Function Media, L.L.C. v. Google, Inc. et al

Filing 79

MOTION for Protective Order Barring Discovery of Non-Accused Products by Yahoo!, Inc.. (Attachments: # 1 Decl. of Jeffrey G. Homrig ISO Yahoo!'s Motion, # 2 Exhibit 1 to Homrig Decl., # 3 Exhibit 2 to Homrig Decl., # 4 Exhibit 3 to Homrig Decl., # 5 Exhibit 4 to Homrig Decl., # 6 Exhibit 5 to Homrig Decl., # 7 Exhibit 6 to Homrig Decl., # 8 Exhibit 7 to Homrig Decl., # 9 Exhibit 8 to Homrig Decl., # 10 Exhibit 9 to Homrig Decl., # 11 Exhibit 10 to Homrig Decl., # 12 Text of Proposed Order Granting Yahoo!'s Motion for a Protective Order)(Lumish, Douglas)

Exhibit 2

1 UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF TEXAS
4 FUNCTION MEDIA, LLC,

3 - - -000- -5 Plaintiff,
6

vs.
GOOGLE, INC. and YAHOO!, INC.,

No. 2007-CV-279 (CE)

7
8 9

Defendants.
HIGHLY CONFIDENTIAL - ATTORNEYS i EYES ONLY

10 11 12 13 14 15

ROUGH TRASCRIPT ONLY

30 (b) (6) Deposition of
MATTHEW PLUMMER

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18

Thursday, March 19, 2009

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22 Reported by: GEORGE SCHUMER, CSR 3326 23
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(03-417854)

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REDACTED

1

MR. BRADON: Q. What were the products called,
MR. LUMISH: Same objection.

2 during this pre-Overture time?
3

4
5

THE WITNESS: That I can i t speak to.

MR. BRADON: Q. What is your acurrent title at

6 Yahoo, sir.

7 A. Director of product management.
8 Q. What do you do as director of product management?

9 A. I oversee the conceptual design of the products
10 that we should be building; enhancements to those
11 products; release cadence for those products.

12
13

Q. When you say "products;" are you referring both

to

Yahoo Search Marketing and Yahoo publisher network?
A.
Q.

14
15

No.
To what are you
We

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A.

have - -

referring? personally 1'm involved in

a

separate

set of on-line

advertising products.

Q. What that separate set called?
A. "APT from Yahoo."
Q. Are you involved in anything other than APT for

19
20

21 Yahoo?
22
23

A. At the moment, no.
Q. What is "APT for Yahoo"?
MR. LUMISH: You can answer in general terms.

24

25 Obj ect as beyond the scope of the notice.

22

1 MR. BRADON: I would say that an obj ection for
2 beyond the scope is not proper in the Eastern District.

3 And moreover, Mr. Plummer is here in his personal

4 capacity.

5 MR. LUMISH: I i m not saying you can i t ask him. I
6 just want it to be clear he's not a 30(b) (6) witness on

7 this topic.
8 THE WITNESS: APT for Yahoo is an out-serving
9 platform.

10 MR. BRADON: Q. What does that mean?
11 A. It is a platform that enables Yahoo to serve
12 advertisements to users, and for Yahoo to manage how

13 those -- how the inventory is priced and classified.
14 Q. When you say "a platform that enables Yahoo to

15 serve advertisements to users," what sort of users are you

16 referring to?

17 A. Regular users surfing the Internet.
18 Q. Where are the advertisements provided?

19 MR. LUMISH: Same objection.
20 THE WITNESS: Can you clarify your question,
21 please?

22 MR. BRADON: Q. To whom does Yahoo serve the
23 advertisements?

24 A. On the apts platform?

25 A.
23

1
2

Q. Yes?

Q. SO end users surfing web sites that belong to
Q. When was APT released?
A. APT was first released in -- I believe the second

3 publishers that are working with Yahoo, using APT.
4
5

6 quarter of 2008.
7

Q. So these are advertisements that appear on a web

8 site i s web page? To end users?
9

MR. LUMISH: Object to the form, and same scope

10 objection.
11
THE WITNESS: These are advertisements that are
12 deli vered to the end user, who is viewing a web page.
13 14

MR. BRADON: Q. And the advertisements are
displayed on

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the web page? A. They are displayed in a is using to look at a web page.
Q.
SO

web browser

that

a user

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if

I were to go

to, say,

CNN. com and

I see ads

on

that
A.
Q.

web

page, is that what you are referring to?

CNN.com
Give me
MR.

is not

a customer of APT.

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an example of a customer of APT,
Same

please.

LUMISH:

obj ections.

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Francisco grate. SF gate. com. MR. BRADON: If I was to go to SF gate. com Q. and type that in my browser, a web page would appear on the screen; is that correct?
THE WITNESS:

San

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1 A. Through your browser; correct.
2 Q. And there would be content on that web page;
3 correct?

4 A. That is correct.
5 Q. And one of the things I would see would be an
6 advertisement that Yahoo has made available; correct?

7 A. An advertisement that Yahoo has delivered to you;

8 correct.
9 Q. How is APT for Yahoo different than, say, Yahoo

10 Publisher Network on line?

11 MR. LUMISH: Let me just interrupt you here.

12 The witness isn't here to talk about APT; it is
13 not an accused product. Our objections were pretty clear
14 on that. l've let you get some basic information about
15 it, but if you want to delve into the technical details;

16 the confidential material of it, 1'm not going to permit

17 that.

18 You'll have to bring a motion for protective
19 order, if that i s required. He i shere, designated,

20 prepared, ready to go on YSM, YPN - - everything you put in

21 your infringements allegations. And that's it.

