Viacom International, Inc. et al v. Youtube, Inc. et al

Filing 191

DECLARATION of William M. Hohengarten (Part One) in Support re: 176 MOTION for Partial Summary Judgment /Viacom's Notice of Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense.. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 - Part 1, # 3 Exhibit 2 - Part 2, # 4 Exhibit 2 - Part 3, # 5 Exhibit 2 - Part 4, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12 - Part 1, # 16 Exhibit 12 - Part 2, # 17 Exhibit 12 - Part 3, # 18 Exhibit 12 - Part 4)(Kohlmann, Susan)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) VIACOM INTERNATIONAL INC., ) COMEDY PARTNERS, ) COUNTRY MUSIC TELEVISION, INC., ) PARAMOUNT PICTURES CORPORATION, ) and BLACK ENTERTAINMENT TELEVISION ) LLC, ) ) Plaintiffs, ) ) v. ) ) YOUTUBE INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) ) __________________________________________)

Case No. 1:07-cv-02103 (LLS) (Related Case No. 1:07-cv-03582 (LLS)) DECLARATION OF WILLIAM M. HOHENGARTEN IN SUPPORT OF VIACOM'S MOTION FOR PARTIAL SUMMARY JUDGMENT

I, William M. Hohengarten, hereby declare as follows: 1. I am a partner with the law firm Jenner & Block LLP and represent the plaintiffs

in the above-captioned action ("Viacom"). I submit this declaration in support of Viacom's Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense. Attached to this declaration are Exhibits referenced in Viacom's Memorandum of Law and Viacom's Statement of Undisputed Facts in Support of Viacom's Motion for Partial Summary Judgment. I make this declaration based on personal knowledge, except where otherwise noted herein.

Fung Slip Opinion 2. Attached as Exhibit 1 for the Court's convenience is a true and correct copy of the

slip opinion in Columbia Pictures Industries, Inc. v. Gary Fung, No. CV 06-5578 SVW (C.D. Cal. Dec. 21, 2009). Solow Declaration 3. Attached as Exhibit 2 are the Declaration of Warren Solow in Support of

Plaintiffs' Motion for Partial Summary Judgment, dated March 3, 2010, and Exhibits A-G thereto. Sum of YouTube View Count Data for Viacom Clips in Suit 4. During discovery, Viacom identified to Defendants the infringing video clips of

Viacom's copyrighted works that have appeared on YouTube without authorization and that are at issue in this lawsuit ("Clips in Suit"). The Clips in Suit are listed in Exhibits F and G to the Declaration of Warren Solow, which is Exhibit 2 to this Declaration. In response to discovery requests, Defendants have produced data showing the number of times each Clip in Suit was viewed on the YouTube website ("YouTube View Count Data"). Pursuant to Fed. R. Evid. § 1006, an employee of Jenner & Block LLP, working at my direction, summed the YouTube View Count Data for all Clips in Suit and arrived at a figure of over 507 million views. Documents Produced by Defendants 5. The documents listed below in paragraphs 6 through 201 are true and correct

copies of documents produced by Defendants in this action, and accordingly are marked by Defendants with a Bates number beginning with the prefix "GOO001-". 6. Attached as Exhibit 3 is a true and correct copy of a document produced by

Defendants marked with the Bates range GOO001-00303096-104.

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7.

Attached as Exhibit 4 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00011355, a true and correct copy of an associated email attachment marked with the Bates number GOO001-00011356, and a true and correct copy of an associated email attachment marked with the Bates number GOO00100011357. These documents were introduced as Exhibit 12 at the Rule 30(b)(6) deposition of David King, Exhibit 18 at the deposition of Chris Maxcy, and Exhibit 30 at the deposition of David Eun. 8. Attached as Exhibit 5 is a true and correct copy of an email exchange produced by

Defendants marked with the Bates number GOO001-02757578. 9. Attached as Exhibit 6 is a true and correct copy of an email exchange produced by

Defendants marked with the Bates number GOO001-00660588. This email exchange was introduced as Exhibit 8 at the deposition of Chad Hurley and as Exhibit 15 at the deposition of Zahavah Levine. 10. Attached as Exhibit 7 is a true and correct copy of an email exchange produced by

Defendants marked with the Bates number GOO001-01907664. 11. Attached as Exhibit 8 is a true and correct copy of an email exchange produced by

Defendants marked with the Bates number range GOO001-01424049-50. 12. Attached as Exhibit 9 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-05951723-37. 13. Attached as Exhibit 10 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-02482760. This email exchange was introduced as Exhibit 2 at the deposition of Cuong Do.

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14.

