In The Matter Of:
`
`APPLE, INC.
`
`v.
`
`SIGHTSOUND TECHNOLOGIES, LLC
`
`DAVID MICHAEL SCHWARTZ - Vol. 1
`
`December 9, 2013
`
`MERRILL I3flHFQHflTIflH
`
`LBQaL7II'I<K, Inc.
`
`8:21
`
`135 Main Street
`4E3‘: F
`ancsism. CA S3-1
`(ma: d$5,35?'.s130D
`Fax: 4‘E5A35?’Aci30‘E
`
`SIGHTSOUND TECHNOLOGIES
`EXHIBIT 2124
`
`CBM2013—00020 (APPLE V. SIGHTSOUND)
`PAGE 000001
`
`
`
`APPLE, INC.
`
`v.
`
`SIGHTSOUND TECHNOLOGIES, LLC
`
`DAVID MICHAEL SCHWARTZ - Vol. 1
`
`December 9, 2013
`
`MERRILL I3flHFQHflTIflH
`
`LBQaL7II'I<K, Inc.
`
`8:21
`
`135 Main Street
`4E3‘: F
`ancsism. CA S3-1
`(ma: d$5,35?'.s130D
`Fax: 4‘E5A35?’Aci30‘E
`
`SIGHTSOUND TECHNOLOGIES
`EXHIBIT 2124
`
`CBM2013—00020 (APPLE V. SIGHTSOUND)
`PAGE 000001
`
`
`
`Petitioner,
`
`Case No. C3M2013—OOO2O
`
`Patent No. 5,191,573
`
`IGHTSOUN
`
`A*'.T. SCHWARTZ
`
`ROUGH 127
`
`MON:
`
`SACRAM
`
`:ed by:
`
`fl MAYfiR, CSR 9654, RPR CRR CRP CLR
`
`10. 2001—454288
`
`PAGE 000002
`
`
`
`DAV D M CHAfiL
`
`SCHWARTZ —
`
`l2/9/20l
`
`3
`
`-%*'.
`
`l R*'.M*'.M-%*'.R fiD,
`
`pursuant
`
`to Notice,
`
`tha
`
`Monday,
`
`December 9, 20l3,
`
`9:04 a.m.
`
`— 2:37 p.m., a
`
`777 Campis Commons Road,
`
`Sacramento,
`
`California,
`
`95825,
`
`before me,
`
`Debbie Mayer,
`
`a Certified Shor :hand Reporter
`
`for the
`
`Stace o" California,
`
`there personally appeared:
`
`fiL SCHWARTZ,
`
`whose principal place of
`
`business
`
`is 49'3 Sir ?dwards
`
`Court,
`
`Fair Oaks,
`
`California,
`
`95628,
`
`called as a witness
`
`by the Patent Owner,
`
`who,
`
`being by me
`
`first duly
`
`sworn/a
`
`"irmed,
`
`was thereupon examined and testi:
`
`hereina
`
`_,er set forth.
`
`(800)
`
`869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000003
`
`
`
`DAV D M CHAfiL SCHWARTZ -
`
`12/9/2013
`
`Page 3
`
`fl BA1fiN1 OWNfiR S GH1SOUNi
`
`ECHNOLOG
`
`ARWOLD & PO’ ER, L.P
`
`BY:
`
`DAVID E. MARSi, Ph.
`
`.
`
`Attorney at Law
`
`555 12th Street, NW
`
`Washington, DC, 20004-1206
`
`(202) 942-5068
`
`david_marsh@aporter.oom
`
`1 oN«R ABBLfi,
`
`ES & GRAY, ELP
`
`BY:
`
`JAMES R. %A1CHfiLDfiR,
`
`fiSQ.
`
`QY:
`
`LAUREN N. R03 VSOW, ESQ.
`
`1900 University Avenue, 6th Floor
`
`East Pa;o Alto, CA
`
`94303-2284
`
`(650) 617-4000
`
`james.batohe1der@ropesgray.com
`
`lauren.robinson@ropesgray.oom
`
`(800) 869-9132
`
`Merrill Corporation - San Francisco
`www.merri11corp.com/law
`
`PAGE 000004
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 4
`
`iWARTZ, VOL.
`
`fiXAM NA1 ON %Y MR. MARSH
`
`Q.
`
`In undertaking your work for the
`
`District Court litigation, have you looked
`
`at any of the materials relating to the
`
`iTunes Music Store?
`
`ave you ever had an opinion that U.S.
`
`t 5,191,573 is valid or invalid?
`
`ave YOJ ever had an opinion with
`
`respect to the validity o‘ 5,19’,573
`
`is not related to this current
`
`'itiga
`
`but was related to prior litigation?
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000005
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 5
`
`Patent Owner's:
`
`Exhibit
`
`1
`
`Declaration o: David M. Schwartz
`
`in Suppor, o Petition or
`
`Covered Bisiness Method Patent
`
`Review, etc, previously Apple
`
`Exhibit 1133.
`
`Declaration o: David M. Schwartz
`
`in Suppor, o Petition or
`
`Covered Bisiness Method Patent
`
`Review, etc, previously Apple
`
`Exhibit 1335.
`
`Certified Copy of Deposition o:
`
`David M. Schwartz, Thursday,
`
`February 1, 2001.
