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

Filing 91

RESPONSE in Opposition re 83 MOTION to Compel DISCOVERY INTO NON-ACCUSED TECHNOLOGY filed by Yahoo!, Inc.. (Attachments: # 1 Declaration of M. Lane ISO Opposition to MTC, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18)(Lane, Michael)

Exhibit 15

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF~TEXAS ---oOo--FUNCTION MEDIA, LLC,

Highly Confidential
ATTORNEYS EYES ONLY

Plaintiff,

VS.

No. 2007-CV-279 (CE)

GOOGLE, INC. and YAHOO!, INC.,

Defendants.

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

30 (b) (6) Deposition of MATTHEW PLUMMER VOLUME I, Pages 1 - 227

Thursday, March 19, 2009

Reported by: GEORGE SCHUMER, CSR 3326

Merrill Legal Solutions 1-888-513-9800

Houston www.merrillcorp.com/law

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 2 3
1 2 3 4

at Yahoo, sir? A. Director of product management. Q. What do you do as director of product management? A. I oversee the conceptual design of the products that we should be building; enhancements to

10:18:36 10:18:38 10:18:40 10:18:42 10:18:42 10:18:44 10:18:47 10:18:54 10:18:56 10:19:00 10:19:00 10:19:01 10:19:03 10:19:08 10:19:11 10:19:13 10:19:17 10:19:24 10:19:25 10:19:28 10:19:34 10:19:36 10:19:39 10:19:43 10:19:47

5

7 8
9

those products; release cadence for those products. Q. When you say "products," are you referring both to Yahoo Search Marketing and Yahoo Publisher Network? A. Q. A. No. To what are you referring? We have -- personally I'm involved in a

i0
Ii

14

separate set of on-line advertising products. Q. A. Q. What is that separate set called? "APT from Yahoo." Are you involved in anything other than APT

15 16 17

18
19

for Yahoo? A. At the moment, no. Q. What is "APT for Yahoo"? MR. LUMISH: You can answer in general terms. Object as beyond the scope of the notice. MR. BRANDON: I would say that an objection for beyond the scope is not proper in the Eastern District. And moreover, Mr. Plummer is here in his i-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp.com/law

2O
21 22 23 24

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 24
1 2 3 4 5 6 7 8 9 I0 II
io

personal capacity. MR. LUMISH: I'm not saying you can't ask him. I just want it to be clear he's not a 30(b) (6) witness on this topic. THE WITNESS: platform. MR. BRANDON: Q. What does that mean? It is a platform that enables Yahoo to serve APT for Yahoo is an out-serving

10:19:49 10:19:50 10:19:52 10:19:56 10:19:57 10:20:01 10:20:02 10:20:03 10:20:07 10:20:12 10:20:23 10:20:31 10:20:35 10:20:36 10:20:39 10:20:49 10:20:50 10:20:53

advertisements to users, and for Yahoo to manage how those-- how the inventory is priced and classified. Q. When you say "a platform that enables Yahoo to serve advertisements to users," what sort of users are you referring to?

14

A. Regular users surfing the Internet. Q. Where are the advertisements provided? MR. LUMISH: Same objection. THE WITNESS: Can you clarify your question, please? MR. BRANDON : Q. advertisements? A.
On the APT platform? Yes. To end users surfing web sites that belong to

15 16
17

18
19

To whom'does Yahoo serve the

10:20:53 10:21:01 10:21:01 10:21:07 10:21:08 10:21:12 10:21:21

2O
21 22 23 24

Q.
A.

publishers that are working with Yahoo, using APT. Q. When was APT released? 1-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp.com/law

~Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 2 5
1 2 B

APT was first released in -- I believe the second quarter of 2008. Q. So these are advertisementsthat appear on a web site's web page, to end users? MR. LUMISH: scope objection. THE WITNESS: These are advertisements that Object to the form, and same

,10:21:24 10:21:29 10:21:35 10:21:39 10:21:44 10:21:46 10:21:48 10:21:51 10:21:54

4 5 6 7 8
9
I0

are delivered to the end user, who is viewing a web page. MR. BRANDON: Q. And the advertisements are displayed on the web page? A. They are displayed in A web browser that a user is using to look at a web page.

10:21:54 10:21:56 10:21:57 10:22:01 10:22:06 10:22:09 10:22:13

II

14 15 16 17 18 19 20 21 22 23 24

Q. So if I were to go to, say, CNN.com, and I see ads on that web page, is that what you are referring to? A. CNN.com is not a customer of APT.

