`
`2
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`16
`17
`18
`19
`
`20
`
`21
`
`22
`23
`24
`25
`
`Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________________________________________
`MEDTRONIC, INC., AND MEDTRONIC
`VASCULAR, INC.,
`
` Petitioners,
`
`vs.
`
`TELEFLEX INNOVATIONS S.A.R.L.,
`
` Patent Owner.
`___________________________________________________
`IPR2020-00126 (Patent 8,048,032 B2)
`IPR2020-00127 (Patent 8,048,032 B2)
`IPR2020-00128 (Patent RE45,380 E)
`IPR2020-00129 (Patent RE45,380 E)
`IPR2020-00130 (Patent RE45,380 E)
`IPR2020-00132 (Patent RE45,760 E)
`IPR2020-00134 (Patent RE45,760 E)
`IPR2020-00135 (Patent RE45,776 E)
`IPR2020-00136 (Patent RE45,776 E)
`IPR2020-00137 (Patent RE47,379 E)
`IPR2020-00138 (Patent RE47,379 E)
`___________________________________________________
`
` VIDEOTAPED DEPOSITION OF
` STEVEN ERB
`
`DATE: October 29, 2020
`
`TIME: 9:06 a.m. Central Time
`
`PLACE: Veritext Virtual Videoconference
`
`REPORTED BY: PAULA K. RICHTER, RMR, CRR, CRC
` (By videoconference)
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`Page 1
`
`
`
`IPR2020-00126/-127/-128/-129/-130/-132/-134/-135/-136/-137/-138
`
`Medtronic Ex.1756
`Medtronic v. Teleflex
`
`
`
`Page 2
`
`Page 4
`
`1 INDEX
`
`2 3
`
`WITNESS: STEVEN J. ERB PAGE:
`4 EXAMINATION BY MS. ROBERG-PEREZ............ 6
`5 EXAMINATION BY MR. WINKELS................. 84
`
`6 7 8
`
`EXHIBITS PREVIOUSLY MARKED AND REFERRED TO:
`9 EX. 1104 Instructions for Keeping Research
`10 Records, VSIMDT00030443 and 30439.. 27
`11 EX. 1105 Instructions for Keeping Research
`12 Records, VSIMDT00030443 and 30439.. 27
`13 EX. 2014 Six photos, VSIMDT00031685-31690... 87
`14 EX. 2110 Invoice and Check stub............. 36
`15 EX. 2114 Drawing of GuideLiner.............. 85
`16 EX. 2122 Declaration of Steven Erb.......... 33
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1 APPEARANCES
`2 ON BEHALF OF THE PETITIONERS (By videoconference):
`3 Ms. Sharon Roberg-Perez, Esq.
`4 Mr. Cyrus A. Morton, Esq.
`5 Ms. Emily J. Tremblay, Esq.
`6 ROBINS KAPLAN, LLP
`7 800 LaSalle Avenue, Suite 2800
`8 Minneapolis, Minnesota 55401
`9 (612) 349-8500
`10 sroberg-perez@robinskaplan.com
`11 cmorton@robinskaplan.com
`12 etremblay@robinskaplan.com
`13
`14 ON BEHALF OF THE PATENT OWNER (By videoconference):
`15 Mr. Joseph W. Winkels, Esq.
`16 Mr. J. Derek Vandenburgh, Esq.
`17 Ms. Tara C. Norgard, Esq.
`18 CARLSON, CASPERS, VANDENBURGH & LINDQUIST
`19 225 South Sixth Street, Suite 4200
`20 Minneapolis, Minnesota 55402
`21 (612) 436-9600
`22 jwinkels@carlsoncaspers.com
`23 dvandenburgh@carlsoncaspers.com
`24 tnorgard@carlsoncaspers.com
`25 (APPEARANCES continued on next page)
`
`Page 3
`
`Page 5
`
`1 P R O C E E D I N G S
`2 THE VIDEOGRAPHER: We are going on
`3 the record at 9:06 a.m. Today's date is October
`4 29th, 2020.
`5 This is Media Unit 1 of the
`6 video-recorded deposition of Stephen J. Erb, being
`7 taken via Zoom and taken by counsel for the
`8 Petitioner in the matter of Medtronic,
`9 Incorporated and Medtronic Vascular, Incorporated
`10 versus Teleflex Innovations, S.A.R.L., in the
`11 United States Patent and Trademark Office before
`12 the Patent Trial and Appeal Board; Case Number
`13 IPR2020-00128.
