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

Filing 318

DECLARATION of Susan J. Kohlmann/ Exhibits to Declaration of Susan J. Kohlmann in Support of Viacom's Opposition to Defendants' Motion for Summary Judgment in Support re: 284 Memorandum of Law in Opposition to Motion,. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 52, # 2 Exhibit 53, # 3 Exhibit 54, # 4 Exhibit 55, # 5 Exhibit 56, # 6 Exhibit 57, # 7 Exhibit 58, # 8 Exhibit 59, # 9 Exhibit 60, # 10 Exhibit 61, # 11 Exhibit 62 - Part 1, # 12 Exhibit 62 - Part 2, # 13 Exhibit 62 - Part 3, # 14 Exhibit 62 - Part 4, # 15 Exhibit 62 - Part 5, # 16 Exhibit 62 - Part 6, # 17 Exhibit 62 - Part 7, # 18 Exhibit 62 - Part 8, # 19 Exhibit 62 - Part 9, # 20 Exhibit 63, # 21 Exhibit 64, # 22 Exhibit 65, # 23 Exhibit 66, # 24 Exhibit 67, # 25 Exhibit 68, # 26 Exhibit 69, # 27 Exhibit 70, # 28 Exhibit 71, # 29 Exhibit 72, # 30 Exhibit 73, # 31 Exhibit 74, # 32 Exhibit 75, # 33 Exhibit 76, # 34 Exhibit 77, # 35 Exhibit 78, # 36 Exhibit 79, # 37 Exhibit 80)(Kohlmann, Susan)

