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 I

Confidential - Outside Attorneys' Eyes Only
Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
L/P ENGINE, INC.,
Plaintiff,
VS.
AOL, INC., et al,
Defendants.

)
)
)
)
) CIVIL ACTION NO.
) 2:11-CV-512
)
)
)

******** ******* *************** ******* *********
ORAL/VIDEO DEPOSITION OF
STEPHEN L. BECKER, Ph.D.
SEPTEMBER 8, 2012

************** *************** *****************
CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY
ORAL DEPOSITION OF STEPHEN L. BECKER, Ph.D.,
produced as a witness at the instance of the Defendants,
was duly sworn, was taken in the above-styled and
numbered cause on the SEPTEMBER 8, 2012, from 8:24 a.m.
to 5:54 p.m., before Chris Carpenter, CSR, in and for
the State of Texas, reported by machine shorthand, at
the offices of ANDREWS & KURTH, 111 Congress Avenue,
Suite 1700, Austin, Texas 78701, pursuant to the Federal
Rules of Civil Procedure and the provisions stated on
the record or attached hereto.
Job No. CS416513

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this document is consistent with that and is -- provides

2

some fairly detailed quantification of things that

3

appear in less quantified statements elsewhere in the

4

documents. And so, you know, this particular document

5

is one that we use for measurement of some particular

6

impact, but it's in no way inconsistent with the sort of

7

breadth of the evidence that's out there.

8
9
10

Q.

In coming to your apportionment, you heavily

rely on some bar charts that are included in here,
correct?

11

A.

Yes.

12

Q.

Would you say this is the document that you

13
14

rely on most to come to that apportionment?
A.

I think it's -- what I would characterize it as

15

this is a document that I choose to -- or that we use

16

for the specific quantification of the apportionment in

17

many of the quarters and years for which the

18

apportionment is done.

1111
11111
1111

25

Do you see -- do you know who drafted this

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document?

2

A.

No.

3

Q.

Have you done anything to verify its accuracy?

4

A.

I have considered this document in the context

5

of all the other documents that I've seen, and as I told

6

you just a minute ago, it is consistent with that.

7

You know, it -- there's only so much that

8

I can do when, you know, Google is the one who is

9

holding the cards with respect to not having produced

10
11

the kind of data that obviously underlies these charts.
Q.

Well, plaintiff's counsel could ask somebody at

12

a deposition about this document. Couldn't that be one

13

thing that could be done?

14

A.

Well, I'll let -- you know, plaintiff's counsel

15

and you will obviously -- can discuss in a legal context

16

the -- what can and can't be done.

17

All I can tell you is, throughout this

18

case, in looking at the evidence, looking at the

19

documents that Google has produced,

IN
/

Those are the sorts of things that I --

23

that through interrogatories have been continuously

24

asked for, and it's frankly remarkable, in my opinion,

25

that Google has not produced what I think any reasonable

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person would assume is present -- has to be present in

2

their records. I haven't seen it. If they have

3

produced it, please inform plaintiff's counsel that you

4

have and I'll consider it. But it's just staggering to

5

me that -- that there would be so many documents talking

6

about testing and "look at this result and look at that

7

result," and there's not -- you know, we can stack up in

8

a pretty small stack the documents that have actually

9

been produced responsive to that request.

10
11
12

Q.

Did you look at e-mails in relation for looking

for those tests?
A.

I have looked at lots of e-mails. I have

13

looked at presentations, I've listened to speeches, I

14

have looked at internal memos, and I've looked at a

15

number of documents like either these Revenue Force

16

documents or -- you know, some of the charts in here,

17

this, the format of the chart and the information that's

18

in the chart, appears in other documents. So it's clear

19

to me that this is -- this is a kind of a reporting

20

format that Google uses.

21

And as I indicated, the results that are

22

reflected in this presentation are consistent with that

23

evidence that is sort of throughout the documents in --

24

some in quantified form and some in qualitative form.

25

Q.

Have you reviewed any of the testimony of

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Google witnesses regarding the reliability of testing

2

that's done on its products?

3

A.

I recall generally. You know, you need to put

4

a specific transcript in front of me if you want to ask

5

me a specific question about that, but I'm generally

6

aware that, you know, the testing is -- that testing is

7

done and that testing results are tracked and that, you

8

know, they are that, they are tests. But that Google --

9

I've also seen documents that Google makes business

10
11

decisions on the basis of these tests.

