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` DAVID A. FLETCHER
` UNITED STATES PATENT AND TRADEMARK OFFICE
` ---------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`------------------------------x
`BLD SERVICES, LLC IPR2014-00768
` Petitioner, Patent No. 7,975,726
` v. IPR2014-00770
` Patent No. 8,667,991
`LMK TECHNOLOGIES, LLC IPR2014-00772
` Patent Owner. Patent No. 8,667,992
`------------------------------x
`
` DEPOSITION OF DAVID A. FLETCHER
` Washington, D.C.
` Thursday, June 4, 2015
`
`Volume 1
`Reported by: Michele E. Eddy, RPR, CRR, CLR
`JOB NO. 94240
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`LMK Technologies, LLC Ex. 2010
`BLD Services, LLC v. LMK Technologies, LLC
`IPR2014-00770
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`1
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` DAVID A. FLETCHER
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`Page 2
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` June 4, 2015
` 10:10 a.m.
`
` Deposition of DAVID A. FLETCHER, held at
` the offices of Banner & Witcoff, LTD, 1100 13th
` Street, Northwest, Suite 1200, pursuant to
` agreement, before Michele E. Eddy, a Registered
` Professional Reporter, Certified Realtime
` Reporter, and Notary Public of the Commonwealth
` of Virginia and District of Columbia.
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` DAVID A. FLETCHER
`APPEARANCES:
`PORZIO BROMBERG & NEWMAN
`Attorneys for Petitioner
`1200 New Hampshire Avenue, NW
`Washington, D.C. 20036
`BY: SCOTT CHAMBERS, PH.D., ESQUIRE
` MATTHEW ZAPADKA, ESQUIRE
`
`NYEMASTER GOODE
`Attorney for Patent Owner
`700 Walnut
`Des Moines, Iowa 50309
`BY: JEFFREY HARTY, ESQUIRE
`
`BANNER & WITCOFF
`Attorney for Patent Owner
`1100 13th Street, NW
`Washington, D.C. 20005
`BY: CHRISTOPHER McKEE, ESQUIRE
`
`ALSO PRESENT:
`Mr. Norman E. Kampbell
`Mr. Jacob Trapani
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` DAVID A. FLETCHER
` THE VIDEOGRAPHER: Here begins tape
` number 1 in the videotaped deposition of
` David A. Fletcher taken in the matter of
` BLD Services, LLC, Petitioner, versus LMK
` Technologies, LLC, Patent Owner, Case
` Numbers IPR2014-00772, Patent Number
` 8,667,992; Case Number IPR2014-00768,
` Patent Number 7,975,726; Case Number
` IPR2014-00770, Patent Number 8,667,991, all
` being heard before the United States Patent
` and Trademark Office before Patent Trial
` and Appeal Board.
` Today's date is June 4, 2015, and the
` time is approximately 10:10 a.m. My name
` is Jasmin Rice, here on behalf of TSG
` Reporting, Inc. I'm the legal
` videographer. The court reporter is
` Michele Eddy, also on behalf of TSG
` Reporting.
` Will counsel introduce themselves for
` the record.
` MR. HARTY: Jeff Harty, from
` Nyemaster Goode in Des Moines, for the
` patent owner LMK Technologies.
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` DAVID A. FLETCHER
` MR. McKEE: Christopher McKee, with
` Banner & Witcoff, for patent owner LMK
` Technologies.
` DR. CHAMBERS: Scott Chambers, for
` BLD Services, Petitioner, as well as for
` Mr. Fletcher in his personal capacity.
` MR. ZAPADKA: Matthew Zapadka for
` BLD, Petitioner, from Porzio.
` MR. KAMPBELL: Norman Edward
` Kampbell, Rehabilitation Resource
` Solutions, here as a technical expert for
` the patent owner.
` MR. TRAPANI: Jacob Trapani, vice
` president for BLD Services.
` THE VIDEOGRAPHER: Will the court
` reporter please swear in the witness.
` - - -
` DAVID A. FLETCHER,
`having been duly sworn, testified as follows:
` EXAMINATION
`BY MR. HARTY:
` Q Would you please state your name for
` the court reporter.
` A David Fletcher.
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` DAVID A. FLETCHER
` Q How old are you, Mr. Fletcher?
` A 53.
` Q Where do you live?
