent to defraud. MUSK intended to gain access to Plaintiffs IP so that he could unfairly and unlawfully use the IP to enhance Zip2. e. Plaintiff's lack of awareness. Plaintiff took MUSK’s October Represen- tations at their face value, since Plaintiff had no reason to believe they were untrue. Indeed, MUSK provided himself with the perfect “cover” when he claimed he was a Stanford student who sought to sell IMC advertising. f... Plaintiff was damaged. Plaintiff suffered from MUSK’s wrongful expropriation of the IP, which expropriation permitted Zip2 to capture market share that would have otherwise been gained by IMC. As well, Plaintiff lost substantial time and effort in dealing with MUSK during October 1995. 54, MUSK ’s actions, in concert with those of his co-conspirators, have caused monetary damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court. SECOND CAUSE OF ACTION (Brought by Plaintiff Against All Defendants for Fraudulent Concealment) 55. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 of the Complaint as though they were fully set forth herein. 56. | MUSK’s acts satisfy the five essential elements for Plaintiff to sustain a claim of fraudulent concealment. (BAJI 12.35) a. Concealment of a known fact. MUSK concealed the fact that he was actively seeking funds for Zip2. He also concealed that his true goal in meeting Plaintiff was to obtain access to Plaintiffs IP. b. Duty to disclose. MUSK’s pursuit of funding for Zip2, which pur- suit was essentially contemporaneous with his meetings with Plain- tiff made MUS Plaintiff? s competitor. MUSK had a duty to disclose such a relationship to Plaintiff. c. Intentional concealment to defraud. MUSK’s concealment was done to obtain access to Plaintiff's IP. Indeed, if MUSK had dis- closed his plan to raise funding for Zip2 to Plaintiff, then Plaintiff would not have provided MUSK with access to the IP. d. Plaintiff's lack of awareness. Plaintifftook MUSK’s October Represen- tations at their face value, since Plaintiff had no reason to believe they were untrue. Indeed, MUSK provided himself with the perfect “cover” when he claimed he was a Stanford student who sought to sell IMC advertising. e. Plaintiff was damaged. Plaintiff suffered from MUSK’s wrongful expropriation of the IP, which expropriation permitted Zipe capture market share that would have otherwise been gained by IMC. As well, Plaintiff lost substantial time and effort in dealing with MUSK during October 1995. 15

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Lo 11 “ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 57. MUSK?s actions, in concert with those of his co-conspirators, have caused monetary damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court. THIRD CAUSE OF ACTION (Brought by Plaintiff Against All Defendants for Conspiracy to Defraud) 58. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 of the Complaint as though they were fully set forth herein. 59. MUSK ’s statement that he was a “co-founder” of Zip2 (22) is a clear admission that the fraud and other wrongful acts he perpetrated against Plaintiff were done in concert with one or more other individuals. Although the identities of those individuals are not known with certainty to Plaintiff, they will be ascertained during the course of this litigation. By their actions, MUSK and his co- conspirators planned and conspired to defraud Plaintiff. 60. MUSK ’s actions, in concert with those of his co-conspirators, have caused monetary damages to Plaintiif in an amount presently unascertainable, but within the jurisdiction of this Court. FOURTH CAUSE OF ACTION (Brought by Plaintiff Against All Defendants for Misappropriation of Trade Secrets) 61. ‘Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 of the Complaint as though they were fully set forth herein. 62. By his aforementioned actions, MUSK misappropriated Plaintiffs IP, which IP included certain of Plaintiff's trade secrets, including merchant usage data and plans for future product enhancements. As such, MUSK’s actions violated California’s Uniform Trade Secrets Act, Cal. Civ. Code §§ 3426 et seg. MUSK’s actions were willful, deliberate, and malicious, and they were made with the knowledge that they would harm Plaintiff. . 63. | MUSK’s actions, in concert with those of his co-conspirators, have caused monetary damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court. FIFTH CAUSE OF ACTION (Brought by Plaintiff Against All Defendants for State Unfair Competition and Misappropriation) 64. Plaintiff repeats and realleges each and every allegation contained. in paragraphs 1 through 49 of the Complaint as though they were fully set forth herein. 16

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10 11 12 13 14 15 16 17 18 13 20 21 22 23 24 25 26 27 28 65. As aforementioned, MUSK’s conduct included: (a) the unlawful misappropriation of trade secrets; (b) unfair, anticompetitive acts to obtain Plaintif? s merchant usage data and related information; and (c) the fraudulent concealment of MUSK’s on-going effort to raise funds for Zip2. 66. Plaintiff contends that such conduct by MUSK constitutes unlawful, unfair, and fraudulent business practices within the meaning of Cal. Bus. & Prof. Code §§ 17200 et seg. As well, Plaintiff asserts that MUSK’s actions were willful, deliberate, and malicious, and that they were made with the knowledge that they would harm Plaintiff. 67. | MUSK’s actions, in concert with those of his co-conspirators, have caused monetary damages to Plaintiff in an amount presently unascertainable, but within the jurisdiction of this Court. SUXTH CAUSE OF ACTION (Brought by Plaintiff Against All Defendants for Restitution, Disgorgement, and Unjust Enrichment) 68. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 of the Complaint as though they were fully set forth herein. 69. MUSK and his co-conspirators have benefited greatly from their aforementioned wrongful acts. Plaintiff requests that the Court assign to him all funds arising from MUSK’s sale of Zip2, since that firm owed its very existence to the wrongful acts. 70. Further, since MUSK used the profits from Zip2 to form PayPal, Plaintiff also asks the Court to assign to him all funds arising from MUSK’s sale of PayPal. 71. Plaintiff asks the Court to right defendants’ wrongful acts by way of restitution and/or disgorgement, finding that defendants have unjustly enriched themselves at Plaintiff's expense. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for relief against defendants for all causes of action set forth above as follows: 1. For damages according to proof; 2 For an award of punitive and exemplary damages as may be proper; 3 For restitution and disgorgement; 4, For sanctions (or equivalent) as a remedy for spoliation; 5 For declaratory and injunctive relief; 17

