AtPac Lawsuit – the Greg Diaz Deposition (updated 5sep2011)

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AtPac Lawsuit – the Greg Diaz Deposition (updated 5sep2011)

31 August 2011

George Rebane

Regular RR readers are familiar with the lawsuit filed by local software company AtPac naming as defendants Nevada County, NC Clerk-Recorder Greg Diaz, and Aptitude Solutions, a Florida software company. For months the community has been asking the county’s Board of Supervisors to reveal the whys and wherefores of what led to the lawsuit that was settled out of court earlier this summer at a TBD cost that has to date exceeded $2.5M.

A key piece of peeling back the layers of the Rood Center onion is the long-awaited deposition given last May by Mr Diaz. This deposition has now become available, and is accessible to RR readers here Download Diaz, Gregory ATPAC v. Aptitude. The deposition, along with the attendant video of Mr Diaz being deposed, is even more revealing as to how business was (is?) being conducted by our county government. I and others will have more to say about this after digesting the document.

Readers wishing to review some of the background may want to read ‘County Dodges AtPac Bullet, but …’ and its predecessors. These can be found by searching RR (upper left panel) with the keyword 'AtPac'.

[1sep2011 update] Barry Pruett's occasional blog Inside Nevada County Politics makes available (here) some of the Greg Diaz videos mentioned above.

[5sep2011 update] As promised, my thoughts after reading the Diaz deposition are found here.

Posted in Current Affairs, Nevada County

80 responses to “AtPac Lawsuit – the Greg Diaz Deposition (updated 5sep2011)”

Barry Pruett

31 August 2011

Should be an interesting read. I will have some time this weekend to “digest” it.

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Mikey McD

31 August 2011

Not much different on the Federal level:
http://abcnews.go.com/blogs/politics/2011/08/solar-energy-company-touted-by-obama-goes-bankrupt/
Solar Energy Company Touted By Obama and FUNDED WITH STIMULUS $ Goes Bankrupt
http://www.zerohedge.com/news/shining-example-obamas-787-billion-fiscal-stimulus-act-solar-energy-company-solyndra-files-bank

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George Rebane

31 August 2011

Mikey – was your 1153am comment for this post or a previous one?

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Michael Anderson

31 August 2011

I just finished reading the Diaz deposition. It confirms everything that I have believed about this case up to now.
I believe that neither Diaz nor county IT had any intention of violating the AtPac EULA and that they worked hard to avoid problems with the conversion.
I believe that AtPac has yet to prove any damages. AtPac should provide more information regarding the nature of their .dat files and especially how the .txt files provided to Aptitude preserved the allegedly proprietary AtPac table information.

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Barry Pruett

31 August 2011

I fouund this interesting. On page 38-39 of his deposition, Diaz denies what “code” is.
In the video below (Diaz debate with Kathleen Smith in 2006), Diaz not only states that he knows what code is, but affirmatively states that he understands the significance of code.
See between 8:39-11:47 http://video.google.com/videoplay?docid=3592865562510135145#

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Michael Anderson

31 August 2011

He said he knew what code was, but not source code. He was making a distinction.
But I don’t think there is any doubt to readers of the Diaz deposition that he is hostile to the deposing attornet. At one point he says that the whole thing is a “pain in the ass.”
Doesn’t change my overall assessment. Now, what about those AtPac damages?

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George Rebane

31 August 2011

MichaelA – I am surprised that you as a software professional are here arguing the plausibility of rapid quantification of damages in cases involving the compromise of IP between competitors. Courts and persons of knowledge in the field know that such estimates are totally unreliable, and therefore the presumption of suffered damage is included as stemming from the raison d’etre for IP protection laws to be on the books in the first place.
This is why the IP damage argument remains alive only in the minds of the naifs. Please explain yourself, because I don’t take you to be one to toss in another cheap red herring into this kind of a discussion.