10:22:13 10:22:16 10:22:19

Q. Give me an example of a customer of APT,
please. MR. LUMISH: THE WITNESS: MR. BRANDON: Same objections. San Francisco Gate. SFgate.com. Q. If I was to go to SFgate.com

10:22:20 10:22:24 10:22:27 10:22:30 10:22:33 10:22:34

and type that in my browser, a web page would appear on the screen; is that correct? A. Through your browser; correct. Merrill Legal Solutions 1-888-513-9800 Houston www.merrillcorp.com/law

Matthew Plummet, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 2 6
1 2 3 4 5 6 7 8 9 i0 ii
12

Q. And there would be content on that web page; correct? A. Q. That is correct. And one of the things I would see would be an

10:22:36 10:22:39 10:22:40 10:22:40 10:22:44 10:22:46 10:22:50 10:22:51 10:23:19 10:23:22 10:23:23 10:23:27 10:23:30 10:23:33 10:23:35 10:23:39 10:23:40 10:23:42 10:23:45 10:23:49 10:23:53 10:23:56 10:24:00 10:24:03 10:24:06

advertisement that Yahoo has made available; correct? A. An advertisement that Yahoo has delivered to you; correct. Q. How is APT for Yahoo different than, say, Yahoo Publisher Network on line? MR. LUMISH: Let me just interrupt you here. The witness isn't here to talk about APT; it is not an accused product. Our objections were pretty clear on that. I've let you get some basic information

14

about it, but if you want to delve into the technical details; the confidential material of it, I'm not going to permit that. You'll have to bring a motion for protective order, if that's required. He's here, designated, prepared, ready to go on YSM; YPN -- everything you put in your infringement allegations. And that's it. MR. BRANDON: He just testified, Mr. Lumish, that APT for Yahoo was not issued until the second quarter of 2008, which is after our infringement contentions were served, as you know. He's here in his personal capacity, as well as his corporate capacity, Merrill Legal Solutions - Houston 1-888-513-9800
www.merrillcorp.com/law

15 16
17

18
19 20 21 22 23
24

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 27
1 2 3

for Yahoo.

I believe I'm entitled to explore this

10:24:08 10:24:11

product with him. I'm asking: answer? MR. LUMISH: I will, sufficiently to give you time to suspend the deposition. We can even suspend the deposition and bring a motion, or you can ask about other things, and we'll understand that I have instructed him;he can't answer questions about technical details of that product, because we'll bring a protective order, because we think it is out of bounds. MR. BRANDON: What is your basis for believing
Are you instructing him not to

10:24:12 10:24:15 10:24:15 10:24:16 10:24:18 10:24:20 10:24:23 10:24:26 10:24:30 10:24:33 10:24:33 10:24:34 10:24:38 10:24:39 10:24:41 10:24:44 10:24:46 10:24:49 10:24:52

4 5 6 7 8 9 I0 II
12

14

that APT for Yahoo is out of bounds, given that this is what the witness does at the present time? MR. LUMISH: It doesn't matter what he does. He's also extremely knowledgeable about what you have accused of infringement, and that's not APT. sO he's here to talk about this case; materials relevant to this case. basis. MR. BRANDON: Are you instructing him not to APT is not one of those. So that's my

15 16 17 18 19

2O
21 22 23 24

10:24:52 10:24:54 10:24:57 I0:24~59

answer any further questions on APT for Yahoo? MR. LUMISH: I'll have to hear what the questions are; he's answered a number already. If it Merrill Legal Solutions - Houston 1-888-513-9800
www.merrillcorp.com/law

Matthew Plummer, Volume I - 3/19/200.9 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 28
1 2 3 4 5 6 7 8 9 i0 ii

is basic and foundational: what does he do; what is his position with the company -- I~ don't have a problem with that. If you want to get into technical details of APT -- which are extremely confidential to the company, and not at issue in this lawsuit -- then yes, I will block it, subject to a motion for protective order, sufficient for a motion to permit me time to bring that motion. MR. BRANDON: I do want tO get into the technical details of APT for Yahoo, but obviously we'll respect your instruction.
MR. LUMISH: So we can meet and confer; we can

