CONFIDENTIAL
`
` IN THE UNITED STATES DISTRICT COURT
`
` FOR THE WESTERN DISTRICT OF TEXAS
`
` WACO DIVISION
`
` BROADBAND iTV, INC.,
`
` Plaintiff,
`
` vs. No. 6:19-cv-716-ADA
`
` DISH NETWORK, L.L.C.,
`
`1
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`4 5 6
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`9
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` Defendant.
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` ____________________________/
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`24
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`25
`
` -- CONFIDENTIAL --
`
` DEPOSITION OF MILTON DIAZ PEREZ
`
` Remote Zoom Proceeding
`
` Burlingame, California
`
` Monday, August 9, 2021
`
`REPORTED BY:
`
`LESLIE ROCKWOOD ROSAS, RPR, CSR 3462
`
`Pages 1 - 109 Job No. 4748809
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 1
`
`DISH Ex. 1054, p. 1
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 I N D E X
`
`MONDAY, AUGUST 9, 2021
`
`2 3 4
`
`5 6
`
`WITNESS EXAMINATION
`7 MILTON DIAZ PEREZ
`
` BY MR. MELEHANI 6
`
`8 9
`
`10
`11
`12
`13
`14 QUESTIONS WITNESS INSTRUCTED NOT TO ANSWER:
`15 (NONE)
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1 IN THE UNITED STATES DISTRICT COURT
`2 FOR THE WESTERN DISTRICT OF TEXAS
`3 WACO DIVISION
`
`4 5 6
`
` BROADBAND iTV, INC.,
`7 Plaintiff,
`8 vs. No. 6:19-cv-716-ADA
`9 DISH NETWORK, L.L.C.,
`10 Defendant.
` ____________________________/
`
`11
`12
`13 -- CONFIDENTIAL --
`14
`15 Deposition of MILTON DIAZ PEREZ, taken on behalf
`16 of DISH Network, Remote Zoom Proceeding from Burlingame,
`17 California, beginning at 9:17 a.m. Pacific Daylight Time
`18 and ending at 1:27 p.m., on Monday, August 9, 2021,
`19 before Leslie Rockwood Rosas, RPR, Certified Shorthand
`20 Reporter No. 3462.
`21
`22
`23
`24
`25
`
`Page 2
`
`Page 4
`
`1 DEPOSITION EXHIBITS
`2 MILTON DIAZ PEREZ
`3 NUMBER DESCRIPTION IDENTIFIED
`4 Exhibit 1 Declaration of Milton Diaz 18
`5 Perez, 05/10/21
`6 Exhibit 2 United States Patent No. 55
`7 10,028,026 B2, 07/17/18
`8 Exhibit 3 Protective Order Material 67
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1 APPEARANCES:
`
`2 3
`
`FOR THE PLAINTIFF:
`4 FEINBERG DAY KRAMER ALBERTI LIM
`5 TONKOVICH & BELLOLI LLP
`6 BY: RUSSELL TONKOVICH, ESQ.
`7 577 Airport Boulevard, Suite 250
`8 Burlingame, California 94010
`9 (650) 825-4300 (Ext. 106)
`10 rtonkovich@feinday.com
`11
`12
`13 FOR THE DEFENDANT:
`14 ORRICK, HERRINGTON & SUTCLIFFE LLP
`15 BY: WILL MELEHANI, ESQ.
`16 405 Howard Street
`17 San Francisco, California 94105-2669
`18 (415) 773-5577
`19 wmelehani@orrick.com
`20
`21
`22 Also Present: Sean Morrissey, Concierge
`23
`24
`25
`
`Page 3
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`Page 5
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`2 (Pages 2 - 5)
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`DISH Ex. 1054, p. 2
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 Q. Other than those two depositions, have you ever
`2 been deposed before?
`3 A. No.
`4 Q. Okay. Other than those two depositions, have
`5 you ever submitted testimony, either in a declaration or 09:19:28
`6 in actual court, in any proceeding before?
`7 A. We have this declaration that we're dealing with
`8 today.