` A Newtown, Connecticut.
` Q Could you give us your residential
` address.
` A 39 Deep Brook Road, Newtown,
` Connecticut.
` Q What's your professional address?
` A 48 South Main Street, Newtown,
` Connecticut.
` Q As I mentioned at the outset, my name
` is Jeff Harty. I'm at the firm of Nyemaster
` Goode, in Des Moines, representing LMK. I'll
` be taking your deposition here today.
` Have you ever been deposed before?
` A No.
` Q Let me go over a few things that
` might help us over the next day or two. First
` of all, you've already seen that we've got a
` court reporter here. She's going to take down
` everything that you and I say, everything your
` counsel says. So it's important for you, in
` answering a question, to answer audibly as
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` DAVID A. FLETCHER
` opposed to giving a nod or a shake of the head.
` Is that okay?
` A Yes.
` Q It will also help us out and get a
` clean transcript if we don't talk over each
` other. So I'll try to make sure that I let you
` finish giving the answer before I ask the next
` question. By the same token, I ask that you
` try and let me finish giving the question
` before you answer. Is that fine?
` A Yes.
` Q If at any time today you need a
` break, I don't have a problem with that. All I
` ask is if there's a question pending, let's go
` ahead and answer the question and then we can
` take our break. Is that fine?
` A Yes.
` Q You understand today that your
` testimony is under oath and is being given
` under penalty of perjury?
` A Yes.
` Q You also understand that now that
` your deposition has started and until such time
` as it is completed, that there is a prohibition
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` DAVID A. FLETCHER
` against talking with your counsel regarding the
` substance of your testimony in this deposition?
` You understand that?
` A Yes.
` Q That applies to breaks, any time
` until such time as your deposition is
` completed, okay?
` A Okay.
` Q Any reason you can think of, as you
` sit here today, that you couldn't answer my
` questions truthfully and accurately?
` A No.
` Q Now, you understand we're in an inter
` partes review proceeding, IPR, if you will,
` correct?
` A (Nodding head.)
` Q Have you ever been retained as an
` expert in an IPR proceeding like this one?
` A No.
` Q Have you ever been retained as an
` expert witness in any type of patent case or
` proceeding?
` A No.
` Q Have you worked as an expert,
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` DAVID A. FLETCHER
` testifying expert or consulting expert in any
` matter?
` DR. CHAMBERS: Objection, compound.
` A Yes.
` Q What was that matter?
` A It was a lawsuit against a couple of
` employees based on some trade secrets.
` Q Where was that case venued, if you
` recall?
` A St. Louis.
` Q Federal Court?
` A I think so.
` Q And were you there serving in the
` capacity as an expert witness?
` A Yes.
` Q Were you deposed?
` A No.
` Q Did you testify at trial?
` A Yes.
` Q And do you recall approximately when
` the trial was?
` A It had to be somewhere around '06,
` '05, maybe even '03. Sorry, but it was a while
` ago.
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` DAVID A. FLETCHER
` Q And who were the parties to that
` suit?
` A Insituform was suing two employees of
` SAK.
` Q What was the business of SAK?
` A They're a cured-in-place contractor.
` Q I believe you said the nature of the
` case related to trade secret misappropriation;
` is that right?
` A That's what it was related to.
` Q Anything else that you can recall
` regarding the nature of the case?
` A No.
` Q In what capacity were you being
` proffered as an expert?
` A What does that -- I'm not sure what
` you --
` Q What issues were you addressing in
` that case?
` A I was addressing the fact that the
` trade secrets were public information for many
` years prior to these two young men who were
` getting sued.
` Q The two young men that you referred
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` DAVID A. FLETCHER
` to that were getting sued, were they employees
` of one of the two parties?
` A Yes, they were employees of SAK,
` previously Insituform.
` Q Did SAK retain you as an expert?
` A SAK, yes.
` Q You said "SAK, previously
` Insituform." Can you plain what you mean by
` that?
` A The two young men worked for
` Insituform prior to SAK.
` Q Was that a case that was settled out
` of court?
` A No.
` Q Oh, that's right. You testified
` about a trial, didn't you?
` A Yes.
` Q What was the result?
` A They threw out the case. There was
` no legitimate trade secrets that were upheld.
` Q Did you have to issue a report in
` that case?
` A No.
