Oracle Corporation et al v. SAP AG et al

Filing 834

Declaration of Joshua L. Fuchs in Support of 833 Memorandum in Opposition, filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Related document(s) 833 ) (Froyd, Jane) (Filed on 9/9/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 834 Att. 1 EXHIBIT A Dockets.Justia.com STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE CORPORATION, a Delaware Corporation; ORACLE, USA, INC., a Colorado Corporation, and ORACLE INTERNATIONAL CORPORATION, a California Corporation, vs. Plaintiffs, No. 07-CV-01658-PJH (EDL) SAP AG, a German Corporation, SAP AMERICA, INC., a Delaware Corporation, TOMORROWNOW, INC., a Texas Corporation, and DOES 1-50, Inclusive, Defendants. ______________________________/ *** HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY *** DEPOSITION OF STEPHEN GRAY VOLUME I (Page 1 - 315) June 8, 2010 Reported by: Natalie Y. Botelho CSR No. 9897 Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 36 TEXT REMOVED - NOT RELEVANT TO MOTION 09:49:03 09:49:04 09:49:06 09:49:11 09:49:14 09:49:17 09:49:20 09:49:22 09:49:23 09:49:25 09:49:27 09:49:28 09:49:31 09:49:32 09:49:33 09:49:37 09:49:39 09:49:44 09:49:48 09:49:53 09:49:56 09:49:58 09:50:05 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do you have any detailed understanding of what "protected expression" means in terms of the copyright act? A. I have served as a copyright -- an expert -- a technical expert in a copyright matter in the past, and the term "protected expression" arose in that matter. Q. A. Q. Okay. So I'm not asking -- So I have some understanding, I think. As you sit here today, do you have a detailed understanding of what "protected expression" means? MR. FUCHS: THE WITNESS: Objection; form. Well, again, you're asking me the general -- that's what I heard before in the first question that I wasn't sure about. There's a general question there, and so in the matter -matters in which I've served as a technical expert where copyright was part of the -- or was an issue, was the issue, I have developed some expertise understanding the technical aspects of copyright, and it -- the term "protected expression" arose certainly in both of those -- as a matter of fact, Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 37 09:50:06 09:50:09 1 2 I'm sure -- matters. And so to that extent, I have some experience and expertise in that area. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 44 TEXT REMOVED - NOT RELEVANT TO MOTION 10:00:21 10:00:23 10:00:26 10:00:34 10:00:39 10:00:42 10:00:45 10:00:50 10:00:54 10:00:59 10:01:05 10:01:09 10:01:12 10:01:14 10:01:18 10:01:24 10:01:27 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. Would you hold yourself out as an expert in determining whether COBOL contains protected expression under the Copyright Act? A. I would -- I would -- I think I would hold myself out as someone who could perform analysis of a body of COBOL code and could serve as a technical expert in a matter like this to make a determination, I suppose, of whether or not there was protected expression in a body of code. Again, it would -- I'm not saying that that is -- includes a definition that I arrive at independent of some legal guidance by the attorneys involved, but I would be -- I think I would be capable or qualified to serve as a technical expert witness in a matter where the questions at hand had to do with providing expertise in COBOL, or identifying protected expression in a body of COBOL source code. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 47 TEXT REMOVED - NOT RELEVANT TO MOTION 10:04:19 10:04:20 10:04:22 10:04:25 10:04:31 10:04:35 10:04:38 10:04:42 10:04:47 10:04:49 10:04:52 10:04:53 10:04:57 10:05:00 10:05:04 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q. I'm asking -- you said, "I think authorship is an issue with respect to -- can be an issue with respect to protected expression." asking, when? A. I'm What is the basis for that statement? I think it comes down to whether or not -- my understanding -- again, this is as a layperson. I'm not -- not as a layperson. As a person who has a technical background and has served as a technical expert in copyright matters in the past, I'm just giving you my understanding, not as an attorney. I don't want to -- I don't want to step over the line and try to sound like I'm trying to be an attorney. Having said that, I think that authorship issues do arise in copyright matters. we're talking about? Is that what I may have lost the question. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 83 TEXT REMOVED - NOT RELEVANT TO MOTION 11:14:49 11:14:51 11:14:56 11:14:58 11:15:01 11:15:04 11:15:09 11:15:12 18 19 20 21 22 23 24 25 MR. POLITO: Q. You referred earlier to two matters in which you had performed analysis for copyright cases. list? A. Q. A. Q. No. One of them is. Are those two matters on this Which one? MathWorks v. COMSOL. That is a 2008 case, according to your Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 84 11:15:15 11:15:16 11:15:16 11:15:28 11:15:31 11:15:39 11:15:43 11:15:49 11:15:53 11:15:56 11:15:59 11:16:05 11:16:12 11:16:20 11:16:28 11:16:33 11:16:36 11:16:36 11:16:39 11:16:41 11:16:44 11:16:47 11:16:55 11:16:56 11:16:57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appendix 2? A. Q. That's correct. Okay. And what was the subject matter of your expert report in MathWorks versus COMSOL, generally speaking? A. The -- there were two matters in the MathWorks v. COMSOL, so let me -- I think so -- and I wrote two expert reports. Oh, but, you know, one I'm with of the expert reports was not -- okay. you. I was just sorting it out. I think the copyright case in that matter, my expert report was an analysis of COMSOL's software and MathWorks' software and a comparison between them to identify the use of MathWorks' software in the -- in COMSOL's software. Q. party? A. Q. languages? A. It was a programming language which was The -- it was called M. I was retained by MathWorks. What was the programming language or By whom were you retained? By which proprietary to MathWorks. It's just -- it's -Q. A. M like the letter? Uh-huh. It's a proprietary language to Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 85 11:17:00 11:17:09 11:17:14 11:17:19 11:17:21 11:17:27 11:17:30 11:17:33 11:17:37 11:17:44 11:17:48 11:17:51 11:17:56 11:17:58 11:18:01 11:18:03 11:18:04 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 MathWorks. Some C programming language. And when I say "C," I mean variants of C. Could have been C++. And Java. Some of the modules might have been C++. Q. Was it -- do you recall whether the C involved object-oriented code or not? A. My recollection is that some of the -- certainly some of the modules that I analyzed were object-oriented. I don't recollect whether or not the modules at issue were object-oriented or not. Q. matter? A. Oh, yeah. The two -- the parties' Did you analyze M and C and Java in that software was written in a variety of languages, M, C, and Java. Q. And you analyzed code in all three of those languages? A. Yes. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 88 TEXT REMOVED - NOT RELEVANT TO MOTION 11:21:57 11:22:02 11:22:06 11:22:11 11:22:16 11:22:22 11:22:25 11:22:31 18 19 20 21 22 23 24 25 Q. And how did you go about determining whether there was protected expression that was copied between the MathWorks and the COMSOL products in that matter? A. Generally by abstracting -- creating various abstractions of the soft -- of both bodies of the software, then comparing -- then, you know, removing not -- unprotected expression from those Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 89 11:22:36 11:22:40 11:22:42 11:22:43 11:22:48 11:22:52 11:22:53 11:22:54 1 2 3 4 5 6 7 8 bodies that -- and then comparing the residue and making a determination as to whether or not the copying had occurred. Q. Did you use software that was purchased from a third party to do that filtration? A. Q. A. I did not. Did you write it yourself? I analyzed it myself. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 96 TEXT REMOVED - NOT RELEVANT TO MOTION 11:33:24 11:33:26 24 25 Q. Other than the -- are you familiar with the term "abstraction filtration comparison"? Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 97 11:33:30 11:33:30 11:33:33 11:33:35 11:33:38 11:33:38 11:33:39 11:33:52 11:33:58 11:34:02 11:34:03 11:34:07 11:34:08 11:34:09 11:34:09 11:34:12 11:34:14 11:34:20 11:34:29 11:34:33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 A. Q. I am familiar with the term. Is that an accurate description of what we've just been discussing regarding your work in MathWorks versus COMSOL? A. Yes. MR. FUCHS: THE WITNESS: MR. POLITO: Objection; form. Sorry. Q. I'll read it again. Is abstraction filtration comparison an accurate description of what we've just been discussing regarding your work in MathWorks against COMSOL? A. Yes, it is. MR. FUCHS: MR. POLITO: Objection; form. Q. And what does "abstraction filtration comparison" mean to you, Mr. Gray? A. A process by which a technical expert like myself can use to identify the common elements of bodies of software, filtering out those things for which comparison is not required. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 109 TEXT REMOVED - NOT RELEVANT TO MOTION 11:50:35 11:50:39 11:50:42 11:50:43 11:50:46 11:50:49 11:50:50 19 20 21 22 23 24 25 Q. And so in that -- in the list of cases that you've participated in where copyright was the central issue, is it correct that there are two cases in your history as an expert, one being the MathWorks case, and one being the second case? A. That's -- I think that's -- yeah, I think that's correct. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 110 11:50:51 11:50:52 11:50:56 11:50:57 11:50:58 11:50:59 11:51:10 11:51:11 11:51:13 11:51:14 11:51:20 11:51:22 11:51:23 11:51:26 11:51:32 11:51:35 11:51:39 11:51:41 11:51:45 11:51:51 11:51:54 11:51:55 11:51:58 11:52:05 11:52:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What's the other case? And you said it's not in Appendix 2. A. I think -MR. FUCHS: Is it in your CV in Appendix 1? Objection; compound. I think -- I think that the THE WITNESS: other case is in my CV, on Page 10. MR. POLITO: A. Q. A. Q. I'm getting there. Page 10 of my CV. And what's the matter? In 1984, O'Melveny & Myers, IBM v. NCR, NCR Comten. Q. And which -- for which party did you perform analysis in that matter? A. Q. report? matter? A. So I think -- the answer to your question, IBM. And what was the nature of your expert Did you submit an expert report in that I think, is no, I did not submit an expert report, which is why it's not on the prior testimony and depositions, because I didn't -- and I don't recollect that I was deposed in that case. fuzzy. 1984 was a while back. That's But I did submit a report, but I don't recollect that it in that matter at that time rose to the level of an expert report Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 111 11:52:13 11:52:16 11:52:19 11:52:22 11:52:23 11:52:24 11:52:29 11:52:31 11:52:34 11:52:41 11:52:43 11:52:50 11:52:53 11:52:57 11:53:04 11:53:08 11:53:10 11:53:13 11:53:14 11:53:15 11:53:16 11:53:16 11:53:21 11:53:25 11:53:29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -- right, so I submitted a report. I may have just been a consulting as opposed to a testifying expert in that matter. fuzzy. Q. Sure. What was the nature of your I'm just -- it's a little engagement in that matter, as far as what was the subject matter of your engagement? A. The subject matter was whether or not NCR Comten had used IBM software in a product. Q. involved? A. In both instances it was an assembler What was the set of programming languages language which was peculiar to the device that each of the companies had manufactured. I think the It was an assembler language, it wasn't -- sorry. assembler language that was peculiar -- that had been written for the hardware under which these were both operating. Q. A. Q. A. Do you remember the name of the device? Sure. What was it? Well, there -- the IBM device was a -- the That was number, model number, whatever, was 3705. the hardware platform. And the software was a NCP stands for Network software program called NCP. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 112 11:53:34 11:53:40 11:53:46 11:53:49 11:53:52 11:53:56 11:54:00 11:54:02 11:54:05 11:54:08 11:54:13 11:54:16 11:54:16 11:54:18 11:54:21 11:54:25 11:54:30 11:54:34 11:54:38 11:54:45 11:54:48 11:54:52 11:54:53 11:54:59 11:55:04 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Control Program. The NCR Comten device was, I think, the Comten -- I think it was the Comten 10. You'd think with a marketing department, they could come up with something cleverer than that, but it was the Comten 10. And the language was -- I forget SSP maybe. what the software was actually named. Software Support Program, I think, was what it was called for the Comten device. I'm 50/50 confident about that. I had -- that's -But it was written in an assembler language which was written specifically for that Comten device. Q. A. Q. Sure. Or that Comten hardware family. Were you directed to look for protected expression in copied material in that matter? A. Well, those were -- it was a little different environment then, so the assignment that I was given was to compare at a side-by-side level the software which had been written for the IBM 3705 NCP program and the Comten SSP program. I'm just going to use SSP, knowing that it might not be exactly the right language, but I think it was something like that. So comparing the IBM NCP program to the Comten SSP program on a side-by-side basis. I guess probably before that was to do a Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 113 11:55:07 11:55:10 11:55:15 11:55:17 11:55:24 11:55:31 1 2 3 4 5 6 function-to-function comparison, then do a code comparison, and then to produce -- that was the comparison that I did on the code. It wasn't necessarily -- it wasn't necessarily to identify protected expression so much as to identify areas where there were similarities. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 114 TEXT REMOVED - NOT RELEVANT TO MOTION 11:56:32 11:56:35 11:56:38 11:56:44 11:56:45 11:56:59 11:57:02 11:57:04 11:57:07 11:57:10 11:57:11 11:57:17 11:57:18 11:57:22 11:57:24 11:57:26 11:57:28 11:57:32 11:57:35 11:57:35 11:57:42 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. But you did not perform abstraction filtration comparison in that matter? MR. FUCHS: THE WITNESS: question. Objection; form. That's an interesting So I It's -- I never thought about that. don't recollect it having been called abstraction filtration comparison. I think it might even have been before the time that abstraction filtration comparison case that we referred to. But the reality is it probably was kind of an abstraction filtration comparison process, really is what happened. So, you know, it wasn't a formal one. It wasn't identified as such, but in a sense, it may have been kind of an abstraction filtration comparison process. MR. POLITO: Q. Sure. And how did you know, then, what to exclude if we sort of analogize it to what we would now call abstraction filtration comparison? A. So just -- I think that the attorneys working with IBM informed me that there were certain Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 115 11:57:48 11:57:53 11:57:56 11:57:59 11:58:02 11:58:05 11:58:07 11:58:09 1 2 3 4 5 6 7 8 aspects of the Comten software that I didn't need to pay attention to or didn't need to worry about, except in a very narrow sense I needed to worry about it, but at some level not have to worry about it too much. I know that's not a very clear answer. But there were some aspects of it not to worry about, except in a narrow sense and then other aspects to pay more attention to. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 121 TEXT REMOVED - NOT RELEVANT TO MOTION 12:06:43 12:06:45 12:06:48 12:06:53 22 23 24 25 Q. Other than the two matters that we've just discussed, have you ever in your capacity as an expert performed analysis regarding copyright infringement? Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 122 12:07:03 12:07:05 12:07:06 12:07:07 12:07:08 12:07:23 12:07:24 12:07:28 12:07:33 12:07:35 12:07:39 12:07:40 12:07:41 12:07:44 12:07:46 12:07:47 12:07:49 12:07:52 12:07:54 12:07:55 12:08:00 12:08:04 12:08:08 12:08:09 12:08:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. it's -Q. A. Let me just quickly go through. I mean, Sure. It will take a couple minutes. (Pause.) THE WITNESS: So I think what you've asked me to do is identify -- well, so, yeah, let me ask, did you ask me to identify matters in which I was asked to do some copyright infringement even if it was not necessarily the central theme? you're asking me? MR. POLITO: Q. To clarify, I'm not Is that what asking whether you were instructed to infringe someone else's copyright. I'm asking whether you were instructed to determine whether there was copyright infringement or performance of the functionality in that matter. A. Well, let me give you an example and see if this is responsive to what it is you're asking. In the matter on the top of Page 6, the first matter is -- the attorneys are Cooley Godward, and the question is Leader v. Facebook. Q. A. I see it, yes. Now, without disclosing too much about that case, because it's an active case, the -- Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 123 12:08:14 12:08:20 12:08:24 12:08:30 12:08:36 12:08:40 12:08:43 12:08:46 12:08:49 12:08:50 12:08:52 12:08:52 1 2 3 4 5 6 7 8 9 10 11 12 Leader has obviously accused Facebook of some patent infringement, and an issue has arisen with respect to copyright as well. And so I have been asked -- I was asked to look at -- I was asked to deal with some copyright issues with respect to a copyright issue that has arisen not necessarily as the central theme, but as the -- as another theme that has arisen, I guess is the best way to say it. So is that what you're asking me; are there any other matters like that? Q. A. Yes. Okay. TEXT REMOVED - NOT RELEVANT TO MOTION 12:09:06 12:09:09 24 25 A. So the Cooley Godward matter, I think some CNET v. Etilize -- copyright issues have arisen. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 124 12:09:20 12:09:22 12:09:24 12:09:26 12:09:28 12:09:32 12:09:35 12:09:38 12:09:40 12:09:40 12:09:42 12:09:45 12:09:49 12:09:55 12:09:56 12:09:57 12:09:58 12:10:02 12:10:04 12:10:06 12:10:08 12:10:09 12:10:12 12:10:21 12:10:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's in the middle of the page on Page 6 -copyright issues arose. Q. Okay. Before we move any further, since there might be a couple of these, can you tell me whether you actually performed any -- excuse me -either abstraction filtration comparison or code analysis as part of the copyright issues that you helped to address? A. Q. Sure. And I don't know if you're comfortable saying that in the Facebook case, but.... A. Well, in the Facebook case, we did not get to code, so these are -- this is a -- it's not code. Q. A. Q. A. Great. I'll leave it that. Yeah. In the Etilize -- the CNET v. Etilize case, there was code analysis. Q. A. Q. Related to the copyright issue? Related to an issue of copyright. Can you explain what your distinction is between copyright issue and an issue of copyright? A. So during -- I'm trying to make a -So what I -- I think So what happened determine what can I say here. what I -- I think I can say that. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 125 12:10:24 12:10:28 12:10:35 12:10:40 12:10:41 12:10:43 12:10:44 12:10:52 12:11:00 12:11:06 12:11:11 12:11:14 12:11:16 12:11:19 12:11:25 12:11:28 12:11:31 12:11:33 12:11:36 12:11:40 12:11:44 12:11:47 12:11:48 12:11:49 12:11:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is, during the patent -- I was hired -- I was retained by CNET as their expert in -- for invalidity and for infringement, or for validity and infringement. Q. A. Sure. Patent infringement. And what Patent infringement, correct. had -- what was discovered is that Etilize -- that CNET ended up discovering that Etilize might have copied a database schema and used it as their own. So the question arose whether that -- whether to pursue a copyright issue there or whether it was a trade secret issue or what had happened. copyright arose in that matter. It is a -- it is a trade secret issue that has -- I think is being -- I think is being tried here soon. It's not on my list because I have too So much other things to do, and I'm not going to be an expert in that -- in the -- or not going to testify at that trade secret case, but it's being tried soon. So copyright arose, turned out to be a trade secret issue as opposed to copyright, but -- so it arose there. Q. Did you have any engagement in analysis related to the question of whether to pursue a copyright issue in that case? And I'm asking a yes Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 126 12:11:54 12:11:56 12:11:57 12:11:59 12:12:02 12:12:06 12:12:10 12:12:14 12:12:18 12:12:21 12:12:23 12:12:27 12:12:28 12:12:29 12:12:30 12:12:34 12:12:36 12:12:44 12:12:58 12:13:00 12:13:03 12:13:04 12:13:09 12:13:11 12:13:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or no question, if you don't mind. A. Q. So ask it again. Sure. Were you involved in the analysis of determining whether to pursue a copyright infringement claim in the CNET case? A. I would not consider my activity to have been -- the activity that I performed was not to make a determination as to whether or not to use -to do a copyright or a trade secret case, no. The work that I did might have been involved in some of that, but I wasn't personally involved in it. wasn't -Q. A. Q. Okay. Mm-hmm. Are any of the other cases in this CV that Thank you. I we're reviewing cases in which there was a copyright issue arose, and then when we identify those, we'll talk about the details. And I'm sorry to interrupt you. Before we move on, are you -- are you personally involved in any of the copyright-related activity in the Facebook matter? A. Q. A. No, I don't -- no, I'm not. Thank you. I don't know where it stands, but I'm not Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 127 12:13:14 12:13:16 12:13:17 1 2 3 doing anything. way. Q. I'm not active; let's put it that Thank you. TEXT REMOVED - NOT RELEVANT TO MOTION 12:15:28 12:15:31 12:15:36 12:15:38 12:15:40 12:15:41 20 21 22 23 24 25 Q. So the Facebook issue in 2009 that's an active matter, the CNET issue in 2008 as to which there are active matters, but you're not participating? A. That's correct. I think it became -- like I say, I think it became a theft of trade secrets or Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 128 12:15:47 12:15:48 12:15:51 12:15:55 12:15:57 12:15:58 12:16:01 12:16:03 12:16:06 12:16:09 12:16:09 12:16:14 12:16:15 12:16:17 12:16:18 12:16:21 12:16:23 12:16:26 12:16:28 12:16:31 12:16:34 12:16:38 12:16:41 12:16:44 12:16:45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a -- yeah, something like that. Q. case, yes? A. Q. That seems to me to be right, yes. And in only the two matters that we Right. And then the MathWorks and the IBM discussed at length, MathWorks and IBM, did you perform any analysis relating to copyright; is that correct? A. Q. A. Q. Well, I don't think that's right. Okay. I mean -- no, I don't think that's right. Okay. How -- which other matters on those -- of those four did you perform