`
`Color photos o: previous Apple
`
`Exhibits 1117 and 1320
`
`(two pages).
`
`(Previo sly
`
`(Previo sl
`
`(Previo
`
`(Previo
`
`(Previo
`
`(Previo
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000006
`
`
`
`DAV D M CI-IA *'.T.
`
`SCHWART Z —
`
`12/9/2013
`
`Page 6
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merri11oorp.oom/law
`
`PAGE 000007
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ -
`
`12/9/2013
`
`Page 7
`
`(Monday, 12-9-2013, 9:04 a.m.
`
`- 2:37 p.m.)
`
`(Witness sworn.)
`
`r. Schwartz, what is your full name?
`
`David Michael Schwartz.
`
`And do you currently have a business address?
`
`Yes, my home address.
`
`What is tqat home address?
`
`4913 Sir Edwards Court, Fair Oaks, Cali:
`
`Have you been previously deposed?
`
`Yes.
`
`How many times?
`
`I haven't kept track.
`
`It's more than a dozen
`
`Q.
`
`A.
`
`and probably less than 24.
`
`Q.
`
`Do you understand the oath you've taken here is
`
`the same as in a court o:
`
`law?
`
`A.
`
`Yes.
`
`Q.
`
`You're familiar with the deposition proceeding,
`
`even how many depositions you've participated in?
`
`A.
`
`I am.
`
`Q.
`
`You understand you can review the transcript,
`
`but we can comment on any changes you make?
`
`A.
`
`Yes.
`
`(800) 869-9132
`
`Merrill Corporation - San Francisco
`www.merrillcorp.com/law
`
`PAGE 000008
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 8
`
`Q.
`
`I understand you've been ill lately,
`
`is that
`
`correct?
`
`A.
`
`Q.
`
`:'s correct.
`
`Is there any reason in your mind that you
`
`cannot give complete and accurate testimony today?
`
`A.
`
`No.
`
`Q.
`
`You're originally from the Pittsburgh area,
`
`is
`
`that correct?
`
`A.
`
`Correct.
`
`When did you last live there?
`
`Late 1977 or early 1973.
`
`Are you currently employed?
`
`YES.
`
`Q.
`
`A
`
`Who is your current employer?
`
`Madsen, M—A—D—S—E—N,
`
`comma, K—N—J
`
`Associates,
`
`Inc.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`What is their business?
`
`Consulting.
`
`What area do they consult?
`
`Generally to do with the built environment,
`
`both architecture and engineering and civil works,
`
`buildings, bridges, sewers,
`
`roads, apartment buildings,
`
`anything.
`
`Q.
`
`Prior to working for Madsen —— how long have
`
`you been working for Madsen?
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000009
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 9
`
`Full—time, since 2007; and most o: my time in
`
`Q.
`
`Are you aware that Sigh‘
`
`filed a I
`
`against Apple in the Western Dis
`
`_ Pennsyj
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`When did you learn about that lawsuit?
`
`Perhaps a year ago.
`
`I'm not sure I can
`
`remember the exact date I heard about it.
`
`Q.
`
`Approximately when would that be?
`
`In the ‘all o‘ ?Ol7 or late summer o"
`
`Did you perform any work ‘or Apple re"
`
`that lawsiit pending in the Western District of
`
`Pennsylvania?
`
`A.
`
`Q.
`
`I did.
`
`What was
`
`, work?
`
`MR. %AlCH:
`
`ifiR:
`
`caution the witness on
`
`privilege groinds.
`
`I don't want you to speak to the
`
`substance o: any consulting wor< that you've done for
`
`Apple in connection with the litigation.
`
`You should be
`
`free though to -esLijy abou'
`
`the work you've done in
`
`connection with tqese Paten, 0 "ice proceedings.
`
`lHfi W lNfiSS: Okay.
`
`BY MR . MARS -I:
`
`Q.
`
`When were you :
`
`approached with respect to
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000010
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page l0
`
`:icipating in the —— in the lawsuit pending in
`
`:ern District of Pennsylvania?
`
`A.
`
`I did not have that date at my jingertips.
`
`seems to me it was over a year ago.
`
`Q.
`
`Have you testified in the —— have you provided
`
`any testimony in the Western District o: Pennsylvania or
`
`in the lawsui, be,ween SightSound and Apple?
`
`A.
`
`Q.
`
`Not
`
`to tqe best o: my recollection, no.
`
`Have you been asked to provide any such
`
`testimony?
`
`A.
`
`Wo.
`
`Q.
`
`Did you provide any documents or materials to
`
`Apple in relationship to the Western Distric, o_
`
`Pennsylvania litigation?
`
`MR. %AlC{fi DIR: Again I'll object on privilege
`
`grounds.
`
`ie can ,es,ijy to any exchanges or provision
`
`o: documents in tqese PTO proceedings, but
`
`I instruct
`
`you not
`
`to answer questions about
`
`interchanges or
`
`exchanges or communications in connection with the
`
`litigation.
`
`lH1
`
`BY MR. MA?Si:
`
`Q.
`
`Did you provide any documents to Apple's
`
`counsel
`
`in these proceedings?
`
`A.
`
`I did.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 00001 1
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page ll
`
`Q.
`
`Are all the documents you provided to Apple
`
`ferenced in your declaration?