` Q So were you testifying as an expert
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` DAVID A. FLETCHER
` or were you testifying as a fact witness?
` A I'm not sure, to be honest with you.
` Q It may have been that you were a fact
` witness who happened to be knowledgeable about
` the alleged trade secret information.
` A May have been.
` Q Just so that I'm clear, the dispute
` was between Insituform and SAK?
` A It was actually between Insituform
` and the two young men.
` Q Do you recall the last names of
` either of the two young men?
` A One of the young men's name was
` Hertz, and the other name was Jason -- I don't
` remember his last name. They were both
` foremen, project manager type employees.
` Q Do you recall whether Insituform had
` an expert witness testify at trial?
` A I don't recall.
` Q And I know you're not quite sure as
` to whether or not that you were a testifying in
` an expert capacity or not.
` Any other instance that you're aware
` of in which you have been retained as an expert
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` consulting or a testifying expert?
` A No, just those cases.
` Q Now, I've looked at your resume, and
` you list 27 years of experience in the
` industry. What industry are you referring to?
` A The trenchless technology industry.
` Q So in those 27 years of experience in
` the trenchless technology industry, it sounds
` like you don't know whether you've ever been
` retained as an expert; is that right? Possibly
` not?
` A I just explained the one case that I
` was involved in.
` Q In those 27 years, that would be the
` only time, possibly, you've been retained as an
` expert, correct?
` A Correct.
` Q Never been retained as an expert in a
` patent case?
` A Never.
` Q You're not an expert on patents, are
` you?
` A I'm not sure what that means.
` Q Do you consider yourself an expert on
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` patents?
` A I've been involved with patents my
` whole career.
` Q You're not an expert on patent law,
` right?
` A I would say that's true.
` Q You're not a patent agent?
` A No.
` Q You're not a patent attorney?
` A Definitely not.
` Q You would be wrong -- it would be
` wrong for the Board to think that you were
` somehow an expert on patents, per se, wouldn't
` it?
` DR. CHAMBERS: Objection. Vague.
` A Depends on how you define expert.
` Q Now, how did you get involved in this
` case?
` A I was asked to be an expert witness.
` Q By whom?
` A By the attorneys for BLD.
` Q Who in particular?
` A Scott and Dell were on the phone when
` I first talked.
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` DAVID A. FLETCHER
` Q Mr. Chambers and Mr. Chism?
` A Yes.
` Q Do you recall approximately when you
` were contacted by them to see if you could --
` would be interested in the case?
` A I'm pretty sure it was -- it was
` either December or January. I think it was
` late December.
` Q So either late December --
` A '14 or early January 2015.
` Q So either late December 2014 or early
` January 2015, you were first contacted about
` this case?
` A Yes.
` Q And what were you asked to do?
` A I was asked to be an expert witness
` in this case.
` Q Obviously, you decided to get
` involved?
` A Correct.
` Q Why would you get involved in this
` case?
` A I'm not sure.
` Q Did you talk with anyone at BLD,
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` aside from their counsel, before deciding to
` get involved in the case?
` A No.
` Q Didn't talk with Mr. Trapani or
` anyone else at BLD prior to --
` A No.
` Q What work have you done in this case?
` A It's in my declarations. I reviewed
` the patent, the patent prosecutions, the
` declarations by the patent owners and their
` expert witness, worked on my declarations with
` the firm, witnessed Ed's deposition.
` Q Is that it?
` A Close enough.
` Q Aside from your deposition here
` today, is your work complete in the case?
` DR. CHAMBERS: Objection. Calls for
` speculation.
` A I don't know.
` Q Now, I believe in your declaration
` you mentioned you're being paid. Is it for
` your time spent in the case; is that right?
` A That's right.
` Q How are you being compensated by BLD?
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` A Getting paid per hour.
` Q What is your hourly rate?
` A $250.
` Q How did you select that rate?
` A It's just -- how did I select that
` rate? I'm not sure.
` Q Do you have a customary rate for
` consulting on matters?
` A No.
` Q What did you do to prepare for your
` deposition today?
` DR. CHAMBERS: Objection to the
` extent it calls for attorney-client
` privilege.
` MR. HARTY: Are you asserting the
` privilege, Mr. Chambers, between you and
` BLD's expert here?