22 MR. BRADON: He just testified, Mr. Lumish, that
23 APT for Yahoo was not issued until the second quarter of 24 2008, which is after our infringementment contentions were

25 served, as you know. He's here in his personal capacity,

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1 2
3

REDACTED REDACTED

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5 6 7 8 9

Q. For those advertisers who don't use the YSM on
line interface, you said they may phone somebody at Yahoo;

correct?
A. For advertisers that do not manage themselves
directly through the software interface, they may phone
somebody at Yahoo; correct.

10

11
12
13

Q. How does their content in that situation get
inputted into the system?

MR. LUMISH: Obj ect as beyond the scope.
You can answer if you know.

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THE WITNESS: An advertiser may call their sales
representative at Yahoo. The Yahoo sales representative
would work with the advertiser to determine what, in the
context you are talking about, the advertising content

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should be. There may be an exchange of e-mail so that
there's not typos or translation issues with the content.

A sales representative would have a variety of

ways to do that in putting. They may input that
information into the system through an internal software

interface. They may input it by directing it to somebody
who does it on their behalf.

52

1 Q. How would that somebody that does it on their
2 behalf - - how would that somebody do it?

3 A. Through a similar internal software interface.

4 Q. Do any advertisers use an API?
5 A. Different Yahoo customers indeed use an API,
6 which is an application programming interface, instead of
7 using a UI or a user interface through the web browser.

8 Q. SO that i s yet a third way that advertisers
9 interact with the Yahoo Search Marketing system; right?

10 A. An advertiser could use the API as another way of
11 interacting with the Yahoo Search Marketing platform.

12 Q. What advertisers use the API?

13 A. Any advertiser, again, who had the technology in
14 house to do that, could use an API to talk to Yahoo

15 platform.
16 Q. How many advertisers use the API?

17 MR. LUMISH: Same objection.
18 THE WITNESS: I don i t know.

19 MR. LUMISH: Mr. Homrig is here, if you wanted to
20 call the Court. You are heading down the same territory
21 the Court will be addressing anyway.

22 MR. BRADON: Sure, we can go ahead and call
23 them. I've got the number here.

24 Let's to this on the record.
25 MR. LUMISH: We don't need to be on the video

53

1
2 3

A.
Q.

They do
Do

not.

4
5 6

whom

they use another interface on line? A. They do not. for Are these the groups of publishers that Q. a person at Yahoo inputs information on their behalf?
--

MR. LUMISH: Object as to form.
THE WITNESS: A direct YPN publisher would

7

8 contact their account management representative through

9 whatever various means. That account management
10 representative will to the required work internal to Yahoo
11 on behalf of the publisher, based on the request.
12

MR. BRADON: I guess let i s go off the record and

13 get Mr. Homrig in the room, and we can try to get the

14 Court in.
15

THE VIDEOGRAPHER: This concludes Videotape 1 in

16 the deposition of Matthew Plummer. Going off the record,
17 the time is 11: 59 .

18 (Discussion off the record) 19 (Phone call made)
20 21

UNIDENTIFIED VOICE: Judge Guthrie i s chambers
MR. LUMISH: Good afternoon, my name is Doug

22 Lumish, an attorney in a case styled Function Media vs.

23 Yahoo. We i re in the middle of a deposition, and we have 24 opposing counsel on the line, and we have a dispute that 25 we i re hoping Judge Guthrie might resolve for us.

78

1

UNIDENTIFIED VOICE: Are you calling the hot

2 line?
3

MR. LUMISH: Yes, ma i am.
UNIDENTIFIED VOICE: Hold on just a moment.

4
5 6

MS. TERRY GOODE: This is Terry Goode.

MR. LUMISH: My name is Doug Lumish, an attorney

7 for Yahoo. I've got opposing counsel, an attorney for 8 Function Media on the line. We i re having a dispute in the
9 midst of a deposition, and we i re hoping to get that

10 resolved today.
11
MS. TERRY GOODE: The hot line judge is not

12 available. Who is your presiding judge?
13 14
MR.

LUMISH:

Judge Everingham.

MS. GOODE:

Let him know the hot

15 16

not available today.
MR.

That i s

line judge is really all I can to for you.

LUMISH:

Thank you very much.

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18 19

You want

to do that, I assume?
(New phone call made)

MR. BRADON: Sure.

20

CLERK'S OFFICE: This is Clerk's office -

21 Charlene.
22

MR. LUMISH: I i m trying to reach Judge
CLERK i S OFFICE: I'll patch you through.

23 Everingham.
24

25

UNIDENTIFIED VOICE: Debbie Latham - - is not

79

1 available at the moment.
2 MR. LUMISH: What do you want to do?
3 MR. BRADON: Let's break for lunch, and then
4 we' 11 try the judge when we get back.

5 MR. LUMISH: I don i t think we want to waste time
6 on the hot line anymore. Take an hour?

7 MR. BRADON: Whatever works best for you all.

8 MR. LUMISH: You going to finish today?

9 MR. BRADON: No way. 10 MR. LUMISH: Let i s take an hour.

11 (Discussion off the record)
12 END MORNING SESSION 13 (Lunch recess, 12:10-1:15 p.m.)
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80

1 CERTIFICATE OF REPORTER
2 I, George Schumer, a Certif ied Shorthand
3 Reporter, hereby certify that the witness in the foregoing 4 matter was by me duly sworn to tell the truth, the whole

5 truth and nothing but the truth in the within-entitled

6 cause;

7 That said proceeding was taken down in shorthand
8 by me, a disinterested person, at the time and place
9 therein stated, and that the testimony of the said

witness

10 was thereafter reduced to typewriting, by computer, under

11 my direction and supervision;

12 That before completion of the deposition, review
13 of the transcript was not requested.

14 In witness whereof, I have subscribed my name.
15

16 DATED:
17

18 George Schumer, CSR 3326
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