Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 175

Declaration of Patrick C. Doolittle in Support of Memorandum in Opposition to Motion for Preliminary Injunction (Re-filed pursuant to order dated 9/10/2010) filed byFusion Garage PTE. LTD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Doolittle, Patrick) (Filed on 9/16/2010)

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Interserve, Inc. et al v. Fusion Garage PTE. LTD Doc. 175 A r .; Dockets.Justia Michael Arrington Highly Confidential - Attorneys' Eyes Only UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION INTERSERVE, INC., dba TECHCRUNCH, a Delaware corporation, and CRUNCHPAD, INC., a Delaware corporation, Plaintiffs, Vs. FUSION GARAGE PTE. LTD, a Singapore-company, } } } } } } }No. 09-CV-5812 RS } } Defendant. } VIDEOTAPED DEPOSITION OF INTERSERVE, INC. dba TECHCRUNCH MICHAEL ARRINGTON Redwood Shores, California Tuesday, April, 20, 2010 HIGHLY CONFIDENTIAL -- ATTORNEYS'-EYES ONLY REPORTED BY: JAY W. HARBIDGE, CSR NO. 4090 U.S. Legal Support 888-57-5-3376 df7382ae-5017-4df9-880e-802c222b99cb Michael Arrington Highly Confidential. - Attorneys' Eyes Only Page 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 THE WITNESS: The first meeting I had with Chandra was, I believe, in --- I believe in October, although there's some email evidence to mail the date down. At that meeting, we, Chandra La d I, agreed that -the only way to work together was merger of the entities. In particular, I was concerned -- excuse me --- T was concerned that -- Fusion Garage had a different product that they were in the middle of creating and that our partner needed to be completely focused on the CrunchPad project. And he agreed that that was aconcern. And so at that meeting we agreed that we needed to combine these entities to make sure that we were all working towards one goal and the same goal. That arrangement, that agreement, never 1 IQ 17 18 19 changed until November of 2009. BY MR. STERN: Q. question. Okay. Move to strike. That was not my h 20 21 22 23 24 25 My question was, the specific agreement referred to in the last sentence of paragraph 31 on page 6 where, again, you say that the parties agreed, quote, "that each would bear its own losses of time, energy and money if the project was not U.S. Legal Support 888-575-3376 df7382ae-50174 df9 -880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 86 1 successful, and to share the profits if it was," 2 3 4 5 6 7 close quote, when was .that agreement reached? And I'm looking for a date. MR. BRIDGES: Objection, vague and ambiguous, asked and answered. THE WITNESS: The problem was that Fusion Garage had a messy cap table, and that was the primary reason why we didn't combine the companies, the assets, right from the start. In the meantime, while Chandra was -working to clean up his cap table, we had a general working relationship where he would continue to pay 7in particular payroll for the Fusion Garage employees and many of the expenses that gent to third parties. We would cover some of them in 8 9 10 11 12 13 14 15 16 17 particular when they needed the money. That was an ongoing relationship that we operated under the entire time while working towards merging the entities. BY MR. STERN: Q. Okay. But my question was -- again, i 18 19 20 21 22 23 24 25 moving to strike what you just said, my question was -- I'm looking for a date -- can you tell me the date that you and anybody on behalf of Fusion Garage reached an agreement where each of the parties, U.S. Legal Support 888-575-3376 df7362ae -509 7-4df9 - 080e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes-Only s Page 87 1 2 3 9 5 6 7 namely Fusion Garage, CrunchPad and TechCrunch, would bear its own losses of time, energy and money if the project was not successful and to share the profits if it was? MR. BRIDGES: Objecti-on, asked and answered, vague and ambiguous. THE WITNESS: I don't feel comfortable 8 9 1 [opining on legally when an agreement was in place. BY MR. STERN: Q. Well, when, if any time? Can you tell r 0 11 12 3 14 15 16 17 18 19 me the date on which you had any conversation with anybody at Fusion Garage where you or the person at Fusion Garage made the statement that--each would bear its own losses of time, energy and money if the project was not successful, and to share the profits if it was? MR. BRIDGES: Objection, argumentative. R You may answer. THE WITNESS: BY MR. STERN: Q. Can you tell me who --- well, first of N-o. 20 21 22 23 24 25 all, did you make the statement to Mr. Rahthakrishnan that the parties would bear their own losses of time, energy and money if the project was not successful but would share the profits if it U.S. Legal Support 888-575-3376 df7382ae-5017-4df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only. Page 107 1 2 3 4 BY MR. STERN: Q. Does the JooJoo solve the core CPU issue that you identified? MR. BRIDGES: Objection, lacks t 5 6 7 foundation and competence and vague and ambiguous. THE WITNESS: I don't know. BY MR. STERN: Q. Does the JooJoo solve the capacitance I haven't held a JooJoo. 8 9 10 11 touch issue which you mentioned? MR. BRIDGES: THE WITNESS: Same objections. I'm not aware because I 12 3 14 15 16 17 18 19 20 21 22 23 24 25 .:..w,r-++.wr.F. L. haven't had the product. If you have one and wantto give me some time with ..it, I would be happy to answer those questions. BY MR. STERN: Q. Does the JooJoo satisfy or solve t-he b Flash issue that you mentioned? MR. BRIDGES: THE WITNESS: product. I don't know. Same objections. I have not held the I BY MR. STERN: Q. Can you tell me who is the supplier, who is the manufacturer of the JooJoo? MR. BRIDGES: c ,..-rv.^-....c.Fxss. ^. .a... a ..- Objection, lacks _,. _s,+.y_.. ,.. _.,.uv .:s:... ...... .,..=r.R.. r..ur.acs..-, ..^-.r,.:...cn,..,.... ,, , aM U.S. Legal Support 888-575-3376 df7382ae - 56i 74df9-880e-802c222b99cb Michael Arrington Highly Confidential. -- Attorneys' Eyes On Y Page 115 1 began working together shortly thereafter. I don't recall the exact date. I 3 4 5 BY MR. STERN: Q. Is it your testimony that the date that you met Chandra is the date that you entered into the partnership agreement with him? MR. BRIDGES: Objection, argumentative, 6 7 s 9 calls for a legal conclusion, vague and ambiguous, misstates testimony. THE WITNESS: BY MR. STERN: Q. I'm not asking about necessarily. -Is Not necessarily. 1,0 II . 12 13 14 15 that possibly the date-? Are you saying that it's possible that the partnership agreement-was entered into the date you met Chandra? A. Not -MR. BRIDGES: THE WITNESS: forming legal conclusions. BY MR. STERN: Same objections. I'm just not comfortable 16 17 18 19 20 21 Q. I'm not asking about legal conclusions; I'm asking about what your understanding was. Was it your understanding that you entered into a partnership with Mr. Rahthakrishnan on'the first day you met him? 11 U.S.-Legal Support 888-575-3376 dt7382ae-5017-4df9- 880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 116 1 MR. BRIDGES: Objection, argumentative, 2 3 4 calls for a legal conclusion, vague and ambiguous and misstates testimony. THE WITNESS: I feel like I've answered 5 6 7 this question multiple times. BY MR. STERN: Q. You can answer it. MR. BRIDGES: BY MR. STERN: Q. It's not your job to object, Same objections. 8 9 1f 11 12 13 14 15 Mr. Arrington; it's your lawyer's job. So the question is, did you enter into a partnership with Mr. Rahthakrishnan the first day you met him? MR. BRIDGES: Excuse me. I would like to have the court reporter rerea-d Mr. Arrington's last answer. (Record read.) MR. BRIDGES: 20 21 That's a fair answer. BY MR. STERN: Q. Same question. MR. BRIDGES: THE WITNESS: Same objections. I'm not comfortable 22 23 24 25 Eforming legal conclusions. BY MR. STERN: rlul2?:k U.S. Legal Support 888-575-3376 df7382ae - 5017-4df9 - 880e-802e222b99cb Michael Arlington Highly Confidential - Attorneys' Eyes Only r Page 117 Q. 2 3 I'm not asking about your comfort level; Dial you and 3 I'm asking you a factual question. Mr. Rahthakrishnan agree on the first day that you met each other that you would have a partnership? 