Attached as Exhibit 11 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00561567-82. This document was introduced as Exhibit 12 at the deposition of Micah Schaffer. 15. Attached as Exhibit 12 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00744094, and a true and correct associated email attachment produced by Defendants marked with the Bates number range GOO001-00744095-152. 16. Attached as Exhibit 13 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00044974-82. This document was introduced as Exhibit 7 at the deposition of Heather Gillette. 17. Attached as Exhibit 14 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-07167907-08. 18. Attached as Exhibit 15 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00504044-45. 19. Attached as Exhibit 16 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00629095. This email exchange was introduced as Exhibit 7 at the deposition of Brent Hurley, Exhibit 1 at the deposition of Cuong Do, and Exhibit 8 at the deposition of Zahavah Levine. 20. Attached as Exhibit 17 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00629474. 21. Attached as Exhibit 18 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00839842-46.

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22.

Attached as Exhibit 19 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00007027-29. 23. Attached as Exhibit 20 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02403826-27. 24. Attached as Exhibit 21 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02824049-52. 25. Attached as Exhibit 22 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00762173-198. This document was introduced as Exhibit 13 at the deposition of Brent Hurley. 26. Attached as Exhibit 23 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-07728393-95. 27. Attached as Exhibit 24 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00522244. This email exchange was introduced as Exhibit 5 at the deposition of Micah Schaffer. 28. Attached as Exhibit 25 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-05172407. 29. Attached as Exhibit 26 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00630641, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number GOO001-00630642. These documents were introduced as Exhibit 20 at the deposition of Brent Hurley. 30. Attached as Exhibit 27 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-03060898-904.

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31.

Attached as Exhibit 28 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00558783-84. 32. Attached as Exhibit 29 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02761607-11. 33. Attached as Exhibit 30 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00420319, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number GOO001-00420320-27. 34. There is no Exhibit 31 to this Declaration, and that exhibit number is therefore

intentionally left blank. 35. Attached as Exhibit 32 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-03631419. 36. Attached as Exhibit 33 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-03406085, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number GOO001-03406086. 37. Attached as Exhibit 34 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00988969-72. This email exchange was introduced as Exhibit 15 at the deposition of Heather Gillette and as Exhibit 18 at the deposition of Kevin Donahue. 38. Attached as Exhibit 35 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00953867-69. This email exchange was introduced as Exhibit 14 at the deposition of Heather Gillette.

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39.

There is no Exhibit 36 to this Declaration, and that exhibit number is therefore

intentionally left blank. 40. Attached as Exhibit 37 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-01627276-79. This email exchange was introduced as Exhibit 2 at the Rule 30(b)(6) deposition of Chris Maxcy. 41. Attached as Exhibit 38 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-03045959, and a true and correct copy of an excerpt from an associated email attachment produced by Defendants marked with the Bates number range GOO001-03045960-8245. 42. Attached as Exhibit 39 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00794737, and a true and correct copy of an associated email attachment marked with the Bates number range GOO001-00794738-58. These documents were introduced as Exhibit 15 at the deposition of David Eun, Exhibit 15 at the deposition of David Drummond, Exhibit 6 at the deposition of Eric Schmidt, Exhibit 4 at the deposition of Bhanu Narasimhan, and Exhibit 3 at the deposition of Peter Chane. 43. There is no Exhibit 40 to this Declaration, and that exhibit number is therefore

intentionally left blank. 44. Attached as Exhibit 41 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-03114019. This email exchange was introduced as Exhibit 3 at the deposition of Bhanu Narasimhan. 45. Attached as Exhibit 42 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00802317.

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46.

Attached as Exhibit 43 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-06555098-99. This email exchange was introduced as Exhibit 8 at the deposition of Bhanu Narasimhan. 47. Attached as Exhibit 44 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00990640, and a true and correct copy of an associated email attachment marked with the Bates number GOO001-00990641. These documents were introduced as Exhibit 5 at the deposition of Eric Schmidt, Exhibit 11 at the deposition of Wendy Chang, Exhibit 14 at the deposition of David Drummond, Exhibit 2 at the deposition of Larry Page, and Exhibit 2 at the deposition of Peter Chane. 48. Attached as Exhibit 45 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-03592968-69. This email exchange was introduced as Exhibit 4 at the deposition of Peter Chane. 49. Attached as Exhibit 46 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-03594244. This email exchange was introduced as Exhibit 8 at the deposition of Peter Chane. 50. Attached as Exhibit 47 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-05084213. 51. Attached as Exhibit 48 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00562962-65. This email exchange was introduced as Exhibit 12 at the deposition of Patrick Walker. 52. Attached as Exhibit 49 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00566289. This email exchange was introduced as Exhibit 12 at the deposition of Peter Chane.

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53.