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10 11 12 13 14 15 16 1? 18 19 26 22 23 24 25 26 27 28 6. For interest, costs of suit, and attorneys’ fees (if any); and 7. For other such other relief that the Court deers just and proper. » LM John OReilly Plaintiff, In Pro Per DATE: October 5, 2007 18

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10 11 12 13 14 15 16 17 i8 19 20 22 22 23 24 25 26 27 28 I, John O’Reilly, declare under penalty of perjury, that the following statements are true: 1. 2. 3. Executed this 5™ day of October 2007. VERIFICATION Tam the Plaintiff in the Second Amended Complaint; I wrote the Second Amended Complaint; To the best of my knowledge, information, and belief, based upon reasonable inquiry, the Second Amended Complaint is well founded in fact and is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; The allegations and other factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and The Second Amended Complaint is not being filed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Ch ohn O'Reilly Plaintiff, In Pro Per

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oC Oo NY DBD MH BP WY NH BS NO to NO WD tro bo bo bo bo —_ — — — — _ — —_ — aoa nN DR WN BR WwW NO FSF OD aon HN AN RHR wD NO FF © PROOF OF SERVICE ENBOR SED FILED STATE OF CALIFORNIA, COUNTY OF SANTA CLARA ocT-—5 87 I am employed in the County of Santa Clara, State of California., I Laney vert the age of 18 and am not a party to the within action. My business address is 13145 Byrd: ELAS CA 94022. On the date below, I caused to be served by mail the following docament(y Y SECOND AMENDED COMPLAINT On the following party: Mr. Adam C. Belsky Gross & Belsky 180 Montgomery Street Suite 2200 San Francisco, CA 94104 I placed a true copy of the above-named documents in an envelope, with postage thereon fully prepaid. I then sealed the envelope and placed it for collection and mailing in the United States mail at Los Altos, California, following my ordinary business practices, whereby mail is deposited in the United States Postal Service the same-day as it is placed for collection. I declare under penalty of perjury under the laws of the State of California that the afore- mentioned is true and correct. Executed on October 5, 2007, at Los Altos Hi Michael Schoendorf

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EXHIBIT42

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EXHIBIT 42

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 1) --000-- STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN O'REILLY, Petitioner, vs. 107 CV 083172 BLON MUSK, Respondent. / DEPOSITION OF NORMAN GODHINHO SAN FRANCISCO, CALIFORNIA THURSDAY, APRIL 2, 2009 — REPORTED BY: E. BRUIHL, CSR NO. 3077 STAR REPORTING SERVICE, INC. (415) 348-0050 J ylulct TZ Sea aan eR nares

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 2 1 ~-O00-- 2 STATE OF CALIFORNIA 3 SUPERIOR COURT OF THE COUNTY OF SANTA CLARA 4 UNLIMITED JURISDICTION 5 6 JOHN O'REILLY, 7 Petitioner, 8 vs. 107 CV 083172 to ELON MUSK, 10 Respondent. / 11 12 14 15 16 17 18 19 20 Deposition of NORMAN GODHINHO on behalf of 21 petitioner on THURSDAY, APRIL 2, 2009, at 12:00 22 p.m., 1490 El Camino Real, Palo Alto, California, 23 before Easteller Bruihl, a licensed and Certified 24 California Reporter for Star Reporting Service, 25 Inc., 703 Market Street, San Francisco, California. patie STAR REPORTING SERVICE, INC. (415) 348-0050 aaa NNN EE

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 11 | 1 and, you know, talked about what he was doing, what | 2 he was planning, that he had developed this software 3 for the internet and the Yellow Pages and so on and, 4 you know, exact details, I can't remember, but it 5 was something that I didn't know much about from the 6 chip industry, and I said, "sounds good but T know 7 very little about it" and then he was planning to do 8 a Ph.D. at Stanford and admission but he was trying 9 to decide whether he should start this company or go 10 into his Ph.D. and I, personally, as a guy who 11 started in the '70s, I said -- feel strongly about 12 it. 13 You know, "go for it" and then I think he 14 came back and, eventually, I said I'll give him some 15 money to start, a small amount of money, you know? 16 I loaned him some money to get him started 17 and so that's how it all came. 18 Q. Thank you, and you said it was late 1995? 19 A. I think if I recall. 20 Q. Can you recall? 21 A. It was late 1995 but the money I didn't -- I 22 mean that was the first conversation and then, 23 subsequently, it was '96 and, you know, he came over 24 and then I met his brother and -- 25 Q. Okay. Hold on. STAR REPORTING SERVICE,. INC. (415) 348-0050

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 LO 11 12 13 14 15 16 17 18 19 20 21 22 23 Page 12 -- Kimball. You are getting ahead of me. Okay. oO PO > So, you had a first meeting with him sometime in late 1995, correct? A. Yes. That's my recollection. Q. I understand. A. You know, I could be wrong on the exact dates but I don't recall. It was sometime in that time frame. Q. I understand it was a long time ago, so I'm not trying to pin you down to the exact -- A. Yeah, but I don't keep a diary of all these things. Q. That's very understandable, but I'm just trying to get a sense of what you do recall and to the extent that you recall the date if not, you, know, so it sounds like sometime in late 1995 was your first meeting. He told you about the company and when -- do you recall when the next meeting was? Was that before you met Kimbal? A. I don't recall. Q. Okay. A. I mean he may have come back again or I may Seance ae Te Le RE EE Se Fant on ABE STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 | 23 24 25 Fay oD Songer gRALVGA RAE REI EIaEN RI gS Soevaiis Dreneieaisen Sa RSE Page 13 | have called his -- I think that at some point he got an office here in Palo Alto and I visited that office but I was just going to the call -- Q. Yeah, I understand. A. -- but he did’ come over I know a few times and but the exact dates, I wouldn't know. Q. Do you think you met Kimbal at some time maybe in the late 1995 time period? A. Probably in '96. Q. Early in '96? A. Yeah, could be. Yeah. . . Sy Q. And at that first meeting, did Elon -- let me rephrase that. Did Elon approach you for a loan? A. I think he said he wanted to start the company | and he needed money because he didn't have very much money, I guess, and that he had some other investors as well, other people and others interested and -- Q. Did he tell you who those people were? A. At that time, I didn't -- I don't know if I can remember that. He told me a lot but I think I just said, "hey, I'll give you a small amount of money." I think it was a small amount, something like $10,000 or something like that, and "I'll loan it to you," and then, you know, "if you raise money, then I will put money into stock into that company." STAR REPORTING SERVICE, INC. (415) 348-0050 leer