5 6 7 MR. BRIDGES: Objection, calls for a legal conclusion, vague and ambiguous. THE WITNESS: the question. BY MR. STERN: Q. A. conclusions. What's the answer to the question? I'm not comfortable making legal I believe I've answered 8 9 to 11 12 13 14 15 16 17 18 Q. All= right. Can you tell me any date on which you -and Mr. Rahthakrishnan entered into a partnership agreement? MR. BRIDGES: Objection, argumentative, calls for a legal conclusion, vague and ambiguous and assumes facts-not in evidence. THE WITNESS:" We began working together as a team within a few weeks after I first met him. Again, I think there's emails to suggest the exact date. BY MR. STERN: Q. I understand when you first began Is it your testimony that when ^^,^-^^....,^,..,.,.,: I 19 20 21 22 23 24 25 working together'. .:^.^,:.Y^;:,^zF.:r.^k^,:^:. m^..,n^^^..,.4^.,.,v,.^ ,^^.^.:.^,,^:.......H..:..^.:,a,...,,.aw>.^W-.,^..,^.:tx^..^.-v:<^.^..KR^^r U.S. Legal Support 888-575-3376 df7382ae-5017-4df9-880e-802e222b99cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Wage 118 1 you first began working together, a partnership was formed? MR. BRIDGES: 'Objection, calls for a legal conclusion. THE WITNESS: I'm not comfortable [forming legal conclusions. 2 3 4 5 7 8 BY MR. STERN: Q. I want to make it clear, I'm not asking 9 10 11 12 13 14 15 about your comfort level;' I'm asking you to answer the question. Do you know the answer to the question about whether or not when you first met him or when you first started working with M-r. Rahthakrshnan a partnership was-formed in your mind? MR. BRIDGES: Calls for a legal 16 17 18 19 conclusion, vague and ambiguous. THE WITNESS: We began working together as a team almost immediately and worked very closely together throughout the next year.' BY MR. STERN: Q. Did you intentionally misrepresent to S 20 21 22 23 24 25 the Court that you, on behalf of TechCrunch and CrunchPad, entered into an agreement with Fusion Garage pursuant to which a partnership was formed? MR. BRIDGES: 1-1 Objection. Where did he U.S. Legal Support 888-575-3376 df7382ae-5017-4df9-880e-802c222b99cb '-Michael Arrington Highly Confidential -- Attorneys' Eyes Only Page 120 1 calls for a legal conclusion, vague and ambiguous. And for you to suggest that Mr. Arrington has committed perjury, Mr. Arrington, is reprehensible. THE WITNESS: perjury? MR. BRIDGES: THE WITNESS: BY MR. STERN: Q. Is it your belief that a partnership Yes. I did not commit perjury. He suggested I committed 2 3 4 5 6 7 6 .. 9 10 .11 12 agreement exists between Fusion Garage, TechCrunch and CrunchPad? MR. BRIDGES: Asked and answered, legal 13 14 15 16 17 18 19 conclusion, vague and ambiguous. THE-WITNESS: forming legal conclusions. I'm not comfortable BY MR. STERN: Q. Did you and Fusion Garage ever form an agreement to share profits? MR. BRIDGES: ambiguous, argumentative. THE WITNESS: forming legal conclusions. BY MR. STERN: Q. Did you and Mr.. Rahthakrishnan ever talk I'm not comfortable Objection, vague and 20 21 22 23 24 25 about sharing-profits? ,..!, - ^ 1-1- -1, -.14 U.S. Legal Support 888-575-3376 df7382ae-5017-4d(9 - 880e.802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 133 1 THE WITNESS: answering that. Yes, I'm not comfortable 2 3 BY MR. STERN: Q. Well, I don't care if you're comfortable My question is, does TechCrunch or 5 6 7 with it. CrunchPad believe that the intellectual property of this-company belongs in whole or in part to TechCrunch or CrunchPad? MR. BRIDGES: Objection, calls for a 8 9 10 11 12 13 19 15 16 17 18 legal conclusion, and to the extent it calls for any attorney-client, the content of any attorney-client privileged communications, I'll instruct him not to answer. MR--STERN: You can answer. THE WITNESS: Did you switch back to I just CrunchPad from the adverti.sing'company? didn't understand the question. BY MR. STERN: Q. 19 No. 'You didn't have the name of this You want to call it "Bingo"? 20 21 advertising company. A. Sure. 22 23 24 25 Q. Okay. So with respect to Bingo -Well, excuse me. I want MR. BRIDGES: to object. Mr. Arrington just asked a question about your question, and you've changed a different U.S. Legal Support 888--575-3376 df7382ae -5017 - 4df9-880"02c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 134 1 part of it. I suggest, Mr. Stern, you reread your last question and his answer and then reformulate the question. 2 3 4 MR. STERN: I'm not reformulating the question; I'll reask it. If he-doesn't want to 6 7 answer my question -- the record's plain here about S what the questions are. BY MR. STERN: 8 9 10 11 12 13 19 15 1 16 17 18 19 Q. The.question is, does TechCrunch or CrunchPad believe that this--third-party advertising company that you mentioned has intellectual property that's owned in whole or in part by either TechCr-unch or CrunchPad? MB.. BRIDGES: Objection, calls for a And to legal conclusion, may call for legal advice. the extent that it asks for knowledge based upon legal advice, I would instruct you not to answer, to that extent only. THE*WITNESS: legal conclusions. BY MR. STERN: Q. A. I'm not asking about legal conclusions. Well, you asked about ownership of, I'm not comfortable making 20 21 22 23 24 intellectual property. ..Q. ^^x^n. -,.rs.uu..,. ^_^:ar>.-:::a...s=s.:s,s>.v..c,a:t, 25 And the question is, does TechCrunch rewna-ar.: . ' ,:..swuxwessa.-a . e.,,.^.vn^xu. s..avncxc.^'aF-X'A'AXk s '.40CJi! i9i.^Y.rfYnw'RiYVUx.%.^.iWCV.9c...:aw. U.S. Legal Support 888-575-3376 df7382ae-5017 . 4df9-880e-802c222b99eb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 136 1 2 3 9 ambiguous, unintelligible, calls for a legal conclusion, foundation, competence. BY MR. STERN: Q. Let's start with patents. Can you tell K 5 6 7 me what patents are associated with the JooJoo that TechCrunch or CrunchPad claims it owns? MR. BRIDGES: Objection, lacks 8 9 10 11 12 13 14 15 6 17 18 , 19 20 21 foundation, competence, legal conclusion. BY MR. STERN: Q. You can answer. ME- A. conclusions. Q. I'm not comfortable making legal x Can you tell me what patentable inventions_._...are associated with the JooJoo that TechCrunch or CrunchPad claims it owns in whole or in part? MR. BRIDGES: Objection, lacks foundation, competence, calls for a legal conclusion. I THE WITNESS: drawing legal conclusions. BY MR. STERN: Q. I'm not comfortable 22 23 24 25 Can you tell me what features or aspects of the JooJoo are either intellectual property or proprietary rights of TechCrunch or CrunchPad? M.^.AV.s.HdeY. SYw.6.'m.^M 3Y ..*t+.Gi.'CP'i. Fn. RtCy {a^ . R ^FFt. rl.'tl .'^^^3.xn.. SS. w . Y*L aA' ^4sisa.YCdltaRix6 !Y ^^ua :}..^._^nins:..-n :+. f.-.av.aT.^SwYYSiE. a l iacSS VX^ .^'X. U.S. Legal Support 888--575-3376 07382ae - 5017-4df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only . MR. BRIDGES: Objection, lacks foundation, competence, calls for a legal conclusion, compound. BY MR. STERN: A. conclusions. Q. I'm not comfortable making legal Can you de-scribe to me any aspect of the JooJoo software or hardware that is owned in whole or in part by either TechCrunch or CrunchPad? MR. BRIDGES: Objection,-foundation, competence, legal conclusion. THE WITNESS: legal conclusions. BY MR. STERN: Q. Can you tell.me any aspect of the JooJoo I'm not comfortable making operating system that is owned in whole or part by either TechCrunch or CrunchFad? MR. BRIDGES: Objection,'vague and ambiguous, potentially calls for a legal conclusion and foundation and competence. THE WITNESS: legal conclusions. BY MR. STERN: Q. Can you tell me any property at all that I'm not comfortable making U.S. Legal Support 888-575-3376 df7382ae-5497-4df9- 680e -602c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 138 1 2 3 4 Fusion Garage or anybody associated with Fusion Garage appropriated or took from TechCrunch or CrunchPad? MR. BRIDGES: Objection, vague and 5 ambiguous, calls for a legal conclusion, foundation competence. R 7 THE WITNESS: legal conclusions. BY MR. STERN: Q. I'm not comfortable making Can you tell me any feature of the JooJoo that was contributed to in whole or in part by either TechCrunch or CrunchPad? 