Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 1 of 8
`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page1of8
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` EXHIBIT 9
`EXHIBIT 9
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page1of8
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` EXHIBIT 9
`EXHIBIT 9
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 2 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 17-CV-02097-RBJ
`
`REALTIME ADAPTIVE STREAMING, LLC,
`Plaintiff,
`vs.
`SLING TV, LLC, et al.,
`Defendants.
`--------------------------------------------------------------
`REPORTER'S TRANSCRIPT
`Telephone Discovery Conference
`--------------------------------------------------------------
`Proceedings before the HONORABLE R. BROOKE JACKSON,
`Judge, United States District Court for the District of
`Colorado, commencing on the 26th day of February, 2021, in
`Courtroom A902, United States Courthouse, Denver, Colorado.
`APPEARANCES
`For the Plaintiff:
`PHILIP X. WANG, Russ August & Kabat, 12424 Wilshire Blvd.,
`12th Floor, Los Angeles, CA 90025
`JAMES N. PICKENS, James N. Pickens, Attorney at Law, 1104
`Northwest 88th Way, Plantation, FL 33322
`ERIC B. FENSTER, Eric B. Fenster, LLC, 1522 Blake St., Ste.
`200, Denver, CO 80202
`For the Defendants:
`RUFFIN B. CORDELL and BRIAN J. LIVEDALEN and ADAM R. SHARTZER,
`Fish & Richardson, PC, 901 15th St. NW, Ste. 700, Washington,
`DC 20005
`JENNIFER L. NALL, Baker Botts, LLP, 98 San Jacinto Blvd, Ste.
`1500, Austin, TX 78701
`Sarah K. Mitchell, RPR, CRR, 901 19th Street, Room A252,
`Denver, CO 80294, 303-335-2108
`Proceedings reported by mechanical stenography;
`transcription produced via computer.
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 3 of 8
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`17-CV-02097-RBJ
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`Tele. Discovery Conference
`
`02/26/2021 24
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`do. I will order that every deposition that these four
`experts that you use from case to case have given in other
`cases be turned over unredacted to Mr. Cordell, and of course
`to Ms. Nall, but the information will have to be strictly
`attorneys' eyes only, kept confidential, not used for any
`purpose other than this case, and I will rely on Cordell and
`Nall to do what they need to do to avoid spreading Google's
`crown jewels over the Internet. I'm not going to spend any
`more time fooling around, Mr. Wang, with your do I redact this
`line or do I redact that line in order to protect Google
`because Realtime wants to be a responsible citizen. Nuts to
`that.
`
`Next issue.
`MS. NALL: Your Honor, this is Jennifer Nall, if I
`may real quick?
`THE COURT: Yes, Ms. Nall. I didn't realize you were
`even interested in what was going on today. You haven't said
`a word.
`
`MS. NALL: I just would like to ask that Realtime not
`produce that to ARRIS unless the case goes forward. Right now
`we have an agreement in principle to settle the case that we
`are just working on signing, which I'm sure you'll be happy to
`hear, and so I do not want that produced, and your order was
`that he produce it to me. So I would like that not produced
`unless we don't settle, please.
`
`Sarah K. Mitchell, RPR, CRR
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 4 of 8
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`17-CV-02097-RBJ
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`Tele. Discovery Conference
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`02/26/2021 25
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`THE COURT: Just produce it to Mr. Cordell then.
`That's fine. Let's see, the next issue was the damages
`disclosures. Here I'm a little confused, Mr. Cordell, because
`you say that they aren't telling you what their damage
`theories are, and Wang says, Well, yes, we did.
`MR. CORDELL: Well, so, for example --
`THE COURT: We disclosed that our theory is a royalty
`
`theory.
`
`MR. CORDELL: So, for example, Your Honor, he
`disclosed a half dozen different possible theories, but at no
`time did he tell us what the royalty rate is or what the
`royalty base is or how he was going to apportion, which the
`federal circuit requires -- apportion the royalty base before
`he applies the royalty rate. What he essentially told us is
`he is seeking damages in this case, and I understand that, he
`wouldn't be filing that if he weren't. Rule 26(a)(1)(A)(iii)
`requires him to make these disclosures at the outset of the
`case without us even asking.
`THE COURT: I know that.
`MR. CORDELL: And we did ask. You know, back in July
`of 2018 we asked an interrogatory on this, and the time has
`come for him to put his cards on the table. And he may have
`to revise it. I wouldn't begrudge him the opportunity to take
`some more discovery, and he may find that he needs to change
`this or that, and with good cause that's fine, but we need to
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`Sarah K. Mitchell, RPR, CRR
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 5 of 8
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`17-CV-02097-RBJ
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`Tele. Discovery Conference
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`02/26/2021 26
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`know kind of where we are on damages.
