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

Filing 319

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 81, # 2 Exhibit 82, # 3 Exhibit 83, # 4 Exhibit 84, # 5 Exhibit 85, # 6 Exhibit 86, # 7 Exhibit 87, # 8 Exhibit 88, # 9 Exhibit 89, # 10 Exhibit 90, # 11 Exhibit 91, # 12 Exhibit 92, # 13 Exhibit 93)(Kohlmann, Susan)

Page 1

UNITED STATES DISTRICT COURT FOR THE 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 VIDEOTAPED DEPOSITION OF MICHAEL WOLF NEW YORK, NEW YORK FRIDAY, APRIL 17, 2009 JOB NO.: 16687 NO. 07-CV-3582 NO. 07-CV-2103

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

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

APRIL 17, 2009 10:02 a.m.

VIDEOTAPED DEPOSITION OF MICHAEL WOLF, held at the offices of CAHILL GORDON & REINDEL, LLP, 80 Pine Street, New York, New York, pursuant to subpoena, before JENNIFER OCAMPO-GUZMAN, a Shorthand Reporter and Notary Public of the State of New York.

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

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 VIACOM INTERNATIONAL, INC.: JENNER & BLOCK, LLP BY: SUSAN J. KOHLMANN, ESQ.

919 Third Avenue, 37th Floor New York, New York 10022-3908 [phone] [e-mail]

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: WILSON SONSINI GOODRICH & ROSATI, PC BY: BART E. VOLKMER, ESQ.

650 Page Mill Road Palo Alto, California 94304-1050 650-565-3508 [e-mail]

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

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

APPEARANCES (Continued):

FOR THE DEPONENT: CAHILL GORDON & REINDEL, LLP BY: BY: ADAM ZUROFSKY, ESQ. CHRISTOPHER A. GORMAN, ESQ. 80 Pine Street New York, New York 10005-1702 [phone] [e-mail] [phone] [e-mail]

ALSO PRESENT: CARLOS KING, Videographer

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

Page 5
1 10:04:14 10:04:15 10:04:17 10:04:23 10:04:25 10:04:25 10:04:28 10:04:29 10:04:34 10:04:35 10:04:38 10:04:38 10:04:41 10:04:44 10:04:46 10:04:48 10:04:50 10:04:51 10:04:52 10:04:52 10:04:54 10:04:54 10:04:58 10:04:58 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE VIDEOGRAPHER:

This is tape

number 1 of the videotaped deposition of Michael Wolf in the matter Viacom International, Inc., the Football Association Premiere League Limited, et al., versus YouTube Inc., YouTube, LLC and Google, Inc. This deposition is being held at 80 Pine Street, New York, New York on April 17, 2009, at approximately 10:02 a.m. My name is Carlos King from the firm of David Feldman Worldwide, and I am the legal video specialist. The

court reporter is Jennifer Ocampo-Guzman in association with David Feldman Worldwide. Will counsel please introduce themselves. MR. VOLKMER: Bart Volkmer from

Wilson Sonsini Goodrich & Rosati representing defendants Google and YouTube. MR. ZUROFSKY: Adam Zurofsky from

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

Page 6
1 10:04:58 10:05:00 10:05:01 10:05:02 10:05:06 10:05:07 10:05:07 10:05:08 10:05:10 10:05:14 10:05:14 10:05:17 10:05:17 10:05:20 10:05:22 10:05:23 10:05:25 10:05:27 10:05:27 10:05:31 10:05:31 10:05:32 10:05:32 10:05:34 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Cahill Gordon & Reindel, LLP, with my associate Chris Gorman, representing the witness. MS. KOHLMANN: Susan Kohlmann from

Jenner & Block, LLP, representing Viacom. MR. VOLKMER: Wolf. Good morning, Mr.