`
`A.
`
`I believe so.
`
`I'd have to read them item by
`
`item to be sure, but
`
`I
`
`think so.
`
`Q.
`
`Okay. Let's —— let's go to Exhibit
`
`ll33.
`
`L133?
`
`I'll give you a copy.
`
`don't think it's in this book. There's no
`
`Q.
`
`A
`
`ll3l in this book.
`
`Q.
`
`It's okay, I'll give you one.
`
`Declaration.
`
`(Deposition Exhibit
`
`1 marked.)
`
`(Reporter clarification.)
`
`BY MR. MARSH:
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Wha'
`
`is this document?
`
`What is it?
`
`Yes?
`
`The Statement of Facts about
`
`the business
`
`started,
`
`that's known as CompuSonics.
`
`Q.
`
`Is it the Declaration you prepared in the
`
`current CBM matter?
`
`A.
`
`Yes.
`
`(Deposition Exhibit
`
`7 marked.)
`
`Q.
`
`It appears Exhibit
`
`ll33, and I'm abou'
`
`you the other Exhibit
`
`l335, are identical;
`
`is
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000012
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 12
`
`correct?
`
`A.
`
`I don't know.
`
`It looks like the same document
`
`MR. %A1CHfiLDfiR:
`
`'11 just note for the record
`
`the cover page does refer to di
`
`"erent pa,hs.
`
`BY MR. MARSi:
`
`Q. With the exception of the cover page in
`
`Exhibit 1133 and 1335, are they identical?
`
`MR. %A1CHfiLDfiR: Objection ,o form.
`
`A. Well,
`
`I haven't compared them word for word.
`
`aut flipping through it,
`
`looking at the pages and the
`
`general headings, it appears to be the same document.
`
`BY MR. MARSH:
`
`Q.
`
`When did you first begin writing these
`
`declarations —— wqen did you first begin writing
`
`?xhibit 1’33 and Exhibit 1335?
`
`really don't remember.
`
`{ow did you select the material for inclusion
`
`Declarations?
`
`A.
`
`As material that I
`
`thought was illustrative o:
`
`the scope and depth of the CompuSonics system. Withou'
`
`being too redundant,
`
`trying to find enough exhibits to
`
`cover all aspects o_ ,his system.
`
`Q.
`
`In paragraph 5 of your Declaration 1133 and
`
`Declaration 1335, you list a number of exhibits;
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000013
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page l3
`
`are these the only documents related to the CompuSonics
`
`system you provided counsel?
`
`A.
`
`Q.
`
`A.
`
`Yes --
`
`Do you have any other documents ——
`
`—— no,
`
`xcus
`
`m .
`
`L t m
`
`continue that answer,
`
`because some of these other paragraphs are for other
`
`exhibits that I provided that aren't listed in 5.
`
`MR. MARSH:
`
`Can I
`
`just go o"" the record :
`
`one second?
`
`(O"" the record at 09:15:07)
`
`(Back on the record at 9:15:08)
`
`(Record read.)
`
`A.
`
`That's what
`
`I was trying to say is the exhibits
`
`are not all listed by number
`
`in one paragraph,
`
`so you'll
`
`find numerois other exhibits as we go through this that
`
`are documents tqat I also provided,
`
`I believe. Not all
`
`o:
`
`them, but some o:
`
`them.
`
`BY MR. MA?Si:
`
`Q.
`
`Did you provide any documents that are not ——
`
`qot
`
`included as an exhibit with respect to
`
`qibit 1‘33 and 1335?
`
`R. %AlCHfiLDfiR: Objection to form.
`
`A. Well, as I Jqderstand your question, you want
`
`to know i: this is a subse, o" all o‘ the CompuSonics
`
`intormation " have in my possession that I may have
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000014
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page l4
`
`turned over to my client, or is this the some o: every
`
`possible reference or i'lustration o" CompuSonics'
`
`various jea,ures. And the answer to that is this is not
`
`a compreqensive list.
`
`There are many other publications
`
`and videos that relate to the same matter that were
`
`provided but have not b
`
`n r f r no d h r
`
`BY MR . MARS -I:
`
`Q.
`
`Did you provide any o:
`
`those materials to
`
`counsel
`
`in preparing your Declaration?
`
`A.
`
`Yes.
`
`Q.
`
`How did you select which materials you used :
`
`inclusion in your Declaration?
`
`A.
`
`I tried to choose materials that are
`
`illustrative o_ the jeatures and scope o:
`
`the system
`
`without being overly redundant,
`
`so I tried to get enough
`
`good exhibits to make the point but not overkill.
`
`Q.
`
`In the materials you did not
`
`include in your
`
`Declarations, ?xhibits ‘T33 and 1335,
`
`those materials
`
`were not necessary to show the public ‘eatures o‘ the
`
`CompuSoqics system;
`
`is that correct?
`
`A.
`
`No.
`
`The CompuSonics system was described many
`
`times in di
`
`"erent ways
`
`co di
`
`"erent audiences during
`
`the period we were promoting it.
`
`So I'm not sure what
`
`else I can say on that.
`
`Q.
`
`What were the materials you looked at but did
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000015
`
`
`
`DAV D M
`
`CHAfiL
`
`SCHWARTZ —
`
`12/9/2013
`
`Page 15
`
`ference in preparing your
`
`Declarations?