13 14 15 16 17 18 19 20 21 22 23 24 25 - MR. BRIDGES: Objection, foundation,' competence in part, and vague and ambiguous. But you may answer. THE WITNESS: We -- obviously the project, CrunchPad project began before Fusion Garage entered the picture. It began with our initial post in July with progress from there through the various prototypes. Once Fusion Garage did enter the picture and started working with us, we worked collaboratively as a team. There was no difference between what we were doing and what they were doing. They were in our office working with us directly, U.S. Legal Support _ 888--575-3376 df7382ae-507 7-4df9- HOe-802c222b99cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Page 139 1 mixing and mingling with my employees. It was a 'purely --- an awesome collaborative project where we were working together constantly. Decisions were made at high levels, 2 3 9 5 6 7 8 9 10 11 12 13 4 passed through me; low-level suggestions were made, passed right back up, and it was kind of how the product was developed. BY MR. STERN: Q. Can you tell me the high-level i suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage? No, let_ me change that question. Can you please list for me all the high-level suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage where those high-level suggestions were proprietary rights of TechCrunch or CrunchPad? MR. BRIDGES: legal conclusion. THE WITNESS: forming legal conclusions. BY MR, STERN: Q. Can you tell me the high--level Yes, I'm uncomfortable Objection, calls for a 15 16 17 16 19 20 suggestions that were made by anybody at TechCrunch 25 or CrunchPad to anybody at Fusion Garage? U.S. Legal Support 888-575-3376 df7382ae-50174df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 149 1 that. s 2 3 BY MR. STERN: Q. So what were the terms and conditions of your agreement with Mr.. Chandra about what you could 5 6 7 write about and what you couldn't write about? MR. BRIDGES: Objection, argumentative, vague and ambiguous, assumes facts not in evidence. THE WITNESS: We didn't get to that 9 10 11 12 13 14 15 16 17 1s 19 level of detail. Q. Ah. MR. BRIDGES: I move to strike the colloquy. BY-MR. STERN: Q. - Just so I'm understanding, is there anything in writing, any agreement that you had with Mr. Rahthakrishnan, that limited or controlled your discretion in determining what you were going to publicly disclose about-the CrunchPad while it was in process? MR. BRIDGES: Objection, argumentative, 20 21 22 23 24 25 vague and ambiguous, assumes facts not in evidence. THE WITNESS: There are a couple of occasions where I've talked to Chandra about what I 1 might want to disclose. And we had conversations and, as cofounders of the entity, made agreements U.S. Legal Support 8887575-33-76 df7382ae-5017 -4df9-880e -802c222b89cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 150 i 2 that maybe we shouldn't write as much as I wanted to. So his input was very much taken into account 3 4 when I wanted to make public statements about the CrunchPad. BY MR. STERN: 6 7 Q. So you took his statements into account; is that right? 8 9 10 11 12 13 14 15 16 17 A. Q. I mean, we made decisions together. Would there be emails that would reflect these decisions that were made together? A. Q. I don't know. The fact that the CrunchPad was supposed to boot directly from the browser, that was something that you published; is that right? MR. BRIDGES: Objection, vague and. ii ambiguous, misstates testimony. BY MR. STERN: Q. A. You can answer. ..I believe -- I believe in my very first 18 19 20 21 post I wrote that I would like for a device to boot directly to a browser. Q. You didn't believe that was proprietary 22 23 24 or confidential information, did you? A. conclusions. . re.^xesac.w. ^ses .u 1x:.sscs:.m I'm not comfortable making legal N 25 ^a..a^c-;srvxesia:sm-rnaz^ranrvsiansaw_.c.-^...rsx:^e.s r.,:xz;Famus. U.S. Legal Support 888-575-3376 df7382ae-5017-4df9- 8800 -8020222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 158 A, 2 3 4 5 6' 7 B and C that show screens, and screens by definition have aspect ratios as two-dimensional objects. Q. Can you tell me, what was the operating system for the CrunchPad? A. Q. It was a Linux-based operating system. Is the JooJoo's operating system Linux based? MR. BRIDGES: 10 11 12 Objection, lacks foundation and competence. THE WITNESS: I'm not sure. MR. BRIDGES: Really, if you want to, I haven't held a JooJoo. 1 13 14 15 16 17 18 19 2 21 22 23 24 25 give him_a JooJoo and have him answer these questions. You've. asked him many, many questions I'm giving you foundation and ab.out the JooJoo. competence objections for a reason. If you would like to -MR.-STERN: I think the record is clear that the witness has alleged--appropriation and has never seen, t-ouched, felt or has any other input about what a JooJoo is. I'm thrilled with that answer. I'm good. We can move on. And the lawsuit was filed MR. BRIDGES: before the JooJoo was shipped. U.S. Legal Support 888-575--3376 df7382ae - 501 74df9-880e - 802c222b99cb Michael ArriDgton Highly Confidential - Attorneys' Eyes Only . 1 2 3 4 5 6 Page 187 (Deposition Exhibit 5 marked for identification.) BY MR. STERN: Q. You see Exhibit 5 is an email from Ms. to Mr. Rahthakrishnan. Harde -- that's H-a-r-d--e Do you see that? A. Yes. 7 Q. 9 10 11 12 13 14 15 16 17 18 19 correct? And it's dated October 29th, 2-008, S A. Q. A. Q. Yes, yes. And you've seen this email before? Probably., Okay. Do you see that it refers to the fact that Ms. Harde is commenting to Mr. Rahthakrishnan that she is in receipt of his cap table? A. Yes. x x Q. And do you see it also says that she is Do you expecting to receive bios-of team members. see this?. A. Q. Yes. 20 21 22 23 24 25 As of October 29th, 2008, did Fusion Garage and TechCrunch form any sort of agreement to create a partnership for the Crunch'Pad product development? ..k-6ti.+^."^'= 6a.2N5.1 ^.Y.iS .W^YY31'.FWOrr+.G^?.'.s^+'^a1'n::rr.,rtsi`z..sF 33^T .. xKSrssaiAnsr. LU.WU'AVaea U.S. Legal Support 888-575-3376 df7382ae - 5017Adf9 -880e-802c2z2b89cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 188 MR. BRIDGES: 2 3 4 5 Objection, calls for a legal conclusion, vague and ambiguous. THE WITNESS: legal conclusions. BY MR. STERN: I'm not comfortable making 6 7 8 9 10 11 12 13 14 Q. That is to say, you're not comfortable saying when an agreement -- when a partnership agreement started"? MR. BRIDGES: Objection, legal conclusion, vague and ambiguous. BY MR. STERN: Q. A. -a question. conclusions. Q. Do you.-believe there was a partnership You can answer the question. The question -- I'm-not even sure it wasI'm not comfortable making legal 15 16 17 18 19 20 21 22 23 24 25 between Fusion Garage and TechCrunch? MR. BRIDGES: Objection, legal conclusion -- I think we've been over that -- asked and answered. THE WITNESS: legal conclusions. BY MR.'STERN: Q. But you're comfortable telling the Court I'm not comfortable making when the partnership was aborted; is that correct? U.S. Legal Support 888-575-3376 df1382ae-5017 - 4df9 - 860e-8 G 2c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes-Only Page 190 1 2 3 9 5 6 7 Q. Okay. So my question is, you feel comfortable telling His Honor when the partnership was aborted, correct? MR. BRIDGES: vague and ambiguous. THE WITNESS: I feel comfortable with Objection, argumentative, what I've written in paragraph 25. BY MR. STERN: Q. So can you-tell me, so you will agree 8 9 10 11 12 13 14 15 16 17 18 19 2 21 22 23 29 25 with me that you believed there was a partnership between Fusion Garage and TechCrunch, correct? A. I'm not comfortable -MR. BRIDGES: Objection to the extent it calls for a legal conclusion, vague and.ambiguous. THE WITNESS: drawing legal conclusions. BY MR. STERN: Q. I'm not comfortable with you drawing I'm trying to find out, I'm not comfortable legal conclusions, either. could you tell me, sir, and tell the Court, why it is you're comfortable explaining when a partnership ended but not explaining when a partnership was t created. MR. BRIDGES: vague and ambiguous. - Objection, argumentative, i a U.S. Legal Support 888-575-3376 dff382ae-5017-4df9-880e-802c222b99cb - Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 192 1 BY MR.. STERN: 2 3 4 Q. So but in all events, can you answer my e rquestion? It's why is it that you felt comfortable lling the Court in paragraph 25 when a partnership ded but not telling me when a'partnership mmenced? MR.