I/P Engine, Inc. v. AOL, Inc. et al
Filing
310
Declaration re 307 MOTION in Limine #5 to Preclude Plaintiff From Introducing Evidence of Damages Against AOL Inc., Gannett Co., Inc., IAC Search & Media, Inc. and Target Corporation, 301 MOTION in Limine #2 to Exclude Evidence of Entire Market Value of Accused Products and of Defendants' Size, Wealth and Overall Revenues, 303 MOTION in Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate, 305 MOTION in Limine #4 to Preclude Plaintiff from Offering Evidence or Argument Relating to Defendants' Conduct During Discovery or to Google's Unproduced Licenses, 299 MOTION in Limine #1 to Preclude Plaintiff From Introducing Evidence of Willful Infringement, Pre-Suit Knowledge, or Copying of Joshua L. Sohn in Support of Defendants' Motions in Limine by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Noona, Stephen)
EXHIBIT J
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STATES UNITED DISTRICT COURT
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EASTERN DISTRICT OF VIRGINIA
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NORFOLK DIVISION
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x
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I/P ENGINE, INC.,
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Plaintiff,
v.
: Civ. Action No.
: 2:11-cv-512
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AOL, INC., et al.,
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Defendants.
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x
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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Videotaped Deposition of KEITH RAYMOND UGONE, Ph.D.
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Dallas, Texas
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Friday, September 14, 2012
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9:02 a.m.
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Job No. 26021
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Pages: 1 - 237
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Reported by: Tami Lewis, RMR, CRR, CSR
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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proxy/yardstick/benchmark approach, which is a different
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approach than -- than what Dr. Becker took, which was
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the apportionment approach.
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Q. Right. So you haven't tried to apportion out
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those functionalities that are asserted to be separable
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and noninfringing? You haven't tried to do that, have
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you?
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A. I would say from an indicator of value
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perspective, but I haven't come up with a percent, that
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20 percent of the revenues are due to the alleged
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infringement of the patents-in-suit, so I don't have
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that number, but I've done it through what I call this
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proxy/benchmark/yardstick approach.
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A. I do. That was also in combination with some
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other things, but I believe I make that statement, and
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I'm also relying upon the testimony of one of the
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in-house counsel at Google as well as, Mr. Ma --
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Maccoun?
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Q. Maccoun?
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A. Maccoun. I can't pronounce his name, but yes.
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Q. I think it's Maccoun.
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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A. Maccoun, okay.
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A. I -- actually, I need to say one more thing.
I'm sorry.
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Q. Sure.
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A. If I could go back. So there was the license
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agreements, patent license agreements. There is Mr.
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Maccoun's deposition testimony, and then I also spoke
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with him directly. And I think we tried to always
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indicate for you, you know, when those took place, so
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hopefully we footnoted everything appropriately and you
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can tell that. But never in my wildest dreams would I
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have thought that that word "strong" was inappropriate.
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Q. So it's your understanding that based on your
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communications with Mr. Maccoun, you're paraphrasing
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what he said?
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A. And deposition testimony and then observed
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preference in marketplace with the license agreements.
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Q. Okay. And you've stated that an indicator of
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that is the inbound licenses and acquisitions of Google,
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right?
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A. That's one of those three, yes.
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Q. Did you review all of Google's inbound
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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licenses?
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A. That were produced in this case, yes.
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Q. What about that weren't produced in this case?
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A. I haven't seen -- let's try it this way.
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Here's the best answer I can give you. I have reviewed
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what was produced in this case. I did not go back and
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look at any other cases that I might have -- we talked
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about the other case. I didn't go back and look at
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those license agreements, but I would be very surprised
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if I reached a different conclusion. If I had done
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that, but with respect to the materials produced in this
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case that I'm aware of at least, I did review those, if
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that answers your question.
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Q. Sure. You didn't go back and ask Google to
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look at all of its inbound licenses before you made that
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opinion, right?
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A. I did not ask that question, and just to make
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sure it's clear, I think when I was talking about
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various ranges and describing those licenses, I was
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always very careful, I believe, to say produced in this
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case.
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Q. Okay.
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A. So I do recognize that there might be some
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licenses I haven't seen that for whatever reason aren't
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relevant to this case that haven't been produced.