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DEPOSITION OF NORMAN GODHINHO, TAKEN var Or APRIL 2, 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PABA PLP SL TEL: OEE DML DE STNE ZS EI WESSEL POR AE HP Page 23 A. He had some other people. I think his brother, Kimbal, was there and there was some other people there but I can't remember. QO. Thank you. . Now, when he came to you for the loan, did he mention any competitors at that time, competitors with relation to his business -- his idea? A. I don't recall. Q. Did he ever mention any work that he was doing -- when I say "he", I'm referring to Elon. Did he mention any work Chat he was doing at the Stanford computer lab? A. I don't recall. I know that he was -- had got admission into Stanford University through a Ph.D. Q. And how do you know that? A. He told me that. _._t In fact, that was one of the things that ho7™ had in hand. He said he had a scholarship ona : grant to do this Ph.D. and, on the other side, he wanted to start this company and he didn't have the money and it was, of course, risky as with any startup and he asked for my advice, you know, and my advice was, "hey, if you feel strongly about it, go for it and I'll give you a little money to get STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 24 ares, / Fadnarnsegting, EERO races tOmanne ast 1 started." 2 Q. Do you recall what he was -- what he was going 3 to study at Stanford? aim, 4 A. I think it was more in Physics, something in aie, ama 5 Physics. TOR Retest ran 6 Q. Had he already started? Or he was -- 7 A. No, I don't think he was started. He had 8 admission. TEAR, 9 Again, these are all recollections and I MOSES more at ere 10 can't, you know -- hold me to those but my and that 11 was, you know, about that time. 12 . He may have started in September/October is 13 the, you know, and he may have -- he got admission. 14 He got a grant, and he may have started and he was 15 debating whether he should start this company or go 16 into his Ph.D. which was not quite in this area -- 17. Q. ~~ Okay. = 18 «A. -- but I think. That's my recollection. 19 Q. And now, did you ever lend Elon more money? 20 A. I don't think I lent him more money but I put 21 in more money when they raised -- when they had 22 funding. I don't recall that I lent him more money. 23 It's possible I did. 24 I probably did but then I did -- I know 25 that in the end, I put in more money like $50,000. STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 42} 1 --O00-- 2 REPORTER'S CERTIFICATE 3 4 I, BASTELLER BRUIHL, CSR NO. 3077, Certified 5 Shorthand Reporter, certify; 6 That the foregoing proceedings were taken 7 before me at the time and place therein set forth, 8 at which time the witness was put under oath by me; 9 That the testimony of said witness, the 10 questions propounded, and all objections and 11 statements made at the time of the examination were 12 recorded stenographically by me and were thereafter 13 transcribed; 14 That the foregoing is a true and correct SE RORERTS 15 transcript of my shorthand notes so taken. 16 I further certify that I am not a relative or 17 employee of any attorney of the parties nor 18 Financially interested in the action. 19 I declare under penalty of perjury under the 20 laws of California that the foregoing is true and 21 correct. 22 Dated this 7TH day of APRIL 2009. fl 23 24 25 EASTELLER BRUIHL, CSR NO. 3077 EI a Sn AS RE Rae OS Sea PR SN STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF x GODHINHO, TAKEN rave, APRIL 2, 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S CERTIFICATION OF CERTIFIED COPY I, EASTELLER BRUIHL, CSR NO. 3077, a Certified Shorthand Reporter in the State of California, certify that the foregoing Pages 1 through 39, constitute a true and correct copy of the original deposition of NORMAN GODINHO, taken on THURSDAY, APRIL 2, 2009. I declare under penalty of perjury under the laws of the State of California that the foregoing ig true and correct. Dated this 7TH day of APRIL 2009. EASTELLER BRUIHL, CSR NO. 3077 Page 43 op ae Ce ERP IE TE raeee bake fa STAR REPORTING SERVICE, INC. (415) 348-0050

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EXHIBIT 13

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EXHIBIT 73 RX ® S

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DEPOSITION q DEREK PROUDIAN coounent MARCH 25 2009 Page 1 --O00-- STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN O'REILLY, Petitioner, vs. 107 CV 083172 ELON MUSK, Respondent. / DEPOSITION OF DEREK PROUDIAN SAN FRANCISCO, CALIFORNIA ‘WEDNESDAY, MARCH 25, 2009 ea REPORTED BY: EH. BRUIHL, CSR NO. 3077 STAR REPORTING SERVICE, INC. (415) 348-0050 Scdieit 72

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DEPOSITION q DEREK PROUDIAN noownen MARCH 25 2009 10 11 12 13 14 15 16 17 18 19 20 21 22. 23 24 25 "aa os ESE aD Page 2 | ~-O00-- STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN O'REILLY, Petitioner, vs. 107 CV 083172 ELON MUSK, Respondent. / Deposition of DEREK PROUDIAN on behalf of petitioner on WEDNESDAY, MARCH 25, 2009, at 10:00 a.m., Rao, Ongaro, Burtt & Tilakos, 595 Market Street, Suite 610, San Francisco, California, before Easteller Bruihl, a licensed and Certified California Reporter for Star Reporting Service, Inc., 703 Market Street, San Francisco, California. STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION q DEREK PROUDIAN connec @ vance 22 2009 4 te in eae fe ern eee HN mR NEE oom tee 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 76 a different role in the time period that you are concerned about which was the -- from the first meeting of the Zip2 entrepreneur.was MDV through the financing of that event. My role was primarily one of the supporting John in whatever he asked me to do. Once we made the investment and I went on the Board, my role became very active to help Bill and the management team and go build the Company but that was sort of in a subsequent -- subsequent role. So, I can't recall anything the -- about other than my -- I do recall that Elon was, I believe -- I can't remember the universities but he had been... was it Japan? Or some other university that was a pretty good school and then he had been at Stanford in some kind of capacity and it was in the Physics Department or something like that, is what I was told.. Q. So, did he tell you that he was at UPenn or Wharton UPenn? A. I can't remember how I had that impression but it was either in his bio or he told me or somehow I teers had the impression that he had been at Penn. Q. And did you have any the impression that he was a Pe AN mete nnie Went pen eee a graduate? That he had graduated? | STAR REPORTING SERVICE, INC. (415) 348-0050