`
`MR. %A1CHfiLDfiR2 Objection to
`
`form.
`
`A.
`
`I don't know —— you're asking me to try and
`
`remember everything
`
`threw to the cutting room
`
`floor,
`
`the outtakes,
`
`redundant ma,eria;,
`
`and
`
`"rankl y
`
`did not
`
`memorize that discarded materia'.
`
`was done with it in
`
`my mind,
`
`so
`
`can't give you a ;is .
`
`It's possible
`
`can think of examples
`
`jrom that se
`
`_ it would be
`
`JSe;Jl.
`
`BY MR. MARSH:
`
`Q.
`
`For the material you discarded,
`
`that material
`
`was not —— that was duplicative o:
`
`th
`
`e material you have
`
`recited in your Declarations?
`
`A.
`
`Yes.
`
`Q.
`
`Have you spoken to anyone
`
`ot
`
`her than counsel
`
`for Apple regarding the lawsuit pending in the Western
`
`District of Pennsylvania?
`
`A.
`
`Q.
`
`Have
`
`ta'ked to anyone?
`
`Oh
`
`r YES:
`
`did.
`
`Who have you discussed the litigation with,
`
`beyond counsel?
`
`A.
`
`The only discussion of
`
`the litigation was the
`
`name O:
`
`the case.
`
`did not discuss any legal aspects
`
`or any details of
`
`the matter to the technical associates
`
`that
`
`was discussing the actual products and
`
`features
`
`o: Compusonics with.
`
`We were not discussing litigation.
`
`(800)
`
`869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000016
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page l6
`
`Q.
`
`What were the names o:
`
`the people you discussed
`
`the technical
`
`‘eatures o" the CompuSonics system with?
`
`A.
`
`I'm not sure I gave you a comprehensive list of
`
`everybody I talked to, but
`
`the key names that spring to
`
`mind are my ex—partner,
`
`so to speak, Joan Stautner,
`
`S—T—A—J—T—N—E—R, Gary Schw d ,
`
`S C H W 1 D fl,
`
`Peter Roos, R—O—O—S, Matt Sohn,
`
`S—O—H—N, Bill Gage,
`
`G—A—G—E, and probably some others that I'm just not
`
`recalling at the moment.
`
`Q.
`
`Was any of Mr. Stautner, Mr. Schwede, Mr. Roos,
`
`Mr. Sohn, or Mr. Gage, employed by Madsen?
`
`A.
`
`No.
`
`Q.
`
`To your knowledge, were any of Mr. Stautner,
`
`Mr. Schwede, Mr. Roos, Mr. Sohn, or Mr. Gage retained by
`
`counsel, Apple's counsel,
`
`in this matter?
`
`A.
`
`Q.
`
`I have no knowledge o_ Lha-.
`
`When did you first learn tqat Apple had
`
`initiated a proceeding to have Sigh:Sound's patents
`
`reviewed in the Patent 0
`
`"ice as covered business
`
`matters?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`I don't recall.
`
`Sometime within the past year.
`
`How did you "earn o
`
`-his?
`
`Through a telephone call from Lauren Robinson.
`
`Are you currently being paid by Apple :or
`
`providing testimony?
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000017
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page l7
`
`A.
`
`No.
`
`Q.
`
`Have you ever been paid by Apple or Apple's
`
`counsel for providing testimony or assistance in the
`
`Patent 0 "ice proceedings?
`
`A.
`
`No.
`
`Are your expenses being paid for participating
`
`hadn't thought
`
`to bill for mileage.
`
`planning on it.
`
`Q.
`
`Aside from your work for Apple and Apple's
`
`counsel
`
`in relation to the District Court litigation
`
`the current proceedings, have you ever performed any
`
`other work for Apple?
`
`A.
`
`Q.
`
`A.
`
`" performed work for other Apple law firms.
`
`Can you provide the names of those matters?
`
`I don't know i"
`
`" can remember the names o;
`
`cases.
`
`I can remember the names of some of the law
`
`firms. Wilson Sonsoni; Wei], W—:
`
`-1.
`
`There are others
`
`that are not springing to mind.
`
`Q.
`
`Outside of being engaged in this case, are you
`
`acquainted with any o_ ,he lawyers representing Apple in
`
`this litigation?
`
`A.
`
`No.
`
`Q.
`
`A.
`
`Have you ever used the iTunes Music Store?
`
`Yes.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000018
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page l8
`
`In completing your work
`
`,his CRM matter,
`
`looked at materials rela
`
`-o the iTunes Music
`
`A.
`
`Other than what's on Apple's own Web site
`
`iTunes, no.
`
`Q.
`
`In underta<ing your work jor -he District Court
`
`litigation, have yoi
`
`looked at any o_ ,he materials
`
`relating to tie iTJqes Music Store?
`
`MR. %AlCH: DfiR: Objection on privileged
`
`grounds again.
`
`:DSCrJCt
`
`the witness not
`
`to answer.
`
`The
`
`objection is directed to work in this litigation but
`
`he's welcome to testify about his work in these Patent
`
`O””ice proceedings.
`
`lHfi W lNfiSS: Okay.
`
`BY MR . MARS -I:
`
`Q.
`
`{ow much time did you spend preparing :
`
`deposition?
`
`A.