09:48:35
CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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Q. Right.
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A. So I suppose one could say, you know, looking
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at the license agreements that were produced that were
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deemed relevant in this case by however that process
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happens, okay, that I drew the conclusions that I did.
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Q. Okay. Did you look at any of Google's outbound
licenses?
A. We looked at -- everything we looked at that
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was in -- was in the report, so there were all those
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inbound license agreements. There was also, you know --
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I think there were some technology agreements and so
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forth. I would have to look, but as I'm sitting here
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right now, I don't remember any outbound, perhaps with
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an asterisk.
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Q. Right. You didn't ask to see any of their
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outbound licenses other than if they were produced in
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this case?
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A. Correct.
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Q. Okay. Do you know what I mean when I say the
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Georgia-Pacific factor number 2?
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A. Yes.
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Q. Okay. Would you agree that -- if I say GP,
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will you understand that I mean Georgia-Pacific?
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A. I can handle that.
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Q. Okay. Good. Would you agree that GP 2
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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requires consideration of licenses that relate to
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patents comparable to the patents-in-suit?
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A. I do not disagree that that is the concept,
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that obviously in Georgia-Pacific factor 2, you can't
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have an exact match.
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Q. Right.
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A. Because if you did, that would be GP factor 1,
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and that would be for the plaintiff. So I view GP
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factor 2, as well as some other things, as kind of
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falling into my house analogy that I gave you
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previously. Now, the only reason why I'm giving a
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little bit longer answer is that there's probably
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degrees of comparability, and so that would go into the
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mix a little bit because, you know, they're going to be
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a first cousin or a second cousin. So, I think, you
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know, the damage quantifier will, you know, have to be
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cognizant of that.
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Q. Well, would you consider -- strike that.
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In determining a comparable license, you
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generally have two considerations. First, it would be
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whether it has a comparable technology. And I
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understand the -- what -- your statement relating to
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whether it's first cousin or second cousin, but it still
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has to have comparable technology, right, at some level?
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A. With -- with the caveat that you said, yes.
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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Q. Okay. You haven't seen any documents?
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A. I -- I think I even said that in my answer.
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Q. Okay. And --
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A. But -- but what I was saying is entirely
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consistent with my understanding of how firms behave in
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this high-tech world.
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Q. Okay. And I think my question was in your --
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your report, you don't state that Google believed at the
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time of the negotiation that the patents were valid,
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right?
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A. That was a couple of questions ago, but I think
I answered that as correct.
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A. Correct.
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N
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A. Correct.
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-
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A. Correct.
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IN
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM
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A. I have not said that in my report if that's
what you're asking.
A. Correct.
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1.1
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A. Of -- of those two buckets that I had
identified, yes.
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Q. Okay. When --
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A. As I said very early on this morning, I tacked
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on that phrase of the licenses produced in this case.
Q. Okay. So you haven't looked at or asked to
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look at all of Google's licenses outside those produced
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in this case?
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A. Correct.
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Q. Okay.
03:08:26
THE WITNESS: We may be at an hour if it's
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convenient.
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MS. ALBERT: Oh, sure.
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THE VIDEOGRAPHER: Off the record, 3:08.
03:08:51
CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.
CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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(Recess taken.)
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THE VIDEOGRAPHER: We are on the record.
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The time is 3:28.
Q. (BY MS. ALBERT) Dr. Ugone, you're familiar
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with the Ben Love presentation, right?
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A. I'm -- I'm familiar with the?
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Q. Ben Love presentation, the one that Dr. Becker
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cites to and that you -A. The one that I call the draft presen -- draft
presentation?
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Q. No, the 20 to 40 percent.
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A. Oh, okay. Yes.
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Q. Okay. So I'm going to call it the Love
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presentation --
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A. Okay.
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Q. -- just for efficiency's sake. Is it your
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understanding that that presentation was an internal
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presentation given to Google employees?
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A. I believe so, yes.
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Q. And is it your understanding that Google relies
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on accurate data in creating presentations for its
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employees?
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A. That would have to be an assumption. I didn't
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ask anybody, but I would assume that a professional
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organization would do that.
03:30:01
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