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punts AG AEST EAC MORN acca sree en he eaAan ORO Sharh ee RET T macnn DEPOSITION q DEREK PROUDIAN capaenl MARCH 25 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 77 : ne A. I had that impression. 1 Q. And do you remember on what basis you formed that impression? A. I don't recall. Q. And you said that you were aware he was a i Stanford student. A. My recollection is that he had some affiliation with the Stanford Physics Department. Q. Do you know what sort of affiliation? Do you | remember? A. I don't remember. I can't recall now. I'm sorry. Q. Do you remember if he ever told you he was a Stanford student? A. I don't recall. I had that impression. i Q. You had the impression but you are saying you don't remember on what basis? A. At this time, I no longer recall. I'm sorry. : Q. Do you recall Elon ever telling you that he had + a degree in Physics? | A. I don't recall, although my -- again, this is | t impressions from a long time ago. | : My impression was that he wouldn't have had | a degree in Physics because he was, you know, he me gone to Stanford and was -- and basically Groppec | STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF DEREK PROUDIAN nepwaco MARCH 25 2009 cmeng Page 78 | . i 1 out. ERNE EL 2 Q. And why do you think -- what made you -- what 3 gave you the impression that he had gone to Stanford 4 and dropped out? 5 A. I can no longer -- I can't recall at this point 6 in time. 7 My... Again, these are impressions of what 8 I thought some time ago but my impression at the 9 time was that Elon like a number of people in that 10 time period had decided that the internet was this 11 next big thing and that they were going to leave 12 their current jobs or their current situations to go 13 ‘be internet entrepreneurs. 14 Q. I'm just trying to figure out what would give 15 you that impression, you know, whether that was in 16 his bio or he give you that impression? 17 A. I can't recall at this time. 18 Q. Okay, and did he ever tell you that he had a 19 degree in Computational Physics? 20 A. I can't recall. 21 Q. Okay. 22 Then you mentioned that you are in 23 communication with Kimbal? You have been in 24 communication with Kimbal? 25 A. Sure. FoF Casha ENE TORT THF RL EET STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION q DEREK PROUDIAN vaownaoll MARCH 25 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Page 92 | - --000-- . REPORTER'S CERTIFICATE I, BASTELLER BRUIHL, CSR NO. 3077, Certified Shorthand Reporter, certify; That the foregoing proceedings were taken before me at the time and place therein set forth, at which time the witness was put under oath by me; That the testimony of said witness, the questions propounded, and all objections and statements made at the time of the examination were recorded stenographically by me and were thereafter transcribed; That the foregoing is a true and correct transcript of my shorthand notes so taken. I further certify that I am not a relative or employee of any attorney of the parties nor financially interested in the action. I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Dated this 30th day of MARCH 2009. EASTELLER BRUIHL, CSR NO. 3077 STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION q DEREK PROUDIAN maownanll MARCH 25 2009 © 1 ’ REPORTER'S CERTIFICATION OF CERTIFIED COPY 7 I, EASTELLER BRUIHL, CSR NO. 3077, a Certified 8 Shorthand Reporter in the State of California, 9 certify that the foregoing Pages 1 through 93, 10 constitute a true and correct copy of the original 11 deposition of DEREK PROUDIAN taken on WEDNESDAY, 12 MARCH 25, 2009. 13 if declare under penalty of perjury under the 14 laws of the State of California that the foregoing 15 is true and correct. 16 17 Dated this 30TH day of MARCH, 2009. 18 19 20 21 EASTELLER BRUIHL, CSR NO. 3077 22 23 24 25 STAR REPORTING SERVICE, INC. (415) 348-0050

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EXHIBIT [74

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EXHIBIT (114

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009 Page l _ =-000-- STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN O'REILLY, Petitioner, vs. 107 CV 083172 ELON MUSK, Respondent. / SAN FRANCISCO, CALIFORNIA THURSDAY, APRIL 2, 2009 : DEPOSITION OF JIM AMBRAS | REPORTED BY: E. BRUIHL, CSR NO. 3077 ' f , STAR REPORTING SERVICE, INC. (415) 348-0050 allt 74 Rea aare sda ea Laas RRA

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SFT wo eA Ng SON IND TE SUL UO --O00-- STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN O'REILLY, Petitioner, vs. 107 CV 083172 ELON MUSK, Respondent. / Deposition of JIM AMBRAS on behalf of petitioner on THURSDAY, APRIL 2, 2009, at 9:00 a.m., 1490 El Camino Real, Palo Alto, California, before Easteller Bruihl, a licensed and Certified California Reporter for Star Reporting Service, Inc., 703 Market Street, San Francisco, California. Page 2} STAR REPORTING SERVICE, INC. (415) 348-0050

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fe Be PR REE TRIE NT OB DEPOSITION OF JIM AMBRAS, TAKEN mal APRIL 2, 2009 Page 10 f that point? A. I was working at Silicon Graphics at the time and was considering moving to a small startup that would be involved in web based deck knowledge and that was the profile of Zip2. So, IT was not looking for a job at the time but based upon Derek and that I have a high regard for him and he recommended that I make this, I thought this would be an opportunity worth my time. f t g # i F i Q. All right. Do you remember you said you met with the owners of Zip2. A. I met with the founder of Zip2. SERIES ee SA areng There were three. There were Elon Mosk, his brother Kimbal Mosk and Greg Kouri that night I came in after work on a week night and I interviewed | with all three of them. Q. And do you remember the date, approximately? A. It was around April of '96, late March or : April, that time frame. 4 Q. Okay. Do you remember what -- can you tell me everything you remember about the meeting? A. Yeah. I came in around 6:00 or 7:00 p.m. and, initially, I met Elon and Elon told me what Zip2 was about, what they were doing which was an online “STAR REPORTING SERVICE,. INC. (415) 348-0050