Attached as Exhibit 50 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00495746-57. This email exchange was introduced as Exhibit 6 at the deposition of David Eun and as Exhibit 9 at the deposition of Peter Chane. 54. Attached as Exhibit 51 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00496021, and a true and correct copy of an associated email attachment marked with the Bates number range GOO001-00496022-62. These documents were introduced as Exhibit 9 at the deposition of David Eun, Exhibit 9 at the deposition of Omid Kordestani, and Exhibit 13 at the deposition of Peter Chane. The email attachment was introduced as Exhibit 7 at the deposition of Bhanu Narasimhan. 55. Attached as Exhibit 52 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00496614, and a true and correct copy of an associated email attachment marked with the Bates number range GOO001-00496615-47. These documents were introduced as Exhibit 8 at the deposition of Eric Schmidt, Exhibit 10 at the deposition of Omid Kordestani, Exhibit 18 at the deposition of David Drummond, Exhibit 7 at the deposition of Sergey Brin, Exhibit 16 at the deposition of Peter Chane, and Exhibit 2 at the deposition of Jonathan Rosenberg. 56. Attached as Exhibit 53 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-01495915-18. 57. Attached as Exhibit 54 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02055019-20. This email exchange was introduced as Exhibit 35 at the deposition of David Drummond.

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58.

Attached as Exhibit 55 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-02693804, and a true and correct copy of an associated email attachment marked with Bates number range GOO001-02693808-13. 59. Attached as Exhibit 56 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-05150988. 60. Attached as Exhibit 57 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-04430721, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-04430722-722.003. These documents were introduced as Exhibit 10 at the deposition of Peter Chane. 61. Attached as Exhibit 58 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-02361246, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-02361247-48. 62. Attached as Exhibit 59 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00496065, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00496066-94. These documents were introduced as Exhibit 8 at the deposition of David Eun and as Exhibit 13 at the deposition of Wendy Chang. 63. Attached as Exhibit 60 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00502665-93. This document was introduced as Exhibit 10 at the deposition of David Eun and as Exhibit 5 at the deposition of Tim Armstrong.

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64.

Attached as Exhibit 61 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00482516-18. This email exchange was introduced as Exhibit 13 at the deposition of Patrick Walker. 65. Attached as Exhibit 62 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00496651-54. This email exchange was introduced as Exhibit 12 at the deposition of David Eun, Exhibit 8 at the deposition of Omid Kordestani, Exhibit 17 at the deposition of David Drummond, Exhibit 7 at the deposition of Eric Schmidt, Exhibit 3 at the deposition of Larry Page, Exhibit 5 at the deposition of Sergey Brin, and Exhibit 3 at the deposition of Jonathan Rosenberg. 66. Attached as Exhibit 63 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00791569, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00791570-611. These documents were introduced as Exhibit 15 at the deposition of Wendy Chang, Exhibit 17 at the deposition of Larry Page, and Exhibit 4 at the deposition of Jonathan Rosenberg. 67. Attached as Exhibit 64 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00563430-33. This email exchange was introduced as Exhibit 14 at the deposition of David Eun, Exhibit 19 at the deposition of David Drummond, Exhibit 6 at the deposition of Sergey Brin, Exhibit 17 at the deposition of Peter Chane, and Exhibit 5 at the deposition of Jonathan Rosenberg. 68. Attached as Exhibit 65 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00563469-70. This email exchange was introduced as Exhibit 11 at the deposition of Patrick Walker.

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69.

Attached as Exhibit 66 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00792297. According to the metadata produced by Defendants, this email exchange was produced from the files of Google co-founder Larry Page. 70. Attached as Exhibit 67 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-04736644-47. 71. Attached as Exhibit 68 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-03548410-12. 72. Attached as Exhibit 69 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02021241-44. 73. Attached as Exhibit 70 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-01395950. This email exchange was introduced as Exhibit 22 at the deposition of Chad Hurley and as Exhibit 12 at the deposition of Eric Schmidt. 74. Attached as Exhibit 71 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-01271624-27. This email exchange was introduced as Exhibit 10 at the deposition of Heather Gillette. 75. Attached as Exhibit 72 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-03383629. 76. Attached as Exhibit 73 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-01364485. This document was introduced as Exhibit 15 at the deposition of Michael Solomon.

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77.

Attached as Exhibit 74 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-07155101. 78. Attached as Exhibit 75 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00217336. 79. Attached as Exhibit 76 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-03037036, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-03037037-65. These documents were introduced as Exhibit 3 at the deposition of Shashi Seth. 80. Attached as Exhibit 77 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-05154818. 81. Attached as Exhibit 78 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-05943950, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-05943951-59. These documents were introduced as Exhibit 12 at the deposition of Shashi Seth. 82. Attached as Exhibit 79 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-01016844-45. This email exchange was introduced as Exhibit 4 at the deposition of Shashi Seth. 83. Attached as Exhibit 80 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00225766-68. This email exchange was introduced as Exhibit 39 at the deposition of Wendy Chang.

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84.