analysis related to copyright? A. Well, I think I've performed analysis I didn't perform -- copyright related to copyright. was not the central issue, but there would -- but copyright issues arose, and so I did some -- perform some analysis related to copyright, potential copyright assertions or accusations and so on. did do some analysis, but I mean -Q. So in the CNET case, did you perform any So I code comparison? A. Q. Yes. Did you perform any abstraction filtration Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 129 12:16:47 12:17:01 12:17:08 12:17:11 12:17:14 12:17:16 12:17:21 12:17:25 12:17:27 12:17:34 12:17:37 12:17:39 12:17:43 12:17:46 12:17:50 12:17:53 12:17:58 12:18:01 12:18:04 12:18:07 12:18:09 12:18:10 12:18:11 12:18:14 12:18:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comparison? A. I believe -- I believe that I performed The question is did we abstraction and comparison. ever get to the point of -- did we ever get to the filtration piece in there, and I guess I'd have to say that to the extent that I did, it was trivial or not very serious. differently. It wasn't a full -- let me say it I never performed a full abstraction filtration comparison effort in the CNET v. Etilize matter with respect to copyright issues that arose during the litigation of this patent infringement. Q. And is it -- did you say that in the CNET issue, it was only a database schema that was at issue, as far as the copyright goes? A. Well, it was database related, not nec -Database related. I not exclusively the schema. think what they -- I think what I said was that they discovered the lifting of a schema, but that led to a whole bunch of other stuff that they didn't think was at issue, and that's why -- that's how it started. But yeah, there was a lot of database-related issues. Q. So did you perform analysis as to the schema itself? A. Yes. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 198 TEXT REMOVED - NOT RELEVANT TO MOTION 14:36:42 14:36:43 14:36:51 14:36:55 14:36:57 14:36:59 14:37:02 14:37:05 14:37:10 14:37:12 14:37:15 14:37:17 14:37:21 14:37:25 14:37:30 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. licensing? A. Mr. Gray, are you an expert in software I wouldn't -- you know, I don't have -The the experience -- let me say it differently. experience that I have had with software licensing has been to some extent in the negotiation of licenses, to some extent in the definition of licensed content, in some -- to some extent in trying to make sure that groups that were working for me or that I was working with were abiding by licenses and so on. So I've had experience with licenses, but I don't think that I -- that that qualifies me as a -- I don't think that that expertise rises to the level of being able to opine on licensing matters per se. I don't think so. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 209 TEXT REMOVED - NOT RELEVANT TO MOTION 14:52:02 14:52:03 14:52:06 14:52:07 14:52:12 14:52:17 14:52:20 14:52:22 14:52:24 14:52:27 14:52:31 14:52:34 14:52:37 14:52:41 14:52:45 14:52:47 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Are there any other areas in which you would hold yourself out as an expert that we haven't discussed? MR. FUCHS: THE WITNESS: Objection; form. Well, I have fairly broad range of expertise in the software -- is this just a general question, just generally? MR. POLITO: A. Q. (Nods head.) I have quite a bit of expertise in 35 years of -- or so, maybe a little more -- of effort in the software development industry. So there's a number of areas where I'm -- where my experience can be brought to bear in analyzing the reports and helping interpret it for a jury. So I think there are a number of areas where my expertise would be applied. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 213 TEXT REMOVED - NOT RELEVANT TO MOTION 14:57:55 14:57:56 14:57:59 14:58:06 14:58:09 14:58:11 14:58:15 14:58:17 14:58:20 14:58:21 16 17 18 19 20 21 22 23 24 25 MR. POLITO: Q. Would you agree that your experience relates more to the design of software than to the development of software? MR. FUCHS: THE WITNESS: Objection; form. Well, so you really are asking -- I think what you're asking -- the way you asked that question leads me to ask you, then, what you mean by "development." I don't know how to -- I wouldn't have teased that out. MR. POLITO: Q. Let's hypothesize that Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 214 14:58:23 14:58:25 14:58:27 14:58:31 14:58:33 14:58:35 14:58:38 14:58:40 14:58:43 14:58:45 14:58:47 14:58:50 14:58:52 14:58:57 14:59:01 14:59:02 14:59:03 14:59:04 14:59:05 14:59:07 14:59:08 14:59:09 14:59:09 14:59:11 14:59:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there's