`9 Q. Right. Yeah, obviously that one, yes. But
`10 other than that one, too, is there any other time you've 09:19:49
`11 submitted a declaration in a Court before? I know you
`12 have in connection with patent prosecution with the PTO,
`13 but other than that, in like a litigation-type setting,
`14 have you ever submitted testimony?
`15 A. That I recall, no. 09:20:02
`16 Q. Okay. Well, I know you probably are familiar
`17 with the rules with how depositions work, given that
`18 you've done it before, but just in case, I'll just go
`19 over some basic ground rules. Especially because we're
`20 doing this by, you know, video conference, it really 09:20:22
`21 helps if people are familiar.
`22 So first and foremost, it's important that we
`23 don't talk over each other, both because the software
`24 doesn't handle it well and because the court reporter is
`25 trying to write down everything. 09:20:36
`
`Page 8
`
`1 Burlingame, California; Monday, August 9, 2021
`2 9:17 a.m. Pacific Daylight Time
`3 --oOo--
`4 PROCEEDINGS
`
`5 6
`
` MILTON DIAZ PEREZ,
`7 having been first duly sworn, was examined
`8 and testified as follows:
`9
`10 THE WITNESS: I do. 09:17:23
`11 THE REPORTER: Thank you, sir.
`12 Will you please introduce yourselves, Counsel.
`13 MR. MELEHANI: Sure. This is Will Melehani with
`14 Orrick Herrington & Sutcliffe on behalf of the
`15 Petitioner. 09:17:36
`16 MR. TONKOVICH: This is Russell Tonkovich on
`17 behalf of BBiTV from Feinberg Day.
`18 THE REPORTER: Thank you.
`19 You may proceed, Counsel.
`20 MR. MELEHANI: All right. Thank you. 09:17:50
`21
`22 EXAMINATION
`23 BY MR. MELEHANI:
`24 Q. Okay. So Mr. Perez Diaz or Diaz Perez, that's
`25 the first question is how should I refer to you? Because 09:17:58
`Page 6
`
`1 I've seen it every which way and I'm not sure.
`2 A. I've given up. It's -- it's -- so formally it's
`3 Milton Diaz Perez, or Diaz Perez. Informally, it's Diaz.
`4 Q. Okay. So it's never just Perez, which I think
`5 is what I had been using. 09:18:20
`6 A. No. In terms of the Hispanic naming
`7 conventions, it's never Perez.
`8 Q. Okay. Well, I apologize if you've read any
`9 documents --
`10 A. No worries. 09:18:29
`11 Q. -- that I've had a role in that refer to you as
`12 Mr. Perez.
`13 A. No worries.
`14 Q. So you've been deposed before, at least twice;
`15 is that right? I mean -- 09:18:42
`16 A. Yes.
`17 Q. And at least you were deposed for, I guess, a
`18 partial deposition that's still to be continued in
`19 connection with the litigation in the BBiTV versus DISH
`20 and DirecTV matters; is that right? 09:18:59
`21 A. That's correct.
`22 Q. And then I know you've also been deposed in
`23 connection with the litigation several years back against
`24 Time Warner and Hawaiian Telecom; is that right?
`25 A. Yes. 09:19:13
`
`Page 7
`
`1 Do you understand?
`2 A. Yes.
`3 Q. Okay. And after I ask a question, generally
`4 your counsel has an opportunity to object, and then you
`5 have to answer unless your counsel instructs you not to 09:20:54
`6 answer.
`7 Are you familiar with that process?
`8 A. I was waiting for him to object. Okay. Yes.
`9 Q. Okay. And if you can't understand me for any
`10 reason, if I slur or mumble or if there's a technical 09:21:16
`11 issue, please let me know. I can try again or fix the
`12 problem, and I will assume that if you don't let me know,
`13 that there is no issue and you've understood me properly;
`14 is that fair?
`15 A. Yes. 09:21:35
`16 Q. Okay. Now is there any reason why you would not
`17 be able to fully and truthfully testify here today, like,
`18 for example, medications or some other issue that could
`19 interfere with your ability to testify?