Attached as Exhibit 81 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02414976-79, and a true and correct copy of an associated email attachment marked with the Bates number GOO00102414980. These documents were introduced as Exhibit 10 at the deposition of Shashi Seth. 85. Attached as Exhibit 82 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-03241189-90, and a true and correct copy of an associated email attachment marked with the Bates number range GOO00103241191-92. These documents were introduced as Exhibit 11 at the deposition of Shashi Seth. 86. Attached as Exhibit 83 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00747816, and a true and correct copy of an associated email attachment marked with the Bates number range GOO001-00747817-989. These documents were introduced as Exhibit 5 at the deposition of Shashi Seth. 87. Attached as Exhibit 84 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-02201131, and true and correct copies of excerpts from an associated email attachment marked with the Bates number range GOO00102201132-132.0228. 88. Attached as Exhibit 85 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00827503-05. 89. Attached as Exhibit 86 is a true and correct copy of a document produced by GOO001-01998134-50.

Defendants marked with the Bates number range 90.

Attached as Exhibit 87 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00829227-28, and a true and

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correct copy of an associated email attachment marked with the Bates number range GOO00100829229-229.007. 91. Attached as Exhibit 88 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00797774-77. 92. Attached as Exhibit 89 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-05942431-32. 93. Attached as Exhibit 90 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02057400-02. 94. Attached as Exhibit 91 are a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00984825-27, a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00984828-33, and a true and correct copy of an associated email attachment marked with the Bates number range GOO001-00984834-40. These documents were introduced as Exhibit 26 at the deposition of Omid Kordestani. 95. Attached as Exhibit 92 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00746418. This email exchange was introduced as Exhibit 27 at the deposition of Chris Maxcy. 96. Attached as Exhibit 93 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00751570-71. 97. Attached as Exhibit 94 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00869300. 98. Attached as Exhibit 95 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02244041-57.

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99.

There is no Exhibit 96 to this Declaration, and that exhibit number is therefore

intentionally left blank. 100. There is no Exhibit 97 to this Declaration, and that exhibit number is therefore

intentionally left blank. 101. There is no Exhibit 98 to this Declaration, and that exhibit number is therefore

intentionally left blank. 102. There is no Exhibit 99 to this Declaration, and that exhibit number is therefore

intentionally left blank. 103. There is no Exhibit 100 to this Declaration, and that exhibit number is therefore

intentionally left blank. 104. There is no Exhibit 101 to this Declaration, and that exhibit number is therefore

intentionally left blank. 105. There is no Exhibit 102 to this Declaration, and that exhibit number is therefore

intentionally left blank. 106. There is no Exhibit 103 to this Declaration, and that exhibit number is therefore

intentionally left blank. 107. Attached as Exhibit 104 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number GOO001-00330654, and an associated email attachment produced by Defendants marked with the Bates number range GOO00100330655-59. These documents were introduced as Exhibit 17 at the deposition of Wendy Chang. 108. Attached as Exhibit 105 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-05164894-927.

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109.

Attached as Exhibit 106 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number GOO001-00330681, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00330682-84. These documents were introduced as Exhibit 18 at the deposition of Wendy Chang. 110. Attached as Exhibit 107 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00633965-92. 111. Attached as Exhibit 108 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-05920388-419. 112. Attached as Exhibit 109 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number GOO001-00763354, a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00763355-63, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00763364-76. These documents were introduced as Exhibit 14 at the deposition of Brent Hurley. 113. Attached as Exhibit 110 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number range GOO001-00658376-77, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-00658378-84. These documents were introduced as Exhibit 16 at the deposition of Brent Hurley and as Exhibit 12 at the deposition of David Drummond. 114. Attached as Exhibit 111 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02656593-94. This email exchange was introduced as Exhibit 9 at the deposition of David Drummond.

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115.

Attached as Exhibit 112 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-002338150-84. 116. Attached as Exhibit 113 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number range GOO001-02439050-52, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-02439053. These documents were introduced as Exhibit 21 at the deposition of Omid Kordestani. 117. Attached as Exhibit 114 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00255239-42. This email exchange was introduced as Exhibit 13 at the deposition of Shashi Seth. 118. Attached as Exhibit 115 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00237661-63. This email exchange was introduced as Exhibit 22 at the deposition of Omid Kordestani. 119. Attached as Exhibit 116 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number GOO001-01295801, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-01295802. These documents were introduced as Exhibit 20 at the deposition of Omid Kordestani. 120. Attached as Exhibit 117 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-08030008-10. 121. Attached as Exhibit 118 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00421229-34. The metadata produced by Defendants indicate this document was last modified on February 3, 2006.

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122.

Attached as Exhibit 119 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02826891-95. The metadata produced by Defendants indicate this document was last modified on March 14, 2006. 123. Attached as Exhibit 120 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00824855-59. The metadata produced by Defendants indicate this document was last modified on July 26, 2006. 124. Attached as Exhibit 121 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02829970-74. The metadata produced by Defendants indicate this document was last modified on August 18, 2006. 125. There is no Exhibit 122 to this Declaration, and that exhibit number is therefore

intentionally left blank. 126. There is no Exhibit 123 to this Declaration, and that exhibit number is therefore

intentionally left blank. 127. Attached as Exhibit 124 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-07056597-603. The metadata produced by Defendants indicate this document was last modified on February 26, 2007. 128. Attached as Exhibit 125 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-01232697-703. The metadata produced by Defendants indicate this document was last modified on June 19, 2007. 129. Attached as Exhibit 126 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02768034-35. 130. Attached as Exhibit 127 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-01027757-73.