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Michael Anderson

31 August 2011

George, you are correct. It was a setup.
I was hoping someone would take my bait, but you cut me off at the pass. Good show.
What I am really looking for is a discussion of the AtPac EULA. Any takers?

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George Rebane

31 August 2011

Well enough MichaelA – Apparently the provisions of the AtPac EULA (End-User License Agreement) were appropriately stout enough to convince the court in arriving at its interim judgment against the county, and enough to drive the county to a total collapse of its case when presented with AtPac’s request for summary judgment. The county had NOTHING to counter AtPac’s evidence, and rapidly capitulated on all counts in the subsequent out-of-court settlement.
So, re the EULA discussion, which at this point is academic but may be educational, could you please frame for us what you see as the stakes in the ground?

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Michael Anderson

31 August 2011

You are correct, it appears that the summary judgement request prevented this from going to trial. Which is a shame because we might have gotten an interesting EULA ruling out of the deal if this case had gone to higher courts.
I believe the AtPac EULA was their standard boilerplate from the late 1990s, and EULA court rulings are steadily moving in the direction of protecting consumers and businesses who must deal with their sometimes-onerous restrictions. I believe this to be the heart of this case.
For example, here is a ruling in the early 2000s that started down the road of protecting the rights of software consumers: http://www.theregister.co.uk/2001/11/28/us_court_ruling_nixes_software/
And as I mentioned in a comment above, it appears that important pieces of the AtPac software were not even compiled, so just looking at the .dat files could be construed as reverse engineering, which is just a ridiculous presumption.
Again, it gets to the heart of the EULA. And the fact that in Diaz’ deposition we now learn that AtPac kept upping the cost/time ante in what it would take for the county to migrate its own data [extortion??] really starts to fry my bacon.

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Barry Pruett

31 August 2011

Hey Michael: The cost to migrate was not an issue. Diaz conceded that in his deposition. He also conceded that he breached the contract twice. First, he admitted to authorizing the Aptitude access to the server housing AtPac’s code. Second, he admitted to not telling AtPac of the breach. Thus triggering attorney fees to prevailing party. These two admissions show conclusively liability on Diaz for breach of contract. As for copyright and trade secrets, we will never know as the server to which Aptitude copied the software was scrubbed to a defense department standard. It is readily apparent, however, that the insurance carrier saw the potential for damages in excess of $1.2 million.

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Barry Pruett

31 August 2011

Maybe it was more than $1.2 million, as I forget the final number.

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Michael Anderson

31 August 2011

Barry,
The breeches you speak of are certainly subject to interpretation. He certainly vacillated on the AtPac costs, I don’t think he was clear in his own mind how those interactions with county IT were developing. Probably because he was trying to run the elections office and this lawsuit cum vendor-change was a very annoying distraction, albeit self-imposed.
He didn’t tell AtPac what was going on because he didn’t trust them. In fact, he didn’t trust anybody, which he made clear in his deposition. Probably not a bad idea when you are entrusted with being involved in a county’s election certification process.
I think the server-scrubbing issue is completely irrelevant–they did it, get over it. Who knows if it was a mistake or a strategy? It’s not important in the big picture of what went on with this scrubbing decision. And there are certainly other ways to find out how AtPac’s “copyright and trade secrets, we will never know” problem is real or manufactured.
Michael A.

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Barry Pruett

01 September 2011

Michael: You are talking about your opinion. I am talking about legal facts. Diaz admited that he provided the access and that he concealed it. Both actions are explicit violations of the contract. Now if you want to get into if he was clear, that is a different story. Diaz went to law school for threee years (did not graduate). He admitted to having read the contract and knew the provisions. You say not clear; I say either lying about his clarity or incompetent.
The scrubbing issue is highly relevant to proof of copyright infringement and trade secrer misapproporiation. The sanction provided by the judge states that the jury will assume that Aptitude copied AtPac’s software. It does not matter if it was a mistake or strategy…it is what it is.
The insurance company saw the writing on the wall, and I think that you should take that into consideration when formulating your opinions as to damages.