10:25:02 10:25:03 10:25:06 10:25:06 10:25:08 10:25:10 10:25:12 10:25:15 10:25:18 10:25:18 10:25:21 10:25:25 10:25:27 10:25:29 10:25:32 10:25:45 10:25:48 10:25:51 10:25:52 10:25:56 10:25:58 10:26:00 10:26:03 10:26:06 10:26:09

14

just bring a motion. MR. BRANDON:

We can take that up off line. And I would just say for the

15 16 17

record, again, as I'm sure you know, that these sorts of objections I don't believe are proper in the Eastern District, and there's opinions out there where witnesses are not supposed to be instructed not.to answer, except on privilege grounds. MR. LUMISH: That's true, that I can't instruct him not to answer except on privilege grounds. Except I can suspend the deposition to bring a motion for protective order. There is a ton of law on that. If you prefer to go that route, we can do it. 1-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp.com/law

18
19

2O
21 22 23
24

Matthew Plummet, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 2 9
1 2 3 4 5 6 7 8 9 i0 ii

I think that's not the. way to proceed." You've got the witness here; you might as well take his deposition on the matters that are clearly in play. If you want me to suspend the deposition to bring a protective order, that is what I'm entitled to do. I would rather not, but if you force me into that boat, I'll do it. MR. BRANDON: I do not want you to suspend the deposition on the topics that I noticed for today. MR. LUMISH: So the instructions are on that ground. Maybe I misunderstand the Eastern District of Texas rule, but what I understand the rule to be on scope is that~I can't instruct him not to answer

10:26:12 10:26:13 10:26:15 10:26:16 10:26:18 10:26:22 10:26:23 10:26:24 10:26:25 10:26:32 10:26:34 10:26:37 10:26:40 10:26:42 10:26:44 10:26:47

14 15 16 17 18 19 20 21 22 23 24

because it is beyond the scope. I can bring the motion for a protective order. We have already talked about that. I'm just trying to note for the record when I think it is beyond thescope, so it is clear when he is or is not our corporate representative on any specific question on that. Other than APT, I don't think there's anything privileged on that; there is anything you can explore. On the finances he won't know; he won't be our corporate rep on that. MR. BRANDON: I don't understand why you won't

10:26:47 10:26:49 10:26:53 10:26:56 10:26:59 10:27:02 10:27:05 10:27:08 10:27:09

let me explore APT. He's here; he knows all about it; Merrill Legal Solutions - Houston
1-888-5i3-9800 www.merrillcorp, com/law

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 57
1 2 3

time is 11:20. [Phone call placed] UNIDENTIFIED VOICE: I'm sorry that you have reached Judge Guthrie's answering service. We're not in right now. Please leave a message and we will call you -MR. LUMISH: That doesn't sound like the right number. MR. BRANDON: We can go off the record until we get the Court on the phone. (Discussion off the record)
THE VIDEOGRAPHER: time is 11:25.

11:20:43 11:20:43 11:21:17 11:21:23 11:21:26 11:21:30 11:21:32 11:21:36 11:22:02 11:22:04 11:22:07 11:24:50 11:24:58

4 5
6
7

8
9

i0
ii

Back on the record, the

14 15 16 17 18 19 20 21 22 23 24

MR. BRANDON: Q.

Yahoo Publisher Network On

11:24:59 11:25:08 11:25:11 11:25:16 11:25:19 11:25:22 11:25:23 11:25:29 11:25:33 11:25:38 11:25:41 11:25:49

Line also has an on-line user interface; correct? A. Yahoo Publisher Network On Line is sort of what we refer to as that community of publishers, and the software portion of the interface for those publishers to use. Q. And that community of publishers uses an interface as accessible by the Internet; correct? A. They use a software interface that uses a web browser, that they can get to over the Internet. Q. In the same way that we discussed the Yahoo Search Marketing interface earlier, there is code that Merrill Legal Solutions - Houston 1-888-513-9800
www.merrillcorp.com/law

Matthew Plummet, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 82
1 2

contact their account management representative through whatever various means. That account management representative will do the required work internal to Yahoo on behalf of the publisher, based on the request. MR. BRANDON: I guess let's go off the record and get Mr. Homrig in the room, and we can try to get the Court in. THE VIDEOGRAPHER: This concludes Videotape 1 in the deposition of Matthew Plummer. Going off the record, the time is 11:59. (Discussion off the record) [Phone call made] UNIDENTIFIED VOICE: Judge Guthrie's chambers.