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131.

Attached as Exhibit 128 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-01535521-24. 132. Attached as Exhibit 129 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-04431787-88. 133. Attached as Exhibit 130 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00509640. This email exchange was introduced as Exhibit 48 at the deposition of Chad Hurley and as Exhibit 10 at the deposition of Kevin Donahue. 134. Attached as Exhibit 131 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00222797-803. 135. Attached as Exhibit 132 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-02754251. This email exchange was introduced as Exhibit 3 at the deposition of Franck Chastagnol. 136. Attached as Exhibit 133 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-02027618-19. This email exchange was introduced as Exhibit 14 at the deposition of Shashi Seth. 137. Attached as Exhibit 134 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00561601-21. This document was introduced as Exhibit 27 at the deposition of Zahavah Levine. 138. Attached as Exhibit 135 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-08643428. 139. Attached as Exhibit 136 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02493069-74.

20

140.

Attached as Exhibit 137 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number range GOO001-02930251-52, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-02930253-82. 141. Attached as Exhibit 138 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number range GOO001-02604786-87, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-02604788-91. 142. Attached as Exhibit 139 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-01950611-18. This document was introduced as Exhibit 8 at the Rule 30(b)(6) deposition of David King. 143. Attached as Exhibit 140 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-09612201. 144. Attached as Exhibit 141 are a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-03427120-21, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-03427122-43. These documents were introduced as Exhibit 9 at the deposition of Vance Ikezoye and as Exhibit 24 at the deposition of Chad Hurley. 145. Attached as Exhibit 142 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02867502-05. 146. Attached as Exhibit 143 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02493328-37.

21

147.

Attached as Exhibit 144 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-01511226-27. This email exchange was introduced as Exhibit 27 at the deposition of Chad Hurley, Exhibit 31 at the deposition of David Drummond, Exhibit 18 at the deposition of Eric Schmidt, Exhibit 14 at the deposition of Larry Page, and Exhibit 14 at the deposition of Sergey Brin. 148. Attached as Exhibit 145 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02506820-28.0006. Defendants produced this document with apparent errors in the document's images. 149. Attached as Exhibit 146 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-01202238-43. This document was introduced as Exhibit 6 at the deposition of Chris Maxcy and as Exhibit 2 at the deposition of Franck Chastagnol. 150. There is no Exhibit 147 to this Declaration, and that exhibit number is therefore

intentionally left blank. 151. Attached as Exhibit 148 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number GOO001-01870875, a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-01870876-78, a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-01870879-81, and a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range 01870882-84. 152. Attached as Exhibit 149 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02826036-46. This document was

22

introduced as Exhibit 23 at the deposition of David Drummond, Exhibit 15 at the deposition of Eric Schmidt, Exhibit 11 at the deposition of Larry Page, and Exhibit 8 at the deposition of Jonathan Rosenberg. 153. There is no Exhibit 150 to this Declaration, and that exhibit number is therefore

intentionally left blank. 154. There is no Exhibit 151 to this Declaration, and that exhibit number is therefore

intentionally left blank. 155. Attached as Exhibit 152 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02874326-27. 156. Attached as Exhibit 153 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02240369-411. This document was introduced as Exhibit 18 at the deposition of Omid Kordestani and as Exhibit 27 at the deposition of David Drummond. 157. Attached as Exhibit 154 are a true and correct copy of an email exchange

produced by Defendants marked with the Bates number GOO001-02524911, a true and correct copy of an associated email attachment produced by Defendants marked with the Bates number range GOO001-02524912-63, and a true and correct copy of an associated email attachment produced by Defendants marked with Bates number range GOO001-02524964-5010. This document was introduced as Exhibit 28 at the deposition of David Drummond. Portions of this document were introduced as Exhibit 19 at the deposition of Omid Kordestani. 158. Attached as Exhibit 155 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02241782-835. This document was introduced as Exhibit 5 at the deposition of Zahavah Levine.

23

159.

Attached as Exhibit 156 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02354601-05. 160. Attached as Exhibit 157 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-09612078-79. 161. Attached as Exhibit 158 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-05175716-18. 162. Attached as Exhibit 159 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-00889264-81. 163. Attached as Exhibit 160 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-09684557-79. 164. Attached as Exhibit 161 are true and correct copies of excerpts from a document

produced by Defendants marked with the Bates number range GOO001-02276277-384. 165. Attached as Exhibit 162 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-07726987-7009. 166. Attached as Exhibit 163 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02243231-53. 167. There is no Exhibit 164 to this Declaration, and that exhibit number is therefore

intentionally left blank. 168. Attached as Exhibit 165 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02242506-23. 169. Attached as Exhibit 166 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02242907-24.

24

170.