`
`I hadn't added up in my head until you just
`
`asked me,
`
`so give me a moment.
`
`It might total l2 hours
`
`over a period o:
`
`time.
`
`Q.
`
`Did you meet with anybody in person during that
`
`preparation?
`
`A.
`
`I don't '
`
`'
`
`< so.
`
`MR. %AlC 1 IfiR:
`
`lo be clear,
`
`I
`
`think he's
`
`included counsel.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000019
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`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page l9
`
`ifi W iNfiSS: Oh.
`
`R. MARSi:
`
`Thank you.
`
`O<ay.
`
`"
`
`think including clients, yes.
`
`RSH:
`
`low long did you meet
`
`in person with counsel?
`
`Wot very long. Maybe an hour.
`
`When did you meet counsel?
`
`At counsel's o
`
`"ices in Palo Alto.
`
`When did you meet counsel?
`
`don't recall the date.
`
`MR. %AiCHfiLDfiR2
`
`could,
`
`" don't mean to
`
`intertere, but
`
`I
`
`'Js, want
`
`to help the witness to
`
`understand what
`
`I believe tie intent o_ the question is,
`
`which is to include deposition preparation meetings,
`
`including any meetings that we had yesterday.
`
`lifi W lNfiSS:
`
`Oh, oh.
`
`A.
`
`Including current work.
`
`Sorry. We had about a
`
`6-hour meeting yesterday.
`
`BY MR. MARSH:
`
`Q. Where was the meeting yesterday?
`
`A.
`
`Q.
`
`At
`
`the Hilton Garden Inn in Folsom, Cali:
`
`I'm aware that you provided deposition
`
`testimony in a prior lawsuit
`
`involving SightSound and
`
`N2K; do you recall doing that?
`
`A.
`
`I do.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000020
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 20
`
`Is it correct you were deposed on February 1,
`
`Q.
`
`Passing you a copy of the transcript from your
`
`deposition ——
`
`Deposi'
`
`Exhibit 3 marked.)
`
`LH:
`
`fiBORlfi':
`
`'m ready.
`
`Thank you.
`
`BY MR . MARS -I:
`
`Q.
`
`—— were you paid for your testimony in the N2K
`
`litigation?
`
`A. Without consulting my own business's books and
`
`records back ‘rom ?OOl,
`
`” can't say ‘or sure. Rut my
`
`practice,
`
`I believe at the time, would be —— WOJld have
`
`been to bi'l
`
`‘or deposition or courtroom time at a
`
`higher rate than my regilar consulting hourly rate.
`
`Q.
`
`After you gave your deposition in the N2K
`
`deposition, did you read the transcript?
`
`A.
`
`Wo.
`
`Q.
`
`Do you remember the last time you reviewed the
`
`transcript?
`
`A.
`
`Yeah.
`
`That would be yesterday.
`
`I was given a
`
`copy o: it in a much sma'ler ‘ormat, harder to read,
`
`yesterday afternoon. And I spent a little more time
`
`last night trying to read it. %ut
`
`recall —— " recall
`
`a lot of it.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000021
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 21
`
`Q.
`
`Did anything strike you as inaccurate when you
`
`last read this transcript?
`
`MR. %AlCHfiLDfiR: Objection to form.
`
`A.
`
`I'm not sire exactly what the question is
`
`looking
`
`‘or.
`
`" understand the question, but I'm not
`
`sure i; you want
`
`—— want me to thin< if there's
`
`something in here that
`
`jumped out as incorrect?
`
`the question?
`
`BY MR. MARSH:
`
`Q.
`
`Did anything strike you as incorrect when you
`
`reviewed the transcript yesterday?
`
`A.
`
`I didn't --
`
`MR. %AlCH1.DfiR: Objec '
`
`,o jorm.
`
`A.
`
`I couldn't review i. to -ha- level of
`
`detail.
`
`I scanned
`
`through it looking for the topics
`
`that were discussed. And so the answer is I did not
`
`read the whole transcript yesterday.
`
`BY MR. MARSH:
`
`Q.
`
`In your review o:
`
`the ,ranscript yesterday, did
`
`anything stri<e YOJ as inaccurate?
`
`MR. %AlCHfiLDfiR: Objec,ion to
`
`A.
`
`No.
`
`BY MR. MARSH:
`
`Q.
`
`Is there any reason you believed testimony you
`
`gave in 2001 would have been inaccurate?
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000022
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 22
`
`A.
`
`No.
`
`Q.
`
`Have you ever served as an expert
`
`in a case
`
`involving digital, audio, or video?
`
`A.
`
`Q.
`
`Yes.
`
`What was that case, or cases?
`
`A. Without having my business files in ”ronL o.
`
`me, it's di
`
`”iculL to remember which law firm is
`
`attached to which case. But this has been going on
`
`many years, probably since l999.
`
`So I
`
`just can't --
`
`don't have a list memorized.
`
`Q.
`
`Do you have any examples —— do you know o:
`
`examples?
`
`A.
`
`A few years ago,
`
`there was a case that I'm not
`
`sure what
`
`the parties were besides Apple, and this was
`
`handled by Weil Gotshal,
`
`the law firm in Palo Alto.
`
`So
`
`it was their big case.
`
`I believe it settled in 2007.