`20 A. No. 09:21:55
`21 Q. Now I want to talk with you a bit about the
`22 prior deposition, or I guess it's sort of a half
`23 deposition that you gave in connection with the
`24 litigation between BBiTV and DISH and DIRECTV.
`25 Do you remember that deposition? 09:22:11
`Page 9
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`DISH Ex. 1054, p. 3
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 A. From June?
`2 Q. Yeah, recent, yeah.
`3 A. Yes.
`4 Q. Okay. Now prior to that depo, you were sworn in
`5 and gave an oath to testify truthfully; right? 09:22:29
`6 A. Yes.
`7 Q. And did you have an opportunity, prior to that
`8 depo, to review the testimony that you gave? I'm sorry,
`9 let me scratch that and rephrase.
`10 Prior to this deposition, did you have an 09:22:50
`11 opportunity to review the testimony you gave in
`12 connection with the District Court deposition that you
`13 gave in June?
`14 MR. TONKOVICH: Objection. Scope.
`15 THE WITNESS: Yes. 09:23:11
`16 Q. BY MR. MELEHANI: Okay. And do you stand by the
`17 testimony that you gave in June as correct and accurate
`18 and truthful?
`19 MR. TONKOVICH: Objection. Scope.
`20 THE WITNESS: I believe it was accurate. 09:23:23
`21 Q. BY MR. MELEHANI: Okay. Are you aware of the
`22 fact that the parties have an agreement that your
`23 testimony from that deposition can be used in connection
`24 with this IPR proceeding, and that testimony from this
`25 IPR proceeding can be used in connection with the 09:23:44
`Page 10
`
`1 litigation; are you aware of that agreement?
`
`2 A I personally am not aware of that
`
`3 Q Okay How did you -- just generally -- I don't
`
`4 need like specific communications I'm certainly not
`
`5 looking for anything privileged, but how did you 09:24:07
`
`6 communicate -- or sorry -- how did you prepare for your
`
`7 deposition today?
`
`8 MR TONKOVICH: Just caution the witness not to
`
`9 reveal any attorney-client communications
`
`10 THE WITNESS: I reviewed my deposition -- or my 09:24:20
`
`11 declaration and reviewed the exhibits
`
`12 Q BY MR MELEHANI: Did you review all the
`
`13 exhibits or a subset of the exhibits?
`
`14 A I reviewed the exhibits that were referenced in
`
`15 my declaration 09:24:41
`
`16 Q And was counsel part of that process?
`
`17 MR TONKOVICH: Caution the witness not to
`
`18 reveal any attorney-client communications You can
`
`19 answer "yes" or "no "
`
`20 THE WITNESS: They provided to me the materials 09:25:04
`
`21 I conducted the review So the answer is "yes" in that
`
`22 they provided the materials
`
`23 Q BY MR MELEHANI: The process of reviewing the
`
`24 materials, is that something you did on your own?
`
`25 A Yes 09:25:30
`
`Page 11
`
`1 Q Did you have -- and I'm just looking for a "yes"
`
`2 or "no" here Did you have any conversations with
`
`3 counsel in preparation for this deposition today?
`
`4 MR TONKOVICH: Again, just caution the witness
`
`5 not to reveal any communications with attorneys You can 09:25:41
`
`6 answer "yes" or "no "
`
`7 THE WITNESS: Yes
`
`8 Q BY MR MELEHANI: Okay And about when did you
`
`9 have those conversations?
`
`10 A Last week 09:26:00
`
`11 Q Okay And how many conversations did you have?
`
`12 A I think there were two
`
`13 Q Approximately how long was the first
`
`14 conversation?
`
`15 A Perhaps an hour and a half, two hours 09:26:22
`
`16 Q How about the second conversation?
`
`17 A About the same
`
`18 Q And did those conversations take place before
`
`19 you reviewed the declaration and exhibits?