Attached as Exhibit 167 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02392607-43. This document was introduced as Exhibit 5 at the deposition of Jim Patterson. 171. Attached as Exhibit 168 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-06176212-24. 172. Attached as Exhibit 169 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-06176368-86. 173. Attached as Exhibit 170 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02552363-70. 174. Attached as Exhibit 171 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-00010746. This email exchange was introduced as Exhibit 21 at the deposition of Chris Maxcy and as Exhibit 3 at the deposition of Jim Patterson. 175. Attached as Exhibit 172 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00243149-52. 176. Attached as Exhibit 173 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-09684201-21. 177. Attached as Exhibit 174 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02338330-43. 178. Attached as Exhibit 175 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-01177848. 179. Attached as Exhibit 176 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00508644-47. This email

25

exchange was introduced as Exhibit 5 at the deposition of Kevin Donahue and as Exhibit 11 at the deposition of Brent Hurley. 180. Attached as Exhibit 177 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-09531942-68. 181. Attached as Exhibit 178 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-06147947-73. 182. Attached as Exhibit 179 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-02034326-30. 183. Attached as Exhibit 180 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-06811230-34. 184. Attached as Exhibit 181 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00827716-17. 185. Attached as Exhibit 182 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02866493-517. 186. Attached as Exhibit 183 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00718495-98. 187. Attached as Exhibit 184 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-06361166-79. Defendants produced this document in a format that is difficult to read. Despite Viacom's request that Defendants produce a corrected, readable version of this document, Defendants failed to do so. 188. Attached as Exhibit 185 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-01949763-65.

26

189.

Attached as Exhibit 186 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-09684681-719. Despite repeated requests by Viacom's counsel over many months during discovery, Defendants failed to produce this document until four days before the filing of Viacom's Motion for Partial Summary Judgment. 190. Attached as Exhibit 187 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-09684647-66. Despite repeated requests by Viacom's counsel over many months during discovery, Defendants failed to produce this document until four days before the filing of Viacom's Motion for Partial Summary Judgment. 191. Attached as Exhibit 188 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-09684752-818. Despite repeated requests by Viacom's counsel over many months during discovery, Defendants failed to produce this document until four days before the filing of Viacom's Motion for Partial Summary Judgment. 192. Attached as Exhibit 189 is a true and correct copy of a document produced by

Defendants marked with the Bates number GOO001-00746412. 193. Attached as Exhibit 190 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-06525907-09. 194. Attached as Exhibit 191 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-00923210-12. This email exchange was introduced as Exhibit 8 at the deposition of Patrick Walker and as Exhibit 1 at the deposition of David Eun.

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195.

Attached as Exhibit 371 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-01529251. 196. Attached as Exhibit 372 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02316969-72. This document was introduced as Exhibit 1 at the deposition of Nicole Wong. 197. Attached as Exhibit 373 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-02502815-19. This document was introduced as Exhibit 16 at the deposition of Eric Schmidt, Exhibit 25 at the deposition of David Drummond, Exhibit 12 at the deposition of Larry Page, and Exhibit 11 at the deposition of Sergey Brin. 198. Attached as Exhibit 374 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-06010126-31. 199. Attached as Exhibit 375 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number GOO001-06669529. 200. Attached as Exhibit 378 is a true and correct copy of a document produced by

Defendants marked with the Bates number range GOO001-07181365-67. 201. Attached as Exhibit 382 is a true and correct copy of an email exchange produced

by Defendants marked with the Bates number range GOO001-08050272-75. This email exchange was introduced as Exhibit 6 at the deposition of Kent Walker. Instant Message Conversation Transcripts Produced by Defendants 202. In the course of discovery, Defendants produced transcripts of instant message

conversations. Like the other documents Defendants produced, these transcripts of instant message conversations are marked with Bates numbers beginning with the prefix "GOO001-".

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203.

Defendants produced these instant message transcripts in HTML format, which is

difficult to read. An employee of Jenner & Block LLP, working at my direction, generated more easily readable versions of the instant message conversation transcripts by opening them in an ordinary Internet browser. Those versions reflect the manner in which they would be seen by the participants in the instant message conversation. This readable format does not alter the content of the instant message discussions in any way. For the Court's convenience, each exhibit listed below in paragraphs 204 through 217 that contains the transcript of an instant message conversation includes (a) the readable version of the transcript of the instant message conversation generated by a Jenner & Block LLP employee acting at my direction; and (b) the original transcript of the same instant message conversation as produced by Defendants. In order to ensure the protection of potentially private information of Defendants' employees, Jenner & Block LLP employees, at my direction, have redacted certain personal and irrelevant material from these instant message conversation transcripts. 204. Attached as Exhibit 192 is a true and correct copy of the instant message

conversation transcript produced by Defendants marked with the Bates number range GOO00100507525-32. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. This instant message conversation was introduced as Exhibit 3 and as Exhibit 4 at the deposition of Maryrose Dunton. 205. Attached as Exhibit 193 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0050753540. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. This instant message conversation was introduced as Exhibit 5 and as Exhibit 15 at the deposition of Maryrose Dunton.

