DECLARATION OF CHARLES E. PETIT I, Charles E. Petit, declare as follows: 1. I am general counsel to plaintiff Harlan Ellison, and have been since 2001. I am not an advocate in this matter. I make this declaration in opposition to Defendant’s Special Motion to Strike Under California Code of Civil Procedure § 425.16. I would be competent to testify concerning the statements contained in this Declaration. 2. I have previously attempted to manage or otherwise resolve disputes caused by defendants’ willful and knowing harassment of, and misuse of intellectual property belonging to, Mr. Ellison. During February 2006, I requested that defendants cease republication of an interview with Mr. Ellison that was intimately connected to the litigation in New York concerning Mr. Fleisher. During the course of telephone conversations and electronic mail exchanges with defendants Groth and Thompson beginning on 03 February 2006 and extending for approximately three weeks at varying intervals, I became convinced that neither defendant had any intention of dealing in good faith. Defendants validated this conclusion when they reneged on an agreement reached by telephone to provide record copies of the republication of the interview to Mr. Ellison. 3. In the course of representing Mr. Ellison since 2001, and in the course of my practice and familiarity with the publishing industry and with the speculative fiction community, I have become aware of a purported “Enemies of Ellison” organization. Although I do not have personal knowledge of its origins, I have been informed by several credible sources that defendant Groth and defendant Thompson both had substantial personal involvement in beginning that organization well over a decade ago. 4. I was directed to defendants’ publication We Told You So by fans of Mr. Ellison. Defendants began posting page images (as Portable Document Format files) from that publication online beginning in spring of 2006, although the book itself was not scheduled for publication until November 2006. This is a very unusual practice in the publishing industry, and specifically in the comic/graphic novel segment of the publishing industry. Although there is an increasing trend toward placing the text of books online, that DECLARATION OF CHARLES E. PETIT 1 trend seldom extends to works with extensive graphic material, nor to placement of an entire graphics-heavy work online eight months before publication. It certainly does not extend to placing apparently uncorrected proofs online, particularly of a purportedly accurate historical account. 5. Other statements connected with the 2006 Comic-Con, a comics and graphic novel convention in San Diego held annually in late July or early August, indicate that defendants chose this unusual course of action in an effort to obtain prepublication publicity for their idiosyncratic, revisionist “history” of comics and graphic novels in the United States. These efforts specifically included attempts to use Mr. Ellison’s name and reputation for their own commercial purposes without any prior license, approval, permission, or indeed notice. It would be highly unusual for a commercially published book to have page proofs available six months before publication, and three months before a major scheduled tie-in event like Comic-Con. 6. In light of my prior dealings with defendants and the scurrilous nature of the statements in the online publication, I sent a letter dated 25 [sic] July 2006 to defendants. A true and correct copy of that letter is attached to this Declaration as Exhibit A. My records indicate receipt via facsimile at approximately 3:15pm Pacific Daylight Time on 24 July 2006. I specifically did not characterize the letter as a settlement document, or as otherwise not subject to disclosure under Fed. R. Evid. 408 or any cognate provision of California or Washington law. 7. On 27 July 2006, I received a telephone call from Kenneth Norwick, identifying himself as defendants’ counsel. I had had previous dealings with Norwick in the course of representing other authors in unrelated matters. The conversation lasted approximately fifteen minutes. Norwick stated that: (a) Mr. Ellison is a public figure for all purposes, and therefore has no right or ability to control or object to defendants’ statements about him. (b) The statements on pages 118 and 119 of the online publication are based on “the best of [Groth’s] recollection” of a twenty-year-old case, and that Groth’s DECLARATION OF CHARLES E. PETIT 2 responsibility to investigate or otherwise confirm factual statements required him to do no more than rely upon his memory of legal technicalities — even though Groth is not a lawyer. Norwick specified the “motion” slightly more specifically, claiming that it had something to do with Mr. Ellison “agreeing” to pay Fleisher’s attorney’s fees if Mr. Ellison was “brought back into the suit.” I requested that Norwick, in the interest of keeping the dispute from escalating, provide further details and documentation consistent with his statements and with the statements in the publication. However, Norwick explicitly refused to provide any documentation of those statements, claiming that it is “[Ellison’s] burden to prove falsity.” (c) Norwick threatened that if Mr. Ellison attempted to take any further action regarding the statements in the publication, whether by lawsuit or otherwise, that he (Norwick) would “cause plenty of damage to Mr. Ellison’s First Amendment reputation,” especially if Mr. Ellison attempted to “get a prepublication injunction against a book.” When I pointed out that the work had already been published by placing it online, Norwick abruptly refused to discuss that aspect of the matter further and changed the subject. (d) On behalf of defendants, Norwick rejected all demands in my letter of 24 July, which he specifically stated he had reviewed. However, without any prompting (and inconsistent with his protestations of accurate recall and his objections to “prepublication injunction against [the] book”), Norwick offered to insert a disclaimer on page 118 to the effect that “[Ellison disputes the accuracy of these statements]”. Norwick reiterated his refusal to provide any further documentation or other support for the accuracy of the statements in question. 8. Although Norwick maintained a minimally civil tone during the telephone conversation, he persisted in aggressively asserting positions without consideration of factual and legal foundations. When challenged or questioned, whether on legal doctrine related to defamation and commercial misuse of Mr. Ellison’s identity and rights, or on the underlying facts, Norwick consistently failed to respond and changed the subject. 9. Even after receipt of the letter in Exhibit A, defendants persisted in publishing DECLARATION OF CHARLES E. PETIT 3 several further pages online each business day. At no time prior to the filing of the complaint in this matter did defendants materially alter either the posted pages or their contextual statements consistent with Norwick’s unsolicited attempt to mitigate any damages to Mr. Ellison as described in paragraph 7(d) of this Declaration. I declare under penalty of perjury under the laws of the State of California and under the United States of America that the foregoing is true and correct to the best of my knowledge. Executed this 11th day of December 2006 at Urbana, Illinois. __________________________ Charles E. Petit, Declarant DECLARATION OF CHARLES E. PETIT 4