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009 > Page 34 1 directions before he worked for Zip2? 2 A. No. 3 Q. Okay. 4 I'm going to have the Court Reporter mark 5 as Exhibit 3.... 6 Counsel, this is the article -- first page 7 of the article from The Daily Duck. This was froma 8 previous deposition? 9 MS. NUGENT: I have that. Thank you. 10 (THE DATLY DUCK ARTICLE MARKED EXHIBIT NO. 3) 11 Can you just take a look at this document 12 and then focus on the last paragraph and tell me 13 when you are through. 14 Can you read the first sentence of the last 15 paragraph, starting with "Kimbal says"? PEE CPT PS EFL SETS TOS FR NCL OS EEL SLE RS IE RATS FGI AT SISO NTE SR CORE EET EERO COLOSSUS SA 16 A. "After college, my brother and 17 I moved to California. We got 18 jobs at an early internet 19 startup that provided on-line 20 maps and directions." 21 Q. Do you have any reason to dispute that : 22 sentence? 23 MS. NUGENT: Objection, lacks 24 foundation. 25 THE WITNESS: That's the first time I Be eR ES REET ee et Taree aaa TSCA ae ae Tee Sa RRC STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY , APRIL 2, 2009 ASE Page 35 1 have heard of that. 2 MS. KOHN: 3 Q. Okay. 4 Did Elon ever tell you that he was a 5 graduate of any college? 6 A. Yes. 7 Q. And where did he tell you he graduated from? 8 A. Most recently a boarding -- yeah, a board -- 9 the University of Pennsylvania, a boarding school 10 there. 11 Q. When did he tell you that he had -- when did he 12 tell you that he had graduated? That's confusing. 13 A. That is ambiguous. 14 Q. When did you have the conversation that you 15 learned he was a graduate? 160—CO A. I don't recall. 17 Q. Do you recall when he told you he had, indeed, 18 in fact, graduated from college? 19 A. Early on when I joined Zip2 but I don't recall 20 the date, being that this was thirteen years ago. SRA ELENA OFSTUPCD LoL R cd AREO ESTAS WDE EAR. TANFL OEA ELOY LE BS GLP SO GAG OHSS SR TAPE APES TOSTT OA SCPC OER EIST SSE REELED TOOL RCI RS POTN ST CEOS AE SAN ON SRINIVAS HOGS 21 Q. Did he ever tell you that he was or had been a 22 Stanford student? x 23 A. Yes, and, in fact, he had, I think, mentioned 24 that during the night of the interview that he had i 25 come to the Bay Area to attend Stanford, a graduate | z ot dee cvechtegest? Sen aidtcine [LEO RLM ES IRR SERRE RN Sig a ATA AE TB ROR SEIS SC AL Be aS EE a a PRET ca RT —— STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 36} school. ~— : Q. Was he -- as far as you knew, was he in Stanford graduate school when you met him? A. My understanding was that he had dropped out to start Zip2. Q. And was that understanding based on what he told you? A. It was based upon what he told me and based upon what other people had told me such as Derek Proudian. Q. Did he tell you what he was studying at Stanford? A. High energy physics. Q. Did he ever tell you that he had a degree in Physics? A. No. Q. And since 1999, have you had any communication with Elon Mosk? A. Yes. Q. Well, it has been a long time. So, what's your most recent communication with him? A. The most recent communication was I asked him ‘ for basic information about what this lawsuit was, that -- after having received a contact by John O'Reilly. STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009 Page 52 1 -—~OO0-- 2 REPORTER'S CERTIFICATE 3 4 I, EASTELLER BRUIHL, CSR NO. 3077, Certified 5 Shorthand Reporter, certify; 6 That the foregoing proceedings were taken 7 before me at the time and place therein set forth, 8 at which time the witness was put under oath by me; 9 That the testimony of said witness, the 10 questions propounded, and all objections and 11 statements made at the time of the examination were 12 recorded stenographically by me and were thereafter 13 transcribed; 14 That the foregoing is a true and correct 15 ‘transcript of my shorthand notes so taken. 16 I further certify that I am not a relative or 17 employee of any attorney of the parties nor 18 financially interested in the action. 19 I declare under penalty of perjury under the 20 laws of California that the foregoing is true and 21 correct. 22 Dated this 6th day of APRIL 2009. 23 24 EKASTELLER BRUIHL, CSR NO. 3077 25 Te aa a ae ed NS CRISS BTA DD © PDS SE GONE ao RO prt crete STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF JIM AMBRAS, TAKEN THURSDAY, APRIL 2, 2009 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TV EEO E EUS aS ARI EDA PON SOT SEE Ea RR aR SS SRP SO Ra PT STAR REPORTING SERVICH, INC. (415) 348-0050 REPORTER'S CERTIFICATION OF CERTIFIED COPY I, EASTELLER BRUIHL, CSR NO. 3077, a Certified Shorthand Reporter in the State of California, certify that the foregoing Pages 1 through 53, constitute a true and correct copy of the original deposition of JIM AMBRAS taken on THURSDAY, APRIL 2, 2009. I declare under penalty of perjury under laws of the State of California that the foregoing is true and correct. Dated this 6TH day of APRIL 2009. EASTELLER BRUIHL, CSR NO. the 3077 Page 53 |

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EXHIBIT 15

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EXHIBIT 45

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page l --O00-- STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION ; JOHN O'REILLY, Petitioner, vs. 107 CV 083172 ELON MUSK, : Respondent . / DEPOSITION OF CRAIG MOHR | SAN FRANCISCO, CALIFORNIA THURSDAY, APRIL 2, 2009 , REPORTED BY: E. BRUIHL, CSR NO. 3077 | SES RIE OA I eS OEE STAR REPORTING SERVICE, INC. (415) 348-0050. Ex lily 4 7S)