`14 My name is Adam Wallin, from the
`15 firm Veritext, and I am the videographer. The
`16 court reporter is Paula Richter, from the firm
`17 Veritext.
`18 Will counsel please identify
`19 themselves for the record.
`20 MS. ROBERG-PEREZ: Sharon
`21 Roberg-Perez, on behalf of Petitioner Medtronic,
`22 Robins Kaplan. With me are my colleagues, Cy
`23 Morton and Emily Tremblay. And on the phone we
`24 also have Dr. Paul Zalesky.
`25 MR. WINKELS: And on behalf of
`
`1 APPEARANCES (Continued)
`
`23
`
`ALSO PRESENT:
`4 Adam Wallin - Videographer
`5 Joe Malone - Veritext Concierge
`6 Paul Zalesky
`7 Greg Smock - Teleflex
`
`89
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`2 (Pages 2 - 5)
`
`888-391-3376
`
`Page 2
`
`
`
`Page 6
`1 Patent Owner, Joe Winkels with Carlson Caspers.
`2 With me from my firm are Derek Vandenburgh and
`3 Tara Norgard. And also on the line is Greg Smock
`4 with Teleflex.
`5 THE VIDEOGRAPHER: Will the court
`6 reporter please swear in the witness.
`7 STEVEN J. ERB,
`8 duly sworn, was examined and testified as follows:
`9 EXAMINATION
`10 BY MS. ROBERG-PEREZ:
`11 Q. Good morning, Mr. Erb. How are you?
`12 A. Good. Good morning to you.
`13 Q. Have you ever been deposed before?
`14 A. I have not.
`15 Q. Have you ever given any testimony under oath?
`16 A. No.
`17 Q. Okay. So you understand that today, you're
`18 under oath and that you're required to answer
`19 truthfully?
`20 A. Yes.
`21 Q. Okay. There are some ground rules for every
`22 deposition. It's important that the court
`23 reporter hear any answers to questions you give,
`24 so you have to answer audibly and not nod or shake
`25 your head in response.
`
`Page 8
`1 Q. Nothing today that would impair your memory?
`2 A. No.
`3 Q. Did you prepare for your deposition today?
`4 A. Yes.
`5 Q. How did you prepare?
`6 A. Had conversations with my lawyer group, and
`7 they wrote down what I said, and then we went over
`8 that. And that's -- I guess that's about it.
`9 Q. And so my question is a little more specific.
`10 You mentioned that you met with your lawyer group
`11 and they wrote down what you said.
`12 A. Yes.
`13 Q. Setting apart them writing down what you
`14 said, did you prepare today specifically -- or did
`15 you prepare specifically for this deposition
`16 today?
`17 A. Yes.
`18 Q. And how did you prepare for this deposition?
`19 A. They went over my declaration, talked about
`20 the timeline. I seen a bunch of documents that
`21 pertained to that timeline. And I guess -- I
`22 think that's about it.
`23 Q. So you said you've seen a bunch of documents.
`24 What documents did you see?
`25 A. I really don't remember. There were so many
`
`Page 7
`
`Page 9
`
`1 Is that -- is that understood?
`2 A. Yes.
`3 Q. And it's important that you and I don't talk
`4 over each other, which is a little hard to manage
`5 on Zoom, but I will do -- so -- so please wait
`6 until I finish my question before you answer, and
`7 I'll do my best to wait until you've finished your
`8 answer before I ask my next question.
`9 Is that clear?
`10 A. Yes.
`11 Q. And if I ask a question that you don't
`12 understand, please let me know, and I'll do my
`13 best to rephrase.
`14 Is that understood?
`15 A. Yes.
`16 Q. We will take breaks during the day. If you
`17 need a break, just let me know. But before we
`18 take a break, I'm going to ask that you answer any
`19 question that's pending.
`20 Is that understood?
`21 A. Yes.
`22 Q. Is there any reason today, such as illness or
`23 medication, that you're not able to testify fully
`24 and accurately?
`25 A. No.
`
`1 of them, I really couldn't say.
`2 Q. When did you see these documents?
`3 A. It could have been last week.
`4 Q. And you said you really can't remember
`5 because there were so many of them. Do you
`6 remember -- do you remember what types of
`7 documents you saw?
`8 A. Yes. Some were prints. Most of them were
`9 purchase orders.
`10 Q. When you say "prints," prints of what?
`11 A. Parts of the GuideLiner.
`12 Q. So anything -- did you see any documents
`13 besides invoices and prints that were parts of the
`14 GuideLiner?