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Steve Wynn

01 September 2011

The only thing that has been proved here is what Barry Pruett real intentions are for this county. Those intentions include trying to make Greg Diaz look incompetent.
Sorry Barry, but if anything you missed that mark and made yourself look like you were involved with this whole plan from the start.

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Michael Anderson

01 September 2011

“The insurance company saw the writing on the wall, and I think that you should take that into consideration when formulating your opinions as to damages.”
They settled because it was the easiest way out, not because the case had merit.
I’m leaving town this morning, won’t be back until next Tuesday. Have fun w/ the discussion everyone, I look forward to reading all the nuts and bits upon my return.

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Dixon Cruickshank

01 September 2011

My my, I have a hard time with MA’s account that the scrub wasn’t relenvent?
It stunk to high heaven – considering timing and the fact that I wonder how many other servers used down there are scrubbed and “to defense dept standards”.
On to Mr Wynn – Barry was kinda involved – it was his job. Although with the botched election and the fact the county got its ass handed to them in a lawsuit that any layman should have understood – Mr Diaz didn’t need alot of help.
Barry did try and save you guys some money though – you should thank him actually – he was right on from day one.

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Steve Wynn

01 September 2011

Well “Dixon”…. We all hear that “load of crapola” of “it’s my job”, but in this day and age if there is something I don’t feel is respectable then I would tell my superiors that “I’m not going to be involved with it, as I can’t stand by these convictions”, especially if you’re a lawyer.
Barry “tried” to save us some money – I tell my staff members you don’t “try”, trying is for losers, you DO, or you do NOT!
A quote I like about “trying” – We need to internalize this idea of excellence. Not many folks spend a lot of time trying to be excellent.
So the question is did Barry succeed, or is he still “trying”?

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Barry Pruett

01 September 2011

Good afternnon Mr. Wynn: This is about telling the truth and obeying the law.
Had you never heard of me, would Diaz not have done what he did to give Aptitude a log into AtPac software before the BOS had approved the contract, in effect giving them access to the AtPac Intellectual Property and in effect costing the taxpayers (indirectly) almost $2 million? Yes, I must admit that I successfully brought these action to the public attention during my campaign. Should we not know about these wrongful actions, and should we just avoid the issue? After all, light is the best disinfectant.
Greg Diaz and his cheerleading squad may think shooting at a whistleblower is a great way to cover up unlawful actions, but I’m confident the people of Nevada County are seeing through that tactic as we speak.

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Bob W

01 September 2011

Diaz needs to be indicted and the whole board needs to be recalled. What the makeup of the Board would end up to be is secondary. On the part of the Board, total incompetence coupled with ignorance. On Diaz, criminal.

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Mike Thornton

02 September 2011

Interesting that a county employee (Jackie Pollard) was colluding with AtPac behind the back of an elected official, who was performing his legal duties and not one of the Regressives has a word to say about it…..
C’mon guys, where’s all that “outrage” you’re so good at throwing around?
Hey Barry, when was the last time you or any of your associates talked to Ms. Pollard?

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Paul Emery

02 September 2011

Go ahead Bob and start the recall process. You seem to be the only one that interested in pursuing it. How about less talk and more rock.

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George Rebane

02 September 2011

Thornton, I see you’re back, and you’re already on your way to pissing me off. Who are the “Regressives” you are referring to, and what is your intent in using that obvious pejorative? Recommendation: act as if you were on a short leash.

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Todd Juvinall

02 September 2011

He is at this place George.
http://www.socialequitystrategies.com/
This will help you better understand him.

