Vargas et al v. Pfizer Inc. et al

Filing 146

DECLARATION of Julie A. Ahrens in Support re: 141 MOTION for Attorney Fees and Costs.. Document filed by Brian Transeau. (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 H part 2# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X# 26 Exhibit Y# 27 Exhibit Z# 28 Exhibit Z part 2# 29 Exhibit AA# 30 Exhibit BB# 31 Exhibit CC# 32 Exhibit DD# 33 Exhibit EE# 34 Exhibit FF)(Falzone, Anthony)

Vargas et al v. Pfizer Inc. et al

Doc. 146 Att. 19

EXHIBIT R

Dockets.Justia.com

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

000--RALPH VARGAS and BLAND-RICKY
ROBERTS

Plaintiffs,
) No. 04CV 9772

vs.

(JCF)

PFIZER, INC. ; PUBLICIS, INC.
FLUID MUSIC; EAST WEST

COMMUNICATIONS, INC. and
BRIAN TRANSEAU, p/k/a " 8T"

Defendants.

Deposition of
STEVEN W. SMITH, Ph.

Tuesday, August 15, 2006

CERTlflED

COpy

Reported by:
GEORGE SCHUMER, CSR

(01-384619)

LEGALINK~
A WORDWAVE

LegaUnk San Francisco 575 Market Street, 11th Roor
San FranCisco, CA 94105

tel [phone] tel [phone]
fax [phone]

www.legalink. com

COMPANY

GLOBAL COURT REPORTING. LEGAL VIDEOGRAPHY . TRIAL SERVICES

STEVEN W. SMITH , Ph.

August 15 , 2006

11:53:51
11: 53: 58

Defendant Exhibit 36?

Yes.
After you prepared your fax, and sent it off
to Mr. Chin, what happened next?

11:54:03 11:54:16

11:54:19
11:54:30
11: 54: 34

Mr. Chin requested that I spend additional
time, and develop the full expert report.
Did you agree to do

so?

11: 54 : 35

Yes.
Did you

11:54:36
11:54:40
11:54:44

have any

restrictions
being able

your time
to do

that

caused you

concern,
Mr. Chin

this?

told
limited; that

that

my time was going to be

11:54:46
11: 54: 49

could perhaps

spend

few days

it.

I certainly couldn t spend a few weeks on

it.

11:54:52 11:54:59 11:55:03
11: 55: 05

You agree ,

don '

t you,

that the overall methods

used by Boulanger are standard techniques in signal
analysis; is that right?

Yes.
And you agree that the overall methods used by
Boulanger are appropriate for the analysis at hand in
this case?

11:55:06
11:55:10

11:55:15
11: 55: 15

Yes.
What led you to believe, at the time of your
February 26 fax, that Aparthenonia -- at least in some
sections -- is a copy of Funky Drumm~r?
MR. CHIN:

11:55:16
11:55:28

11:55:40
11 : 55: 45

Obj ection.

LegaLink

Merrill Communications Company

[phone]

STEVEN

W.

SMITH , Ph.

August 15

2006

12:11:09
12: 11: 12

but did any of the other material that you listed in
your expert report as having been reviewed -- did you
rely on any of it in forming the opinion given in your
expert report in this case? No, I didn

12:11:16 12:11:21 12:11:22

12:11:23
12: 11 : 35

Did you use any tools in conducting your
analysis for your expert report?

12:11:36
12: 11: 40

m not sure I understand the definition of

tools. "
Other than reading Dr. Boulanger
1s

12:11:42 12:11:47

report, is

there anything else you made use of?

12:11:49
12:11:55
12: 12: 01

I digitally scanned in some of his data, and

used those electronic files for comparison.

And

his
you

his,

you mean Dr. Boulanger?

12:12:06
12:12:07
12:12:14
12: 12: 18

Yes.

did not feed the audio files
computer; correct?

issue

in this case into a

Correct.
You didn 1
t

12:12:19
12: 12: 23
12: 12 : 26

personally perform any of the

sonogram analysis of the files; correct?

Correct.
And you didn 1 t personally conduct any of the
Fast Fourier Transform analysis on the data in this
case; correct?

