Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Filing 86

Letter from Rohit K. Singla to Hon. Marilyn Hall Patel Regarding the Deposition of Ms. Nicole Hamilton. (Attachments: # 1 Affidavit of Rohit K. Singla)(Singla, Rohit) (Filed on 12/19/2008)

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GLENN D. POMERANTZ (SBN 112503) [e-mail] BART H. WILLIAMS (SBN 134009) [e-mail] KELLY M. KLAUS (SBN 161091) [e-mail] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Tel: [phone]; Fax: [phone] GREGORY P. GOECKNER (SBN 103693) [e-mail] DANIEL E. ROBBINS (SBN 156934) [e-mail] 15301 Ventura Boulevard, Building E Sherman Oaks, California 91403-3102 Tel: [phone]; Fax: [phone]

ROBERT H. ROTSTEIN (SBN 72452) [e-mail] ERIC J. GERMAN (SBN 224557) [e-mail] BETSY A. ZEDEK (SBN 241653) [e-mail] MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard Los Angeles, California 90064-1683 Tel: [phone]; Fax: [phone]

Attorneys for Defendants/Counterclaim-Plaintiffs/Plaintiffs COLUMBIA PICTURES INDUSTRIES, INC., DISNEY ENTERPRISES, INC., PARAMOUNT PICTURES CORP., SONY PICTURES ENTERTAINMENT, INC., SONY PICTURES TELEVISION INC., TWENTIETH CENTURY FOX FILM CORP., NBC UNIVERSAL, INC., WALT DISNEY PICTURES, WARNER BROS. ENTERTAINMENT, INC., UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP, UNIVERSAL CITY STUDIOS LLLP, AND VIACOM, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA REALNETWORKS, INC., et al., Plaintiffs, vs. DVD COPY CONTROL ASSOCIATION, INC., et al. Defendants. AND CONSOLIDATED ACTIONS. CASE NO. C 08-4548-MHP Consolidated with Case No. C 08-04719-MHP DECLARATION OF ROHIT K. SINGLA REGARDING DEPOSITION OF NICOLE HAMILTON

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SINGLA DECLARATION RE: MS. HAMILTON CASE NO. C 08-4548 MHP

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I, Rohit K. Singla, declare: 1. I am an attorney duly licensed to practice in the State of California and in the

United States District Court for the Northern District of California. I am a partner in the firm of Munger, Tolles & Olson LLP ("MTO"), counsel of record for the Studio Defendants in this litigation. The following facts are within my personal knowledge. I would be competent to testify to the facts stated herein if called to do so. 2. We have been unable to schedule the deposition of one of RealNetworks's former

employees, Ms. Nicole Hamilton, even though she confirmed to me in three separate phone conversations that she was willing to sit for a deposition in Seattle or San Francisco, on almost any day between December 9 and 19. 3. We decided to depose Ms. Hamilton based on the documents produced by

RealNetworks. The documents indicate that she was the sole employee at RealNetworks responsible for registering with and obtaining a CSS License for RealNetworks from the DVD CCA. It appears also that she was charged with understanding the CSS License's requirements and how to comply with those requirements. For example, she organized a meeting to discuss various provisions of the CSS License with the developers at RealNetworks. Over the past week, multiple RealNetworks' employees have claimed in depositions not to remember anything about that meeting. 4. On December 3, in an effort to schedule Ms. Hamilton's deposition, my colleague

Rebecca Lynch and I called her. We introduced ourselves as lawyers for the Studio Defendants in this litigation. We first asked her whether she was represented by a lawyer, either her own or a RealNetworks lawyer. She said that she was not represented by any counsel and that she was, in fact, not on good terms with RealNetworks. She said that she had been fired by RealNetworks and told to clear out her office without any notice. She said she had no desire to speak to RealNetworks or its counsel. 5. Ms. Hamilton was very cooperative and willing to discuss RealNetworks' efforts

to develop RealDVD and the "new platform." We told her, however, that we did not want to discuss anything of substance outside the presence of Real's counsel. She said she understood.
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SINGLA DECLARATION RE: MS. HAMILTON CASE NO. C 08-4548 MHP