`15 A. No.
`16 Q. Okay. Aside from discussions with counsel,
`17 have you discussed with anyone your deposition?
`18 A. No.
`19 Q. Okay. I understand that currently, you're a
`20 technologist?
`21 MS. ROBERG-PEREZ: I'm sorry. Did
`22 someone say something?
`23 MR. WINKELS: Derek, I think you
`24 came off mute somehow.
`25 MS. ROBERG-PEREZ: Okay.
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`3 (Pages 6 - 9)
`
`888-391-3376
`
`Page 3
`
`
`
`Page 10
`
`Page 12
`
`1 MR. WINKELS: Sorry.
`2 MS. ROBERG-PEREZ: No worries.
`3 BY MS. ROBERG-PEREZ:
`4 Q. Mr. Erb, currently, you're a technologist in
`5 the R&D group in Teleflex's interventional
`6 business unit, right?
`7 A. Correct.
`8 Q. And you've held that position since Teleflex
`9 acquired Vascular Solutions in 2016?
`10 A. Yes.
`11 Q. And before that, I understand that you were a
`12 technician at Vascular Solutions?
`13 A. Yes.
`14 Q. And is it correct that you started there in
`15 2005?
`16 A. Late 2004.
`17 Q. Now, before you started working at Teleflex,
`18 did you know anybody there?
`19 A. No.
`20 Q. Okay. And before you worked at Teleflex,
`21 where did you work?
`22 A. I worked at a company called Raymedica.
`23 Q. How long had you worked there?
`24 A. Seven years.
`25 Q. And before Raymedica, where did you work?
`
`1 Solutions --
`2 A. Yes.
`3 Q. -- besides -- what titles were those?
`4 A. That was same thing, senior technologist.
`5 Q. Okay. Any other positions besides senior
`6 technologist and technician?
`7 A. No.
`8 Q. When you started at Vascular Solutions in
`9 late 2004, who -- to whom did you report?
`10 A. Jeff Welch.
`11 Q. Anybody besides Jeff Welch?
`12 A. Above him was Gregg Sutton.
`13 Q. Anybody besides Mr. Welch and Mr. Sutton?
`14 A. No.
`15 Q. And during your time at Vascular Solutions,
`16 did you report to anybody else besides Mr. Welch
`17 and Mr. Sutton?
`18 A. My whole time at Vascular Solutions?
`19 Q. Yes.
`20 A. Yes. We had management change, so John
`21 Bridgeman would have been later.
`22 Q. Anybody else besides John Bridgeman?
`23 A. Not under Vascular Solutions.
`24 Q. Okay. And during your time at Vascular
`25 Solutions, was there anybody who reported to you?
`
`Page 11
`
`Page 13
`
`1 A. I worked at Lake Region.
`2 Q. Can you spell that?
`3 A. Lake Region is L-A-K-E, R-E-G-I-O-N.
`4 Q. And before Lake Region, where did you work?
`5 A. That's going back quite a ways. I think it
`6 was Robbins Myers.
`7 Q. So going back to your work at Vascular
`8 Solutions, at the time that it was acquired, you
`9 were -- by Teleflex, you were a technician, right?
`10 A. Correct.
`11 Q. Was the technician position the most recent
`12 position -- sorry, strike that.
`13 Did you hold any other position at
`14 Vascular Solutions besides technician?
`15 A. In case -- what time -- what time frame?
`16 Q. Any time frame at all.
`17 A. Yeah. I became -- right now, I'm a senior
`18 technologist, R&D technologist.
`19 Q. And that's at Teleflex, right?
`20 A. Correct.
`21 Q. So when you were at Vascular Solutions, your
`22 title was a little different. It was technician,
`23 right?
`24 A. Yes.
`25 Q. And did you hold any other title at Vascular
`
`1 A. No.
`2 Q. I'd like to understand your education
`3 background. When did you graduate from high
`4 school?
`5 A. 1972.
`6 Q. Did you earn a degree after high school?
`7 A. Yes. A vocational college degree in
`8 toolmaking.
`9 Q. And when did you earn that degree?
`10 A. 1974, I believe.
`11 Q. Okay. Apart from that degree, any other
`12 degree -- any other degrees?
`13 A. No.
`14 Q. Have you had any specialized training related
`15 to your work at Vascular Solutions?
`16 A. No.
`17 Q. So when you -- as a technologist at Teleflex,
`18 what did you do?