`
`20 MR TONKOVICH: I would again caution the 09:26:38
`
`21 witness not to reveal any attorney-client communications
`
`22 You can answer "yes" or "no "
`
`23 THE WITNESS: I'm not sure I can't recall
`
`24 Q BY MR MELEHANI: Okay So when you reviewed
`
`25 the declaration and exhibits, that was approximately 09:26:53
`
`Page 12
`
`1 sometime last week?
`2 A. Yes.
`3 Q. When you had these conversations with counsel,
`4 were they over the phone or in person?
`5 A. They were over the phone. 09:27:18
`6 Q. Have you read DISH's IPR petition regarding the
`7 '026 patent?
`8 A. Some parts. Not in its entirety.
`9 Q. Did you read that petition in connection with
`10 preparing for this deposition today or is it something 09:27:41
`11 you just read in the past?
`12 MR. TONKOVICH: Caution the witness not to
`13 reveal any attorney-client communications. You can
`14 answer "yes" or "no."
`15 THE WITNESS: Could you repeat the question, 09:27:51
`16 please.
`17 Q. BY MR. MELEHANI: Well, I didn't phrase it as a
`18 "yes" or "no," unfortunately, but I'll try.
`19 Is the -- was your review of DISH's IPR petition
`20 done in connection with your preparation for this 09:28:07
`21 deposition?
`22 MR. TONKOVICH: Same objection.
`23 THE WITNESS: No.
`24 Q. BY MR. MELEHANI: I'm sorry, did you say "no"?
`25 A. No. 09:28:15
`
`Page 13
`
`4 (Pages 10 - 13)
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`DISH Ex. 1054, p. 4
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 (Interruption in proceedings )
`
`1 A Yes
`
`2 Q BY MR MELEHANI: So approximately when did you
`
`2 Q Are you familiar with the arguments that BBiTV
`
`3 review the '026 IPR petition?
`
`3 is making on issues unrelated to conception and reduction
`
`4 A I think it was shortly after it was filed
`
`4 to practice, such as arguments to distinguish the prior
`
`5 Q Did you review the declaration of Dr Sam Russ 09:29:00
`
`5 art? 09:31:58
`
`6 that was submitted with that petition?
`
`7 A Not that I recall
`
`6 MR TONKOVICH: Objection Scope
`
`7 THE WITNESS: I'm more prepared on the
`
`8 Q Did you review any of the prior art that was
`
`8 declaration than anything else
`
`9 submitted with that petition? And just to help you, we
`
`9 Q BY MR MELEHANI: Okay And I'm not -- I'm not,
`
`10 call them, Gonder, Son, and Kelts 09:29:30
`
`10 you know -- I'm not trying to quiz you I'm just 09:32:12
`
`11 A Yes
`
`12 Q I guess I'll take it one at a time
`
`11 wondering if you're familiar with the arguments that
`
`12 BBiTV's making in the broader IPR, separate and apart
`
`13 So you read the Gonder reference; is that
`
`13 from conception and reduction to practice?
`
`14 accurate?
`
`14 MR TONKOVICH: Objection Scope
`
`15 A I -- yes, in part at least 09:29:43
`
`15 THE WITNESS: Oh, sorry 09:32:27
`
`16 Q Okay And did you read the Son reference?
`
`17 A Yes, in part
`
`16 MR TONKOVICH: Go ahead
`
`17 THE WITNESS: My apologies
`
`18 Q Is the same true for the Kelts reference?
`
`18 In some aspects, but really -- I contributed on
`
`19 A Yes, again, in part
`
`19 the declaration That's my focus
`
`20 Q Okay Now BBiTV submitted two responses, and I 09:30:05
`
`20 Q BY MR MELEHANI: Okay Are you aware that 09:32:45
`
`21 think there's technical terminology for them, and I'm
`
`21 Dr Michael Shamos has submitted a declaration alongside
`
`22 just going to mess it up So I'll just try to describe
`
`22 your declaration in BBiTV's response?
`
`23 them otherwise
`
`23 A Yes
`
`24 They submitted one response before the IPR was
`
`24 Q Have you read his declaration?