-BRIDGES: Objection, legal 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conclusion, asked and answered- vague and ambiguous, argumentative. THE WITNESS: BY MR. STERN: Q. A. Q. There's a question pending. I don't have an answer. I appreciate that. I appreciate the I don't have an answer.- candor that you don't have an answer. MR. BRIDGES: colloquy. BY MR. STERN: Q. Can you tell me, sir, since you answered Move t-o strife the 3 this question, the document that's reflected as Exhibit 3, did you pen this document? Did you author it? MR. BRIDGES: Objection. To the extent it encroaches upon attorney-client privilege, I'm going to instruct him to that extent to limit his U.S. Legal Support 888-575-3376 df7382ae-5017-4df9-880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys'-Eyes Only Page 193 .1 answer. 2 3 THE WITNESS: Based on attorney-client privilege, I'm not comfortable answering that at 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 all. BY MR. STERN: Q. Again, I want to make it clear, I'm Did you write this asking the following question: document? MR. BRIDGES: And just to be clear, did he originate every word in that document; is that what you're asking? MR. STERN: That's the first question. BY- MR. STERN Q. document? A. No. Did you originate.every word in that _ Q-document? Did you author any of the words in this MR. BRIDGES : be no, I'll leave that. THE WITNESS : MR. BRIDGES : going to object. THE WITNESS: BY MR. STERN: I think that's going to 20 21 22 23 24 Pardon? I'll leave that. I'm not Yes. 25 U.S. Legal Support 888_-575-3376 df7382ae-5097-4d(9-BOOB-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 196 1 2 3 9 it to mean more in that particular paragraph. Q. So if you look at paragraph -- page 2, paragraph four, you testified, and the record will reflect this,'that you understood that when you used the word "partnership," it meant at least there 6 would be a collaboration between you and Fusion Garage. If you look at paragraph four you 7 8 9 10 1 state, "In late September 2008, the parties agreed to collaborate on the project." Do you see that? A. Q. Yes. So do you believe that in late September 2 13 14 15 16 17 18 19 20 21 22 23 29 25 2008 you and Fusion Garage agreed to a partnership? MR. BRIDGES: Objection to the extent it calls for a legal conclusion, vague and ambiguous, asked and answered. THE WITNESS: legal conclusions. BY-MR. STERN: Q. Just so we're clear on this subject, you I'm not comfortable making cannot identify any date when you believe TechCrurrch and CrunchPad and Fusion Garage first entered into a partnership? MR. BRIDGES: Objection, calls for a legal conclusion, asked and answered. ^.:a+.r::tro^t:w.^:czveuyi s:w^^-iiirs-^fz..^.- -:,^x+w asa.^n .^'+L- x U.S. Legal Support 888--575-3376 df7382ae-5017 - 4df9 - 880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 203 1 2 3 4 would -- you know, that we would pay him and that he would perform duties in connection with CrunchPad. Q. A. Did you pay him?. I would have to guess that we did, but 5 6 7 I'm not sure. l i Q. Let me see if I understand. You don't know whether Mr. Monier was either an employee or contractor.of CrunchPad, right? 9 A. on that. Q. I'm not comfortable making a conclusion 10 11 12 13 14 Yes. And you don't know whether he was an employee or contractor of TechCrunch, right? A. Correct. Q. And you don-'t know whether he was paid 15 16 by anybody, right? A. I don't directly pay employees, so I have no direct knowledg-e of that. 18 19 Q. And you don't know- what, if any, he contributed to this particular TechCrunch project -I'm sorry, CrunchPad project, right? MR. BRIDGES: ambiguous. THE WITNESS: He drove the second T 20 21 22 23 24 25 Objection, vague and prototype of the product, which was a large step forward from the first prototype. He worked with P. U.S. Legal Support 888-57573376 df7382ae-50974df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 204 hardware providers here in California and with 1 Fusion Garage in Singapore and brought the product 3 4 5 6 7 to another .level. a bit. BY MR. STERN: So I would say that he did quite Q. And was there any form of compensation Mr. Monier was supposed to get if the Crun:chPad project reached a certain leve1? MR. BRIDGES: Objection, vague and 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ambiguous. . THE WITNESS: At that point we were talking about, you know, who was the founding team of CrunchPad,- and Louis was on that .list, as was Chandra and others, me and Heather I think in particular. Later Louis backed out and he was no longer on that list . in CrunchPad . So it would have been equity v It would have been the compensation, in addition to the salary. BY MR . STERN: Q. Did you have an, agreement with Mr. Monier that in exchange for his services he was going to get an equity position in CrunchPad? MR. BRIDGES : Objection, vague and F ambiguous. U.S. Legal Support, 888-575-3376 df7382ae-50I74 df9-880e -802e222b99cb .Michael Arrington Highly Confidential.- Attorneys' Eyes Only Page 205 1 THE WITNESS: I'm just not comfortable 2 3 4 making legal conclusions on what an agreement might or might not be. BY MR. STERN: Q. I want to make it very clear. We're 5 6 7 going to move to compel on this "I'm not comfortable." Witnesses are not here to tell me They either have an 8 9 10 11 12 13 14 15 16 17 1s -19 20 21 what they're comfortable about. answer to a question or not. My question is, was there an agreement that you had with Mr. Monier .where he was going to receive some sort of equity position in CrunchPad for-the services he provided?' MR. BRIDGES: ambiguous. You can answer , but it' s vague and Objection, vague and r ambiguous. W. THE WITNESS: "I just -- if you -- group of founders putting together a project, work on the project at the same time they work-on financing and everything else? Eventually everything's paperworked, usually right around the financing. You do everything at once. It's easier. You don't waste legal time in the meantime. So if you're talking about a written v:aw^yrvz^- 22 23 24 25 U.S.-Legal Support 888-575-3376 df7382ae-5017-4df9-880e-802c222b99cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Page 211 BY MR. STERN: 2 3 4 Q. Okay. So is Mr. Monier in a position to say he too is a partner of Fusion Garage? MR. BRIDGES: Objection, vague and _5 ambiguous and may call for a legal conclusion. THE WITNESS: Yes, that really does call 6 7 for a legal conclusion on the investing of stock and the way stock is handled with founders and f employees. I'm not in a position to answer that. 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 L BY MR. STERN: Q. Let me ask you this: How is CrunchPad -in a different position than Mr. Monier is in? I mean, let me see if I can wrap'this in'. You believe that CrunchPad was a collaborator of Fusion Garage, correct? MR. BRIDGES: Objection, misstates 1 a testimony, vague and ambiguous. BY MR. STERN: Q. Yes or no? - A. question. No_ I'm trying to remember the "Do you think CrunchPad was a collaborator with Fusion Garage?" Yes. Q. And you think that Mr. Monier was a collaborator with Fusion Garage on the CrunchPad project, correct? SF{ Hd:1^}:iC4":ilbirt'^^WAJaa^si U.NXt4C9L'aC4ugYiCiWYSLOfti4PGGYa. L'RiASF?