`19 A. The -- well, I do machining parts,
`20 prototyping, tool and fixture, and when I first
`21 started, some assembly of -- of prototypes and --
`22 and lab work, testing.
`23 Q. So you said when you first started. Do you
`24 mean when you first started at Teleflex or when
`25 you first started at Vascular Solutions?
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`4 (Pages 10 - 13)
`
`888-391-3376
`
`Page 4
`
`
`
`Page 14
`
`Page 16
`
`1 A. First started at Vascular.
`2 Q. Do you -- did you also machine parts when you
`3 started at Vascular?
`4 A. Yes.
`5 Q. Okay. What's the first step that you take
`6 when machining a new part?
`7 A. Well, a -- usually, a sketch or a print is
`8 done or maybe a verbal instruction. And then I
`9 would procure the material to make the part or --
`10 or fixture and then look at it and see what kind
`11 of tooling I would need, cutters and machine that
`12 would be required to finish that part.
`13 Q. So you said "usually a sketch or print." Is
`14 this a sketch or print that is provided to you?
`15 A. Yes.
`16 Q. And you said sometimes verbal instructions.
`17 A. Yes.
`18 Q. What percentage of the time are you given a
`19 sketch or print?
`20 A. Are you talking present tense or past tense?
`21 Q. Let's start now, today, present tense. About
`22 what percentage of the time do you start or
`23 machine a part with a -- with a sketch or print?
`24 A. Probably 90 percent of the time.
`25 Q. So let's -- now I'd like to ask about the
`
`Page 15
`1 practice at Vascular Solutions when you started.
`2 When you went to machine a new part, about what
`3 percentage of the time would you start with the
`4 sketch or print?
`5 A. When I started, yeah, probably more --
`6 probably 75/25 maybe, I would say.
`7 Q. Does that mean 75 percent of the time you
`8 would start with a sketch or print and 25 percent
`9 of the time you would not?
`10 A. Yes.
`11 Q. And when you started with a sketch or print,
`12 were those sketches or prints something -- things
`13 that you would keep?
`14 A. Please repeat that.
`15 Q. Are sketches and prints that you were given
`16 to machine a part from, are those documents that
`17 you would keep?
`18 A. Probably for a period of time, until I no
`19 longer needed them.
`20 Q. What period of time?
`21 A. As long as I was working on it, I would keep
`22 that print. I may keep it for a short time
`23 afterwards, and then I would usually just dispose
`24 of it.
`25 Q. And once a new part had been machined, what
`
`1 would you do with that part next?
`2 A. I would bring it, show it to the person
`3 that -- that had asked for that.
`4 Q. Would you inspect it yourself?
`5 A. Yes.
`6 Q. Would you ever take measurements of the part
`7 you machined?
`8 A. Yes.
`9 Q. Would you ever write those measurements down
`10 anywhere?
`11 A. No.
`12 Q. So you would take measurements. What was the
`13 purpose of taking measurements?
`14 A. To be sure that it had met the print or
`15 specifications that were required.
`16 Q. Did you ever take photographs of any of the
`17 parts that you machined?
`18 A. No.
`19 Q. So in your declaration, you stated that you
`20 assist engineers with projects. What types of
`21 projects?
`22 A. Whatever is required. Whatever the
`23 engineer -- there might be some tooling or, you
`24 know, machining a piece or a part that is
`25 necessary for -- for a project.
`
`Page 17
`
`1 Q. What is tooling?
`2 A. Tooling would be something to -- you know,
`3 maybe for assembly to hold something or to process
`4 something.
`5 Q. Okay. What do you mean by "to hold
`6 something"?
`7 A. You know, maybe an example would be to hold
`8 like two parts in alignment for bonding or a mold
`9 to melt something together or something --
`10 something to further a process, I would say.
`11 Something that would . . .
`12 Q. Okay. And when you would be asked to do
`13 tooling, is there anything about that that you
`14 would write down?
`15 A. Yes.
`16 Q. What would you write down?
`17 A. That might be something that would be a
`18 verbal instruction I need. An engineer would ask,
`19 I need something that would do this, or help me do
`20 this, and so I would write that down
`21 dimension-wise what -- what would -- would do
`22 that, what would -- would fill that need. And
`23 then I would --
`24 Q. Where -- I'm sorry. I interrupted you.
`25 A. Yeah. And then I would make that part.
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`5 (Pages 14 - 17)
`
`888-391-3376
`
`Page 5
`
`
`
`Page 18
`1 Q. Okay. You said you would write that down,
`2 the dimensions. Where would you write that down?