29

206.

Attached as Exhibit 194 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0050740507. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 207. Attached as Exhibit 195 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0193184051. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 208. Attached as Exhibit 196 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0758595293. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 209. Attached as Exhibit 197 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0050733143. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 210. Attached as Exhibit 198 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-01931799811. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 211. Attached as Exhibit 199 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-02363217-

30

19. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 212. Attached as Exhibit 200 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0773886465. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 213. Attached as Exhibit 201 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0082968194. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. This instant message conversation was introduced as Exhibit 19 and as Exhibit 20 at the deposition of Maryrose Dunton. 214. Attached as Exhibit 202 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0082970218. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. This instant message conversation was introduced as Exhibit 21 and as Exhibit 22 at the deposition of Maryrose Dunton. 215. Attached as Exhibit 203 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0716972033. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 216. Attached as Exhibit 376 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-07169708-

31

19. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. 217. Attached as Exhibit 377 is a true and correct copy of the instant message

conversation produced by Defendants marked with the Bates number range GOO001-0716992843. The transcript produced by Defendants is preceded by a readable version generated in the manner described in paragraph 203 supra. Documents Produced by YouTube Co-Founder Jawed Karim 218. In response to a subpoena issued by Viacom in this action on December 7, 2007,

YouTube co-founder Jawed Karim produced documents on May 16 and 21, 2008. The documents that Karim produced are marked with Bates numbers beginning with the prefix "JK". 219. In his deposition, Mr. Karim testified that the documents marked with the Bates

prefix "JK" were "all documents produced as a result of, you know, my involvement with YouTube." He also testified that "the e-mails, you know, any e-mails that -- that I wrote and received, those were all in my e-mail file," and explained that the e-mails came from two accounts: "my personal e-mail kind of early on, before there was a YouTube," and "then there also was the e-mails I used from the YouTube e-mail account." See Exhibit 313 hereto (Karim Dep.) at 28:22-29:21. 220. Mr. Karim also described the process in which his personal emails were collected.

As he explained, "There was a collection process at Wilson, Sonsini, I believe. And so I brought in, you know, all of my e-mails. And the person responsible for the collection, I -- I worked with him to extract the YouTube related e-mails from all those e-mails." See Exhibit 313 hereto (Karim Dep.) at 30:3-14.

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221.

Mr. Karim also described the process by which emails from his YouTube email

account were collected. As he explained, that "procedure was simply to copy, you know, sent and received e-mails in -- in all other e-mail folders." Mr. Karim participated in this process by "transfer[ring] the data." See Exhibit 313 hereto (Karim Dep.) at 30:16-31:3. 222. Attached as Exhibit 204 is a true and correct copy of a document produced by

Jawed Karim marked with the Bates number range JK00009887-91. 223. Attached as Exhibit 205 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00009137-39. 224. Attached as Exhibit 206 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00004704-05. This email exchange was introduced as Exhibit 29 at the deposition of Chad Hurley and as Exhibit 24 at the deposition of Jawed Karim. 225. Attached as Exhibit 207 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00005039. This email exchange was introduced as Exhibit 23 at the deposition of Jawed Karim. 226. Attached as Exhibit 208 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00005043. This email exchange was introduced as Exhibit 1 at the deposition of Chad Hurley and as Exhibit 31 at the deposition of Jawed Karim. 227. Attached as Exhibit 209 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00009381-82. This email exchange was introduced as Exhibit 7 at the deposition of Jawed Karim.

33

228.

Attached as Exhibit 210 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00009383. This email exchange was introduced as Exhibit 8 at the deposition of Jawed Karim. 229. Attached as Exhibit 211 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00005928. This email exchange was introduced as Exhibit 20 at the deposition of Jawed Karim. 230. Attached as Exhibit 212 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00005929. This email exchange was introduced as Exhibit 33 at the deposition of Chad Hurley. 231. Attached as Exhibit 213 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00006057. This email exchange was introduced as Exhibit 4 at the deposition of Chad Hurley and as Exhibit 17 at the deposition of Jawed Karim. 232. Attached as Exhibit 214 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00000382. This email exchange was introduced as Exhibit 2 at the deposition of Brent Hurley and as Exhibit 45 at the deposition of Chad Hurley. 233. Attached as Exhibit 215 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00007416-18. The page marked with Bates number JK00007416 was introduced as Exhibit 41 at the deposition of Chad Hurley. 234. Attached as Exhibit 216 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00006055-56. This email exchange was introduced as Exhibit 34 at the deposition of Chad Hurley.

34

235.