11:58:52 11:58:54 11:58:57 11:59:00 11:59:05 11:59:11 11:59:21 11:59:23 11:59:28 11:59:31 11:59:35 12:05:32 12:05:35 12:05:37 12:05:40 12:05:44 12:05:48 12:05:48 12:05:52

3 4 5 6 7 8 9 i0 ii

14 15 16 17 18 19 2O 21 22 23 24

MR. LUMISH: Good afternoon, my name is Doug Eumish, an attorney in a case styled Function Media vs. Yahoo. We're in the middle of a deposition, and we have opposing counsel on the line, and we have a dispute that we're hoping Judge Guthrie might resolve for us. UNIDENTIFIED VOICE: Are you calling the hot
line?

12:05:53 12:05:54

MR. LUMISH: Yes, ma'am. UNIDENTIFIED VOICE: Hold on just a moment. MS..TERRY GOODE: This is Terry Goode. MR. LUMISH: My name is Doug Lumish, an
1-888-513-9800

12:05:54 12:05:56 12:06:15 12:06:17

Merrill Legal Solutions - Houston www.merrillcorp.com/law

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 8 3
1 2 3

attorney for Yahoo. I've got opposing counsel, an attorney for Function Media, on the line. We're having a dispute in the midst of a deposition, and we're hoping to get that resolved today. MS. TERRY GOODE: The hot line judge is not available. Who is your presiding judge? Judge Everingham. Let him know the hot line judge is

12:06:19 12:06:22 12:06:24 12:06:29 12:06:32 12:06:36 12:06:36 12:06:36 12:06:42 12:06:45

4 5
6 7

MR. LUMISH: MS. GOODE:

8
9 I0
ii

not available today. That's really all~I can do for you. MR. LUMISH: Thank you very much. You want to do that, I assume? MR. BRANDON: Sure.

12:06:45 12:06:52 12:06:54 12:07:26 12:07:26 12:07:33

12

14 15 16 17 18 19 20 21 22 23 24

.[New phone call made] CLERK'S OFFICE: Charlene. MR. LUMISH: Everingham. CLERK'S OFFICE: I'll patch you through. I'm trying to reach Judge This is Clerk's office --

12:07:33 12:07:40 12:08:16 12:08:23 12:08:26 12:08:30 12:08:32 12:08:33 12:08:36

UNIDENTIFIED VOICE: Debbie Lat~am -- is not Available at the moment. MR. LUMISH: What do you want to do? MR. BRANDON: Let's break for lunch, and then we'll.try the judge when we get back. MR. LUMISH: I don't think we want to waste
Merrill Legal Solutions 1-888-513-9800 Houston www.merrillcorp.com/law

Matthew Plummer, Volume I - 3/19/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 226
1 2 3 4 5 6 7 8 9 I0 ii

for the night. Or I'll continue until you folks have had it. I know you've got a .car to pick up. MR. LUMISH: Yes, why don't we close it out? THE VIDEOGRAPHER: This concludes the videotape deposition of Matthew Plummer. All videotapes will be retained by Merrill Lega! Solutions, located at 315 Capitol, Suite i00, in Houston, Texas .77002. The time is 5:53. (Deposition continued, 5:53 p.m.)

17:52:49 17:52:52 17:52:57 17:53:00 17:53:01 17:53:04 17:53:08 17:53:17 17:53:17

DECLARATION OF WITNESS I declare under penalty of perjury that
14

the foregoing is true and correct. Subscribed at , California, this of , 2009. day

15
16 17

18
19 20 21 22 23 24

Signature of witness

Merrill Legal Solutions 1-888-513-9800

Houston www.merrillcorp.com/law

1 2 3 4 5 6 7

CERTIFICATE OF REPORTER I, GEORGE SCHUMER, a Certified Shorthand Reporter, hereby certify that the witness in the foregoing deposition was by me duly sworn to tell the truth, the whole truth, and nothing but the truth in the within-entitled cause; That said deposition was. taken down in shorthand by me, a disinterested person, at the time and place therein stated, and that the testimony of the said witness was thereafter reduced to typewriting, by computer, under my direction and supervision; That before completion of the deposition, review of the transcript [ ] was ~] was not requested. If requested, any changes made by the deponent (and provided to the reporter) during the period allowed are appended hereto. I further certify that I am not of counsel or attorney for either or any of the parties to the said deposition, nor in any way interested in the event of this cause, and that I am not related to any of the parties thereto.