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 2 1 --O00-- ! 2 STATE OF CALIFORNIA 3 SUPERIOR COURT OF THE COUNTY OF SANTA CLARA 4 UNLIMITED JURISDICTION 5 6 JOHN O'REILLY, 7 Petitioner, . 8 . vs. 107 CV 083172 to ELON MUSK, 10 Respondent. / 11 12 13 14 15 16 17 18 19 20 Deposition of CRAIG MOHR on behalf of 21 petitioner on THURSDAY, APRIL 2, 2009, at 1:00 p.m., 22 1490 El Camino Real, Palo Alto, California, before | 23 Fasteller Bruihl, a licensed and Certified 24 California Reporter for Star Reporting Service, 25 Inc., 703 Market Street, San Francisco, California. STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 62 1 A. No. 2 Q. Did Elon ever tell you that he was a graduate 3 of any college? 4 A. No. WOO TTE 5 Q. Did he ever tell you that he was a Stanford 6 student? 7 A. I think he did. 8 It's -- you know, Elon and I didn't really 9 talk very much. He wasn't a very talkative person, 10 and so I can't say that he told me anything about 11 his -- his college career. I don't know. I'm 12 SOrry. 13 Q. But you had an impression that he was a 14 Stanford student? : 15 A. That's just it. There was mention of Stanford 16 but I don't know whether it had to do with -- 17 whether it had anything to do with him saying that 18 he had gone there. TagnneetrAt, 19 Q. Okay. Did he ever tell you that he hada 20 degree in Computational Physics? pin. beaten a eon errno 21 A. No. cement 22 Q. Have you had any communication with Rlon since 23 1999? 24 A. No. 25 Q. What about Kimbal? Have you had any STAR REPORTING SERVICE, INC. (415) 348-0050

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mM i? DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 71 1 --O00-- 2 REPORTER'S CERTIFICATE 3 4 I, BASTELLER BRUIHL, CSR NO. 3077, Certified 5 Shorthand Reporter, certify; 6 That the foregoing proceedings were taken 7 before me at the time and place therein set forth, 8 at which time the witness was put under oath by me; 9 That the testimony of said witness, the 10 questions propounded, and all objections and 11 statements made at the time of the examination were 12 recorded stenographically by me and were thereafter 13 transcribed; 14 That the foregoing is a true and correct 15 transcript of my shorthand notes so taken. 16 I further certify that I am not a relative or 17 employee of any attorney of the parties nor 18 financially interested in the action. 19 I declare under penalty of perjury under the 20 laws of California that the foregoing is true and 21 correct. 22 Dated this 7TH day of APRIL 2009. i 23 | 24 25 EASTELLER BRUIHL, CSR NO. 3077 : STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF NORMAN GODHINHO, TAKEN THURSDAY, APRIL 2, 2009 Page 72 1 REPORTER'S CERTIFICATION OF CERTIFIED COPY 7 I, EASTELLER BRUIHL, CSR NO. 3077, a Certified 8 Shorthand Reporter in the State of California, 9 certify that the foregoing Pages 1 through 72, 10 constitute a true and correct copy of the original 11 deposition of CRAIG MOHR, taken on THURSDAY, APRIL 12 2, 2009. 13 I declare under penalty of perjury under the 14 laws of the State of California that the foregoing 15 is true and correct. 16 17 Dated this 7TH day of APRIL, 2009. 18 19 20 21 ‘ EASTELLER BRUIHL, CSR NO. 3077 22 23 24 25 TEE WLS SE SOE Sa Sia ns Gk uno Raa nnbas ae SEE an [aD ag Sad STAR REPORTING SERVICE, INC. (415) 348-0050

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EXHIBIT '76/

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EXHIBIT 41

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DEPOSITION OF e. MUSK, TAKEN ON verone MAY 7, 2009 Page 1 Se STATE OF CALIFORNIA SUPERIOR COURT OF THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN O'REILLY, Petitioner, vs. 107 CV 083172 ELON MUSK, Respondent. / DEPOSITION OF ELON MUSK LOS ANGELES, CALIFORNIA THURSDAY, MAY 7, 2009 REPORTED BY: E. BRUIHL, CSR NO. 3077 TERS TOE RO ROR DEERE STAR REPORTING SERVICE, INC. (415) 348- Falibb Th ERE ESR CNEL STREETERS ORE ONO NS TOSRE A LOAD PSST 0050

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DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009 10 Li 12 13° 14 L5 16 17 18 19 20 21 22 23 24 Page 7 Nonappearance, Dr. O'Reilly got a telephone call. They indicated they'd be here in about fifteen minutes. [RECESS] MR. ONGARO: ~ Swear in the witness, please. ELON REEVE MUSK, having first been duly sworn and/or affirmed to tell the truth, the whole truth and nothing but the truth, under oath, testified as follows: EXAMINATION BY MR. ONGARO QO. Good morning, sir. Can you please state and spell your full name for the record? A. Elon Reeve Musk, E-l-o-n, R-e-e-v-e, M-u-s-k. Q. And, Mr. Musk, have you had your deposition taken before? AL Only once. Q. Only once? A. Yeah. Q. Okay, and I take it you have had the opportunity to meet with your attorney to prepare for today's deposition?

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DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009 *% a LO il 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 88 Q. And you were talking -- talked about some litigation? A. About an interview venture. It was a long interview. We might have touched on litigation. Q. Okay. Okay. Do you recognize what we have marked as Exhibit 4? (STEPHEN SAPERSTEIN NOVEMBER 7, 2008 CASE NO. 107CV083172 DOCUMENT MARKED EXHIBIT NO. 4) I don't intend for you to read the whole document, sir. So; feel free to flip through it and make yourself comfortable. MR. LEDAHTL: Do you have another copy? THE WITNESS: I haven't seen this ina long long time. This is an horrendous business plan. MR. ONGARO: Q. And whose business plan is this? A. This is a business plan that was written between -- with Steve Saperstein, Kimball and myself and I think Greg may have contributed as well. It's embarrassingly bad. Q. And this was so all three of you had input into STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009 eh Page 89 ; fv . Wo. A. Well, this is four people. 20 Q. I'm sorry. All four of you? 3 A. I think so. 4 Q. Okay, and there’ are portions that -- I think 5 that you wrote? 6 A. Yes. 7 Q. Okay, and this was the something that you wrote 8 that's to disseminate out into the venture capital 9 world, is that correct? 10 A. Well, yeah. 11 Anyone we pitched to, we would offer the 12 business plan but, as I mentioned earlier, what was 13 always remarkable is that you mentioning lack of 14 interest of venture capitalists and business plans. 15 Q. But you did, in fact, give this to some 16 entities, correct? 17 A. I didn't give this to any entities. 18 Q. But Zip2 -- 19 A. Steve Saperstein may have given it to people. 20 Q. Right, and your brother may have given that to 21 people as well, correct? 22 A. He may have. 23 MR. LEDAHT: ' Calls for.speculation. MR. ONGARO. And you wanted to make sure that everything in SL eee BS DE SR ARs mS OT OT ad RROD SON SN ORR TE STAR REPORTING SERVICE, INC. (415) 348-0050 REGO ERO A RA EAEE EEN HORE OOH ENTE SOME T