12:12:29
12: 12: 33

12:12:41

12:12:42

Correct.

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15, 2006

12:12:44

Your job was to look at Dr. Boulanger

1s

12:12:48

report, and make your conclusions from that; is that

12:12:50
12: 12 : 50

correct?
Correct.
So you were limited to the data that was

12: 12: 51

12:13:00
12: 13: 02

present in Dr. Boulanger s report?

Correct.
Did you feel that that was enough data to
reach your conclusions?

12: 13: 03

12:13:11
12: 13: 12

Yes.
At any point, did you think that it would have
been beneficial to have more data than was provided to
you in Dr. Boulanger
1s

12:13:13

12:13:26
12:13:29 12:13:32 12:13:40 12:13:45
12:13:47

report?

I based my conclusions on whatever data was

available.

If I had additional data, perhaps I could

reach additional conclusions, but the conclusions I

reached were completely justified by the data I had.

12:13:49
12: 13: 54

Because you understood your job being to look
at the reporting data of Dr. Boulanger, and render an
opinion from that; right?

12:13:59

12:14:00 12:14:00
12:14:04 12:14:10
12:14:11

Yes.
Mr. Chin never asked you to take audio

files

and start from scratch with digitally analyzing them;

correct?
Correct.

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN

W.

SMITH , Ph

.D.

August 15

2006

12:15:51

And your conclusion as to your second

opinion,

12:16:20
12:16:23

that it is likely that Aparthenonia and Funky Drummer
are copies -- I would like to ask you a question about
that opinion; okay?
MR. CHIN:

12:16:26
12:16:28 12:16:28

Objection.
Yes.
That is based on

You can answer.

12:16:29 12:16:30 12:16:35 12:16:42
12:16:43 12:16:43
12:16:44

THE WITNESS:
MR. OLSON:

similarities

that you perceived in the data presented in
Dr. Boulanger
1s

report; correct?

MR. CHIN:

Obj ection.

You can answer.

THE WITNESS:

I think it is more

than
iIo..

12:16:46 12:16:49
12:16:54

similari ties I perceived. I think I developed

objective evidence that they were. .
MR. OLSON:

?~;:~\~";~:)4-i::"' ..

Your opinion, then, is based

12:16:56
12: 17: 00

on what you have just referred to

as " objective

evidence of similarity between Aparthenonia and Funky

12:17:05

19.

Drummer ; is that correct?
MR. CHIN:

12:17:06
12:17:07 12:17:07

Objection.
Yes.
Anything else that forms the

THE WITNESS:
MR. OLSON:

12:17:12 12:17:13
12:17:17

basis of that second opinion?

No.
You agree, don t you, that frequency spectra

LegaLink,

Merrill Communications Company

(800) 869- 9132

"":. ,~:

STEVEN

W.

SMITH , Ph.

D.

August 15 , 2006

12:17:33

are a much more sensitive measure of the similarity of
audio wave forms than hearing; correct?
Yes, I would agree with that.

12:17:36 12:17:39
12:17:45
12: 17: 53

And you also agree that comparing the
frequency spectra of Aparthenonia and Funky Drummer is

12:17:57
12: 18: 00

an appropriate and powerful method of resolving if
Aparthenonia is a digitally edited and/or manipulated
copy of Funky Drummer; correct?

12:18:06
12:18:08
12:18:08 12:18:11
12: 18: 15

Correct.
So you don
1t

have an issue with

Dr. Boulanger chose to analyze the audio

the tools files;

correct?
Correct.
You think the methodology is

12:18:15 12:18;16
12:18:18

okay; correct?

The methodology, as far as preparation of the
raw data , I have no objection

12:18:22

to.
data

12:18:26
12: 18: 33 12: 18: 35

But it is the conclusions based on that
that you think are incorrect?

That'

s correct.

12: 18: 36

Do you know the name of the -- I know it
referred to in Dr. Boulanger s report and your report

12:18:47

12:18:51
12: 18: 54

as " Funky

Drummer, " but do you know the name of the
drum track that
1s

plaintiffs 1

at issue in this suit?