8
9 i0 ii 12 13 ]4 15 16 17 18 19 2O 21 22 23 24 25

GEORGE SCHUMER, CSR No. 3326

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 228
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS ---oOo--FUNCTION MEDIA, LLC,

Highly Confidential
ATTORNEYS EYES ONLY

Plaintiff,

VS.

No. 2007-CV-279 (CE)

GOOGLE, INC. and YAHOO!, INC.,

Defendants.

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

VOLUME II, Pages 228 - 450

30 (b) (6) Deposition of MATTHEW PLUMMER

Friday, March 20, 2009

Reported by: GEORGE SCHUMER, CSR 3326

Merrill Legal Solutions 1.-888-513-9800

Houston www.merrillcorp.com/law

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 336
1

I think it is perfect for you to understand there were other interfaces and usage, for example, and if you want to ask that, I don't have a problem with it. As we talked about yesterday, given the state of your infringement contentions and the discussions the parties have had, we don't think it is appropriate to delve into the number of other interfaces that Yahoo has. I don't want to reveal the highly technical, highly confidential details of those, given that they are not accused products in the case. I don't know if your question is calling for that. It sounds to me like it is sort of edging up to

12:34:39 12:34:44 12:34:48 12:34:49 12:34:52 12:34:55 12:34:57 12:35:00 12:35:03 12:35:06 12:35:07 12:35:09 12:35:14 12:35:16 12:35:20 12:35:23 12:35:26 12:35:29 12:35:30 12:35:32 12:35:33 12:34:31 12:34:31 12:33:55 12:33:57

2 3
4

5
6

7 8
9

i0
ii 12

it. As we talked about before, we are going to have
14

some form of motion practice before the Court on this issue, so we should shelve these questions until the Court has decided this issue for us. MR. BRANDON: Are you going to direct him not to answer my previous question? MR. LUMISH: Can I hear the question itself back, please? (Record read: "Q. How would ads for these publishers get served?") MR. LUMISH: And the question before that? (Record read: "Q. Are these the folks we talked about yesterday, where they might call up a representative at 1-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp.com/law

15 16
17

18
19 20 21 22 23 24

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 337
1 2 3

Yahoo, who would then input the publisher's information in a Yahoo-facing interface?") MR. LUMISH: It is sort of hard for me to gauge, from your question, how the witness is going to answer. What I don't want the witness to do is to get into the confidential details of these other approaches that we have. So I'm not instructing him on that question, as it stands, but I am asking the witness not to get into that level of technical detail. MR. BRANDON: So if I told you, Doug, that I do want to know the confidential details -- as you call them -- of this process, you would instruct the witness not to answer? MR. LUMISH: Only to the extent that I need to do that to bring a motion for protective order. But yes. MR. BRANDON: The last statement I didn't quite understand. I'm just telling you that I want to ask the question: Are you going to prevent the witness from answering, as he sits here today? MR. LUMISH: Sufficiently to give me an opportunity to bring a motion for protective order. The reason I say that is -- and it is important, and you raised it yesterday -- that the 1-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp, com/law

12:34:01 12:34:05 12:36:01 12:36:04 12:36:06 12:36:08 12:36:12 12:36:15 12:36:18 12:36:24 12:36:25 12:36:28 12:36:31 12:36:34 12:36:34 12:36:37 12:36:41 12:36:41 12:36:43 12:36:46 12:36:49 12:36:51 12:36:53 12:36:55 12:36:58

4 5 6 7 8 9 i0 ii
12

~i

3

14 15 16 17 18 19 20 21 22 23 24

Matthew Plummet, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 338
1 2 3 4
5 6

proper grounds for instructing not to answer are privileged, and my option as an attorney defending here, when you ask questions that I think are inappropr±ate -- beyond just objecting -- would be to seek a protective order. If I have to suspend the deposition, or stop the questioning for that purpose, I think I'm entitled to do that.

