TORTS
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

STRATTON OAKMONT, INC. and DANIEL
PORUSH,

                    Plaintiffs,

  - against -     

PRODIGY SERVICES COMPANY, a
partnership or joint venture with
IBM CORPORATION AND SEARS-ROEBUCK
& COMPANY, "JOHN DOE" and "MARY ROE",

                    Defendants.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Index No. 031063/94

Assigned to: Justice Stuart Ain
IAS PART 34

AFFIDAVIT OF WILLARD MCDOWELL


STATE OF CONNECTICUT )
                     :  ss .:
COUNTY OF FAIRFIELD  )


WILLARD MCDOWELL, being duly sworn, deposes and says:

1. I submit this affidavit in support of the motion by Prodigy
Services Company ("Prodigy") for reargument and/or renewal in
connection with the Court's Order, dated May 23, 1995 (the
"Opinion"), granting plaintiffs Stratton Oakmont, Inc. and
Daniel Porush partial summary judgment on their claims in this
action. I have personal knowledge of the facts stated herein.

 2. The manner in which plaintiffs presented my deposition
testimony to the Court in connection with their motion for
summary judgment was misleading. Plaintiffs took excerpts out of
context to erroneously suggest that I stated with personal
knowledge that Prodigy exercised a "management function" over
its Board Leaders. As I explain below, this is not the
case.[FN1]

 3. I was employed at Prodigy between approximately 1989 and
February 1995. I gave testimony in this matter in December 1994.

 4. Until approximately December 1993, I was assigned to the
Customer Services department at Prodigy, where I was responsible
for addressing, among other things, billing disputes and
technical problems. The latter, for example, would have included
those situations where a member found he was unable to log onto
the system, or where a member was having trouble understanding
some aspect of the service.

 5. In approximately December 1993, I became a Member Security
Officer. My responsibilities in that position were to
investigate fraud and other related problems that arose on the
network. For example, I would have been called to investigate
the use of phony identification numbers or the theft of a
member's identification number.

 6. I left Prodigy's employ in February 1995.

 7. Neither of my positions at Prodigy involved any significant
interaction with the Board Leaders. I did not report to,
supervise, direct or control the Board Leaders in connection
with the performance of their duties. My understanding of the
function of the Board Leaders, and knowledge of the interaction
between the Board Leaders and Prodigy, was based (and is today
still based) only upon hearsay, not first-hand knowledge or
experience. I explained this to plaintiffs' counsel at my
deposition.

 8. Nevertheless, at my deposition, plaintiffs' counsel tried to
elicit from me testimony about whether Prodigy controls or
directs the activities of the Board Leaders. I assumed that
Prodigy performed a management function over the Board Leaders.
However, I specifically advised plaintiffs' counsel that this
was just speculation and that it was not based upon my own
personal knowledge. (McDowell Tr. at 78-79).

 9. It was improper for plaintiffs' counsel to represent to the
Court (either explicitly or implicitly) that I was speaking with
first-hand knowledge when I testified about Prodigy's
interaction with its Board Leaders. In fact, I was not.

 10. Plaintiffs' counsel tried to do the same thing concerning
the authority of the Board Leaders. Counsel repeatedly asked me
about Prodigy's guidelines and whether, for example, Board
Leaders had the ability and the authority to delete certain
types of notes.[FN2] Again, I had (and still have) no first-hand
knowledge concerning the authority of the Board Leaders and
what, if any, type of communications are improper under the
guidelines. When I answered counsel's questions, I made clear
that I was speculating. (McDowell Tr. at 78-80, 162-64).
Plaintiff have wrongly represented to the Court that I spoke on
these matters with first-hand knowledge.

 11. Finally, plaintiffs' attempted to attach some significance
to the fact that I used the word "editor" when referring to the
Board Leaders. The terms "board leader" and "board manager" were
also used throughout the deposition. I was unaware that these
terms carried any legal significance and would not have used the
terms loosely if I had. The proper term is "board leader."

 12. I hope that this affidavit clarifies the record of my
previous testimony for the Court.

 WHEREFORE, for the reasons set forth above, Prodigy's motion
for reargument and/or renewal in connection with the plaintiffs'
summary judgment motion should be granted, and summary judgment
in plaintiffs' favor should be denied.

/s/WILLARD MCDOWELL

Sworn to before me this 5th day of July, 1995.

Notary Public


ENDNOTES

 1. The relevant portions of my deposition transcript are
attached hereto as Exhibit A and identified herein by "McDowell
Tr. at" followed by the page citation.

 2. I am aware that Board Leaders have the physical capacity,
using the technology that Prodigy makes available to them, to
delete notes from the bulletin boards.