12:18:57
12:18:58

Yes.
What is it?

LegaLink ,

A Merrill Communications

Company

[phone]

;,

STEVEN

W.

SMITH , Ph.

August 15 , 2006

16:10:32
16:10:44

So in the example that I just described, for

each new beginning of the loop, the first drum strike

16:10:48

would be an exact copy of the beginning of

the

16:10:50
16:10:51 16:10:52
16:11:04

previous loop; correct?
Yes.
Now if Aparthenonia was created from Funky

Drummer , as I have just asked you to assume it

exists,

16:11:10

you would expect to find direct copies in Aparthenonia

16:11:13
16:11:15 16:11:17
16:11:17

from Funky Drummer; correct?
MR. CHIN:

Objection.

THE WITNESS:
MR. OLSON:

Correct.
In your report, you don
1t

16:11:23 16:11:26
16:11:28
16: 11: 33

point to any direct copies from Funky Drummer in

Aparthenonia; correct?
In my report I stated that I did not believe
that there could be direct copies that

16:11:39 16:11:41
16:11:44

didn

t specifically look for direct

exist. copies, because I

was under the assumption, very different than what we
are now , about the nature of Funky Drummer being an

16:11:46
16:11:49 16:11:51

exact copy between the various

bars.

What was your assumption about Funky Drummer that you made, when you were performing your analysis?

16:11:56
16:12:00 16:12:02

My assumption is that the 26 or 27 bars of
Funky Drummer are associated copie~, .

meaning that

they

were not exact duplicates of each other

that they

174
LegaLink, A Merrill Communications Company

[phone]

STEVEN W. SMITH , Ph.

August 15 , 2006

16:12:06
16:12:11
16:12:22

were made by a drummer playing the bar over and

over.

Even if the drummer played the bar over and

over physically, there I s a possibility
Aparthenonia, if Aparthenonia is
MR. CHIN:

that you would

16:12:25
16:12:27

find a direct copy between Funky Drummer and

a copy; right?

16:12:31

Obj ection.
It is just on random chance, 1

16:12:33
16:12:37
in 26.

THE WITNESS:

16:12:38

MR. OLSON:

Did you look for any such

16:12:40
16:12:41

direct copy?
I didn
1t

have any way of distinguishing what

16:12:46

was a direct

copy, versus an associated copy.

What I

16:12:50
16:12:53
16:12:55 16:13:08

was able to do was just make a comparison of how
similar they were.

Is there anything you could do to determine

whether there I s a direct copy from Funky Drummer in

16:13:12 16:13:13
16:13:18
16:13:24

Aparthenonia?
I don
1t

believe there is, based on the data
1s

directly, and Dr. Boulanger

report.

Certainly if

you were looking at all 26 bars, there would be the

16:13:26
16:13:28 16:13:31
16:13:34

possibility of examining that data for

it.

Now I want you to assume something different.

I want you to go back to the assumption you had when
you did your analysis, which is that Funky Drummer was

16:13:36

created all by live drumming; okay?

175

LegaLink ,

A Merrill Communications

Company

(800) 8-69-9132

CERTIFICATE OF REPORTEE
I, George Schumer.. a Certified Shorthand

Reporter. hereby certify

that the witness in the

forgoing matter was by
within-entitled cause;

me duly sworn to

te~l the truth..

the whole truth and nothing but the truth in the

That said proceeding was taken down
shorthand by me.. a

in

disinterested ' person..

at the time and

place therein stated, and that the testimony of the
witness was thereafter: reduced to typewriting.. by

said

computer, under my direction and supervision;
That before comp~etion of the
review of th~ transcript

was

deposition. was not requested.

If requested..

any changes

made by the deponent (and

provided to the reporter)
appended hereto-

during the period allowed are
said of this

1: further certify that I am not of counsel
attorney for either or
deposition.. nor in

any of the parties to

the

any way vested in the outcome

cause, and that X am not related to any of the pa~ties

thereto.
DATED:
If"" "-J t-

l.l, u.u
CSR 337-6

lJ/-y'

GeoJ;"ge Schumer...