`3 A. Just on a -- probably just a piece of paper
`4 or notepad.
`5 Q. Would you keep that piece of paper?
`6 A. For a short while of time, while -- as long
`7 as I was working on it, until I made sure that
`8 worked.
`9 Q. Okay. Earlier, you mentioned prototyping.
`10 A. Yes.
`11 Q. So in your role now at Teleflex, do you do
`12 prototyping?
`13 A. No.
`14 Q. When you were at Vascular Solutions starting
`15 in 2004, did you do prototyping?
`16 A. Yes.
`17 Q. How did you know what to build?
`18 A. We'd have meetings with the engineers, and we
`19 would discuss what -- what the needs were, what
`20 we -- what we were doing. And so I was involved
`21 in that, and that's -- that's where that would
`22 come from.
`23 Q. So in these meetings, would anybody take
`24 notes during the meetings?
`25 A. I don't remember that.
`
`Page 20
`1 them, so I would just as I needed them. And as it
`2 would be finished, I would -- I would dispose of
`3 them.
`4 Q. Why?
`5 A. Just for, I guess, general housekeeping.
`6 Q. So besides working from memory and drawings,
`7 did you ever work from a written description of
`8 what a prototype was supposed to look like?
`9 A. No.
`10 Q. Okay. Once you've assembled a prototype, and
`11 this is back in the 2004 time frame when you
`12 worked -- started working at Vascular Solutions,
`13 what would you do with it next?
`14 A. I would show it to whoever had asked for it,
`15 give it to them. Then the parts would be
`16 assembled.
`17 Q. You would show it to whoever asked --
`18 A. Right.
`19 Q. -- and then the parts would be assembled.
`20 Who would do the assembling?
`21 A. I participated in some of it, but usually the
`22 engineer that was involved.
`23 Q. You said you participated in some of it.
`24 A. Right.
`25 Q. How would you -- how would you participate?
`
`Page 19
`
`Page 21
`
`1 Q. And you didn't take any notes during the
`2 meetings?
`3 A. No.
`4 Q. So how did you remember what to build?
`5 A. Well, I have a pretty good memory. I --
`6 that's how I ran. I would just remember.
`7 Q. Okay. So you never worked from a drawing?
`8 A. Yes.
`9 Q. So what percentage of the time when you were
`10 building prototypes did you work from a drawing?
`11 A. I don't know what that would be.
`12 Q. You don't know --
`13 A. Percentage-wise.
`14 Q. Can you make a guess?
`15 MR. WINKELS: Objection; form.
`16 BY MS. ROBERG-PEREZ:
`17 Q. You can answer.
`18 A. I would rather not.
`19 Q. So it's your testimony that sometimes you
`20 worked from memory and sometimes you had drawings?
`21 A. Yes.
`22 Q. And during the times that you had drawings,
`23 were those drawings something that you would keep?
`24 A. Again, for a while, I wasn't in the habit of
`25 keeping -- because there were just too many of
`
`1 A. Well, whatever is required for assembly,
`2 however the parts were fit together.
`3 Q. However the -- however was required -- okay.
`4 So I'm a little bit confused. You said usually --
`5 so the engineer would be doing the assembly,
`6 right?
`7 A. Yes.
`8 Q. And you said you would participate. How
`9 would you participate in an engineer's assembly of
`10 a prototype?
`11 A. Well, you might do like bonding or, you know,
`12 whatever that product -- product was. Okay? So
`13 you might -- you would fit the pieces together, so
`14 you might be bonding or reflowing, however -- or
`15 physically, you know, putting the parts together.
`16 Q. And so was your participation doing the
`17 physical bonding or physically putting the parts
`18 together, or would the engineer be doing that and
`19 you would be doing something else?
`20 A. It would probably be both. I would assist --
`21 I would assist the engineer, too, you know, maybe
`22 side by side.
`23 Q. Okay. Once a prototype was assembled, what
`24 would happen with that prototype next?
`25 A. It would be tested to see the functionability
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`6 (Pages 18 - 21)
`
`888-391-3376
`
`Page 6
`
`
`
`Page 22
`
`1 of it.
`2 Q. You said it would be tested. Who would do
`3 the testing?
`4 A. Usually the engineer.
`5 Q. You said "usually the engineer". When
`6 would -- when would somebody other than the
`7 engineer do the testing?
`8 A. Maybe the technicians would, too, sometimes
`9 if we were a large group or more than a handful.
`10 Depending on the time and the testing, the
`11 technician would help out.