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DEPOSITION OF ELON MUSK, TAKEN ON THURSDAY, MAY 7, 2009 ak : Page 90 1 this document was accurate because you guys were, in 2 essence, looking for money based on this document. 3 Is that correct? 4 A. Certainly, the aspiration would have been 5 accuracy. IT mean, reading this thing, it's 6 ludicrously bad. 7 Q. Well, I'm not whether the contents was good or 8 bad. 9 I'm asking you: It's true that it was your 10 intent to make sure that the information that was 11 being disseminated was true and correct? 12 A. O£ course. 13 Q. Now, turning back to Exhibit 3, which is this 14 exhibit -- 15 A. Is this the same as the Executive Summary on... 16 is it the same one? No, no, it is different, 17 slightly different. 18 Q. Going back to Exhibit 3 and I want to put you 19 into focus that if somebody was given Exhibit No. 3 20 in January of 1986, would it be true that Global 21 Link had developed a product on the internet ‘ 22 duplicating the Real World Cities to create the next 23 generation of local business advertising at that 24 point in time, January of 1996? $25 A. I think that would probably be a generous a ARENT IEE EEE See SR STAR REPORTING SERVICE, INC. (415) 348-0050 rere

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am, DEPOSITION OF @.. MUSK, TAKEN ON THURSDAY, MAY 7, 2009 10 11 12 -13 14 L5 L6 17 18 19 20 21 22 23 24 25 Page 130 A. No. I don't recall. Q. Okay. (POWER POINT FLIP-THROUGHS MARKED EXHIBIT NO. 5) Going back to what we have marked as Exhibit No. 5, do you recognize this document? A. No. Q. Was this the flip-throughs that you were talking about your brother would present to the venture folks? A. I don't know. MR. LEDAHL: Calls for speculation. MR. ONGARO: Q. You don't know? Do you know whether what we have marked as Exhibit No. 5 ive was ever given to potential customers? MR. LEDAHL: Calls for speculation. THE .WITNESS: I don't know. MR. ONGARO: Q. Okay, and going to the first page, it says: "Tnteractive Local Business Directory, Natural Language Search Engine incorporated Into a powerful Geographical Information System." STAR REPORTING SERVICE, INC. (415) 348-0050 NN NN Lee BELSON ESOS SO ESE SRP OEY RO LEED OGRE EES ESI SSSI SEL ALR ROT AS LENT OSE INST PE EE REPO EERE VN ROE RTE EN NE SE on een ees

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DEPOSITION OF 9. MUSK, TAKEN ON THURSD. , MAY 7, 2009 10 L1 ) 12 13 14 15 16 17 18 19 20 22 23 24. 4 25 Did -- in 1996, January 1996, did Zip2 have a natural language search engine? A. Not -- well, natural language means different things to different people. Q. It has got -- let me try it this way. The industry has a certain definition of a natural language search engine, correct? A. There is a ~~ well, there are different interpretations of natural language engines and, for instance, geography is considered by some to be a natural language search engine but not by others and I think how else would it have been considered by some to be a natural search engine but not by others. Q. Is there a generally accepted definition that you are aware of in the industry for what a natural language search engine was? MR. LEDAHL: Asked and answered. THE WITNESS: No. MR. ONGARO: Q. Okay. —_ Okay. I want to just turn you to the next page. I just want you to take a look at some of the titles of these different slides or flip-throughs. The first one is "Focused Internet RAN SS OR RE CELIA RD SCO ORE RE PE AO ERO TISE STAR REPORTING SERVICE, I NC. See (415) 348-0050 ‘Page 131 SNL eee Ne NT cen eee noone Meneame Sern emer Maem eee Naas re I a Se

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oe, DEPOSITION OF ®. MUSK, TAKEN ON THURSDAY, MAY 7, 2009 —" Page 132 : 8 refresh your recollection at all that this was the Tr Advertising vs. Generic Presence", and the next, ‘. 2 simple, Exciting Business Search System". The next | 3 is "The System Tools". The next is "Target Market- i 4 Internet Users". The next is "Target Market- 5 Internet Businesses". The next is "Potential 6 Marketing Strategies". The next is "Competition". 7 Looking at those headings, does that 9 flip-through that you were referring and your 10 brother would present to potential folks? 121 A. You know, it is hard to tell because the 12 flip-through -- was it some other flip-through? You -13 know, what date and time, I don't know. ee 14 Q. Okay. 15 A. Iomean, it is a flip-through, fourteen-year old 16 flip-through range and I don't know. Cae 17 QO. Does it look. like it is familiar as the 18 flip-through your brother was using? 19 MR. DLEDAHL: Vague and ambiguous. BL LEE DEANS SS SEES GSN EOI RAN 20 THE WITNESS: I wound say it is 21 familiar. 22 MR. ONGARO: 23 Q. Okay, and given that the headings does not 24 refresh your recollection, is this something that cps Ran rae OER NTA E HOANSSeace real ONT eS ee ead te EONS REN ES 25 would have been used as a tool to raise capital? ee BERARDI ONC AR TT ESOL SD AE A aT aM SR ESE BA ETS TAS TNE CE MN NE ATE AN ETL CAE INE ENSUE TS RR eT I STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF e.. MUSK, ‘TAKEN ON mons MAY 7, 2009 Page 133 MR. LEDAHT: Asked and answered, calls ee AE TISTDN for speculation. THE WITNESS: It is something that could have been used. Was it used? ‘tT don't know. 5 MR. ONGARO: 6 Q. Okay. 7 Now, going through the Competition page 8 about midway in, keep going. Starting from the one 9 on top that says "Competition". 10 A. Uh-huh, I'm there. 11 Q. Okay. Here, it indicates that Nynex -- | 12 AW "Nynex", “13 Q. --.Nynex-is one of the potential competitors, 14 correct? 15 MR. LEDAHL: According to this 16 document? 17 THE WITNESS: According to this 18 document, yes. 19 MR. ONGARO: 20 QO. Okay, and you put that in your business plan, 21 correct? 22 MR.. LEDAHL: Objection. Misstates the 23 testimony. 24 . THE WITNESS: I don't recall. 25 MR. ONGARO: PETRA IE RR NSE IERIE ir I A REE ESTEE ENR RSE MN LOREEN LE LL ALS LOR RESTS IEEE ORES ET OREO EN ETRE OO ee BEER REL SN LGNP EE LIER IO ESL SLY LESLIE TE EON EES EE STAR REPORTING SERVICE, INC. (415) 348-0050 ee eee Se ee LN Ce eee ee orem |

