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)

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X 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. -----------------------------------X 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. -----------------------------------X HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF MARK ISHIKAWA PALO ALTO, CALIFORNIA THURSDAY, JANUARY 14, 2010 JOB NO. 18548 No. 07-CV-3582 No. 07-CV-2103

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA

PALO ALTO, CA JANUARY 14, 2010 10:07 A.M.

JANUARY 14, 2010

HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF MARK ISHIKAWA, at WILSON, SONSINI, GOODRICH & ROSATI, 650 Page Mill Road, Palo Alto, California, pursuant to notice, before me, KATHERINE E. LAUSTER, CLR, CRR, RPR, CSR License No. 1894.

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA PALO ALTO, CA JANUARY 14, 2010 A P P E A R A N C E S: FOR THE PLAINTIFFS, VIACOM INTERNATIONAL, INC.: JENNER & BLOCK, LLP BY: JAMES C. COX, ESQ. 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 t.202.639.6000 f.202.661.4813 [e-mail] FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: MAYER BROWN, LLP BY: JOHN MANCINI, ESQ. CHRISTINE M. HERNANDEZ, ESQ. JASON KIRSCHNER, ESQ. 1675 Broadway New York, New York 10019-5820 t.212.506.2295 f.212.849.5895 [e-mail] [e-mail] [e-mail] FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: PROSKAUER ROSE, LLP BY: GIL N. PELES, ESQ. 2049 Century Park East, Suite 3200 Los Angeles, California 90067-3206 t.310.284.5611 f.310.557.2193 [e-mail] FOR THE WITNESS & BAYTSP KENDALL, BRILL & KLIEGER, LLP BY: PHILIP M. KELLY, ESq. RICHARD B. KENDALL, ESQ. 10100 Santa Monica Boulevard, Suite 1725 Los Angeles, California 90067 t.310.556.2700 f.310.556.2705 [e-mail] [e-mail]

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA

PALO ALTO, CA

JANUARY 14, 2010 (Continued)

A P P E A R A N C E S: FOR THE WITNESS & BAYTSP: IN-HOUSE COUNSEL OSAMA A. HUSSAIN, ESQ. P.O. Box 1314 Los Gatos, California 95031 t.408.341.2345 f.408.341.2396 [e-mail]

Also Present: Armando Carasco, Videographer

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA

PALO ALTO, CA

JANUARY 14, 2010

PALO ALTO, CALIFORNIA THURSDAY, JANUARY 14, 10:07 A.M.

THE VIDEOGRAPHER:

Today's videotaped

deposition of Mark Ishikawa is taken on January 14th, 2010, at Wilson, Sonsini, Goodrich & Rosati, 650 Page Mill Road, Palo Alto, California, in the matter of Viacom, International versus YouTube, Incorporated. Case Numbers are 07 CV 2103

and 07 CV 3582 in Court Southern District of New York. My name is Armando Carrasco. I represent

David Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, Costa Mesa, California. are now commencing at 10:08 a.m. Will all present please identify themselves, beginning with the witness. THE WITNESS: MR. KENDALL: Mark Ishikawa. Richard Kendall of Kendall, We

Brill & Klieger on behalf of the witness. MR. KELLY: Bill Kelly at Kendall, Brill &

Klieger on behalf of the witness. MR. HUSSAIN: Counsel, BayTSP. Osama Hussain, In-House

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA MR. COX:

PALO ALTO, CA

JANUARY 14, 2010

James Cox, Jenner & Block, on

behalf of the Viacom plaintiffs. MR. PELES: Gil Peles from Proskauer &

Rose, on behalf of the class. MR. MANCINI: John Mancini, Mayer Brown,

on behalf of defendants YouTube and Google. MR. KIRSCHNER: Jason Kirschner, Mayer

Brown, on behalf of defendants. MS. HERNANDEZ: Christine Hernandez, from

Mayer Brown, for defendants. THE VIDEOGRAPHER: Thank you all.

Will the court reporter please swear in the witness. THE REPORTER: hand, please. Do you solemnly state, under penalty of perjury, the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: Yes. Will you raise your right

MARK ISHIKAWA, having been sworn as a witness testified as follows:

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA A.

PALO ALTO, CA

JANUARY 14, 2010

I guess the document does not reflect that

start date, so I would have to assume that it's what's in front for the start date. We didn't -- we

must not have kept history from the beginning. Q. Okay. So let me turn your attention now

back to -- but keep this document before you -- back to BayTSP Exhibit Number 5. A. Q. Okay. About the second or third page in, Bates

stamped -7769. A. Q. Okay. In the section called "Special Rules on Notice Sending," fourth

Instructions: paragraph down:

"There's no action taken for these assets on YouTube because of the implementation of Project 2. in." Do you see that reference? A. I do see the reference. I don't know what All infringements are kept

was in that sentence. redacted.

Appears to have been That -- it was kept

Oh, no, I'm sorry.

in a separate folder. Q. Okay. So just to be clear, there does not

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

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MARK ISHIKAWA

PALO ALTO, CA

JANUARY 14, 2010

appear to be any redaction? A. Q. Yes. Okay. So reviewing these two documents

together, does this refresh your recollection that, for YouTube, BayTSP was not issuing any takedown notices for any alleged infringements it may have found between December 18th, 2006, and February 2nd, 2007? A. Q. A. records. Q. And what was being done with these alleged They were I believe those were the instructions. And who gave those instructions? I would have to go back to our -- our

infringements that were found by BayTSP? being accumulated where? A.

They were being accumulated within our

CIMS client information management system. Q. A. Q. CIMS, not BVM? Correct. And were regular reports being provided to

MTVN about this accumulation? A. Q. A. Yes, they were. And how often were those reports provided? They should have been daily, and I need to

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

MARK ISHIKAWA - HIGHLY CONFIDENTIAL
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MARK ISHIKAWA A. Q. Yes.

PALO ALTO, CA

JANUARY 14, 2010

In the top of this document you state, on

January 24th, 2007: "Donna, we are cueing up the takedown notices as instruct by Adam at MTVN. He

wants to hold the notices as part of his strategy. This instruction was for all Please let me know if you

Viacom assets.

want your assets differently." See that reference? A. Q. Yes. And you are responding to an e-mail from

Donna Cooper where she asks you: "Mark, "I just want to confirm the YouTube direction for BET. Are you searching and

sending take down notices with respect to all occurrences of BET assets, irrespective of duration or any other parameter? If not, this is how we would

like -- how we would like to proceed." See the reference? A. Q. Yes, I do. You refer here to the fact that you're

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7

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MARK ISHIKAWA

PALO ALTO, CA

JANUARY 14, 2010

cueing up takedown notices as instructed by Adam. Was that referring to Adam Cahan? A. Q. Cooper? A. Q. Yes. What were his instructions with respect to Yes, it is. In fact, he's cc'd on your e-mail to Donna

"cueing up" the takedown notices? A. To not send takedown notices to YouTube at

this point. Q. A. Q. Rather, to cue them up? To cue them up and hold them. And did he give you a date by which he

wanted you to send those out? A. Q. No, that was never conveyed to us. Did he tell you the reasons why you were

to cue them up and not send them out? A. Q. No. You go on to state:

"He wants to hold the notices as part of his strategy." See those words? A. Q. Yes, I do. What was his strategy he was conveying to

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

acc59d7b-da92-4de9-995f-d63929fae4c7