`12 Q. Would you help out with testing?
`13 A. Yes.
`14 Q. How did you know how to test something?
`15 A. There would usually be some protocol.
`16 That -- that would come from the direction of the
`17 engineer.
`18 Q. And would the engineer write that protocol
`19 down for you?
`20 A. No. Usually verbal.
`21 Q. And would you -- would you write the protocol
`22 down once you had -- had heard it verbally?
`23 A. Yes.
`24 Q. Where would you write it down?
`25 A. Probably in my notebook.
`
`Page 23
`1 Q. And -- probably in your notebook. Okay. So
`2 then you have a protocol written in your notebook,
`3 and you'd follow the protocol to test the
`4 prototype, right?
`5 A. Correct.
`6 Q. Would you keep notes as you were testing the
`7 prototype?
`8 A. Yes.
`9 Q. And where would those notes be kept?
`10 A. They would be kept in a notebook.
`11 Q. How long would that notebook be maintained?
`12 A. Repeat the question, please.
`13 Q. Strike that. I'll ask a better question.
`14 How long would you keep your
`15 notebooks?
`16 A. Quite a while. As long as you worked on that
`17 project.
`18 Q. Did Vascular Solutions have a quality system
`19 for managing documents?
`20 A. Yes.
`21 Q. What system was that?
`22 A. I don't know. I couldn't say.
`23 Q. You don't know; you couldn't say, but you
`24 knew they had a quality system?
`25 A. Correct.
`
`Page 24
`1 Q. Okay. And so I -- I probably am not asking
`2 the question very well. What do you mean when you
`3 said that they had a quality system?
`4 A. Well, we had people that worked in quality,
`5 and -- but being in R&D, I wasn't really part of
`6 that group. That would have been a separate
`7 group.
`8 Q. I see.
`9 A. That -- that wasn't my role.
`10 Q. Did Vascular Solutions have a policy of any
`11 sort regarding laboratory notebooks?
`12 A. Yes.
`13 Q. What was that policy?
`14 A. To truthfully and -- put in your -- your
`15 documents or your testing. And then there were
`16 rules to that of what -- what you could do with
`17 them and -- basic rules, that they didn't leave
`18 the premises and, you know, you kept them in a
`19 safe place.
`20 Q. Do you recall when you received your first
`21 notebook at Vascular Solutions?
`22 A. No.
`23 Q. Well, you started at Vascular Solutions in
`24 late 2004, right?
`25 A. Correct.
`
`Page 25
`1 Q. When you started, were you issued a notebook?
`2 A. Yes. It must have been somewhere around that
`3 time.
`4 Q. Did you have more than one lab notebook while
`5 you were at Vascular Solutions?
`6 A. No.
`7 Q. So you started in late 2004, right?
`8 A. Correct.
`9 Q. And the company was acquired in 2016 by
`10 Teleflex?
`11 A. Correct.
`12 Q. And is it your testimony that you had one lab
`13 notebook over 12 years?
`14 A. Yes. I was -- I was not a very good note
`15 taker.
`16 Q. Okay. Did you make entries in that notebook
`17 chronologically?
`18 A. Yes.
`19 Q. And do you know where that notebook is?
`20 A. No, I do not.
`21 Q. Were you asked to look for it?
`22 A. Yes.
`23 Q. And you -- did you look for it?
`24 A. No. I knew that it had been disposed of over
`25 time.
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`7 (Pages 22 - 25)
`
`888-391-3376
`
`Page 7
`
`
`
`Page 26
`1 Q. So you had one notebook between 2004 and
`2 2016. So the notebook still existed in 2016; is
`3 that correct?
`4 A. No. It would have been gone by then.
`5 Q. Do you remember roughly the last time was
`6 that you saw the notebook?
`7 A. No, I do not.
`8 Q. Okay. Besides the laboratory -- the single
`9 laboratory notebook that -- it's your testimony
`10 that no longer exists, right?
`11 A. Correct.
`12 Q. During your course of work at Vascular
`13 Solutions, did you keep any other sort of written
`14 record of the daily work you did?
`15 A. With Vascular, no.
`16 Q. I want to go back to something you said a
`17 little while ago. You said you weren't a very
`18 good note taker. What did you mean by that?
`19 A. I relied on -- on my memory more. My role
`20 didn't require me to take notes, for the most
`21 part, since I had documentation in front of me
`22 with prints and stuff. So the documentations were
`23 usually someplace else, not with me.