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Mike Thornton

02 September 2011

Gee, George it sure doesn’t take much to “piss you off” does it?
I wonder how the Muslims feel when you call them “Ragheads”?
But what does it matter, they’re just “Ragheads”, right?
Wow, Todd finally figured out that I’m a “lefty”.
Nothing gets by you….
George who do you think the “Regressives” are?
The term is a shorthand identifier and it is exactly the type of thing that you do, when you use the type of stereotyping language you use to identify people that you see as having some sort of commonality that (generally) you don’t like or agree with.
So if what you’re really saying here is: “Me and my friends get to say anything we want too, but if anyone says anything we don’t like, then they are on a short leash.”
Then just be up front about it, OK?
Don’t talk your concern about “obvious pejoratives” as you let Todd continue to say the absolutely hateful stuff he spews on a daily basis at good ole, RR!
The real question remains: “What about Jackie Pollard and her back door relationship with AtPac?” Who is Jackie Pollard?, Who is she connected too? And was she purposefully undermining the taxpayers of Nevada County to the tune of almost $2 Million?
What is her relationship (if any) with Barry Pruitt or people connected to him?
These are the fundamental questions!
My question is: Why are you (and that means the people who have been beating this case to death) apparently not concerned about these fundamental questions?
I say the answer seems pretty simple, you only cared about hurting Diaz and undermining any faith that people have in government. It’s likely that Ms. Pollard would have a lot to say, if someone decided to put her under oath in a deposition.
Do whatever you gotta do, man!

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Todd Juvinall

02 September 2011

George, this nut calls himself a PR guy for the progressives! Wow, I bet the jobs just pour in. What a hoot!

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Mike Thornton

02 September 2011

Once again, the fundamental question is:
What role has Jackie Pollard played in the whole AtPac fiasco?
If a County employee was colluding with a private company and/or a political candidate to undermine an elected official, as part of a scheme, to gain power and/or profit, that seems pretty serious to me!
And it would be just as serious if the person being undermined was a “Conservative”!
I just don’t understand why some of you don’t seem to care……

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Chuck Whitten

02 September 2011

I just finished reading the entire Diaz deposition. I’m still mulling it, but some things appear clear. The first one is that as an elected official there seems to be an awful lot Greg Diaz does not know about his job. The contradictions are massive. He makes it very clear that he does not trust anyone. He says it, then repeats it for emphasis. Yet, he says he did not read the letter authorizing Aptitude’s password for access to the server. It’s difficult to reconcile those two ideas. As far as Jackie Pollard goes, there’s certainly not enough information in the deposition to claim any malice on her part. Diaz comments regarding Pollard come across as something more than anger over her communications with AtPac. There’s clearly more there than meets the eye. The really troubling part of the deposition is Diaz’ willingness to throw his staff under the bus.
Probably more important is the board’s failure to stop this runaway freight before it did more than $2-million in damage.
As far as a potential recall, the people on this blog are not the only ones discussing it.

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Greg Goodknight

02 September 2011

Thornton, be careful what you wish for, you may get it.

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Mike Thornton

02 September 2011

Gee Chuck, you’re a “news guy”, don’t you want to know what Jackie and AtPac were up too?
Maybe there’s nothing to it, but if she was (as Diaz testified to under oath) “reporting to AtPac”, I want to know what that really means!
Also, is Jackie connected to Barry? And if so, how? Is she connected to Barry’s wife or McClintock?
These are reasonable questions and you can bet that, if this were some conservative elected official and it turned out that an underling was having private conversations with a company or group that was not favored by the conservative RR crowd, they (and perhaps even you) would be going ballistic about it!
But when it comes to good ole Jackie, nothing. And that makes me suspicious!

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Mike Thornton

02 September 2011

And what’s that supposed to mean, Greg?

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Bob W

02 September 2011

OK Paul, You and I don’t agree. Anyone surprised? I am proud of it.
Paul, I don’t do anywhere near the talking you do. I don’t need to. As for me pursuing a recall, please remember I have a real job and work more hours than any two of you libs. Take your pick.
And as for more rock, I have 3,429 words, in 5 Public Record Requests to the County in the AtPac case. How many do you have? We not only disagree but I am totally unimpressed with you.