12:37:00 12:37:03 12:37:05 12:37:07 12:37:10 12:37:12 12:37:14 12:37:15 12:37:19 12:37:21 12:37:24

8 9 I0 ii 12

So that's my position. So yes, I would be instructing to give me the opportunity to bring a motion for protective order before the answer was given. And as I said off the record, I don't think it makes sense to have you ask a hundred questions a!ong

12:37:27 12:37:29 12:37:32 12:37:34 12:37:36 12:37:39 12:37:49 12:37:54 12:37:56 12:38:00 12:38:03 12:38:~07 12:38:10 12:38:12

14 15 16 17 18 19 2O 21 22 23 24

these lines. I think you and I can understand from each other that my position would be the same on all such questions, as it relates to interfaces other than YSM or YPN -- interfaces, as you put it. MR. BRANDON: So it is your position that -assuming the Court disagrees with you, you would rather bring Mr. Plummer back, than go through it today? MR. LUMISH: Yes. If the Court tells me I have to put a witness up, then we'll provide you Mr. Plummer or somebody else. And you want his personal deposition on these matters, and the Court tells me it is s0me[hing I shouldn't have moved for 1-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp.com/law

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 4 19
I 2 3
4

Q. A. Q.

Same response for limits? That is the example of limits. Same response for bulk management

16:17:37 16:17:40 16:17:45 16:17:47 16:17:47 16:17:48 16:17:52 16:17:53 16:17:57 16:17:58 16:18:01 16:18:03 16:18:07 16:18:12 16:18:17 16:18:19 16:18:23 16:18:25 16:18:28 16:18:32 16:18:36 16:18:38 16:18:42 16:18:43 16:18:48

capabilities? A. Q. A. Q. Correct. Same response for extra behavior of reporting? Yes. Did you say number of campaigns and limits are

5
6
7

8
9

the same, or different? A. The number of campaigns an advertiser might have in their account is an example of how we would enforce limits. MR. BRANDON: With respect to advertisers who

i0
Ii 12

14

don't use this on-line interface, Doug, are you going to instruct the witness not to answer questions with respect to these advertisers? MR. LUMISH: I told you before what my position was. I think re-stating it is just going to add confusion. But to the extent you are going to try to get into proprietary technical details about interfaces, or about technologies not included-in your infringement contentions, then yes. MR. BRANDON: I would like to know how the interfaces are different; how the ad service is different; how any delivery is different; how any Merrill Legal Solutions - Houston 1-888-513-9800
www.merrillcorp.com/law

15
16 17

18
19

2O
21 22 23

24

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 420
1 2

processing is different. Are those the type of areas you are going to prevent me from getting into? MR. LUMISH: Yes, sufficiently to give me time to bring a protective order motion. MR. BRANDON: Q. What percentage of total advertisers, Mr. Plummer, use the YSM on-line interface? MR. LUMISH: Object as beyond the scope of his designation. THE WITNESS: That information is not something we would necessarily consider in engineering. MR. BRANDON: Q. Do you know what percentage

16:18:51 16:18:52 16:18:53 16:18:53 16:18:55 16:18:59 16:19:02 16:19:04 16:19:04 16:19:06 16:19:07 16:19:08 16:19:11 16:19:12 16:19:17

3 4 5
6
7

8
9

i0
ii 12

14 15 16 17

of revenue comes about as a result of the YSM on-line interface? MR. LUMISH: THE WITNESS: MR. BRANDON: Same objection. I do not. Q. Do you know what percentage

16:19:17 16:19:18 16:19:19 16:19:27 16:19:30 16:19:31 16:19:34 16:19:35 16:19:38 16:19:43

18
19 2O 21 22 23 24

of advertisers do not use the YSM interface?
MR. LUMISH: THE WITNESS: MR. BRANDON: Same objection. No, sir. Q. You have also mentioned that

there are a couple of tiers of publishers; correct? A. I don't believe we discussed direct tiering of publishers. 1-888-513-9800 Merrill Legal Solutions - Houston www.merrillcorp.com/law

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 422
direct publishers, whoever they are, do not use the
2 ¯3 4 5 6 7 8 9 i0 II 12 16:21:14 16:21:17 16:21:21 16:21:21 16:21:25 16:21:27 16:21:32 16:21:34 16i21:37 16:21:38 16:21:42 16:21:47 16:21:50 16:21:53 16:21:57 16:22:01 16:22:01 16:22:03 16:22:05 16:22:06 16:22:09 16:22:11 16:22:14 16:22:16 16:22:20

on-line publisher interface. A. That is correct. Q.. How many direct publishers are there? A. I'm not aware. Either in terms of sheer number, or percentage. A. Correct. MR. BRANDON: And again, just to make the record clear, with respect to these direct publishers who don't use the YPN on-line interface, Doug, I would like.to get into some issues or questions concerning what, if any, interface is used; how delivery is