` DR. CHAMBERS: Only in the sense that
` if I told him anything that was dealing
` with his own personal capacity, that he
` would be talking with me about those
` things, but I'm not asserting it in terms
` of BLD.
` Q Tell me again what you did to prepare
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` DAVID A. FLETCHER
` for your deposition. I guess you haven't told
` us yet. What did you do to prepare for your
` deposition?
` A I basically just reviewed, again, the
` declarations and some of the patents.
` Q What patents did you review?
` A There was a lot of them. '991, '992,
` '726, and then the older ones, '663 and '118.
` Q When did you begin your preparation
` for the deposition?
` A A couple weeks ago.
` Q Was that on your own, or were you
` meeting with counsel?
` A It was both.
` Q Tell me the first -- when you first
` starting preparing for your deposition, where
` were you?
` A Actually, a couple weeks ago we were,
` really, doing the declarations so probably I
` was preparing for my -- two weeks ago, I was
` here on a Wednesday meeting with the attorney.
` Q Was that in connection with your
` declaration or to prepare for your deposition?
` A I would say it was probably both.
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` Q And did you have subsequent meetings
` with counsel in preparation for the deposition
` here today?
` A Yes.
` Q When did you meet with counsel?
` A Last evening.
` Q For how long?
` A About an hour.
` Q What did -- what did you discuss?
` DR. CHAMBERS: Objection to the
` extent it calls for attorney-client
` privilege.
` A We discussed the declarations.
` Q Any -- aside from this one-hour
` meeting with counsel, any other meetings with
` counsel in preparation for your deposition?
` A No.
` Q Now, you were present for
` Mr. Kampbell's deposition in Chicago, right?
` A Yes.
` Q And I believe you said you studied
` his work in this case, including his
` declarations, right?
` A Yes.
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` Q Do you know Mr. Kampbell?
` A Yes.
` Q How so?
` A Worked in the industry for a number
` of years together.
` Q You say you "worked in the industry
` for a number of years." Can you explain to me
` your working relationship with Mr. Kampbell.
` A It's been various things over the
` years.
` Q Tell me about those various things.
` What were they?
` A He's been a customer, he's been a
` consultant that worked closely with my company,
` and he's been in some of the same industry
` trade organizations.
` Q You say he was a customer. Customer
` of whose, of yours?
` A He was a customer of Applied Felts.
` Q In what capacity would you work
` together with Mr. Kampbell as -- while he was a
` customer of Applied Felts?
` A I was responsible for the sales to
` the company that he worked for.
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` Q What was the company that
` Mr. Kampbell worked for?
` A CSR Hydro Conduit.
` Q You also mentioned that you worked
` with Mr. Kampbell in his capacity as a
` consultant; is that right?
` A That's correct.
` Q I believe you said that he consulted
` for your company?
` A For Applied Felts.
` Q For Applied Felts. Do you know what
` time frame, approximately, Mr. Kampbell would
` have consulted for Applied Felts?
` A It was four, five, six, somewhere in
` there. When he started his company.
` Q Why would Applied Felts hire
` Mr. Kampbell as a consultant?
` DR. CHAMBERS: Objection, vague.
` A He actually was mainly working for
` our largest customer, and we just contributed
` to the cost of him.
` Q Who was that largest customer?
` A National EnviroTech Group.
` Q I'm sorry, National what?
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` DAVID A. FLETCHER
` A National EnviroTech Group.
` Q But in his role as a consultant for
` Applied Felts, you had the opportunity to work
` with Mr. Kampbell, didn't you?
` A Yes.
` Q In fact, from time to time you would
` send him off to help solve technical problems,
` wouldn't you?
` DR. CHAMBERS: Objection, vague.
` A National Liner would send him off to
` help with technical problems.
` Q So you say National Liner would send
` him off to work on technical problems. Who was
` he a consultant for at the end of the day,
` National or --
` A He was paid by both companies.
` Q Fair to characterize Mr. Kampbell's
` role as a consultant for Applied Felts in the
` nature of technical support?
` A Yes.
` Q Did he do a good job with that?
` DR. CHAMBERS: Objection, vague.
` A He did all right.
` Q Did you consider him competent?
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` DAVID A. FLETCHER
` A Yes.
` Q Now, you're generally familiar with
` Mr. Kampbell's credentials, aren't you?
` A Yes.