Could you please state your name

and home address for the record, please? THE WITNESS: Fifth Avenue. MR. VOLKMER: I know that you've Michael J. Wolf, 1010

been deposed before and I know you know the routine, but I'd like to go over a few of the ground rules today. First, the court reporter is taking down everything that we say, so please answer audibly instead of nodding your head or shaking your head. THE WITNESS: MR. VOLKMER: Okay. And your attorney may

be making objections throughout the course of the deposition from time to time, and even though he's making

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

Page 84
1 11:48:18 11:48:21 11:48:28 11:48:33 11:48:35 11:48:37 11:48:40 11:48:44 11:48:47 11:48:50 11:48:52 11:48:53 11:49:07 11:49:08 11:49:10 11:49:13 11:49:14 11:49:15 11:49:16 11:49:17 11:49:19 11:49:21 11:49:21 11:49:30 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Wolf foundation. A. At the time I would have need --

needed to see -- I mean, again, I don't know whether I agree. On one side I believed that

it was an acquisition that would be important; on the other side I would have needed to see much more financial information and information about the business model before I could have gone ahead, and, and believed that this was an acquisition that Viacom should complete. Q. From a business perspective, the

individuals listed at the top of this e-mail came to the conclusion that such an acquisition would be viable though, right? MR. ZUROFSKY: foundation, vague. MS. KOHLMANN: MR. ZUROFSKY: for itself. A. "viable." Q. What was the function of the group Go on. Objection. The document speaks Objection to form,

I don't see anywhere where it says

that was convened over the second weekend in

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

Page 85
1 11:49:33 11:49:37 11:49:39 11:49:40 11:49:40 11:49:43 11:49:44 11:50:08 11:50:09 11:50:17 11:50:29 11:50:33 11:50:35 11:50:41 11:50:46 11:50:48 11:50:51 11:50:54 11:50:56 11:50:59 11:51:04 11:51:07 11:51:13 11:51:16 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Wolf July of 2006, to look at the YouTube, at a potential YouTube acquisition? MR. ZUROFSKY: asked and answered. MS. KOHLMANN: MR. ZUROFSKY: document. A. If you look at the previous Objection. Yes, the last Objection to form,

document, the document marked Wolf 6 ID 41709 it says, the fifth paragraph down, "The key question we now need to consider, how could we create a business model for YouTube?" Q. Okay. And what was the answer from

that group that you convened? A. Q. Ultimately the answer was no. The group came back with the

answer, no, we can't create a business model for YouTube? A. To the best of my recollection, we

did not pursue the acquisition and so we did not continue to have negotiations around the acquisition, so the group did not say that we should buy YouTube. Q. You convened a group to come back

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

Page 86
1 11:51:21 11:51:25 11:51:28 11:51:30 11:51:32 11:51:32 11:51:32 11:51:35 11:51:37 11:51:40 11:51:42 11:51:43 11:51:44 11:51:45 11:51:47 11:51:48 11:51:54 11:51:55 11:51:56 11:51:59 11:52:01 11:52:20 11:52:26 11:52:35 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Wolf and answer the question of whether we, and that's MTV Networks, could create a business model for YouTube and they had a session over the weekend and they reported back to you; is that right? A. Q. That's correct. And you're saying that their

recommendation, after meeting over the weekend, was that MTV Networks could not build a business model -MR. ZUROFSKY: Q. Objection.

-- around YouTube? MR. ZUROFSKY: Objection,

misstates, foundation, form. Go ahead. MS. KOHLMANN: THE WITNESS: Objection. Could you read me

back the question, please, it's just a lot of questions so I'm having trouble remembering which one I'm answering. (A portion of the record was read.) A. To the best, to the best of my

recollection, they did not believe that we could build a sufficient business model that

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c

Page 87
1 11:52:39 11:52:41 11:52:54 11:52:56 11:52:58 11:53:01 11:53:03 11:53:05 11:53:05 11:53:07 11:53:07 11:53:09 11:53:09 11:53:12 11:53:15 11:53:19 11:53:25 11:53:28 11:53:29 11:53:30 11:53:31 11:53:46 11:53:48 11:53:51 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Wolf would justify an acquisition. Q. But doesn't Mr. Cahan state at the

conclusion of that weekend, after meeting with the individuals that we've been discussing, that we all believe this is a transformative acquisition that we should pursue? MR. ZUROFSKY: Objection, the

document speaks for itself, asked and answered. MS. KOHLMANN: MR. ZUROFSKY: A. Objection. Form.

I didn't write this memo, so I

don't know specifically what Mr. Cahan means. Q. But he's reporting back to you the

results of a group consensus regarding an acquisition of YouTube by Viacom, right? MS. KOHLMANN: MR. ZUROFSKY: Objection. Objection,

misstates, foundation. A. consensus. Q. I don't know if that was the He is reporting back. And he's reporting back, "We all

believe this is a transformative acquisition

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

584ffb46-7a6e-4834-9ab5-d178479cf79c