`Y::-2'.VI.K<^)dc 'SM sl^c2lst^fA^:^'T ` `-ta U.S. Legal Support 888--575-3376 dt7382ae-50 7-4d0-880e-802c222b99cW Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 212 1 MR. BRIDGES: Objection, vague and 2 ambiguous. THE WITNESS: Yes. 9 5 6 7 8 BY MR. STERN: Q. And in this case CrunchPad is claiming that as a result of its collaborative efforts certain obligations are owed by-my client, Fusion Garage, to CrunchPad, right? MR. BRIDGES: Objection, assumes facts not in evidence, vague and ambiguous. THE WITNESS: I'm prepared to answer. EBY MR. STERN: 19 15 16 17 18 19 20 21 22 23 29 25 Yes, that's not a.-.question Ni Q. A. You don't know? Rephrase the question or restate the y question, please. Q. You said you read the complaint in this case before it was filed, right? A. Q.. I did say that, yes. Okay. You're aware of the fact that CrunchPad is claiming in this case that it is a fiduciary of Fusion.Garage, correct? MR. BRIDGES: Objection. THE WITNESS: I would have to be referred to the documents. Which document? 1? U.S. Legal Support 888--575-3376 df7382ae -5017-3df9- 8800-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 213 1 BY MR. STERN: Q. A. Q. A. Q. It's Exhibit 2. Exhibit 2? Yes. Which page? Start at page 15. Do you see this claim 2 3 9 5 6 7 for breach of fiduciary duty? A. Yes. Look on page 16. Do you see paragraph 9 10 11 Q. 79 says that defendant breached its fiduciary duties to TechCrunch? Do you see that? A. Q. Yes. Well, you believe that defendant was a _ 12 13 19 15 16 17 18 19 20 21 22 23 24 25 fiduciary of TechCrunch, right? A. This seems to be a legal conclusion you're asking me to draw. Q. Well, but you're a lawyer, right? MR. BRIDGES: Objection, he is not here- I in the capacity as a lawyer. Don't wave me--off, Mr. Stern. I'm entitled to make the objection. MR. STERN: MR. BRIDGES: You can make your objection. But stop waiving your hand in my face. So the objection is based on a legal conclusion. He's here testifying as a percipient witness, not as a member of the bar, not-as an U.S,. Legal Support 888-575-3376 &7382ae-5017-409-880e-802c22209cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Wage 214 1 2 3 4 'i expert witness. BY MR. STERN: Q. A. Are you still a lawyer? How do you define a lawyer? I'm no n , 5 6 7 s 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 longer a member of the State Bar of California. suspended my license this year. Q. didn't you? A. Q. don't. I did pass the Bar. And you understand that -- maybe you You did pass the Bar at some point, Let me ask you this: Ts it your understanding that partners owe each other fiduciary duties? MR. BRIDGES: Objection, calls for a legal conclusion, argumentative. BY MR. STERN: Q. A. Lc nclusions. Q. Do you understand that? I'm not comfortable making legal I don't care about what you're I want to make.that clear. r comfortable with making. .The question stands, if you have an understanding or not. If you want to say under oath that you have no K t understanding, say it. Do you have an understanding that U.S. Legal Support 888-575-33T6 df7382ae-5017 -4d9.880e -802c222b99cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Page 215 partners owe each other fiduciary duties? 2 3 4 MR. BRIDGES: I'm going to object that it calls for a legal conclusion, but you may answer the question. 5 6 7 THE WITNESS: It's my understanding that I'm not here to answer questions about whether or not something is -- what its definition is.under the law, and I've hired counsel to do that and represent me in that. BY-MR. STERN: Q. A. question. Q. You're refusing to answer the question? Are you refusing to answer the question?I'm not comfortable answe.ring that s 9 10 11 12 13 14 15 16 17 Your counsel is not instructing you not to answer, so this is a decision you're making on your own. I'm asking the question, do you -understand that partners under California law owe each other fiduciary responsibilities? -MR. BRIDGES: may answer. THE WITNESS: drawing legal conclusions. BY MR. STERN: I'm not comfortable Same objection, but you 18 19 20 21 22 23 24 25 Q. V m not asking for a legal conclusion; rr t^W.^s a+hti^a. 2. ,ai^t. ^e .^.-s'-vfNSS.i i.. ^r.... rK.+. J ti^:^ mf^tiFY.` q -ri A ilCt^ ..aree>=..sA.n+.'rt wrt%9.rA.1.w'^ii^iis^'^11::^^Sav'.Y.v^a-.. `. n. ^i^^. net i.aMt^..m.41Jrw, ^..5 U.S. Legal Support 888-575-3376 W7382ae-5017 4df9.880e-802c 222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 216 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1-9 20 21 22 I'm asking for your understanding. I'm asking what's inside your own mind. Is it your understanding -- you're not providing legal advice. The question is, is it your understanding, Mr. Arrington, that partners owe each other fiduciary responsibilities? MR. BRIDGES: conclusion. You may answer. THE WITNESS: I'm not comfortable answering the question. MR. STERN: We're moving to compel on Same objection about legal R this whole area of not comfortable. The witness is evading an answer. I want to snake it clear, Andrew, you're not instructing him, so this is clearly a witness-driven evasion and we're going to move on this. MR. BRIDGES: No. Well, first of all I move to-strike the colloquy, but I'm going to respond, which is, this is a witness who is here trying to testify forthrightly, accurately and A carefully. You have been repeatedly trying to take 23 24 him into territory that is the subject of l.e.gal analysis by the litigators on the case- You're asking him questions that call for legal 25 df7382ae - 5017-4df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes -Only A. Q. Sometimes. Okay. Now, I want to ask you a question Do you know what a about no-shop provisions. no-shop provision is? A. Q. Uh-huh. What do you understand the no-shop provision to be? MR. BRIDGES:" You need to say yes or no, by the way. . THE-WITNESS: Yes. BY MR. STERN: Q. What do you understand the no-shop provision to be? A. - Generally speaking, it is a clause that says that during certain periods of time you're not shopping your company; you-'re not looking for other partners, buyers, etcetera. Q. Take a look at paragraph seven on page of Exhibit 7 and read that to yourself? MR. BRIDGES: If you're going to ask him questions about the document, I want to make sure he's familiar with the document in its entirety. THE WITNESS: BY MR. STERN: Q. You understand that this no-shop Okay. U.S. Legal Support 888--575---3376 df7382ae-5037-4df9- 880"02c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 230 1 2 3 4 5 b 7 provision has a 60-d.ay window, right? A. Q. This clause has a 60-day window. Why did CrunchPad offer Fusion Garage a no-shop provision that was only 60 days long? A. My guess, and this is a guess because I did not draft this document, but my strong guess is that this was a form that Heather used and she didn't take it out. Q. out? A. The idea was get something over for them . What does that mean, she didn't take i t s 9 10 11 12 13 14 15 16 17 18 19 20 .21 22 23 24 i h :to look at. MR. STERN: If there was a concern about the no-shop and it being something real, we would have -- you know, if we were really concerned about them leaving or something breaking down, we would have had them sign this or something. I mean, we would have been concerned that was something was done,. you know, to protect us legally in.that.sense. Q. Take a look at the email at the top of 01 1 Exhibit 7. It says: "Attached for your review is our letter of intent to acquire Fusion Garage." Do you see that? A. Uh-huh. 25 U.S. Legal Support 888-575-3376 df7382ae-5017- 4df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 233 1 2 3 4 you and Mr. Rahthakrishnan had reached an agreement that Fusion Garage would take an eight percent equity ownership in CrunchPad as part of the merger; is that right? A. I think it's more complicated than that. i 0 5 6 7 You know, there's vesting provisions and taking on some debt, etcetera, which certainly is part of the purchase price.. But roughly speaking, yes, eight percent is- the number we are talking about. Y 11 12 13 14 15 16 17 18 19 20 21 Q. Well, what I'm asking is, was this a proposal or had there been an agreement reached as of this date? A. But very likely we had I don't recall. come to agreement verbally or in person with him before we would have sent something like this over. Q. Well, I'm asking you, do you know as the corporate designee for the topics that were identified today, do you know whether or not on December 18th an agreement had been reached? MR. BRIDGES: Objection, vague and - 22 23 24 25 w.:vs^nron-.rms ,x. ambiguous. THE WITNESS: I'm not comfortable using r defining the word "agreement." In my eyes, yes, LO we had come to an agreement, but not in a legal -wer.. os^.e.