Q.

And what about the documents regarding the

12

reliability of such tests or testimony? Do you recall

13

testimony regarding that many of the tests that Google

14

does are not, in fact, reliable?

15
16

MS. ALBERT: Objection.
A.

You know, as general a sense, I've seen --

Q

Do you see on the first page of this document,

M
1.11
I/I
11111
IIII
II.
IIII
25

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it says "Draft"?

2

A.

Yes.

3

Q.

Do you see that it says "Draft" throughout?

4

A.

Yes.

5

Q.

Do you typically rely on drafts?

6

A.

Where I have the final version available to me,

7

I would prefer to use something that doesn't have marked

8

"draft" marked on it, but I -- you know, where that's

9

the only thing that's been produced and it is consistent

10

with other evidence, I don't have a problem using it if

11

I think that the evidence that it's providing is not --

12

you know, that's not the thing that was -- that was the

13

draft -- the draft aspect of it.

14
15
16

Q.

Do you -- did you ask for a complete copy of

A.

I certainly asked for the native version of

it?

17

this and I asked counsel to search the production

18

records for any documents at all like this document.

19
20
21

Q.

Do you -- did you ask counsel to request the

final version of this document from Google?
A.

I didn't specifically ask that, that way. I

22

think it would have been covered with a general request

23

to get Google to do what it's supposed to do, which is

24

produce any relevant documents related to this area of

25

the case.

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Q.

It's -- do you think it's Google's obligation

2

to go throughout all its files and produce anything that

3

might be -- that you might think is relevant, sir?

4
5

MS. ALBERT: Objection.
A.

I think it's Google's responsibility to respond

6

to the interrogatories and document requests that were

7

propounded on it.

8
9
10

Q.

(By Mr. Perlson) Do you know what the agreement

was that was made between the parties in this case in
relation to what should or shouldn't be produced, sir?

11
12

MS. ALBERT: Objection.
A.

No. But I could tell you that if -- let's just

13

assume, for example, that a final version of this

14

exists. If this document is relevant, then the

15

financial version is relevant, and I think it should

16

have been produced.

17

Q.

(By Mr. Perlson) And because it wasn't

18

produced, that means that you can rely on the draft; is

19

that right?

20

A.

I think I can rely on what Google produced, and

21

if it's in possession of information that is different

22

from this, or if there's any document that is a version

23

of this that is more complete, more accurate, whatever,

24

I think it had an obligation to produce it.

25

Q.

So you don't have any -- you don't know whether

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Q.

The -- so the chart that's on -- and just for

8

the record, the chart that is on 47 of your report is on

9

the bottom left of Page 37 of Exhibit 3; is that right?

10

A.

11

report --

12

No. The chart that is on Page 47 of my

Are you with me?

13

Q.

Yeah.

14

A.

-- Page 47 of my report appears in the lower

15

left-hand corner of Slide 37 from Exhibit 3. Okay? So

16

Page 47 of my report, the chart that sits above

17

Paragraph 175.

18

Q.

Correct. Right.

19

A.

If you look at Page 37 of Exhibit 3, Bates

20

Number ending in 355, the lower left-hand corner, that's

21

what's replicated above Paragraph 175 of the report.

22

Q.

Okay. That's what I thought I said, but okay.

23

A.

Okay, well, it's cleared up now. I don't think

24
25

that's what you said but, you know...
Q.

Now --

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A.

But just to be clear, I just want -- because

2

since the record seemed a little muddled there. The

3

measurement that I was talking about, where we measured

4

to get the dollar impact, was not measuring the chart

5

that is replicated above Paragraph 175, nor the lower

6

left-hand corner of Page 37 of Exhibit 3.

7

Q.

So which one was it based off of?

8

A.

It's the two charts that I measured. And what

9

we measured from was the actual native Powerpoint, not

10

the -- I didn't stick it into my report and then go

11

measure it in the report. Okay, the two things that I

12

measured from were the lower left-hand corner and the

13

upper left-hand corner of Slide 38 of Exhibit 3, because

14

those two charts are in dollars. The prior chart on

15

Page 37 is in percentage change year-over-year, and not

16

nearly as useful.

17

Q.

25

MS. ALBERT: Objection.

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