`24 Q. So, Mr. Erb, did you get a packet of
`25 documents?
`
`Page 28
`
`1 Q. So, Mr. Erb, is this a page you recognize?
`2 A. I do not.
`3 Q. Okay. Well, I'll represent to you that this
`4 is a single page taken out of a Vascular Solutions
`5 laboratory notebook. And do you see that at the
`6 top it says, "Instructions for Keeping Research
`7 Records"?
`8 A. Okay.
`9 Q. Do you see that the first item is "Enter all
`10 data directly into this book"?
`11 A. Correct.
`12 Q. Is that something you did in your single
`13 laboratory notebook?
`14 A. Yes.
`15 Q. You testified that by 2016, that notebook no
`16 longer existed, right?
`17 A. Correct.
`18 Q. So when did you stop entering data into a
`19 notebook?
`20 MR. WINKELS: Objection; form.
`21 THE WITNESS: I don't remember.
`22 BY MS. ROBERG-PEREZ:
`23 Q. Okay. Let's go down to number 5 on this
`24 page. Do you see that it says, "The notebook and
`25 its contents are to be considered confidential and
`
`Page 27
`
`Page 29
`
`1 A. I did.
`2 Q. Okay. I'd like you to look at one that's
`3 been premarked. There are a bunch of numbers in
`4 the bottom right-hand corner.
`5 A. I have to open the package?
`6 Q. Yes, please do that. So there should be
`7 three documents.
`8 A. Okay.
`9 Q. And find the one that's a single page.
`10 A. Which exhibit number?
`11 Q. In the bottom right, it should have -- the
`12 number should be -- 1105 would be one of the
`13 numbers. And the top of the page says
`14 "Instructions for Keeping Research Records".
`15 A. Okay.
`16 Q. Do you -- do you have that page?
`17 A. I do.
`18 MS. ROBERG-PEREZ: And for the
`19 record, that's actually in the Marked Exhibits
`20 folder. And let's see. Exhibit -- excuse me just
`21 a minute. I just want to make sure we've got the
`22 exhibit number in the record. Yep. In the bottom
`23 right for IPRs, 126, 128, 132, 135, and 137. This
`24 is Exhibit 1104.
`25 BY MS. ROBERG-PEREZ:
`
`1 of great value"?
`2 I read that correctly, right?
`3 A. Correct.
`4 Q. And it also says, "Exercise every care in
`5 preserving them," doesn't it?
`6 A. Yes.
`7 Q. And that you're to report the loss or theft
`8 of a research notebook to a group leader
`9 immediately, right?
`10 A. Yes.
`11 Q. When your notebook went missing, did you
`12 report that?
`13 A. Well, it didn't go missing. We were told we
`14 no longer needed them. We went to an electronic
`15 version or something. But I was no longer doing
`16 testing, or that wasn't part of my role anymore.
`17 So just housecleaning, I just got rid of whatever
`18 prints and the notebook I had through the shredder
`19 service that we did.
`20 Q. Okay. So you said it didn't go missing. You
`21 were told that you no longer needed to keep lab
`22 notebooks; is that correct?
`23 A. Yes.
`24 Q. And is that because instead of physical lab
`25 notebooks, people were keeping electronic records?
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`8 (Pages 26 - 29)
`
`888-391-3376
`
`Page 8
`
`
`
`Page 30
`
`Page 32
`
`1 A. I believe so.
`2 Q. And the notebooks that had existed in hard
`3 copy, were those notebooks scanned into electronic
`4 format?
`5 A. I -- I do not know.
`6 Q. Did you personally get rid of your notebook?
`7 A. Yes.
`8 Q. How did you do that?
`9 A. We have like a shredding service where we
`10 have bins that you can throw -- put things in, so
`11 I put it in there.
`12 Q. What else did you put into that bin?
`13 A. Over time, just prints and pieces of paper.
`14 Q. Okay. Were you asked to collect any sort of
`15 documents in connection with this matter?
`16 A. Recently or when -- what -- what -- excuse
`17 me. What time frame?
`18 Q. Recently, were you asked to collect any sort
`19 of documents in this matter?
`20 A. I was asked if I had any.
`21 Q. And what did you answer?
`22 A. Well, unfortunately, no.
`23 Q. Okay. Do you recall when it was that you
`24 shredded your notebook?
`25 A. No, I do not.
`
`1 you have been part of Teleflex?
`2 A. No.
`3 Q. When did you start keeping electronic records
`4 in your work at Teleflex?
`5 A. Recently. Probably the last two years.