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When she later started discussing her time at RealNetworks, I cut her off and reminded her that we did not want to discuss anything substantive outside the presence of RealNetworks' counsel. She again said she understood. We never spoke to Ms. Hamilton about anything substantive. 6. Ms. Hamilton readily agreed to sit for a deposition in Seattle or San Francisco (if

we paid her airfare) on any day between December 9 and 19. She asked if she could be paid for her time at the rate she charges consulting clients. I told her that I understood the inconvenience and burden of a deposition and that we were willing to pay her travel expenses, but that we could not pay her for her time. She said she understood and agreed to appear for a deposition even if she was not paid for her time. 7. That same day, December 3, we informed RealNetworks' counsel by phone and

email that we wished to depose Ms. Hamilton. 8. Later that day, I called Ms. Hamilton back and spoke with her for two minutes. I

proposed December 9 for a deposition, and she agreed. We left the location open, but I assured her that if the deposition was in San Francisco either the defendants or the parties together would pay for her travel expenses. Later that evening, Ms. Hamilton left me a voicemail message saying that she was wondering about retaining her own counsel. 9. On the morning of December 4, I returned Ms. Hamilton's call and spoke with her

for about 10 minutes. I confirmed that she remained available on December 9, as well as December 10-19, if we needed to reschedule. She said she was generally available. She then asked if she needed her own counsel. She had someone in mind, with whom she already had a personal and professional relationship. I told her that she was free to retain counsel if she wished, but I could not advise her one way or another. She asked if we would pay for her counsel, and I said that would not be appropriate. She said that she understood. I mentioned that another alternative was an informal conversation outside of the deposition context -- but in the presence of RealNetworks' counsel. She said she would consider that option. 10. Later that morning, I informed counsel for RealNetworks by email and voicemail

that we had scheduled Ms. Hamilton's deposition for December 9. I asked if they would be willing to split her transportation costs if the deposition were in San Francisco.
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SINGLA DECLARATION RE: MS. HAMILTON CASE NO. C 08-4548 MHP

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11.

On December 5, Mr. DiBoise, counsel for RealNetworks, sent me an email,

claiming to represent Ms. Hamilton and demanding that we cease speaking with her. He insisted that she would not appear for a deposition until and unless two of the studio defendants complied with RealNetworks' demands for production of Rule 30(b)(6) witnesses on 28 topics each. Based on Mr. DiBoise's representations, we served a subpoena on Wilson Sonsini that afternoon seeking Ms. Hamilton's deposition on December 9. 12. Counsel for the Studio Defendants have not attempted to speak with Ms. Hamilton

since Mr. DiBoise's claim that his firm represented her. 13. On Monday, December 8, I received a call from Mr. Peter Chu of the Christensen

O'Connor Johnson Kindness firm in Seattle. Mr. Chu claimed that he represented Ms. Hamilton, and not Mr. DiBoise's firm. He would not tell me whether RealNetworks or its counsel had selected him to represent Ms. Hamilton or whether they were paying his fees. He admitted, however, that he had no prior relationship with Ms. Hamilton. He asked that any subpoenas for Ms. Hamilton be served on him. 14. I had many email and phone conversations with Mr. Chu over the next week in an

effort to schedule the deposition. He said that she would not appear for a deposition until January at the earliest. The only reasons he gave were that Ms. Hamilton was unemployed and had a job interview on December 16. Mr. Chu informed me on the phone that he himself was available. We served multiple subpoenas for Ms. Hamilton's deposition on Mr. Chu and offered to depose her anywhere, anytime, including any day between December 9 and 17. 15. Ms. Hamilton failed to appear in response to any of our subpoenas for depositions

on dates (December 9, 16, and 17) on which she had assured me and Ms. Lynch in our telephone conversations that she was available. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 19th day of December 2008, at San Francisco, California. /s/ Rohit K. Singla Rohit K. Singla -3SINGLA DECLARATION RE: MS. HAMILTON CASE NO. C 08-4548 MHP