` Q Do you know whether Mr. Kampbell also
` worked on R&D projects for Applied Felts?
` A Yes.
` Q What type of R&D projects did he work
` on?
` DR. CHAMBERS: Objection.
` Mischaracterizes the answer.
` A In conjunction with National Liner,
` we were trying to develop certain products, and
` he was involved in those.
` Q In what manner was Mr. Kampbell
` involved in that research and development
` effort in developing new products for National?
` DR. CHAMBERS: Objection.
` Mischaracterizes his testimony.
` A R&D is R&D. He was involved in
` helping us try to develop a product.
` Q Was there a product ultimately
` developed?
` A No.
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` DAVID A. FLETCHER
` Q But fair to say you're generally
` familiar with his work and reputation in the
` industry?
` A Uh-hmm. Yes.
` Q Based upon your years of experience
` in the industry, fair to say that Mr. Kampbell
` is well regarded in the industry for his
` technical expertise in pipe rehabilitation and
` CIPP?
` DR. CHAMBERS: Objection, vague.
` A Depends on who you talk to.
` Q I'm asking you.
` A That's not what you asked me.
` Q Do you regard -- based upon your
` years of experience in the industry and having
` worked with Mr. Kampbell, do you regard him as
` someone who has good technical expertise in
` pipe rehabilitation and CIPP?
` A In some things.
` Q What things?
` A CIPP design in terms of -- and
` understanding CIPP specifications.
` Q So when it comes to CIPP design, you
` would consider Mr. Kampbell as having good
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` DAVID A. FLETCHER
` expertise in that area; is that a fair
` statement?
` DR. CHAMBERS: Objection. Vague and
` mischaracterizes.
` A Simply the design of a thickness of a
` cured-in-place mainline lat- -- liner.
` Q Now, so you don't -- you don't
` believe Mr. -- am I right to say you don't
` believe Mr. Kampbell has any expertise beyond
` -- in the CIPP world beyond just mainline
` liner?
` DR. CHAMBERS: Objection,
` mischaracterizes.
` A He's good at certain things, as I
` said.
` Q Now, fair to say that although you
` disagree with Mr. Kampbell and some of the
` statements and conclusions that he's reached in
` this case, you would consider him to be well
` qualified to be an expert here?
` DR. CHAMBERS: Objection. Vague.
` A Not necessarily.
` Q Why not?
` A Because we're talking about laterals
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` DAVID A. FLETCHER
` here, not mainlines.
` Q Do you know anything about
` Mr. Kampbell's experience in the industry as it
` relates to lateral CIPP work?
` A Uh-hmm. Yes.
` Q What is that? What's that?
` A One of the development projects was
` to try to develop a CIPP lateral system.
` Q So it would be wrong to say that
` you're not aware of him having experience in
` R&D relating to lateral CIPP, right?
` A Didn't ever work. The products were
` never developed.
` Q Now, let me ask you a little bit of
` some background questions.
` Your resume was attached to your
` declaration submitted in connection with the
` various IPR matters. Do you recall that?
` A Yes.
` Q And who prepared this resume?
` A I did.
` Q When was it prepared?
` A It was updated at the end of this
` last year.
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` DAVID A. FLETCHER
` Q Was it updated for purposes of this
` litigation?
` A Yes.
` Q Why would you feel the need to update
` your resume for purposes of this particular
` case?
` DR. CHAMBERS: Objection.
` Mischaracterizes the testimony.
` A If you look at my resume, I haven't
` worked for anybody in 18 years, so it's safe to
` say I didn't have an updated resume.
` Q Who modified the resume?
` A I did.
` Q Did counsel assist or have any input
` into your modified resume?
` A No.
` Q Did counsel offer any suggestions,
` revisions, additions?
` A Yes.
` Q What did they suggest?
` A I don't remember exactly, but I sent
` them the resume, and they asked me to give more
` detail to certain aspects of what I did.
` Q What were those certain aspects of
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` DAVID A. FLETCHER
` what you did that they wanted more detail on?
` DR. CHAMBERS: Objection.
` Mischaracterizes.
` A I don't remember exactly.
` Q But fair to say they asked you to
` modify your resume to add certain detail as to
` particular matters?
` DR. CHAMBERS: Objection.
` Mischaracterizes.
` A Like I said, they asked me to give
` more detail to what I did.