14 15 16 17 18 19 20 21 22 23 24

different; how any coding is different; how any processing is different; how any targeting is different. Are you going to instruct the witness not to answer these questions with respect to these publishers? MR. LUMISH: Yes, I am, in order to give me time to bring a protective order that we have discussed. MR. BRANDON: Q. Mr. Plummer, what percentage of total publishers use the YPN on-line interface? A. I'm not aware of that number.
Merrill Legal Solutions 1-888-513-9800 Houston www.merrillcorp.com/law

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 432
1 2 3

MR. BRANDON: I would like to explore this further, and I take it you are going to instruct the witness not to answer here as well? MR. LUMISH: You are welcome to ask him questions about any technologies that fall within your infringement contentions. To the extent you are asking about technology separate from that, then yes, I think it falls within our dispute. MR. BRANDON: Notwithstanding the fact that it was.acquired after our infringement contentions were
served?

16:33:38 16:33:39 16:33:42 16:33:43 16:33:44 16:33:48 16:33:51 16:33:55 16:33:57 16:33:59 16:34:01

4 5 6 7 8 9 i0 Ii

MR. LUMISH: MR. BRANDON:
14

Yes. Q. What is Blue Lithium?

16:34:02 16:34:05 16:34:10 16:34:16 16:34:17 16:34:24 16:34:26 16:34:29 16:34:30 16:34:35 16:34:36 16:34:38 16:34:41 16:34:42

A. Blue Lithium is a technology provider in the on-line ad space. Q. A. Q. A. A competitor of Yahoo? A Yahoo acquisition. So Yahoo has acquired Blue Lithium? Correct.

15 16 17

18
19 20 21 22 23 24

Q. With the acquisition of Blue Lithium, what did Yahoo acquire? A. I don't~know.

Q. When did Yahoo acquire Blue Lithium?
MR. LUMISH: Same objection. Beyond the scope.
Merrill Legal Solutions 1-888-513-9800 Houston www.merrillcorp.com/law

Matthew Plummer, Volume II - 3/20/2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 449
1

assembled by CM2 processes, and can be served as an ad on a partner page." Do you see that? A. Q. I do. It doesn't say "on a direct partner page,"

17:10:42 17:10:46 17:10:47 17:10:50 17:10:50 17:10:53 17:10:54 17:10:57 17:11:00 17:11:05

2 3 4

5
6
7

does it? A. The word "direct" is not in that sentence. Q. And it doesn't say "served as an ad on a partner page other than a YPN On-Line partner," does it? A. There is no reference to "YPN On-Line." MR. BRANDON: I have nothing further. MR. LUMISH: Nothing further.

8
9

i0
II

17:11:05 17:11:20 17:11:22 17:11:25 17:11:26 17:11:30

14

THE VIDEOGRAPHER: This marks the end of Tape 4, Volume 2, in the deposition of Matthew Plummer. Going off the record, the time is 5:11. (Deposition conditionally concluded, 5:11 p.m.)

15
16
17

18
19 20 21 22 23 24

DECLARATION OF WITNESS I declare under penalty of perjury that the foregoing is true and correct. Subscribed at , California, this of , 2009. day

Signature of witness Merrill Legal Solutions 1-888-513-9800 Houston www.merrillcorp.com/law

I 2 3 4

CERTIFICATE OF REPORTER I, GEORGE SCHUMER, a Certified Shorthand Reporter, hereby certify that the witness in the foregoing deposition was by me duly sworn to tell the truth, the whole truth, and nothing but the truth in the within-entitled cause; That said deposition was taken down in shorthand by me, a disinterested person, at the time and place therein stated, and that the testimony of the said witness .was thereafter reduced to typewriting, by computer, under my direction and supervision; That before completion of the deposition, review of the transcript [ ] was ~] was not requested. If requested, any changes made by the deponent (and provided to the reporter) during the period allowed are appended hereto. I further certify that I am not of counsel or attorney for either or any of the parties to the said deposition, nor in any way interested in the event of this cause, and that I am not related to any of the parties thereto.

5
6 7

8
9

i0
ii 12 13 14 15 16 17 18 19

2O
21 22 23 24 25

GEORGE SCHUMER,

CSR No.

3326