`6 Q. Okay. And do you recall why you started
`7 keeping electronic records in the last two years?
`8 A. Yes. Management changed where they have
`9 programs to -- to do that.
`10 Q. Okay. So between 2016 and 2018, is it
`11 correct that you did not keep electronic records
`12 of your work at Teleflex?
`13 A. Yes.
`14 Q. And is it true that between 2016 and 2018,
`15 you also didn't keep written -- written records of
`16 your work at Teleflex?
`17 A. Repeat that, please.
`18 Q. Is it correct that between 2016 and 2018, you
`19 also kept no written records of your work at
`20 Teleflex?
`21 A. Yes.
`22 Q. And I may have already covered this, but just
`23 so I'm clear, when you worked at Vascular
`24 Solutions, at the point in time -- do you remember
`25 when you shredded your notebook?
`
`Page 31
`
`Page 33
`
`1 Q. Who told you to stop keeping a laboratory
`2 notebook?
`3 A. I don't remember that.
`4 Q. Do you know if it was somebody you reported
`5 to that told you to stop keeping a lab notebook?
`6 A. No, I do not remember that.
`7 Q. Were there other technicians at Vascular
`8 Solutions at the time that you stopped keeping
`9 notebooks?
`10 A. Yes.
`11 Q. Do you know if they stopped keeping
`12 notebooks, too?
`13 A. No, I do not.
`14 Q. Do you know if other people shredded their
`15 notebooks the same time you did?
`16 A. No, I do not.
`17 Q. Do you keep a notebook today for your work at
`18 Teleflex?
`19 A. No, I do not.
`20 Q. Did you keep any sort of records today,
`21 written records, of your daily work at Teleflex?
`22 A. No. We keep electronic records now.
`23 Q. Okay. Now, you keep electronic records?
`24 A. Yes.
`25 Q. Have you always kept electronic records while
`
`1 A. No, I do not.
`2 Q. And when you shredded your notebook, did you
`3 start keeping records electronically?
`4 A. No, I did not.
`5 Q. So your testimony is that you then kept no
`6 records, written or electronic, of your work at
`7 Vascular Solutions?
`8 A. Correct.
`9 Q. Okay. You can put that aside. I'd like to
`10 go to your declaration. That is a document in
`11 your packet, and it's also been marked in the
`12 exhibit folder as Exhibit 2122-00132. Mr. Erb, do
`13 you recognize this as a declaration you submitted
`14 in this matter?
`15 A. I do.
`16 Q. I'd like to direct your attention to
`17 paragraph 5, and there you've written that you
`18 were a member of the R&D group at Vascular
`19 Solutions when the company developed the
`20 GuideLiner extension catheter.
`21 What time frame are you referring
`22 to?
`23 A. Well, that was when I first started working
`24 there, so early 2005.
`25 Q. Any time frame other -- except early 2005?
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`9 (Pages 30 - 33)
`
`888-391-3376
`
`Page 9
`
`
`
`Page 34
`
`Page 36
`
`1 A. No. That's what I'm talking about there.
`2 Q. You also wrote here that you were personally
`3 involved in ordering machine parts that were used
`4 for prototyping and testing the device in the
`5 research and development process, right?
`6 A. Correct.
`7 Q. And you machined the proximal end for early
`8 prototypes, right?
`9 A. Well, yeah. Hypotubing, yes.
`10 Q. You machined hypotubing?
`11 A. Right.
`12 Q. And you, in your declaration, have said that
`13 you machined stainless steel hypotubes, right?
`14 A. Correct.
`15 Q. And you also machined tubes through nitinol,
`16 right?
`17 A. Correct.
`18 Q. And for the stainless steel hypotubes, what
`19 was the diameter of those tubes?
`20 A. It would have varied, but I think it was like
`21 around 70 thousandths, .068.
`22 THE COURT REPORTER: Say that number
`23 again, please.
`24 THE WITNESS: Pardon?
`25 THE COURT REPORTER: Can you -- can
`
`1 tooling to see if something worked.
`2 BY MS. ROBERG-PEREZ:
`3 Q. Okay. So let's take a step back. We've been
`4 talking about stainless steel hypotubes.
`5 A. Correct.
`6 Q. And I asked what the diameter was, and you
`7 said it was .068, right?
`8 A. Yeah. But that's -- that would have been for
`9 a specific print or project. It would have been
`10 called out.
`11 Q. Well, what projects did you work on in two
`12 thousand -- in 2005?
`13 A. There were two projects