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Chuck Whitten

02 September 2011

I’d like to know what a lot of county officials were and are up to. I could care less if they’re conservative or liberal. Mike, you’ve put a lot of meaning into the deposition that simply isn’t there. It may be that Pollard is connected to the Pruetts and to Tom McClintock, but there’s nothing in the deposition to suggest that has anything to do with the AtPac v Aptitude Solutions case. If there’s something Pollard was up to, spell it out. If you have read the deposition you should know that Pollard’s job was to talk with AtPac. Your quotation marks around “reporting to AtPac” are an amateur attempt to lend credibility to your arguments. Grow up. I cannot stand people who engage in innuendo such as you are. Your condescending attitude is extremely distasteful. Forget your platitudes and your propaganda. Give us truth. I’ve said there’s more to this than meets the eye. I just wish people like you had the guts to stand up and speak in fact rather than implications. You give liberals a very bad name.

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Mike Thornton

02 September 2011

I don’t know what she’s up to or not, Chuck.
It sounds to me like maybe you know that she has connections to political people that want to hurt Diaz though…is that the case?
What I know is that Diaz said in a legal deposition that one of his employees was having private back door conversations with AtPac “She reported to Atpac”
Diaz said that, Chuck, I didn’t make it up, did I?
What did she “report to AtPac?”
Was she undermining the County in the lawsuit? Is she receiving some kind of kickback as a result? I don’t know that she is or isn’t. I just think they’re reasonable areas to investigate.
Sounds to me like Jackie Pollard is a bit of a raw nerve and that makes me suspicious too!

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Mike Thornton

02 September 2011

Chuck:
This is what’s printed in The Union (hardly the tool of the “liberal conspiracy”)
“Diaz said Jackie Pollard, who worked in the office from November 2001 to April 2008 as a supervising recorder assistant, would regularly funnel information to AtPac about Diaz’s intentions to look for a new software vendor — which, he said, began immediately after his appointment.
Diaz had designated the information confidential and was angry with Pollard for the leaks.
“Jackie reported to AtPac,” he said.”

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Paul Emery

02 September 2011

Bob W
I don’t appreciate your assuming you know how hard I work at my multiple occupations. You have no Idea what you are talking about.
I don’t support recalls unless there are criminal investigations involved. Supes Beason, Scofield and Owens are up for re-election next year so why waste tax payers money, just find and support new candidates. Lamphier was not seated at the time so he should not be a problem to you. That leaves only Weston for you to take a swing at via recall and of course Diaz. Good luck in finding ground troops. You might investigate how much a recall election will cost the county because for sure that will be a big issue. To my knowledge, there has never been a successful recall in Nevada County. Occasionally there’s some huffing and puffing but not much more. County historians feel free to fill in the historical blanks (Steve Cottrell)

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Barry Pruett

02 September 2011

First, the BOS did not approve the contract with Aptitude until November 2008. If Pollard was gone in April 2008, I do not see how she could be in any way tied to the events that precipitated the litigation, as such events began in January 2009. Second, a recall would not cost the taxpayers a dime if it is coordinated with the presidential primary. Third, Pollard is a registered Democrat.

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bill tozer

02 September 2011

I voted for Diaz to show everybody I am not a racist and have nothing against Bay Area gov’t employees.

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Paul Emery

02 September 2011

Here’s an interesting question. If Diaz were to be recalled in the next cycle would he have to be replaced during the election and how much would that cost?

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Mike Thornton

02 September 2011

Well then somebody is lying, Barry.
I think it would be important to find out who and why!
Sounds like you know Jackie fairly well?

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John Galt

02 September 2011

If County departments are supposed to enter contracts openly and fairly, then it seems like Jackie Pollard is a whistle blower.
As Diaz’s own testimony reveals, he planned to replace AtPac on his 1st day in office. He didn’t like the firm. So he was contracting with bias. That is not professionally serving the Citizens.
He says he’s a professional, but he ignores legal language just because its’ “boiler plate”. His 3 years of law school should be sufficient training to know that all the text in a contract is important, including the boiler plate.
As Chuck W wrote, Diaz’s testimony reveals that he’s poorly equipped to serve in an executive capacity as Clerk/Recorder.
As Barry wrote, if the recall is timed correctly, their would be no cost.
It would be interesting to see how Diaz’s fundraising and endorsements change for the recall.
I suspect that Supervisor Owens and Beason would still support him….but the list would be pretty short.