-^c :^v^wria^u,.--- _ r .. max. y_ . _.,z, ^._-_ . rs;rr vum^a^vr.-rszsmrvs:a7sasm,^.ma, .^-,--.. . U.S. Legal Support 888-575-3376 df7382as-5017 - 4df9- 880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 234 1 I'm not making a legal conclusion here. But yes, we had come to an agreement. 2 3 4 5 6 7 8 9 10 11 12 13. 14 .. 15 16 17 However, we were concerned about their cap table. We were concerned about a number of issues that needed to be cleared up before we were going to do any kind of deal with them. So those needed to be cleared up. BY MR. STERN: Q. So yo-U believe that on December 18, 2008 you and Fusion Garage had reached an agreement, whether it was tentative or otherwise, that Fusion Garage would receive an eight percent equity interest in CrunchPad, right? A. We had a meeting of the minds around theh combination of the entities. Q. And the number was eight percent? MR. BRIDGES: testimony. THE WITNESS: As I've--said, it's a more Objection, misstates the 18 19 20 2L ti complicated deal than that. BY MR. STERN: Q. Well, the financial terms are identified 22 23. 24 25 in paragraph two; is that correct? A. Q- Correct. And those are the terms that you claim nk U.S. Legal'Support 888-575--3376 df7382ae - 5417 - 4df9-880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 263 1 2 3 4 5 6 7 to? Q. No. I'm asking you a question. You can tell me that you don't remember. It's entirely up to you. A. The question stands. I have no recollection of that. Didn't you in fact tell Mr. -A. In fact, I was disappointed that he s 9 10 .11 12 13 14 15 would even suggest that. ^E brought'-- the next time Chandra was in our office, I brought both Nik and Chandra into our office -- those two clearly had an issue with each other - and the three of us talked about this issue. issues. And I was very specific about the n I said, "You guys need to work together." I was very open about this. Q. In fact, on August 17th, 2009, Mr. 16 17 18 Cubrilovic suggested to you that you poach Fusion Garage employees, you asked to speak to him about the subject, and then on August 18th, a day later, he repeated his suggestion to you; isn't that right? A. Q. A. I need to see what you're referring to. I'm just asking you, do you_ recall it? Absolutely not. MR. STERN: Next in order. [ 19 20 21 22 23 24 25 (Deposition Exhibit 9 marked for identification.) n ^: marsr. 4+ ^.wiv . a.. x+wLrm ^ .+v .a., s n,aa ASAP v..x^as croua ^..i.o ^3A':%f^vxpr +^ ^^^F^.^:r::r_;:k F^vsx. - U.S. Legal Support 888-575-3376 df7382ae-50174df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 264 1 2 3 4 5 6 7 BY MR. STERN: Q. This is a document that was produced.to us by TechCrunch. It's an email that's been authored in part by you and by Mr. Cubrilovic. MR. BRIDGES: Move to strike the characterization of the document. MR. STERN: BY MR. STERN: Q. Looking at the bottom of the page, the Well 8 9 lower 40 percent of the front page, do you see where 11 12 13 14 15 16 17 18 -19 20 21 22 23 24 it says August 17th, 2009 at 9:02 a.m.? A. Yes. "Nik Cubrilovic wrote." that? A. Q. Yes. Now, you see that he's writing that to Do you see you; is that right? A. Q. -Yes. Okay. And in it, he says: - "Have you spoken to Chandra in the past few days? Just want you to know what he does doesn't know so far." Do you see that? Do you see what I'm reading? A. i.?.. ' iIFJr ti lF.h'^ ^aS^K3 ': 25 Y.`^H F(f^.^rl Xifdll-i 7 ;ea Yes. uYSaX..P.OtlII4f. w. "^W P'1nY.M^-!.1/.cYtcN ' ^td" t^..a^R'8H Y.F.atiwFaa U.S. Legal Support .888-575-3376 W7382ae -5017 4 df9-880e -802c222b99cb Michael Arrington Highly Confidential Attorneys' Eyes Only Page 265 1 2 3 9 5 6 7 . 8 9 Q. Okay. Do you see when he says, "Just want to know what he does doesn't know so far"? A. Q. I don't know what that means. He says: If you let me run with this, I'll meet with him tomorrow, and between his recently found frankness, my new contacts in the Singapore government and the loca- VCs/ investors I have met, I am sure I can get this all back on track." Do you see that? A. Yes. 10 11 12 13 14 Q. Okay. He's talking about getting something back on track as of August 17th, 2009. Do you see that? A. Q. No. What part are you reading.. from. now? 15 16 17 16 19 20 21 Just what I just read. He's talked about getting this all back on track. Do you see ..that? A. Q. Yes. And so Mr. Cubrilovic was telling you 22 23 24 25 that something was not on track before August 17th, 2009, correct? A. Q. :.aPS%:ii #i-c1r7.^Al ?>i\tti1MN^3^d^. NM " 4 Repeat your question. You understood that Mr. Cubrilovic was U.S. Legal Support 888-575-3376 df7382ae -5017 -4df9 - 880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 266 1 2 3 4 telling you that something was not on track? A. Q. Yes. And he continues and he says: "I can get everything here in Singapore to the point where it is all prepped so we are really to pull the trigger, come back there, meet you with guys, work out what we are going to do, and then decide if we either do nothing or proceed under a new form with," and he says, "new.Singapore company, CrunchPad with a1 parent company in the U.S., debt raised from government/local investors, Fusion Garage team) under that company new and trimmed up, shop the hardware, spec around, find a new role for Chandra," right? That's one option. two is: "We kill the project and Fusion Garage Then it goes, option s 6 7 s9 10 11 12 -13 14 is 16 17 18 19 20 also dies. His talk about raising money to do it himself--I think is highly unlikely." Do you see that? A. Yes. 21 22 23 24 25' Q. his guys, And then option three is, run it ourselves." Do you see that? "We just poach 4 I U.S. Legal Support 888-575-3376 df7382ae-5097.4df9 - 880e-802c222b99cb . Michael Arrington . Highly Confidential -- Attorneys' Eyes Only Page 267 1 A. Q. Yes. And that was something that your agent, 3 4 5 6 7 I don't know if he was an employee or contractor, was telling you, correct? A. Q. A.. Q. Yes. Is that right? Yes. And on August 19th, you responded to s 9 10 11 12 1 3.. 14 15 16 1'7 18 that with the following statement: "If you're around, let's discuss this." Do you see that? A. Q. Uh-huh. Now, you didn't tell him in this email,- you shouldn't even be thinking this, right? MR..BRIDGES: THE WITNESS: email, no. BY MR. STERN: Q. A. -Q. Did you fire Mr. Cubrilo Cubrilovic, no. Cubrilovic. When he made these Objection, argumentative. I did not s-ee that in this 19 2 21 22 23 24 suggestions to you that you should poach the employees of your partner, you didn't fire him? A. Q. v: V K^ IFisS's^:GKNi4C5'M' i No. Did you send him back anything in 25 U.S. Legal Support 888-575-3376 df7382ae-5017-4df9 - 880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 268 1 writing that suggested that under no circumstances should we even consider stealing employees from Fusion Garage? 