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)

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. ) __________________________________)

Case No. 1:07CV02103

Case No. 07CV3582

VIDEOTAPED DEPOSITION OF JUDY McGRATH New York, New York Wednesday, July 29th, 2009 REPORTED BY: ERICA RUGGIERI, CSR, RPR JOB NO: 17161

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

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

July 29, 2009 8:09 a.m.

VIDEOTAPED DEPOSITION OF JUDY McGRATH, held at the offices of Wilson Sonsini, Goodrich & Rosati, 1301 Avenue of the Americas, New York, New York, pursuant to notice, before before Erica L. Ruggieri, Registered Professional Reporter and Notary Public of the State of New York.

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

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

A P P E A R A N C E S FOR THE PLAINTIFFS: JENNER & BLOCK, LLP BY: SUSAN KOHLMANN, ESQ. 1099 New York Avenue, NW Washington, DC 20001 [phone] [e-mail] FOR THE DEFENDANTS: MAYER BROWN, LLP BY: JOHN P. MANCINI, ESQ. 1675 Broadway New York, New York [phone] [e-mail] FOR THE DEFENDANTS WILSON SONSINI GOODRICH & ROSATI PC BY: DAVID H. KRAMER, ESQ. MICHAEL H. RUBIN, ESQ. 650 Page Mill ROad Palo Alto, California 94304 [e-mail] 10019

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

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

A P P E A R A N C E S: (Cont'd) ALSO PRESENT: MICHELINA HALLEY, MTV Networks ANDRA SHAPIRO, MTV Networks CARLOS KING, Videographer

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

Page 5
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 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

Page 6
1 2 3 4 09:35:32 5 6 7 8 9 10 11 12 13 14 09:36:13 15 16 17 18 19 09:48:45 20 21 22 23 24 09:48:55 25

THE VIDEOGRAPHER:

This is tape

number one of the videotape deposition of Judy McGrath, in the matter of Viacom International, Inc., et al. versus YouTube, Inc., et al., the Football Association Premier League Limited, et al. vs YouTube, Inc., et al, in the United States District Court, for the Southern District of New York. This deposition is being held at 1301 Avenue of the Americas, New York, New York, on July 29, 2009, at approximately 9:35 a.m. Will counsel please introduce themselves. MR. KRAMER: I'm Dave Kramer,

from Wilson Sonsini Goodrich & Rosati for defendants. With me is Michael

Rubin from my firm and John Mancini, from Mayer Brown, all representing the defendants. MS. KOHLMANN: And I'm Susan

Kohlmann from Jenner & Block, the

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

Page 7
1 2 3 4 09:49:04 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 09:49:24 20 21 22 23 24 09:49:29 25

McGRATH Viacom plaintiffs. MS. HALLEY: from MTV Networks. MS. SHAPIRO: from MTV Networks. THE VIDEOGRAPHER: Will the Andra Shapiro, Michelina Halley,

court reporter please swear in the witness. J U D Y M c G R A T H , called as a

witness, having been duly sworn by a Notary Public, was examined and testified as follows: EXAMINATION BY MR. KRAMER: Q. Ms. McGrath, as I just said, I'm I'm from Wilson Sonsini

David Kramer.

Goodrich & Rosati, representing Google and YouTube. I'll be conducting the

deposition today. Let me ask you at the start, have you ever been deposed before? A. Q. deposed? Yes. In what matters were you

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

Page 256
1 2 3 4 03:50:00 5 6 7 8 9 03:50:18 10 11 12 13 14 03:50:35 15 16 17 18 19 03:50:44 20 21 22 23 24 03:50:49 25

McGRATH Q. You stated to the press in

mid-October 2006 that Viacom would continue to permit YouTube users to upload South Park clips to the YouTube service, didn't you, Ms. McGrath? A. This is not in quotes. I don't recall this conversation. And I do believe, if this

were during a period when we were trying to do a deal to legitimately be compensated for the use of our content on YouTube, it was still on there. don't know if this is that time. Q. Ms. McGrath, you don't have any But I

reason to believe that the reporters of this article inaccurately represented what you told them, right? A. A passing comment on the way

into the dinner, I have no recollection of this. Q. So you have no reason to doubt

that you said this, right? MS. KOHLMANN: A. Objection.

I have no reason to believe I

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

Page 259
1 2 3 4 03:52:36 5 6 7 8 9 03:52:48 10 11 12 13 14 03:53:07 15 16 17 18 19 03:53:15 20 21 22 23 24 03:53:21 25

McGRATH suggest it's inaccurate, though, correct? MS. KOHLMANN: A. Objection.

I don't recall this at all, so I

can't verify whether it's accurate or inaccurate. Q. At the time you are -- at the

time the article has you making these statements, you did want users of YouTube to continue uploading South Park clips to the YouTube service, right? A. I wanted to be -- I wanted us to

do a deal with YouTube so that our content could be displayed there. wanted. Q. A. Q. That's -I'm asking you -That's what I ultimately wanted. Deal aside, at this point in That's what I

time you wanted users to continue uploading South Park clips to YouTube, right? MS. KOHLMANN: A. Q. Objection.

I don't remember. Ms. McGrath, did you not view

the presence of South Park clips on

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18

Page 269
1 2 3 4 04:02:33 5 6 7 8 9 04:03:32 10 11 12 13 14 04:03:44 15 16 17 18 19 04:03:54 20 21 22 23 24 04:04:02 25

McGRATH YouTube, that we saw in Exhibit 28? A. I don't recall that conversation

with those reporters. Q. Ms. McGrath, were users who were

uploading those clips to the YouTube service from the South Park show violating Viacom's rights? A. Q. A. Let's see, in 2006? Yes. We had no affiliation deal or

anything else with YouTube, so that would be a violation. Q. So assuming you made the

statements attributed to you in this article, Exhibit 28 -A. Q. A. Q. I'm not assuming that. I'm asking you to assume that. Okay. -- you still believe that the

users who were uploading clips to the YouTube service would be violating Viacom's rights? MS. KOHLMANN: question. Object to the

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

e873116a-31bb-4878-b6d9-b2c03fef9a18