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DEPOSITION OF @.. MUSK, TAKEN ON THURSDAY, MAY 7, 2009 oy Page 134 | 1 Q. Okay. Let's turn to -- 2 A. I mean. i 3 Q. And did you back in '96 identify Nynex as one 4 of your potential competitors? 5 A. It appears to be the case. 6 Q. Okay, and then three bullet points down, it 7 says a "number of smaller unfundeds". Do you see 2 8 that? 9 A. Yes. 10 QO. And do you know who the small unfundeds were 11 that you were referring to or that Zip2 was nie Nee 12 referring to in this Competition? 143 "MR. LEDAHL: Lacks foundation. 14 THE WITNESS: Not really. 15 There were, you know, several other 16 start-ups, you know, that were trying to do 17 something similar as it was the case particularly in ee eee 18 Tech manager. 19 MR. ONGARO: ne 20 QO. Well, as you sit here today, were there any 21 others? 22 A. Big Book. 23 Q. Okay: Any others? 24 A. Well, it depends on which point in time. 25 There was kind of a Map Quest. I'11 just reer Ee oT RESIS SASSER ESE OE SEES Ne OE NR OLE REBEL RR CODE LS TESTICLES SITAR DO ONS SEO AN EO MNO LON NOR EO ATEN RONEN OR REN TA EL TEN RE LO ESE LT STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF @.. MUSK, TAKEN ON mors MAY 7, 2009 10 11 12 ‘13 14 15 16 17 18 19 20 21 22 23 24 25 SS RE ee OE OER A SRN ON a EG AO ANE OE OL IES EAE SS LOS RES CISL SEER OER REET ROBO LESS REEL LANE ERAN ALTERS LEER ES RE SE NO NE TS RE NaN SSE TERS EN SKN NA Page 135 say as I think back here when we came to the- ECan een eae internet, I believe there was a 411. I mean that's -- I don't know. It was so long ago. Q. Do you remember this document from O'Reilly's company? A. I don't, actually. Q. Do you ever remember meeting Dr. O'Reilly? A. You know, it is one of those things do I remember or don't I? I met so many people in that time frame. I : certainly don't remember him, particularly. Q. Now, turning to the last page of this fFlip-through, it has got the biographies and, technically, the one identity that was in the business plan. When you did the business plan and you EC USEN SOA CBE SANDS GS EET SAR REE RMS EE converted it -- actually, why don't we do this? Why See eee don't we go to Page 14 of the business plan which is Page 4? SL A. More bad news. Q. Sir, I would like you to turn to Exhibit No. 4 SELL ne eR for me, the last page which should be Page 14 and you had previously testified that you wrote portions : of this business plan. I take it that you provided or wrote the STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF 6: MUSK, TAKEN ON croms fe MAY 7, 2009 10 11 { 12 “13 14 15 16 17 18 19 Q. Granting you a B.S. Degree in -- granting you Page 136 information regarding your background for the business plan, is that correct? A. Probably. That's what they contributed to. OQ. And do you have -- as you sit here today, do you have any recollection of anyone else writing your biography for the business plan? A. No. That doesn't mean that I wrote it. Q. And as.you read the bio. for you and the business plan on. Page 14, is everything in that bio true and correct? A. Yeah. Yes. Q. Okay. So, you received a B.S. in Computational Physics from Penn? A. Yeah. Q. Okay, and when you worked at Microsoft advanced products -- A. Actually, I should be clear about that. So, I obtained the one Graduate degree in Business and Physics but and an agreement with the -- with the University of Pennsylvania. They said that I could have -- I could complete the Engiish and History credit when I was no longer a student at Stanford. So, they would delay transmitting the degree until I had done that. SES SSN CEG NS PE I DS PSN ERLE TRICO ON LES SN OO TS DOSES AO RAR RRO ELE ON RDN TEE MONE DDE TAL RIGA EEC ESOT OLE STAR REPORTING SERVICE, INC. (415) 348-0050

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DEPOSITION OF ®.. MUSK, TAKEN ON rors MAY 7, 2009 Page 140 1 A. B-l-a-s-t-a-r. 2 QO. Okay, and then it says your first company was 3 founded at age eighteen. What company was that? 4 A. That was a company at Queens, just reselling 5 computer equipment. 6 Q. Okay. 7 Did you ever hear of a company called 8 "Remote Telecom"? 9 A. That name rings a bell. 10 QO. Okay, and do you recall -- well, do you recall 11 when you first heard about Remoté Telecom? 12 A. No. 13 Q. Do you have any recollection of what they do? 14 A, Not really. / 15 Q. Do you have any recollection of applying for’ : 16 work there? 17 A. No. 18 Q. Okay, and in January of '96 had you heard of 7 19 the Internet Merchant channel? 20 A. I don't remember that. 21 Q. Okay. 22 (DEFENDANT'S RESPONSES TO PLAINTIFF'S 23 FORM INTERROGATORIES, SET ONE MARKED 24 EXHIBIT NO. 7) _ 25 I'll represent to you, sir, that these are | REREAD a IDSA OTR RI SOE SEEKS ORT TR eA SALAS SECTS RSET SN RMSE LE ABSCESSES ORE TEEN TEAR REST RAGNAROS NO ON AS LOL ORS ER USL BLL SO TS ERE RETEST STAR REPORTING SERVICE, INC. (415) 348-0050

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