2 3 4 5 6 7 A. Q. I don't recall. Then on the 18th, which is just before you sent your message, unless there's a time shift because ---do you know if Mr. Cubrilovic was in the United States or in Singapore when he was writin g this? A. Q. I do not know. He says, "Quick update on the rest of my 8 9 10 1 2 13 14 15 16 17 18 9 20 2.1 day yesterday and this morning so far." Do you see the asterisks? A. Q. Uh-huh. He says: t "I met a guy called James Chan who works for a local VC firm (Walden). Told me Chandra's reputation is horrible. -I was getting advice from him going through the dif," presumably different "scenarios. His conclusion/advice was to set up local Singapore company and hire Chandra's guys." Do you. see that? A. Yes. -- " 22 23 24 25 Q. Do you remember responding to that ^..^^. ^.^^ ,:,- a..^.t^.^... ^^-:^, - tip..-^,Y^sv...->^ ..,... , ....L..:,.,, ..,^.:, .w..,^,,;^ .,..,_,s,:,...^...:.r:>.-,x^^.R,= ^^, .,^}^.,. ^ . r.,^_w^>.^,....^: U.S. Legal Support 888-575-3376 df7382ae - 5017- 4df9 - 880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only. Page 269 1 email? A. I responded to both of these emails and 2 3 4 5 6 7 also in the presence of Chandra. Saying this was -one is it's impossible because there's probably intellectual property owned that certainly can't be stolen; but secondly, it's unethical. And I did this with Chandra in the room. I said, "Chandra is my partner on this. You weren't there to do due 9 to 11 12 13 14 15 16 17 18 19 diligence on people. support that. And I think there's emails to You were there to look at the project U and help with the software and help with the__ project, and you took it on yourself to do all these other things." And I said r "If I have to choose between Chandra and you, Nik, it's going to be Chandra." And this was done with Chandra in the room. Q. Did you tell Mr. Cubrilovic --- A. Q. I told him it was highly unethical. --- on the 17th or... the 18th, did you tell 20 21 2 2 him right away? MR. BRIDGES: ambiguous. THE WITNESS: I probably didn't read Objection, vague and 4 23 24 25 this when I wrote this response. Like, let's discuss when you're back, type of answer. As soon U.S. Legal Support 888-575--3376 df7382ae - 5017-4df9 - 880e-802c222b99cd Michael Arrington Highly Confidential -.Attorneys' Eyes.Only Page 270 1 2 3 4 5 6 7 as it became I I understood what he was proposing, said, "One, it's impossible; and two, it's 9. unethical.' We're not going to do it. We have a partner. He's our partner. We trust him them. Want to get this product out." BY MR. STERN: Q. And Mr. Cubrilovic four days later i $ 91 10. 11 12 13 14 15 16 17 1s .19 20 21 22 23 29 25 continued suggesting that you poach Fusion Garage employees; isn't that right? A. I don't know. What are you referring-to now? (Deposition Exhibit 10 marked for identification.) THE WITNESS: BY MR. STERN: Thank you. Q. 23rd. This is-Mr. Cubrilovic again, August Do you see that? A. Uh-huh. Q. He says, "I am checking out, heading to the airport." You agree with me this is-August 23rd, 2009 at 9:00 a.m., right? MR. BRIDGES: Objection, competence. Are you asking if that's what the document says? .THE WITNESS: ..o .rr. _. .r. wr,o^. ,....sr w..,^,uws .,....,.:. .....nw.,...-xr, w .. The document says August ..,,a...c.^^^,., .vy.3s^^w^.w. r ..excx ..r per-^cw...n:^.^,+++v.awrncuar.4,.-a, nom.-ez:.P: U.S. Legal Support 888-575-3376 df7382ae-509 7-4df9 -880 e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 271 1 a 23rd, 2009. BY MR. STERN: Q. A. Q. does it? A. Q. it? A. Q. No. He's in fact sending it to Ms. Harde as No. It doesn't say-that-it-'s a secret, does Good. And it's directed to you, right? 2 3 4 And Heather, yes. It doesn't say "confidential" on it, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well, isn't he? A. Q. Yes. And he says: "I'm checking out, heading to the airport and flying out in a couple of hours. I have over 40 pages of notes since getting here. - I've been spending today and last night punching it. all into docs. I have shared the folder. It is in with you guys. There's a lot that I will need to follow up on when I get back.there." And then he continues and says on number one: "CrunchPad, completed software audit, U.S. Legal Support 888-575--3376 W382ae-5417-4di9 -884e-802c222h99cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Page 272 1 2 3 software roadmap and a full understanding of where we are, what it will take from here and potential issues with Fusion Garage." 4 5 6 7 And you understand "FG" is Fusion Garage? A. Q. Yes. And he says: "I know all of the Fusion Garage employees well now. Depending on what we do 8 9 10 11 12 13 . 14 with Fusion Garage, Iam sure we can take advantage of some of the internal resentment to poach the key guys away."_ Do you see that? A. Q. Yes. - So would you agree with me that Mr. Cubrilovic is telling you on August 17th, on August 18th and on August 23rd that-he thinks it's a plan to steal Fusion Garage employees, right -that's an option? 19 20 21 22 23 24 MR. BRIDGES: Objection, compound, vague and ambiguous, argumentative. THE WITNESS: BY MR. STERN: Basically, yes. Q. How many times did -- I mean, let me ask you, Mr. Arrington, as a person who runsa blog, you try to make yourself clear, wouldn't you agree, to maa^a^ ..w,oawua- -^ ^ __ _ uuuaxxmawswnrraewonwrw^.,.wwss ravru^msunn.+u `.^.:;'r au^=..;nc. . 25 U.S. Legal Support 888-575--3376 df7382ae -5017-4df9 -880e-802c222699c6 Michael. Arrington Highly Confidential -- Attorneys' Eyes Only Page 280 1 document. But that led to some concern at the time that maybe something was going on. I talked to Chandra about it. BY MR. STERN: Q. You mean you heard that CrunchPad was a He said, "Everything's fine." F 2 3 4 5 6 I 7 8 customer of their products? A. There was some discussion of that. I'm 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 f 25 hearing this thirdhand now through Brian, but yes. Q. But that led you to believe that somehow Fusion Garage was not recognizing CrunchPad-_as a partner but rather just seeing them as a purchaser of'the product? Objection, competence, K MR. BRIDGES: vague and ambiguous. BY MR. STERN: Q. First of all, let me ask you' -MR. BRIDGES: By the way, Mr. Stern, 7 let's do about two more minutes and then take a break. It-!s been over an hour. BY MR. STERN: Q. Can you tell me, what are you aware of Fusion Garage's current funding? MR. BRIDGES: Objection, vague and j ml--% ' L1 r:`_..ax^ .zf^s steHSN >W'btv^T '{ 4:ii [+rw^ :t+.H[41'^'^X aravCC [tsvp.Yis'K. IG Ltitis:^SRM\4i ^1'lN^lPw. ^iNW.sh9lfiO^iSW#NV^i U.S. Legal Support 888-575-3376 df7382ae-5017-4df9- 880e -802c222b99cb Michael Arrington Highly Confidential -- Attorneys' Eyes Only Page 28-1 1 2 3 THE WITNESS: T hat's about it. L BY MR. STERN: Q. What I read in the press. What do you read in the press? They said they raised, I think, a $2 And then I think they said we have 5 6 7 A. million round. another big round coming. But, again, I don't know. That's about all I- know about it. - 9 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Did you ever raise a $2 million' round for the acquisition-of Fusion Garage`MR. BRIDGES: ambiguous. THE WITNESS: round that was offered. BY MR. STERN:. Objection, vague and We never closed on7the Q. A. Who offered the money? In the term sheet it was First Round Ron Conway I think had signed t Capital, SoftTech VC. up, maybe not formally, and they were going to put together the rest of the round as needed. Q. going to be? Do you remember what the total round was A. dollars, $2. Q. -- We were targeting a couple of million F But that round never closed; is that U.S. Legal Support 888-575-3376 dt7382ae-5817-4df9 -880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 316 different documents and communications with all 2 3 9 5 sorts of different people that $2 million was the amount of cash that you needed to ---- and I want to use your language ---- to be able to do production of the CrunchPad device up to 1,00G units. Is that what you said? MR. BRIDGES: testimony. THE WITNESS: $2 million seemed to be Objection, misstates .6 7 1 8 9 10 11 12 13 -19 15 16 17 18 roughly the amount needed to get to the point where we could start producing CrunchPads. BY MR. STERN: Q. Okay, all right. N=ow, you testified - that you understand that my client has raised-how much money? A. press. Q. A. Yes. That he said he had raised a couple of This-is based on what I'm reading in the 19 20 21 22 23 million dollars. Q. Did you also read in the press that in P. addition to the couple of million dollars he's already raised, there's also additional funding that's'coming in? A. I read something about him saying there rte.., 1.a t xnvsrn^a^w.r.,pryA^1 --arvp. 29 25 U.S. Legal Support &88-575-3376 df7382ae - 5017 - 4df9 -880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 327 1 2 3 4 5 got, the.