`THE COURT: Well, let me ask you this question,
`Mr. Cordell. If he hasn't produced the computation in
`compliance with the rule, I won't let him put on damages.
`MR. CORDELL: We would certainly be -- we would
`certainly be happy with that, Your Honor.
`THE COURT: Well, that's exactly what I'll do. If
`Mr. Wang hasn't provided the computation of his damages in
`compliance with the rule, not just the royalty, but the
`royalty amount, the mathematics, the details, the numbers he
`expects to put in front of a jury, I won't let him do it.
`So, Mr. Wang, I suggest that you provide that
`information completely without weasel words, without
`qualification, without maybes, without possiblies. Either
`provide the information, or, you, my friend, are out of court.
`Is that clear enough, sir?
`MR. WANG: Your Honor, thank you for those comments.
`The issue is that the discovery that we need to begin to do
`those numbers, we've only gotten the documents for that over
`the past week or so, and we are right about being able to do
`that. We tried to give them as many specifics as possible,
`but I think finally where we're in a position based on these
`rolling document productions that have been -- there have been
`seven or eight in the past week or week and a half or so -- to
`do that, and we'll make our best efforts to do that, Your
`
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 6 of 8
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`17-CV-02097-RBJ
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`Tele. Discovery Conference
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`02/26/2021 27
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`Honor. And based on additional information of the depositions
`taking place right after this call and next week, we may need
`to revise that. But we did the best that we can yesterday,
`and we'll be happy to work with Mr. Cordell to give them even
`more specifics based on new discovery.
`THE COURT: When are you going to give him these
`specifics? Because I'm warning you, you may lose your damages
`case completely. I'm very close to saying so. When are you
`going to provide damages completely and honestly to
`Mr. Cordell?
`MR. WANG: We've been reviewing the documents and the
`financials that have just come in. In view of Your Honor's
`admonitions, we would provide further information by the end
`of the day today.
`THE COURT: Oh, fine. So you'll provide your
`information to him by the end of the day today, and that's
`what you'll be stuck with.
`MR. WANG: We'll do the absolute best we can, Your
`Honor. As I mentioned, I think all of the damages-related
`depositions are taking place -- have been offered over the
`next week, and --
`THE COURT: Then you will supplement what you provide
`by the end of the day within a week after those depositions
`have been taken, and that will be it. That will be your
`computation.
`
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 7 of 8
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`17-CV-02097-RBJ
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`Tele. Discovery Conference
`
`02/26/2021 28
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`MR. WANG: Thank you, Your Honor.
`THE COURT: Now, your fact witnesses that he says you
`said were too busy, you've said there are four of them, and
`one of them is in the midst of preparing for a trial that's
`going to start on Monday, and then you kind of sloughed
`through another one by saying he's sort of also involved in
`that process, and then you kind of lumped them all together
`and say we'll make them available after March 8th. When are
`you going to make them available?
`MR. WANG: Thank you, Your Honor. So there are three
`witnesses -- and, first, I need to be clear that we've also
`asked defense to confirm if they want to take these
`depositions since we produced their prior deposition
`transcript, and we haven't gotten a clear answer. So one is
`Mr. Fallon. We've made him available on March 10th.
`Defendants haven't yet confirmed that date, but in view of the
`two-week extension of expert reports, that should be no
`problem. Mr. Padian and Mr. Tashjian, two other witnesses,
`they're tied up with this trial, but it's expected to end on
`March 8th -- I'm crossing my fingers for a day or two earlier
`-- and we will be able to offer them as soon as they recover,
`and at least a few days before opening expert reports on
`March 17th. So we're shooting for as soon as possible after
`March 8th, and I can provide --
`THE COURT: Let's come up with dates right now. I
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`Case 1:17-cv-02097-RBJ Document 308-11 Filed 08/13/21 USDC Colorado Page 8 of 8
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`REPORTER'S CERTIFICATE
`
`I, SARAH K. MITCHELL, Official Court Reporter for the
`United States District Court for the District of Colorado, a
`Registered Professional Reporter and Certified Realtime
`Reporter, do hereby certify that I reported by machine
`shorthand the proceedings contained herein at the time and
`place aforementioned and that the foregoing pages constitute a
`full, true and correct transcript.
`Dated this 4th day of March, 2021.
`
`
` /s/ Sarah K. Mitchell
`SARAH K. MITCHELL
`Official Court Reporter
`Registered Professional Reporter
`Certified Realtime Reporter
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`Sarah K. Mitchell, RPR, CRR
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