` Q Now, let me ask you about your
` education. You've got a bachelor of science
` degree in civil engineering; is that right?
` A That's correct.
` Q Is that the extent of your post -- of
` your education post high school?
` DR. CHAMBERS: Objection. Vague.
` A Yes.
` Q Is that the extent of your formal
` education post high school?
` A Yes.
` Q In engineering school, did you have
` any course work in trenchless technologies?
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` DAVID A. FLETCHER
` A No.
` Q Did you have any course work in your
` engineering school in the repair of underground
` pipe using trenchless technologies?
` A No.
` Q Have any course work in engineering
` school regarding the repair of sewer pipes
` using cured-in-place pipelining?
` A No.
` Q Any course work regarding the design
` of cured-in-place pipelining products or
` methods?
` A No.
` Q Did any of your course work even
` touch on CIPP?
` A No.
` Q Now, you graduated in June of '85, is
` that it?
` A Yes.
` Q Were you even aware of cured-in-place
` pipeline at that time?
` A Didn't exist, really. A little bit.
` Q Actually, it did exist. I suppose
` Mr. Trapani probably would take issue with it,
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` DAVID A. FLETCHER
` but Insituform was in CIPP, weren't they?
` A That's correct.
` Q But fair to say your course work as
` an undergrad in civil engineering provided no
` education or training with respect to pipe
` renewal using cured-in-place pipelining
` technologies, correct?
` DR. CHAMBERS: Objection, vague.
` A There are classes that you take in
` civil engineering that does very much relate to
` what we do in CIPP.
` Q My question is, though, is your
` course work as an undergrad in civil
` engineering provided no education or training
` with respect to pipe renewal using
` cured-in-place pipelining technology.
` DR. CHAMBERS: Objection.
` Mischaracterizes and is vague.
` A That's correct.
` Q So any knowledge or expertise that
` you have gained in the area of cured-in-place
` pipelining comes from work or experience or
` training that you've received after college,
` correct?
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` DR. CHAMBERS: Objection. Vague and
` mischaracterizes the testimony.
` A Most of it.
` Q Most of it. All of it, isn't it?
` A Like I said, there's a lot of stuff
` that you learn in civil engineering that
` applies to cured-in-place.
` Q What kind of student were you in
` college?
` DR. CHAMBERS: Objection, vague.
` A Not bad.
` Q Not bad? B student?
` A About right.
` Q Are you a professional engineer?
` A No.
` Q Ever sit for any portion of the exam?
` A No.
` Q How about the engineering and
` training exam?
` A No.
` Q Why not?
` A Didn't think it was that important at
` the time.
` Q Fair to say the jobs you've had
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` DAVID A. FLETCHER
` didn't require that type of engineering
` licensure?
` A Fair to say.
` Q Have you ever worked or consulted in
` an engineering role?
` A Yes.
` Q For whom?
` A I co-oped in college for two
` different companies, and both in engineering
` offices.
` Q Who are the different companies you
` co-oped for?
` A Coast Guard headquarters here in D.C,
` and Tampa Electric Company in Tampa, Florida.
` Q When did you co-op, approximately,
` for Coast Guard headquarters?
` A '82, '83.
` Q And that co-op experience had nothing
` to do with trenchless technologies, did it?
` A No.
` Q I'm sorry, the other company you
` co-oped for was whom?
` A Tampa Electric Company.
` Q When was that?
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` DAVID A. FLETCHER
` A '84, '85.
` Q What was the business Tampa Electric
` Company?
` A Laying out underground pipelines for
` electric as well as overhead. Mostly survey
` work.
` Q That engineering co-op didn't deal
` with trenchless technologies either?
` A No.
` Q So any work or consulting you've done
` in an engineering role has been in connection
` with these two co-op experiences, right?
` DR. CHAMBERS: Objection. Vague and
` mischaracterizes.
` A I've done quite a bit of engineering
` in the CIPP industry over the last 27 years.
` Q What do you consider engineering to
` be as it relates to your work in the CIPP
` industry?
` A Relates to understanding how to
` design trenchless systems and, therefore, CIPP
` systems. It understands how to work with
` consulting engineers that are specifying and
` putting out contracts to use CIPP in the
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` DAVID A. FLETCHER
` industry. It includes designing lateral
` systems, from an enginee

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