a development practice by which someone creates a functional specification and perhaps a technical specification, then someone else implements the technical and/or functional specifications. Would you agree that your experience is more in the matter of developing functional and technical specifications rather than in the matter of implementing technical and functional specifications? MR. FUCHS: Objection; form, compound, incomplete hypothetical. THE WITNESS: So using your definition of "implementation," which I -- does that include tests as well, or is it ended -- or does test in there -MR. POLITO: Q. Let's keep tests separately for a minute. A. program -MR. FUCHS: THE WITNESS: MR. FUCHS: THE WITNESS: programming. Objection. Sorry. Go ahead, Josh. Okay. So you're really talking about Same objection. I think you're talking about When you say "implementation," you're really talking about programming? MR. POLITO: Q. Sure. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 215 14:59:13 14:59:15 14:59:21 14:59:25 14:59:29 14:59:32 14:59:35 14:59:37 14:59:40 14:59:47 14:59:51 1 2 3 4 5 6 7 8 9 10 11 A. Okay. All right. So my latter experience over the last few years has more to do with analyzing source code and designing systems and software than it does with programming, over the last -- over the last few years. Q. years? A. I think certainly since I have been And "last few years," are we talking ten involved -- I'd say since -- at least since the mid '90's. So what's that; 15 years? Yeah. Goodness. Fifteen years, jeez. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 224 TEXT REMOVED - NOT RELEVANT TO MOTION 15:29:14 15:29:15 15:29:17 23 24 25 Q. Mr. Gray? A. Did you analyze the Titan source code, I remember looking at some Titan source Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 225 15:29:22 15:29:23 15:29:26 15:29:30 15:29:32 15:29:34 15:29:36 15:29:37 15:29:40 15:29:41 15:29:45 15:29:48 15:29:52 15:29:55 15:29:57 15:29:59 15:30:00 15:30:02 15:30:05 15:30:06 15:30:07 15:30:09 15:30:12 15:30:13 15:30:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 code. Q. A. Did you analyze it? In -- when you say an -- the term "analyze the source code" could mean a, you know, pretty broad range of things. What did you mean when you say did I analyze the source code? Q. Did you, for instance, try to determine how it worked? A. There were certain parts of it that I There were some tried to determine how it worked. aspects of the Titan source code that I looked at to determine how it worked. I don't -- I don't know if that's completely responsive, but -- so yes, I determined how some parts of it worked. Q. sorry. A. Did you perform your analysis -- I'm Were you finished? I was going to say I looked at it to I was just determine how some parts of it worked. trying to be complete. Q. Did you perform analysis independent of the analysis performed by Mr. Funck and his associates? A. Q. Yes, I did. And are -- is that analysis reflected anywhere in your report? Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 226 15:30:17 15:31:26 15:31:28 15:31:31 15:31:37 15:31:44 15:31:48 15:32:34 15:32:41 15:32:42 15:32:44 15:32:48 15:32:52 15:32:56 15:32:58 15:33:02 15:33:15 15:33:17 15:33:20 15:33:23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (Pause.) THE WITNESS: I don't -- I'm trying to I don't recollect if I made any reference to it. see that I have cited to it, to my analysis of the Tit -- of any aspects of the Titan source code. don't know that I've cited to any body of Titan source code. I can't remember. So while I remember I looking at some Titan source code, I must not have relied on it. MR. POLITO: Q. So your conclusion in 9.5.3, you're relying on a single log file to arrive at that conclusion? A. I've cited to the one log file, and I believe that's what I'm relying on for the conclusion that is contained in Section 9.5.3. Q. A. And you're not relying on any source code? I don't cite to it, so I must not have I mean, it must be that the log file relied on it. is all I relied on for the conclusion that I drew here. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 229 TEXT REMOVED - NOT RELEVANT TO MOTION 15:37:44 15:37:45 15:37:52 15:37:54 15:37:58 15:38:02 15:38:07 15:38:10 15:38:13 15:38:15 15:38:19 15 16 17 18 19 20 21 22 23 24 25 Q. That's fine. How did you decide whether a document should be on this list or not? A. I think it's -- the qualification is whether I considered it or relied on it in the development of my report, with probably a bias towards over-inclusion. By that I mean with a bias towards -- if there was a document that I may or may not have considered very carefully or that was cumulative to some other document that was on there, I think it -- the list should reflect -- have a bias towards over-inclusion, meaning that it should Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 230 15:38:22 15:38:24 15:38:30 1 2 3 reflect documents, even though there may be some cumulative aspect of -- or -- but I don't -- and -no, that's -- that's sufficient. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 238 15:56:34 15:56:35 15:56:38 15:56:43 15:56:43 15:56:46 15:56:47 15:56:53 15:56:57 15:57:01 15:57:03 15:57:06 15:57:09 15:57:11 15:57:16 15:57:19 15:57:23 15:57:25 15:57:27 15:57:29 15:57:31 15:57:40 15:57:47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. So would you agree that there's no way for anyone to determine which of the Exhibits 1 through 1,880 you actually considered in creating your report? MR. FUCHS: THE WITNESS: Objection; form. I don't know that -- I don't know of a way other than to -- I mean, these are exhibits to depositions. The depositions refer to the plaintiffs' exhibits, and I've read -- there's a lot of depositions that I've read, and so one way to get a better feel for it would be based upon the depositions that I've read, which point to the plaintiffs' exhibits, which would give some indication of which of the files I had opened or read or not, and so on. That would be a better But way -- that might be a way to approximate it. even at that, I don't think it's going to be conclusive, but it would be a way of getting closer to understanding that. MR. POLITO: Q. Did you consider every deposition that you list in your Appendix 3? A. I read some or all of -- I said -- read some or all of each of these depositions, yes. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 239 TEXT REMOVED - NOT RELEVANT TO MOTION 15:58:53 15:58:54 15:58:57 15:59:02 15:59:05 15:59:08 15:59:12 19 20 21 22 23 24 25 MR. POLITO: Q. And is there any way to tell which exhibits you relied upon as opposed to considered? A. Probably, I think, that it would be -- it would be true -- at least it's my intent -- to have identified exhibits relied upon actually in the body of the report, would be my intent. Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 250 TEXT REMOVED - NOT RELEVANT TO MOTION 16:14:54 16:14:57 16:14:59 16:15:03 16:15:10 16:15:12 16:15:16 16:15:20 16:15:23 16:15:26 16:15:29 14 15 16 17 18 19 20 21 22 23 24 Q. Does your report contain or refer to all data and other information that you considered in forming your opinions in your report? MR. FUCHS: THE WITNESS: Objection; form. Well, of course I have relied on my own experience and background in addition to the information that is in the report in the forming of my opinions which are contained within the report. But other than that, I believe and intend that the report contains the information that I have relied on. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 3bd0cbad-690a-40c7-9e67-f2bf11d5a79d STEPHEN GRAY HIGHLY CONFIDENTIAL ~ June 8, 2010 ATTORNEYS' EYES ONLY "~~ Page 313 1 1 declare under peDalty of perjury, under the law$ of the United States, that the forego true and correcto Subscribed at is 2 3 1 5 ~ t.--AI-f A 12t)1.{..I..\- , California, this I (? t:!Y da y o f - . . . \ ( / /..- '::/.. 2 O1 O. 6 7 8 9 10 11 12 13 14 15 16 ~-oOo--- 17 18 19 20 21 22 23 24 25 Merrill Legal Solutions (SOO) 869-9132 3bdOcbad-690a-40c:7 -9967 f2bf11 dSa7! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C E R T I F I C A T E OF REPORTER 1 , N a t a l i e Y. B o t e l h o , a C e r t i f i e d Shorthand Reporter, hereby certify that the witness i n t h e f o r e g o i n g d e p o s i t i o n w a s b y me d u l y s w o r n t o t e l l the truth, the whole truth, and nothing but the truth in the within-entitled. The s a i d d e p o s i t i o n was taken down i n shorthand by me, a d i s i n t e r e s t e d person, a t the time and place therein stated, and that the testimony of said witness was t h e r e a f t e r reduced to typewriting, b y c o m p u t e r , u n d e r my d i r e c t i o n a n d s u p e r v i s i o n ; That before completion of the deposition r e v i e w o f t h e t r a n s c r i p t [X] w a s l [ ] w a s n o t requested. I f requested, any changes made by the deponent (and provided to the reporter) during the period allowed are appended hereto. 1 f u r t h e r c e r t i f y t h a t 1 am n o t o f c o u n s e l or attorney for either or any of the parties to the s a i d d e p o s i t i o n , nor i n any way i n t e r e s t e d i n the e v e n t o f t h i s c a u s e , a n d t h a t 1 am n o t r e l a t e d t o any of the parties thereto. DATED: J u n e 1 7 , 2 0 1 0 N a t a l i e Y. B o t h o , CSR N o . 9 8 9 7

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