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PLDT seeks to "reconstruct" Lavides Nov. 22 testimony

On January 11, in what was expected to be the start of a simple redirect examination, the Philippine Long Distance Telephone Company (PLDT) opened hearing no. 6 with a highly unorthodox legal tactic, filing a motion with Quezon City Regional Trial Court Judge Reynaldo Daway to reconstruct the entire transcript of the November 22 hearing.

"In all my 27 years as a practicing lawyer, I have never heard of a motion to reconstruct an entire transcript of a hearing," said attorney Teddy Cruz, counsel for Gerry Kaimo, owner of pldt.com, the Internet website that is the focus of PLDT's lawsuit. "A motion to correct a transcript of stenographic notes is in order, but a motion to reconstruct an entire transcript sounds to me like an attempt to revise testimony and introduce new evidence under the guise of 'clarification', or a way to prevent their witness from being charged with perjury. There is no way we can allow this type of desperate maneuver," added Cruz.

At that November 22 hearing, PLDT media division chief Horacio Lavides, under intense cross-examination by Cruz and Rod Domingo, counsel for co-defendant Philippine League for Democratic Telecommunications Inc. (PLDTI), reiterated the statement in his written affidavit that Kaimo's registration of pldt.com had prevented PLDT from acquiring that domain name, and said that PLDT had registered its own domain name, pldt.com.ph, with Network Solutions Inc., the Internet domain registration company based in Virginia.

PLDT had actually registered its domain name, pldt.com.ph, in Manila through the E-Mail Company, in March 1996, two years and four months before Kaimo had registered pldt.com with Network Solutions, Inc.

Cruz and Domingo requested time to file formal oppositions to the unusual motion, and Judge Daway granted the co-defendants ten days to respond formally.

From there, PLDT began its redirect examination of Lavides, which began nevertheless by eliciting from him admissions of "mistakes" he had made in previous hearings. Under his counsel's redirect examination, Lavides admitted that PLDT's domain name, pldt.com.ph, was registered with the E-Mail Company and not with Network Solutions. And on re-cross by Cruz, Lavides again admitted that he was not actually involved in the registration of pldt.com.ph, thus making his testimony on this part pure hearsay.

PLDT also used the redirect procedure to ask Lavides the hypothetical question of what the effect would be on the defendants' right of free speech and freedom of expression if their complaint were granted, which was objected to by both defense counsels. After their joint objection was sustained, PLDT rephrased the question, asking whether curtailment of the defendants' right to free speech and freedom of expression would, in fact, be the result if the complaint were granted. Lavides answered that they were not asking the defendants to stop publication, only to stop using the name of PLDT.

Kaimo is claiming the right to use the initials 'pldt' in his domain name, as he has the domain name 'pldt.com' duly registered with Network Solutions Inc.

In its original reply to PLDT's complaint, PLDTI has stated that it is neither the owner nor the author of pldt.com, and Kaimo, for his part, has stated that he is the sole owner of pldt.com.

Taking another tack, PLDT also tried to prove the assertion in Lavides' affidavit that PLDTI is an owner of pldt.com, showing the Articles of Incorporation of PLDTI, obtained from the Securities and Exchange Commission, indicating that Kaimo is an incorporator of the organization and sits on the board of trustees.

PLDT then attempted to challenge pldt.com's claim that it is a non-profit website, by citing links to Globe Telecom and Philmusic found on a sample home page of pldt.com, and by attempting to introduce into evidence the incorporation papers of philmusic.com, which list Kaimo as an incorporator. Cruz objected on the grounds of irrelevance and immateriality, and the judge sustained the objection.

"A link to another website is no more than an invitation to visit that website. Any attempt to infer any other connection smacks of desperation. At any rate, they should have done their investigation ahead of filing the complaint, instead of wasting the court's precious time and resources, having us watch them scramble for evidence to support their questionable conclusions," said Cruz later.

PLDT then attempted to argue that it did not want Internet users visiting pldt.com to get the idea that Philmusic was being endorsed by PLDT, basing that conclusion on the assumption that Internet users would mistake pldt.com for PLDT's home page. Lavides, in the now-controversial November 22 hearing, stated that Internet users who typed 'pldt.com.ph' would be led to Kaimo's pldt.com website.

"I think that is almost surely one of the statements made under oath by Lavides that PLDT would like to correct," said Domingo. "It is one of the linchpins of their complaint against pldt.com, the intent to mislead Internet users away from their site, and if they do try to amend it, we will ask the court to charge Lavides with perjury," he added.

The hearings resume on January 25 at 2 PM, at QC RTC Branch 90. Lavides will be re-cross-examined by Domingo, after which PLDT's second witness, computer systems engineer Jack Bausa, is expected to take the stand.


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