`
`And I provided a video deposition in that case and
`
`consultant services.
`
`Q.
`
`A.
`
`What was the mission of CompuSonics?
`
`Its mission was to return profits to
`
`shareholders.
`
`It was a publicly owned company.
`
`Q.
`
`A.
`
`What products did CompuSonics sell?
`
`A range of hardware and software products,
`
`including professional digital audio equipment,
`
`workstations, broadcast service, recorder/players,
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000023
`
`
`
`DAV
`
`3 M CHAfiL
`
`SCHWARTZ —
`
`12/9/2013
`
`Page 23
`
`consumer disc recorders.
`
`There are a lot of
`
`concepts
`
`that CompuSonics came up with and promoted
`
`,ha, we never
`
`got any revenue
`
`for.
`
`We certainly talked about
`
`everything and promoted it,
`
`but only certain ideas
`
`generated money.
`
`Q.
`
`You listed a pro:
`
`fessional product; what was
`
`fessional product?
`
`It was a group o:
`
`products that we collectively
`
`called
`
`DSP 2000,
`
`so there would be a 2002, 2004, 2000
`
`whatever.
`
`Q.
`
`Your testimony also listed that there was a
`
`broadcast service recorder;
`
`what was that?
`
`A.
`
`We had two models,
`
`at least in
`
`recall the
`
`DSP 1200 and the
`
`DSP 1500.
`
`Q.
`
`A.
`
`Do you recall any other model
`
`in that
`
`field?
`
`There was one,
`
`just can't remember what we
`
`called it.
`
`It was one based on the optical disc drive
`
`but
`
`for broadcast use,
`
`broadcast style outputs,
`
`but
`
`can't
`
`remember what
`
`the model number was called.
`
`Q.
`
`Now you men"
`
`:ioned a third category o:
`
`products,
`
`the consumer disc recorders;
`
`what were those recorders
`
`called?
`
`A.
`
`Most o:
`
`them were
`
`{DOWI1 as
`
`DSP 1000s, and there
`
`few varia
`
`:ions on that basic model,
`
`but
`
`the name
`
`for most o_
`
`the itera -ions,
`
`DSP 1000.
`
`(800)
`
`869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000024
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 24
`
`Q.
`
`Is it correct to say that the professional
`
`model had the pre'ix o" 2000 or the series 2000 and
`
`something?
`
`A.
`
`That would be professional grade equipment,
`
`Q.
`
`When was the first sale o‘
`
`fessional 2000
`
`series model?
`
`A.
`
`You know, actually I have a copy of the payment
`
`check in my scrap book, but
`
`I can't remember if that
`
`sale was made in late l983 or sometime in 1984.
`
`Q.
`
`A.
`
`Do you recollect who it was made to?
`
`I can see him in my mind's eye.
`
`{is studio was
`
`in Burbank. Name's not coming to mind.
`
`I can see the
`
`people,
`
`I can see the studio, bjt I can't remember the
`
`name o;
`
`me client.
`
`Q.
`
`Do you recollect how many professional
`
`machines were sold?
`
`A.
`
`I don't recall exact number.
`
`Perhaps several
`
`Q.
`
`Were any professional machines sold to a
`
`consumer?
`
`MR. %AlCHfiLDfiR: Well, objection to form.
`
`A.
`
`Anyone who bays something is a consumer of
`
`someone's,
`
`so we didn't mind selling a DSP 2002 to an
`
`amateur musician who just wanted high—eqd gear. We
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000025
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 25
`
`didn't qualify consumers by their shopping category.
`
`BY MR . MARSH:
`
`Q.
`
`A.
`
`Q.
`
`Was a DSP 2000 series ever sold to a home user?
`
`Yes,
`
`for a home studio use.
`
`How many broadcas: service recorder machines
`
`were sold?
`
`A.
`
`Q.
`
`I don't recall an exact number.
`
`Perhaps 50.
`
`Who were the broadcast service recorder
`
`machines sold to?
`
`A. Mostly radio stations and a few television
`
`stations.
`
`Do you recollect when the first sales were
`
`believe that would be 1987,
`
`that particular
`
`In your testimony you referred to a "consumer
`
`disc recorder"; do
`
`Y
`
`ou recollect when the first consumer
`
`disc recorder was sold?
`
`A.
`
`I
`
`think we actually got money for the first one
`
`in late l986, and delivered them in l987.
`
`Q.
`
`Do you recollect who you sold the consumer disc
`
`recorder to?
`
`A.
`
`Typically, we sold to high—end audio dealers,
`
`retailers.
`
`Q.
`
`Was your sales distribution limited to sales o:
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000026
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 26
`
`the —— for the consumer disc recorders,
`
`limited to
`
`through retailers?
`
`A.
`
`Q.
`
`As
`
`I recall, yes.
`
`So you do not recall making any direct sales o:
`
`the consumer disc recorders to anybody other than
`
`retailers?
`
`A. Well, now that you bring it up,
`
`remember one
`
`person;
`
`there might have been more.
`
`A classical music
`
`producer
`
`from Mexico, Mexico City, contacted us. We had
`
`no dealer in Mexico.
`
`So we sold him his DSP 1000 direct
`
`”rom Lhe jactory.
`
`MR. MARSH:
`
`I'm sensitive.
`
`Do you want
`
`to take
`
`ow are you doing?