`
`25 instituted sort of arguing against institution, and then 09:30:23
`
`25 A I have not 09:33:07
`
`Page 14
`
`Page 16
`
`1 after it was instituted, they submitted a second
`2 response.
`3 Did you review either of those two responses?
`4 A. I believe I -- in part.
`5 Q. Did you review the response that -- which is the 09:30:48
`6 one I just referred to as the second response, for which
`7 your declaration was submitted?
`8 MR. TONKOVICH: Objection. Form.
`9 THE WITNESS: I'm sorry, could you repeat the
`10 question. 09:31:01
`11 Q. BY MR. MELEHANI: So I'm asking specifically
`12 about the second response, which is the one that your
`13 declaration came with.
`14 A. Uh-huh.
`15 Q. Did you review that response? 09:31:10
`16 A. At least in part.
`17 Q. Are you familiar with the arguments that BBiTV
`18 is making in connection with the IPR proceeding?
`19 A. At least some of them, yes.
`20 Q. So I know your declaration is largely concerning 09:31:30
`21 the topic of conception and reduction to practice.
`22 A. (Nods head.)
`23 Q. There are other arguments that BBiTV makes, you
`24 know, to distinguish the prior art and whatnot.
`25 Are you aware of that? 09:31:43
`
`Page 15
`
`1 Q Have you ever met with Dr Shamos?
`
`2 A I have not
`
`3 Q So let me be more specific Have you spoken to
`
`4 Dr Shamos at any point?
`
`5 A I have not 09:33:24
`
`6 Q Are you aware that he's already been deposed in
`
`7 connection with the IPR proceedings?
`
`8 A No
`
`9 Q And I guess I can assume this, but I'll ask it
`
`10 anyway: Have you reviewed the transcript of his 09:33:42
`
`11 deposition in connection with the IPR proceedings?
`
`12 A No
`
`13 MR MELEHANI: So I was hoping we might get to
`
`14 the technical resolution before we hit this point, but it
`
`15 doesn't look like it So I'll go ahead and introduce the 09:33:59
`
`16 first exhibit It's just going to be your declaration
`
`17 So if you guys want to pull it up, you can But I'll go
`
`18 through the process of doing it formally here So just
`
`19 give me one second to --
`
`20 THE WITNESS: If I can interrupt, I thought I 09:34:12
`
`21 saw an email come in
`
`22 MR MELEHANI: Okay
`
`23 THE WITNESS: But would that have been related
`
`24 to this?
`
`25 MR MELEHANI: Could be Do you guys want to go 09:34:18
`Page 17
`
`5 (Pages 14 - 17)
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`DISH Ex. 1054, p. 5
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 off the record for a second and see if you have a --
`
`1 clear, I'm not looking to get into the communications and
`
`2 MR TONKOVICH: I don't have an email related to
`
`2 the back and forth I just wanted to know like who typed
`
`3 this
`
`4 THE WITNESS: Okay
`
`3 the words that I'm seeing in this declaration in the
`
`4 first instance
`
`5 MR MELEHANI: Then I guess no need So let me 09:34:29
`
`5 Was it -- was the first draft something that you 09:37:41
`
`6 just mark this exhibit real quick
`
`6 yourself typed out? I know that these things are
`
`7 (Exhibit 1, Declaration of Milton Diaz Perez,
`
`7 iterative, but you know, did you prepare the first draft
`
`8 05/10/21, marked for identification by counsel
`
`8 or did the attorneys prepare the first draft?
`
`9 electronically )
`
`9 A The attorneys I responded to it
`
`10 MR TONKOVICH: We've got his declaration 09:34:48
`
`10 Q And I assume that -- well, let me scratch that 09:38:04
`
`11 MR MELEHANI: Sorry I have to move -- there's
`
`11 So would it be that the process was you received
`
`12 this whole process where I put this virtual stamp on it,
`
`12 a draft, you made edits, and that sort of went back and
`
`13 and it's always directly over the Bates Number So I
`
`13 forth until you reached a final product?