Attached as Exhibit 217 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00006166-69. This email exchange was introduced as Exhibit 40 at the deposition of Jawed Karim. 236. Attached as Exhibit 218 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00009595-96. 237. There is no Exhibit 219 to this Declaration, and that exhibit number is therefore

intentionally left blank. 238. There is no Exhibit 220 to this Declaration, and that exhibit number is therefore

intentionally left blank. 239. Attached as Exhibit 221 are a true and correct copy of an email exchange

produced by Jawed Karim marked with the Bates number range JK00006259-60, and an associated email attachment produced by Jawed Karim marked with the Bates number range JK00006263-70. These documents were introduced as Exhibit 45 and Exhibit 46, respectively, at the deposition of Jawed Karim. 240. Attached as Exhibit 222 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00009668. This email exchange was introduced as Exhibit 19 at the deposition of Jawed Karim. 241. Attached as Exhibit 223 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00006392-93. This email exchange was introduced as Exhibit 12 at the deposition of Jawed Karim. 242. Attached as Exhibit 224 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00006689-90. This email exchange was introduced as Exhibit 18 at the deposition of Jawed Karim.

35

243.

Attached as Exhibit 225 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00006627-28. 244. Attached as Exhibit 226 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00009791-92. 245. Attached as Exhibit 227 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00007378-79. 246. Attached as Exhibit 228 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00007420-22. This email exchange was introduced as Exhibit 35 at the deposition of Jawed Karim and as Exhibit 5 at the deposition of Chad Hurley. 247. Attached as Exhibit 229 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00007423. This email exchange was introduced as Exhibit 55 at the deposition of Jawed Karim. 248. Attached as Exhibit 230 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00007479. This email exchange was introduced as Exhibit 38 at the deposition of Jawed Karim. 249. There is no Exhibit 231 to this Declaration, and that exhibit number is therefore

intentionally left blank. 250. Attached as Exhibit 232 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00008043. This email exchange was introduced as Exhibit 11 at the deposition of Chad Hurley and as Exhibit 36 at the deposition of Jawed Karim.

36

251.

Attached as Exhibit 233 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00008331-35. 252. Attached as Exhibit 234 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00000824. 253. Attached as Exhibit 235 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00000836. 254. Attached as Exhibit 236 are a true and correct copy of an email exchange

produced by Jawed Karim marked with the Bates number JK00002261, and a true and correct copy of an associated email attachment produced by Jawed Karim marked with the Bates number JK00002262. These documents were introduced as Exhibits 51 and 52 at the deposition of Jawed Karim. 255. Attached as Exhibit 237 is a true and correct copy of a document produced by

Jawed Karim marked with the Bates number range JK00000173-79. This document was introduced as Exhibit 47 at the deposition of Jawed Karim. 256. Attached as Exhibit 238 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00009130-32. This email exchange was introduced as Exhibit 29 at the deposition of Jawed Karim. 257. Attached as Exhibit 239 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00008859. 258. Attached as Exhibit 379 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00004669-70.

37

259.

Attached as Exhibit 380 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number JK00005597. This email exchange was introduced as Exhibit 2 at the deposition of Chad Hurley. 260. Attached as Exhibit 381 is a true and correct copy of an email exchange produced

by Jawed Karim marked with the Bates number range JK00007560-61. This email exchange was introduced as Exhibit 42 at the deposition of Chad Hurley and as Exhibit 34 at the deposition of Jawed Karim. 261. Attached as Exhibit 240 is a true and correct copy of an AVI-format video file

produced by Jawed Karim and given the Bates number file name JK00010387_MVI_0922.avi. A portion of this video file was introduced as Exhibit 12 at the deposition of Chad Hurley. 262. For the Court's convenience, and at my direction, an employee of Jenner & Block

LLP created a true and correct transcript of Exhibit 240. This transcript is attached hereto as Exhibit 241. Defendants' Failure to Produce Emails of Top Executives 263. Virtually none of the Exhibits listed above as produced by Jawed Karim (bearing

JK Bates numbers) were produced by Defendants, even though YouTube co-founders Steve Chen and Chad Hurley and other YouTube employees are listed as senders and/or recipients on most of the documents preserved and produced by Mr. Karim and attached as exhibits hereto. 264. Chad Hurley testified that he "lost all" of his emails from the key time

periods in this case. See Exhibit 312 hereto (C. Hurley Dep.) at 187:15-16. Jenner & Block LLP's review of Defendants' document production indicates that Defendants produced fewer than ten custodial Chad Hurley emails per month for August, September, and October 2005, and fewer than 25 such emails per month for November and December 2005 and January 2006.

38

265.

Jenner & Block LLP's review of Defendants' document production indicates that

Defendants did not produce a single Steve Chen custodial email from March through July 2005, and produced only one Chen custodial email from each of August and September 2005. From November 2005 through October 2006, Defendants produced fewer than ten custodial Chen emails per month. 266. At his deposition, Google CEO Eric Schmidt agreed that a search for responsive

custodial Schmidt documents from June 2006 through February 2007 yielded only 19 documents. Mr. Schmidt further testified: "It was my practice to delete or otherwise cause the e-mails that I had read to go away as quickly as possible." See Exhibit 3