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Mike Thornton

03 September 2011

Whistle blowers go to the authorities, John. They don’t collude with private business interests behind the back of their boss!

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Barry Pruett

03 September 2011

Mr. Thornton: The BOS did not approve the contract with Aptitude until November 2008. If Pollard was gone in April 2008, I do not see how she could be in any way tied to the events that precipitated the litigation, as such events began in January 2009. I think that we all know who is lying and that would be you.

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Paul Emery

03 September 2011

Barry
What is your take as to whether Diaz would have to be recused if there was a recall during a general election?

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Barry Pruett

03 September 2011

I would have to check, but I think if the clerk-recorder is recalled another individual is delegated the responsibility by the BOS for the purposes of the recall of the clerk-recorder.

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Bob W

03 September 2011

Paul, I would only expect that you would not appreciate me knowing how hard you work. As for multiple occupations, There are a lot of people that have to do whatever they can to find work. If you knew how to do something well then you wouldn’t need to take whatever you can find. Frankly, I don’t care what you do or do not appreciate.
Because of all your pompous BS I have a lot of “ideas” about what you are all about.
Your reasons for and against recall of the Board illustrate that you have no idea what a recall in response to their conduct in the AtPac case is all about. Maybe I am mistaken on my assumption that Lamphier participated in closed session? But then you aren’t capable of interpreting the relevance of that anyway.
And Chuck?, Giving liberals a bad name? Isn’t that redundant?

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stevenfrisch

03 September 2011

Nice guy that Bob. W. This place is full of nice guys who slam everyone at will. It even makes nice guys like me reciprocate, which is a shame really. I’m sure Todd will weigh in now to say I am not a nice guy, but then again I guess when discourse becomes this unreasonable it is common to reciprocate. I’m really not quite sure what people like Ben think they are gaining here….it is the same tripe, over and over again, without end.

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Steve Enos

03 September 2011

So what are the odds Jackie Pollard was leaking information to Atpac and Barry Purett AKA Atpacs “former” attorney?
Pruett seemed to be “providing” inside information about all this for a long time. Where was Barry getting his inside info?
Barry was providing “info” from the time he started his attacks on Diaz and BS mailers and rants during his failed campaign… like his personal attack attempts with his disgusting “San Francisco values” attacks.
What about Pollard being “connected” to the Pruett’s and to Tom McClintock… we know Mrs. Pruett works for McClintock.
So… we wonder what connections Barry Pruett, Tom McClintock and Atpac have to Jackie Pollard. This is a good trail that should be followed.
This could be very telling considering Barry Pruett tried to campaign against Diaz to stop the “Libs” in Nevada County. We all know about the nasty hard right conservative R machine that is always around and funding Tom McClintock and other hard right R’s in elections. As reported in the media they have been caught doing some real nasty, under handed stuff during campaigns, even to fellow R’s that they are running against.
Looks like a good trail to follow… connect the dots folks.

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Paul Emery

03 September 2011

So go for the recall Bob. Oh I forgot, you’re too busy. Speak loudly and carry no stick.

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Mike Thornton

03 September 2011

What am I lying about, Barry?
I’m simply pointing out what Diaz said in his deposition and wanting to know what that really means. I think it’s a fair question and the fact that some of you guys seem pretty set on quashing any discussion of Jackie Pollard is,in my mind, a little suspicious.
I notice that the subject of Ms. Pollards connections to you, McClintock and or others who had/have political reasons to go after Diaz is also being avoided.
Once again, I find it all quite interesting, considering that many of the posters on RR demand that even the most discredited topics be investigated and re-litigated over and over and over.

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