`
`14 have to move it, and it just takes a second
`
`14 MR TONKOVICH: Again, I would just caution the
`
`15 So can the reporter confirm that the exhibit is 09:35:19
`
`15 witness not to reveal any attorney-client communications 09:38:27
`
`16 accessible
`
`16 You can answer "yes" or "no "
`
`17 THE REPORTER: The exhibit is there and I see it
`
`17 THE WITNESS: Yes
`
`18 marked Exhibit 1 Thank you
`
`19 MR MELEHANI: Thank you
`
`18 Q BY MR MELEHANI: Do you recall any particular
`
`19 changes that you had to make to this declaration during
`
`20 Q So if any point, Mr Perez, you want me to share 09:35:33
`
`20 that process? 09:38:45
`
`21 my screen, I can, but I assume you have a copy of your
`
`21 A I do not
`
`22 declaration in front of you Feel free to look at it and
`
`22 Q Okay Did you make any changes to this
`
`23 consult it for purposes of the questions I'm asking
`
`23 declaration during that process?
`
`24 And I guess the first question I'm going to ask
`
`24 A Yes
`
`25 is: Can you generally describe to me -- and again, I'm 09:35:51
`
`25 Q Let me back up for a sec I skipped something I 09:39:07
`
`Page 18
`
`Page 20
`
`1 not looking for any privileged communications -- how this
`
`1 meant to ask earlier
`
`2 declaration was prepared?
`
`3 MR TONKOVICH: Objection Form
`
`4 I'd caution the witness not to reveal any
`
`2 So you're in Burlingame, California, right now;
`
`3 right?
`
`4 A Yes
`
`5 communications you had with the attorneys 09:36:04
`
`5 Q And you're at the offices of Feinberg Day? 09:39:18
`
`6 THE WITNESS: Could you repeat your question?
`
`6 A Yes
`
`7 I'm sorry
`
`8 Q BY MR MELEHANI: Sure
`
`7 Q I know Mr Tonkovich is with you Is there
`
`8 anyone else present during your deposition today?
`
`9 I just was hoping you could describe to me how
`
`9 A No You're asking in the room?
`
`10 this declaration was prepared 09:36:22
`
`10 Q Yeah, yeah 09:39:37
`
`11 MR TONKOVICH: Same objection
`
`11 A No
`
`12 THE WITNESS: I went through my -- generally
`
`12 MR TONKOVICH: It says that we have access to
`
`13 went through my memories of the process that we
`
`13 the folder now Should I try that? Do you want to go
`
`14 conducted, I reviewed documents and emails, put them
`
`14 off the record and try that now?
`
`15 together, and then worked with counsel to form the 09:36:40
`
`15 MR MELEHANI: Yeah, let's go ahead and do that 09:39:52
`
`16 declaration
`
`16 just to see if we've fixed this So we'll go off the
`
`17 Q BY MR MELEHANI: Okay Who prepared the first
`
`17 record
`
`18 draft of this document?
`
`19 MR TONKOVICH: Objection
`
`18 (Recess )
`
`19 THE REPORTER: Back on the record, Counsel
`
`20 I caution the witness not to reveal any 09:36:59
`
`20 Thank you 09:44:39
`
`21 attorney-client communications
`
`21 THE WITNESS: Counsel, may I make one correction
`
`22 THE WITNESS: I'm not sure if I can answer that
`
`22 to an answer I provided?
`
`23 question But Feinberg Day helped put this declaration
`
`23 Q BY MR MELEHANI: Sure
`
`24 together
`
`25 Q BY MR MELEHANI: Okay I'm not -- just to be 09:37:26
`Page 19
`
`24 A Because I just remembered this I did provide a
`
`25 narrative timeline of the sequence of events for 2004 -- 09:44:51
`
`Page 21
`
`6 (Pages 18 - 21)
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`Veritext Legal Solutions
`866 299-5127
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`DISH Ex. 1054, p. 6
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 actually, from 2003 to 2004, as part of the preparation
`2 for the declaration to Feinberg Day. So if you want to
`3 consider that a draft or first draft. They then turned
`4 that into -- I can't do this kind of work. This is an
`5 entirely different kind of skill. 09:45:18
`6 Q. Yeah. Okay.