`
`1
`
`fl W lNfiSS:
`
`I'm thinking
`
`become incoqerent,
`
`let me know.
`
`MR. MARSH:
`
`I'm sure your counsel will help on
`
`that one.
`
`Okay, I'll keep going a little bit longer.
`
`BY MR. MARSH:
`
`Q.
`
`You re:
`
`ferred to three categories o: products
`
`for CompuSonics:
`
`The professional broadcast service
`
`recorder,
`
`the pro‘essiona'
`
`recorder,
`
`the broadcas
`
`service recorder, and the consumer recorder; are‘
`
`any other categories of CompuSonics products?
`
`A.
`
`There are.
`
`What are those products?
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000027
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 27
`
`A.
`
`The product we spent probably way too much
`
`money promoting and trying to get customers for was our,
`
`what we called,
`
`the Electronic Music Store, or
`
`systems —— we wanted to sell the equipment that people
`
`who installed such systems would need to implement
`
`electronic record stores.
`
`So we spent a lo, o_ Lime and
`
`e ”orL designing equipment, demonstrating i,,
`
`,rying to
`
`se‘1 i,
`
`or
`
`,haL purpose, and no one took us up on it.
`
`:er interruption.)
`
`MR. MARST:
`
`Take ten.
`
`(0 "
`
`the record at 09:42:13)
`
`(Back on the record at 09:50:44)
`
`lHfi W lNfiSS: Okay.
`
`understand that you're still under oath?
`
`CompuSonics financially success:
`
`NO.
`
`In your opinion, why did CompuSonics not
`
`financially?
`
`Well, that's a complex topic.
`
`I'm not sure
`
`I've ever come up with an exact diagnosis o_ i-.
`
`The
`
`technology was ahead of its time.
`
`The injras,rucLure to
`
`support it was not tul'y realized. Undercapitalized
`
`company.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000028
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 28
`
`Q.
`
`A.
`
`Q.
`
`When did it go ou- of business?
`
`I believe its last sale was probably in 1990.
`
`When CompuSonics was in business, did you refer
`
`to the term "CompuSonics system"?
`
`Yes, yes.
`
`How did you refer to the term "CompuSonics
`
`A.
`
`Q.
`
`system"?
`
`A.
`
`That was the generic for any combination of our
`
`software, our hardware, other peoples’ hardware, other
`
`peoples’ software, other networks.
`
`It depended on which
`
`CompuSonics system we were trying to sell to a specific
`
`audience.
`
`Q.
`
`n fixhibit —— Apple Exhibit
`
`ll33, paragraph 4,
`
`i previously gave to you --
`
`A.
`
`Q.
`
`Yes. Paragraph 4?
`
`Yes.
`
`—— you quote the phrase —— is it correct
`
`that you quote the phrase "the CompuSonics system"?
`
`A.
`
`Yes.
`
`Q.
`
`Is it correct that you do not capitalize the
`
`term "system"?
`
`A.
`
`In this document, it's not capitalized.
`
`don't know that if you went
`
`through all of our marketing
`
`materials from that era, you'd find it's sometimes
`
`capitalized.
`
`Q.
`
`Why did you choose not
`
`to capitalize it in this
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000029
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 29
`
`document?
`
`A.
`
`Because I
`
`think this is the more generic,
`
`broader way to s-aLe it,
`
`.hat
`
`the system is lower case.
`
`It's not a specific, uniqie system,
`
`tqat it's a system
`
`in a loose sense.
`
`Di
`
`"erent components are related.
`
`Q.
`
`In your reco"ection,
`
`is there any single
`
`document that describes the CompuSonics system?
`
`A.
`
`I
`
`think we could point to a number o" di
`
`"erent
`
`applications for the CompuSonics system that disclose
`
`one variation or another.
`
`Q.
`
`I'd like to re—ask the question:
`
`Is
`
`single document that captures all of the aspec
`
`CompuSonics system?
`
`MR. %AlCHfi.DfiR: Objection to form.
`
`A.
`
`There migqt be a magazine article that
`
`interviewed with me where I
`
`touched on a'l o" the
`
`various configurations and thoughts on CompuSonics
`
`systems at the point o_ Lha-
`
`interview, but
`
`I don't know
`
`tha'
`
`I could put my finger on that specific magazine
`
`rig t this second.
`
`BY
`
`Q . MARSH:
`
`Q.
`
`Is it correct that the magazine you re:
`
`not an exhibit you used in preparation for your
`
`Declaration?
`
`A.
`
`I don't know that I know that for sure.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000030
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 30
`
`don't have an answer
`
`for that really.
`
`MR. MARSH:
`
`_,d 'ike to give you exhibit ——
`
`Exhibit 1106,
`
`and also App'e
`
`Exhibit 1309.
`
`(Exhibi
`
`‘106 previous'y marked.)
`
`(Exhibi
`
`‘309 previously marked.)
`
`MR. MARS
`
`i:
`
`Counsel, would you like a copy, or
`
`are you good?
`
`MR.
`
`I'm not sure
`
`BY MR. MARSH:
`
`Q.
`
`Is Apple
`
`Exhibit 1309 and Apple Exhibit 1106
`
`identical?
`
`A.
`
`I
`
`think so.
`
`MR.