$2 million investors, where are. they from? What's your understanding? A. Q. I don't know. Do you know if they're Asian investors? MR. BRIDGES: THE WITNESS: Objection, foundation. Yes, I don't know. The 6 .7 chiropractor, I don't know if he's in Florida or where. I don't know where these guys are. s 9 10 11 12 13 14 15 16 17 18 19 BY MR. STERN: Q. Okay. Do you have"'any reason -- have you heard from any source--that in fact he didn't get $2 million in funding? MR.'BRIDGES: THE WITNESS: BY MR. STERN: Objection, argumentative. No. Q. Have you ever seen any information that the funding he's getting is contingent on any particular event taking place or not taking place? MR. BRIDGES: Objection, lacks 7 20 21 22 23 24 25 foundation, vague and ambiguous. THE WITNESS: The funding that I've read that he's getting? I don't believe so. BY MR. STERN: Q. Do you have any information as to where within the $2 million funding he's gotten that he's r ^rsGxrst.ZVw3c.sct: i^.dtt^Y4Rbisi3r3ssati- ez n ..r., ._. a.taeu. aa. c9e+ar3r xwav..."c4ma'rxa^a -. U.S. Legal Support 888---575-3376 df7382ae-5017-4dt9 -880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 332 1 MR. BRIDGES: Objection, argumentative. 2 3 9 THE WITNESS: I'm not sure I always try to be complete. BY MR. STERN: Q. That is to say, would you say when you. 6 7 6 9 10 11 12 13 19 15 16' 17 18 19 20 21 speak, you don.'t speak with full truth but only in half truths? MR. BRIDGES: misstates the testimony. THE WITNESS : truths.-, BY MR. STERN: ^. I-just want to make sure. I may--get the I rry to speak in full Objection, argumentative, i same answers I got from you before but if I do, I'll have to deal with it. Can you tell me what contributions CrunchPad or TechCrunch made to the -- well, withdraw that. Can you tell me about any ownership. rights that either TechCrunch or CrunehPad has in the intellectual property relating to the CrunchPad? MR. BRIDGES: Objection, calls for a K 22 23 24 25 legal conclusion,.vague and ambiguous.' THE WITNESS: I'm not comfortable making legal conclusions. U.S. Legal Support 888-575-3376 df7382ae -5497- 4di9 - 88Qe-862c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 333 BY MR. STERN: 2 3 4 5 6 Q. Can you tell me about any contributions that CrunchPad or TechCrunch made to the hardware-software design or other aspects of the J00J00? MR. BRIDGES: vague and ambiguous. Objection, foundation, 8 9 You can answer. THE WITNESS: legal conclusions. BY MR STERN: Q. Can you tell me about any contributions g that either CrunchPad or TechCrunch made to the hardware/software design or other.aspects of the CrunchPad? A. c Conclusions. L I'm not-comfortable making legal I'm not comfortable making E 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 u MR. BRIDGES : I don't think ' it's actually calling for legal conclus-ions. THE WITNESS: MR. BRIDGES: Okay. I'm not objecting on that basis. MR. STERN: Well, my understanding is you never instructed him not to answer. MR. BRIDGES: si6R ^A.en^AC' I haven't even made an . W.W .4.< a Y: {.et+ .tA'l[s tct SYJ^'?ri9. i3fP1310G1iY.t^WXwiIfL^AC f^'+}AlTlihcl U..S. Legal Support 888=575-3376 df7382ae - 5047-4d49 - 860e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only parties to Fusion Garage. A. At a high level, I know about Chandra talking about constantly raising small amounts of money mostly to make payroll and some vendor thirdparty costs. It's limited to what I know is basically in the emails, and that's really ail I know about' it. Q. Do you know-anything else other than what you just told me? Is there any other information you have a-bout the details of loans that have been made to Fusion Garage?. A. Offhand, no. I would have to refer back to the emails. in general, it was just there were a lot of people that had loaned money, according to Chandra, and, you know, some of them were happy converting, some of them weren't, so they needed to be paid back. So our request was that he just get it cleaned up. Q. Do you know what the status of those loans are today? A. No. Q. outstanding? A. Do you know many of the loans are I don't know. Q. Do you know how many of the loans have U.S. Legal Support 888-575-3.376 df7382ae -5017-4df9- 880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 350 1 2 3 4 5 6 I been repaid? A. Q. secured? A. Q. loans? No. Do you know any of the terms of the I don't know. Do you know if any of the loans are s 9 10 11 12 13 14 15 16 17 18 19 A. There was some discussion of, you know, seven percent per month interest on at least one loan, but that was it. I never saw any paperwork.or anything like that. I'm not sure there was paperwork around it. So no, not really. Just mostly -things that Chandra told me in emails that he sent. Q. A. Q. Right now does CrunchPad sell a product? No. Does TechCrunch sell a product? MR. BRIDGES: ambiguous. THE WITNESS: I hate to ask. Ghat do Objections vague and 20 21 22 23 24 you mean by "sell"? Like we're in business? BY MR. STERN: Q. product? MR. BRIDGES : Objection, vague and Do you sell or license a web--based 25 U.S.-Legal Support _. 888-575-3376 df7382ae-50174df9-880e-802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 351 1 ambiguous. P 2 3 4 5 6 7 BY MR. STERN: Q. A. Well, you mentioned TechBase. We have events we sell tickets to and 4 sell sponsorships to; we have an advertisingsupported -- a number of advertising-supported websites; another website, CrunchBase, which is advertising and subscription supported. Q. A. Q. s s 9 0 11 12 Do you sell a web tablet? i a e do not. _Right now are you in the process of developing a web tablet? MR. BRIDGES: Objection, vague and 13 14 15 16 17 18 19 ambiguous. THE WITNESS: We continue to have hopes of doing something in that regard and-occasionally have discussions with people around.opportunities. BY MR. STERN: Q. When was the last time that you put 20 21 together a proposal to any company about developing a web tablet? MR. BRIDGES: Objection, vague and 22 23 24 25 ambiguous. THE WITNESS: question, please? Would you repeat the U.S. Legal Support 888-575-3376 df7382ae-5097-4df9 -880e -802c222b99cb Michael Arrington Highly Confidential - Attorneys' Eyes Only Page 364 1 2 3 4 5 6 MR. BRIDGES: That was implied in your question. That's why I was voicing the objection. THE WITNESS: Sorry. What was the question? BY MR. STERN: Q. A. 'yes . Is this your blog? Yes, at least the first few pages are, 7 9 10 11 12 13 .14 15 16 17 18 19 20 21 22 23 24 25 Q. Turn to-page 4 where it says, "Here's the plan." Do you see that? A. Q. A. - Yes. It says That an unnumbered page, right? You're talking about the fourth loose page? BY MR. STERN: Q. plan." Fourth page that it says, "Here's the By the way, when you publish these blogs, do you actually write them o-r do you have a group of people who are writing under your name? A. When it's under my name, it's entirely Occasionally there will be minor written by me. I, edits from another editor. Q. A. So was this written by you? Yes. Q. '^++al4oce4o.L'iSri^`sY:^^^'v`:I^^%M4tP l So it says: '.!vcyKYhJ:V a'ia^iyx. 1^1W .-2 U.S. Legal Support 888-575--3376df7382ae -5017-4df9-880e-802c222b99cb Michael Arrington ' Highly Confidential - Attorneys' Eyes Only Page 365 1 2 3 4 5 6 7 "Here's the plan. We will

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