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HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 1 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, vs. YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., ) ) ) ) ) ) ) ) ) ) Defendants. ) ___________________________________) THE FOOTBALL ASSOCIATION PREMIER ) LEAGUE LIMITED, BOURNE CO., et al.,) on behalf of themselves and all ) others similarly situated, ) ) Plaintiffs, ) vs. ) YOUTUBE, INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) __________________________________) ****HIGHLY CONFIDENTIAL**** DEPOSITION OF THOMAS DONOHUE NEW YORK, NEW YORK FRIDAY, OCTOBER 30, 2009 9:46 a.m. BY: REBECCA SCHAUMLOFFEL JOB NO. 17991 Case No. 07CV-2103 Case No. 07CV-3582 DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: SHEARMAN & STERLING, LLP. 599 Lexington AVenue New York, New York 10022 By: KIRSTEN CUNHA, ESQ. Kirsten.cunha@shearman.com FOR THE DEFENDANT, GOOGLE, INC. WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Pal Alto, CA 94304 By: MAURA L. REES, ESQ. Mrees@wsgr.com FOR THE WITNESS, TOM DOOLEY THOMAS M. MULLANEY, ESQ. 708 Third Avenue New York, New York 10017 DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FEDERAL STIPULATIONS IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the respective parties herein, that filing and sealing be and the same are hereby waived. IT IS FURTHER STIPULATED AND AGREED that all objections, except as to the form of the question, shall be reserved to the time of the trial. IT IS FURTHER STIPULATED AND AGREED that the within deposition may be sworn to and signed before any officer authorized to administer an oath, with the same force and effect as if signed and sworn to before the Court. DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 4 1 2 3 4 5 6 7 8 9 09:47:29 10 11 12 13 14 09:48:13 15 16 17 18 19 09:48:15 20 21 22 23 24 09:48:34 25 T O M D O N O H U E, called as a witness, having been duly sworn, testified as follows: EXAMINATION BY MS. REES: Q. Could you please state your full name for the record. A. Q. Thomas H. Donohue. Do you understand that you are testifying under oath today, the same as if you were in a courtroom? A. Yes. THE COURT REPORTER: record. (Whereupon, a recess was held.) BY MS. REES: Q. Have you ever had your Off the deposition taken before? A. Q. No. So I am going to go over a few ground rules about the deposition procedure. The first is that the court DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 115 1 2 3 4 12:48:45 5 6 7 8 9 12:49:01 10 11 12 13 14 12:49:10 15 16 17 18 19 12:49:24 20 21 22 23 24 12:49:37 25 THOMAS DONOHUE purposes of marketing campaigns on behalf of our clients. Q. And is it fair to say that this conversation followed on the heels of this introductory E-mail, which is Exhibit 24? A. Q. Yes. In this E-mail from Mr. Johmann at the bottom of the first page of Exhibit 25, he states, "As you mention, we did sign up for the Director's account." Are you aware in the Director's account was something that Kevin Donahue of YouTube suggested that Wiredset sign up for? A. I believe he did. I can't recall specifically when that was introduced, that concept, or who was eligible for it, but it was my understanding it was something that enabled companies like Wiredset to have more features. Some of which were marketing features for the account on DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 116 1 2 3 4 12:49:46 5 6 7 8 9 12:49:59 10 11 12 13 14 12:50:10 15 16 17 18 19 12:50:26 20 21 22 23 24 12:50:55 25 THOMAS DONOHUE YouTube. Q. The account name that Wiredset used for its Director account was Wiredset? A. Q. That's correct, yes. And you see at the top of that E-mail chain on Exhibit 25, Mr. Johmann sends Mr. Donahue a link to a funny spot with Jessica Alba for the MTV Movie Awards. A. Q. Um-hum. Are you aware if there are Do you see that? other instances in which Mr. Johmann, or anyone else at Wiredset, sent URL links to YouTube reflecting content that had been posted by Wiredset on behalf of MTV? A. It is possible and likely there are other links that we sent because of the opportunity with YouTube to feature some of the content. Q. If I could ask you to pull out of your pile of exhibits in front of you, Exhibit 10 from this morning, DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 122 1 2 3 4 12:57:29 5 6 7 8 9 12:57:47 10 11 12 13 14 12:57:56 15 16 17 18 19 12:58:07 20 21 22 23 24 12:58:21 25 THOMAS DONOHUE A. Oh, sorry. It is to Wiredset from Courtney Nieman. Q. Again, who is Bryanm@wiredset.com? A. Bryan M. is a former intern, Bryan Munson, who was interning for us at the time of this E-mail. Q. In this E-mail, Miss Nieman states that "With more than 100,000 unauthorized clips that needed to be removed from the site, unfortunately, there were isolated errors." Do you see that? A. Q. Um-hum. Is that consistent with your recollection at the time that when Viacom took down content from YouTube, there were a few errors that were made? MS. REES: foundation. A. That they had identified Objection. Lacks incorrectly, content? Q. Correct. That there were errors made in the takedown that Viacom DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 123 1 2 3 4 12:58:28 5 6 7 8 9 12:59:12 10 11 12 13 14 12:59:24 15 16 17 18 19 12:59:37 20 21 22 23 24 12:59:50 25 THOMAS DONOHUE issued to YouTube. A. Q. Yes. Is it your recollection that those matters were resolved expeditiously? A. yes. Q. You testified earlier about That was often the case, a -- I believe you called it a corporate policy of transparency. Did Wiredset ever try to disguise or hide its identity to YouTube? A. No. We have always been very transparent as to the fact that we are a marketing agency that is working on behalf of our clients. Q. And did Wiredset ever try to hide from YouTube the identity of any of its clients when it was posting content on YouTube? A. No, the content that we were posting would be very easily identifiable and clear as to who DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553 HIGHLY CONFIDENTIAL - THOMAS DONOHUE Page 124 1 2 3 4 12:59:56 5 6 7 8 9 13:00:19 10 11 12 13 14 13:00:29 15 16 17 18 19 13:00:39 20 21 22 23 24 13:00:48 25 THOMAS DONOHUE ultimately would -- it was associated with. Q. A. Why is that? Because we either made that clear that -- well, it was clear that we didn't produce content. It was clear that we made it clear that we were working on behalf of our clients. And I don't know how it was communicated that we -- we did not actually own these clips, but we were uploading these clips on behalf of our clients. I don't know how that was communicated exactly, but I think there was -- that was implied. Q. Were there ever -- have you ever heard of the phrase, "a call to action." A. yes. Q. Did the marketing material I have heard that phrase, that Wiredset uploaded to YouTube on behalf of Viacom occasionally contain a call to action? DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 d97baa58-6d5e-4198-b929-e28d66697553

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