`
`%A1CHfiU
`
`fiR: Objection to
`
`BY MR. MARSH:
`
`s fixhibit 1106 and
`
`Exhibit 1309 the exhibit
`
`fer to in your
`
`Declarations?
`
`Yes.
`
`What is
`
`the
`
`exhibit?
`
`A. Well,
`
`ei
`
`the
`
`r 1309 or 1106.
`
`(Reporter c'ari
`
`Sication.)
`
`BY MR. MARSH:
`
`Q.
`
`Is this a complete description of the
`
`CompuSonics system?
`
`s fixhibit —— sorry,
`
`let me
`
`rephrase that.
`
`Is Apple Exhibit 1106 a complete description o:
`
`(800)
`
`869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000031
`
`
`
`DAV D M CHA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 31
`
`the CompuSonics sys
`
`MR. %AlCHfi IfiR: Objection to
`
`A.
`
`No.
`
`BY MR . MARSH:
`
`Q.
`
`Wha'
`
`is missing from Apple ?xhibit
`
`Apple Exhibit 1309 that would make it a comp:
`
`description o:
`
`the CompuSonics system?
`
`MR. %AlCHfiLDfiR: Objection to form.
`
`A. Well,
`
`this describes a specific CompuSonics
`
`system that was built and tested.
`
`The CompuSonics
`
`system is a more generic term.
`
`So this is one o;
`
`various ‘lavors o" systems.
`
`BY MR . MARSH:
`
`Q.
`
`What ‘eatures o" a CompuSonics system does this
`
`disclose?
`
`MR. %AlCH: IfiR: Objection to form.
`
`A. Well, Lha
`
`tie CompuSonics system allows
`
`qoever migh- wan, Lo,
`
`to set up an electronic record
`
`tore, both jrom the distribution end and the consumer's
`
`end.
`
`So this is specifically about what we used to call
`
`"telerecording" and the commercialization o;
`
`telerecording with AT&T.
`
`BY MR . MARSH:
`
`Q.
`
`"I
`
`Wow, do exhibits llO6 and Exhibit
`
`l309 describe
`
`tronic Record Store" as yoJ've been using the
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000032
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/9/2013
`
`Page 32
`
`A.
`
`This is not a totally inclusive definition.
`
`It's one way
`
`I've described it, and
`
`think "'ve
`
`described it similarly in other articles or interviews.
`
`Q.
`
`In what other articles or interviews have you
`
`described the 1'
`
`ectroqic
`
`Record Store?
`
`A.
`
`Well,
`
`'qin< several of
`
`these exhibits. Let
`
`_lip
`
`-hrough i‘.
`
`Do you want
`
`me to flip through and
`
`:her one?
`
`For the moment,
`
`do you recall any?
`
`think so.
`
`Which ones do you recali
`
`9
`
`"'m looking "or
`
`it. We:
`
`_l,
`
`there's another ——
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`another
`
`reference to it in
`
`Exhibit
`
`llO8.
`
`Q.
`
`Eet's get back to
`
`Exhibit
`
`—— we will get back
`
`to
`
`Exhibit
`
`llO8,
`
`but are there any
`
`others beyond llO8
`
`and llO6
`
`-hat refer to ,he
`
`Electronic Music Store
`
`concept
`
`as yoJ've Jsed -he ,erm?
`
`MR. %AlCH1 DfiR:
`
`Objection to
`
`form.
`
`A.
`
`There's otq r
`
`th r
`
`ar
`
`oth r xhibits that
`
`do,
`
`YSSI
`
`relate co
`
`chat
`
`type of
`
`CompuSonics system we
`
`were discassing
`
`for telerecording.
`
`BY MR. MA?Si:
`
`Q.
`
`Eet's turn bac<
`
`to
`
`Exhibit ll
`
`—— Apple
`
`Exhibit
`
`llO6 and Apple
`
`Exhibit 1309.
`
`(800)
`
`869-9132
`
`www.merrillcorp.com/law
`
`Merrill Corporation — San
`
`Francisco
`
`PAGE 000033
`
`
`
`DAV D M CI-IA*'.T. SCHWARTZ —
`
`12/9/2013
`
`Page 33
`
`Okay.
`
`When did you jirs, see this article?
`
`imagine soon a_ ter it was published.
`
`Did you review it prior to it being published?
`
`A.
`
`Wo.
`
`Q.
`
`Did you have conversations with the author
`
`prior to it being published?
`
`A.
`
`Q.
`
`I don't recall.
`
`Was
`
`the author o_ the article present at the
`
`demonstration you referred to in this article?
`
`A.
`
`ie might have been.
`
`I did not
`
`take names o:
`
`everyone who attended.
`
`Q.
`
`Did the author speak with anyone at
`
`CompuSonics?
`
`A.
`
`I don't know.
`
`Did the author speak with you?
`
`imagine he did, but
`
`I
`
`just don't recall the
`
`fic interview.
`
`You referred to this article as an example o:
`
`an electronic record store; did CompuSonics ever sell
`
`digital misic?
`
`A.
`
`Wo.
`
`Q.
`
`Did CompuSonics ever complete a sale via
`
`telerecording?
`
`A.
`
`No.
`
`(800) 869-9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000034
`
`
`
`DAV D M CHAfiL SCHWARTZ —
`
`12/
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