`7 Well, while we're correcting things, I also
`8 forgot to go something and the break reminded me. Of
`9 course, we are able to take breaks whenever you'd like.
`10 If you get hungry or need to use the bathroom or 09:45:37
`11 whatever, just let me know. You don't have to be
`12 detailed about it. We can take a break whenever.
`13 The only rule is preferably not while a
`14 question's pending. So, yeah, I forgot to mention that
`15 earlier. We just kind of just had a mini break there. 09:45:54
`16 But if you need any more going forward.
`17 I tend to kind of lose track and get in the zone
`18 and not realize how long it's been. So don't be shy
`19 about speaking up if it's time to take a break.
`20 A. Thank you. 09:46:09
`21 Q. Okay. So we had just pulled up the declaration
`22 and talked about how it was prepared, and now I want
`23 to talk about -- if I can find where I put it --
`24 paragraph -- I think paragraph 1. We'll start at the
`25 beginning. 09:46:34
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`Page 22
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`1 A I am not an expert on the XOD I would expect
`
`2 it was principally software running on a server, but I --
`
`3 I can't speak to those details
`
`4 Q Okay And I know you just said you're not
`
`5 positive about this, but a server that would have been 09:49:17
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`6 responsible for, you know, providing the XOD platform, is
`
`7 that something that would have been, you know, within
`
`8 BBiTV or is that something that would have been within
`
`9 Time Warner?
`
`10 A It was not at BBiTV 09:49:30
`
`11 Q And I believe you've stated that the PROMO!
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`12 product had a categorical menu of advertisement
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`13 categories, and then you could select a category and
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`14 potentially view video content relating to the advertised
`
`15 product 09:49:54
`
`16 Is that an accurate statement of how it worked?
`
`17 MR TONKOVICH: Objection Form
`
`18 THE WITNESS: Can you repeat the question?
`
`19 Q BY MR MELEHANI: Yeah I'm just trying to make
`
`20 sure I understood the process that a user would go 09:50:06
`
`21 through when using the PROMO! as it existed when you
`
`22 joined BBiTV
`
`23 And my understanding -- and please correct me if
`
`24 I'm wrong -- is that a user would be presented with a
`
`25 categorical menu, and then they would navigate that menu 09:50:20
`Page 24
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`1 You can go ahead and read it to refresh your
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`1 to the category that they were interested in, and select
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`2 recollection as to what it says But my first general
`
`2 it, and then they could watch video advertisements
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`3 question is just going to be: Can you tell me what this
`
`3 relating to that product that they selected
`
`4 PROMO! product -- can you just tell me generally about
`
`4 A That sounds generally correct
`
`5 this PROMO! product that BBiTV had when you joined 09:46:51
`
`5 Q So let me just back up and get a little more 09:50:41
`
`6 A Sure
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`6 granular
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`7 So PROMO! -- excuse me -- was a long -- well, it
`
`7 So when a user was presented with a list of
`
`8 was a VOD-based advertising product It ran on channel,
`
`8 categories, can you give me an example of what those
`
`9 I think it was 320 -- oh, 327, on Time Warner Oceanic's
`
`9 categories might be?
`
`10 cable system And when you went to channel 327, you'd be 09:47:20
`
`10 A It could be landscapers and, you know, any -- it 09:51:00
`
`11 presented with a menu of advertiser categories,
`
`11 tended to be kind of home services type stuff or perhaps
`
`12 essentially, and the subscriber could pick a title and
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`12 autos
`
`13 watch a video at their convenience It was built on --
`
`13 Q Okay So if the user was presented with the
`
`14 as is noted in the declaration, it was built on the
`
`14 categorical menu and it included categories like
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`15 Scientific Atlanta XOD platform 09:47:52
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`15 landscapers and autos, how would they navigate that menu? 09:51:28
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`16 Q What is the Scientific Atlanta XOD platform?
