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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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. ) ) ) ) ) Defendants. ) ___________________________________) YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., ) ) ) ) ) Case No. ) 1:07CV02103 ) ) VIDEOTAPED DEPOSITION OF TOM FRESTON New York, New York Friday, September 11th, 2009 REPORTED BY: ERICA RUGGIERI, CSR, RPR JOB NO: 17617 DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2 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 September 11, 2009 9:52 a.m. VIDEOTAPED DEPOSITION OF TOM FRESTON, held at the offices of Mayer Brown, 1675 Broadway, New York, New York, pursuant to notice, before Erica L. Ruggieri, Registered Professional Reporter and Notary Public of the State of New York. DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2 Page 3 1 2 3 A P P E A R A N C E S FOR THE PLAINTIFFS: 4 5 6 7 8 JENNER & BLOCK, LLP BY: SUSAN KOHLMANN, ESQ. 919 Third Avenue 37th Floor New York, NY 10022-3908 (212)891-1690 Skohlmann@jenner.com FOR THE DEFENDANTS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYER BROWN, LLP BY: ANDREW SCHAPIRO, ESQ. CHRISTINE M. HERNANDEZ, ESQ. 1675 Broadway New York, New York 10019 (212) 506-2146 Aschapiro@mayerbrown.com FOR THE WITNESS KENDALL BRILL KLIEGER, LLP BY: RICHARD B. KENDALL, ESQ. 10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 ALSO PRESENT: MARK C. MORRIL, ESQ., Viacom SALLIANNE BROWN, Videographer DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2 Page 4 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 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 645ded37-5ce2-49af-8395-b83eb5cbf6a2 Page 5 1 2 3 4 09:35:32 5 6 7 8 9 09:36:04 10 11 12 13 14 15 16 17 18 19 09:36:30 20 21 22 23 24 09:53:18 25 THE VIDEOGRAPHER: This is tape number one of the videotape deposition of Tom Freston, in the matter of Viacom International, Inc., et al. versus YouTube, Inc., et al., in the United States District Court, for the Southern District of New York, case number 07CV2103. This deposition is being held at the law firm of Mayer Brown, LLP, 1675 Broadway, New York, New York, on Friday, September 11, 2009, at approximately 9:52 a.m. My name is Sallieann Brown from David Feldman Worldwide, and I am the legal video specialist. The court reporter is Erica Ruggieri, in association with David Feldman Worldwide. Will counsel please introduce themselves. MR. SCHAPIRO: for the defendants. Christine Hernandez. Andrew Schapiro With me is DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2 Page 6 1 2 3 4 09:53:26 5 6 7 8 9 09:53:33 10 11 12 13 14 15 16 17 18 19 09:53:56 20 21 22 23 24 09:54:02 25 FRESTON MR. KENDALL: for the witness. MS. KOHLMANN: Susan Kohlmann, Richard Kendall, for the Viacom plaintiffs. MR. MORRIL: Viacom. THE VIDEOGRAPHER: Will the Mark Morril, for court reporter please swear in the witness. T O M F R E S T O N , called as a witness, having been duly sworn by a Notary Public, was examined and testified as follows: EXAMINATION BY MR. SCHAPIRO: Q. Schapiro. Mr. Freston, my name is Andy I'm defending YouTube against the lawsuit that Viacom has filed against them. A. Q. Good morning. So a few preliminaries before we get started. Have you ever been deposed before? DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2 Page 72 1 2 3 4 11:08:30 5 6 7 8 9 11:08:43 10 11 12 13 14 11:08:53 15 16 17 18 19 11:10:21 20 21 22 23 24 11:10:09 25 FRESTON review recommendations about significant acquisition targets, correct? A. Q. Definitely. And do you recall receiving that recommendation? A. Q. A. Yes. What was the recommendation? I can't tell you what the -- the recommendation would be we should buy YouTube, if the price was right. was a modeling done, I'm sure. remember what it said. But I'm sure they arrived at some sort of price ceiling at which they thought we could afford to purchase it. Q. Fair enough. Let's take a look There I can't at Exhibit 9. (Freston Exhibit 9, Monday, July 10th e-mail attaching a Powerpoint presentation, marked for identification, as of this date.) (Witness reviews document.) MR. KENDALL: witness to -You want the DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2 Page 94 1 2 3 4 11:42:03 5 6 7 8 9 11:42:41 10 11 12 13 14 11:43:24 15 16 17 18 19 11:43:44 20 21 22 23 24 11:44:07 25 FRESTON Q. And did you ever express any doubt that you would be able to reach such a comfort level with YouTube? A. That I can't recall. To my knowledge, we never really had a thorough legal review of the YouTube acquisition. Q. Did Ms. McGrath ever express disappointment to you about the fact that Viacom had not purchased or not been able to purchase YouTube? A. She would have loved YouTube to have been purchased. Q. A. Mr. Freston, what are MSOs? Multiple system operators. Cable companies that own many different cable systems in different locations. Q. And when you were CEO of Viacom, did you sometimes oversee negotiations with MSOs? A. Q. Yes. Now, Viacom owns -- sorry. Sometimes an issue that was the subject of those negotiations would be how DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 645ded37-5ce2-49af-8395-b83eb5cbf6a2

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