`
`16 Would they use the remote?
`
`17 A So Scientific Atlanta was a major provider of
`
`17 A Yes
`
`18 technology to the cable industry One of their -- one of
`
`18 Q Okay And if the user selected autos, generally
`
`19 their platforms that they provided was called XOD, which
`
`19 what would happen then?
`
`20 I think stood for "anything on demand," and it was a 09:48:19
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`20 A XOD had an unusual navigation pathway, but you 09:51:52
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`21 generic, simple, on-demand platform rife with troubles
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`21 would be taken to whoever was a client for PROMO! in that
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`22 Q And so just to kind of make sure I understand,
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`22 category
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`23 was the Scientific Atlanta XOD platform like a hardware
`
`23 Q So I guess I'm a little unclear More like what
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`24 server or was it a software platform? What did it
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`24 would happen on the screen? When you select "autos," how
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`25 actually look like in implementation? 09:48:51
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`25 would the screen change? 09:52:26
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`Page 23
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`Veritext Legal Solutions
`866 299-5127
`
`Page 25
`
`7 (Pages 22 - 25)
`
`DISH Ex. 1054, p. 7
` DISH v. BBiTV
` IPR2020-01267
`
`

`

`CONFIDENTIAL
`
`1 A. I didn't review the old PROMO! for this, and so
`2 I don't have in my mind. I know generally the navigation
`3 method of PROMO!, which was very cumbersome. But beyond
`4 that, I cannot give you a clear recollection.
`5 Q. Okay. Well, I think you've mentioned that you'd 09:52:55
`6 be taken to the client, the PROMO! client. And I guess
`7 what I'm just trying to understand is like was there
`8 another menu? Once you selected "autos," were you taken
`9 to another menu that had a subcategory of autos that
`10 corresponded to the clients? 09:53:13
`11 A. I believe not in PROMO!. I believe you were
`12 taken to the title, to a list.
`13 Q. A list of what?
`14 A. Of videos.
`15 Q. Okay. So you would select "autos," and you just 09:53:29
`16 go to a list of commercials you could watch, basically?
`17 A. I believe that's correct.
`18 Q. And when you selected one of those, it would
`19 just sort of launch a commercial video playing on your
`20 TV; is that how it worked? 09:53:46
`21 A. It would play that video on demand, correct.
`22 Q. Okay. Would it play the video within the menu
`23 or would it kind of take over the screen, if you know
`24 what --
`25 A. That -- I do not recall. 09:53:58
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`Page 26
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`1 be constructed appropriate -- you know, what was
`2 appropriate for that video, and then it would be attached
`3 to the tape and sent to Time Warner for processing.
`4 Q. And as I understand what you're describing here,
`5 the -- when you say "attached to the tape," you mean like 09:56:51
`6 a physical paper attached to the tape; right?
`7 A. It could be, yes.
`8 Q. Okay. And then I believe you say that it was
`9 then up to Time Warner or somebody at Time Warner Cable
`10 to transcribe that into the actual, you know, computer 09:57:10
`11 metadata file; is that right?
`12 A. They were responsible for transcribing the
`13 metadata into the XOD system, yes.
`14 Let me correct that. I don't even know if it
`15 was limited -- they were responsible for handling the 09:57:32
`16 metadata, where it went into. That was about their
`17 business.
`18 Q. Okay. And then you go on to say that a problem
`19 that, you know, resulted from this process was that you
`20 would have delays and transcription errors; is that 09:57:50
`21 right?
`22 A. Yes.
`23 Q. Okay. Now, this whole handling of the metadata
`24 issue is one of the technical challenges that you're
`25 describing here, and I guess my question to you is 09:58:13
`Page 28
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`1 Q And I think I'm going to ask some questions
`
`1 generally: What solution did you come up with to resolve
`
`2 about paragraph 2 now so feel free to refresh yourself on
`
`2 that particular technical challenge?
`
`3 that
`
`4