Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 1 of 65 PageID #: 16318
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 2 of 65 PageID #: 16319
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` IN THE UNITED STATES DISTRICT COURT
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` FOR THE EASTERN DISTRICT OF TEXAS
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` MARSHALL DIVISION
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` INTELLECTUAL VENTURES I LLC,
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` Plaintiff,
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` v. Civil Action No.
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` 2:17-cv-577-JRG
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` T-MOBILE USA, INC., T-MOBILE
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` US, INC., ERICSSON INC.,
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` and TELEFONAKTIEBOLAGET LM
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` ERICSSON,
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` Defendants.
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` ___________________________________________________
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` Attorneys' Eyes Only - Highly Confidential
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` ORAL DEPOSITION OF SYLVIA HALL-ELLIS, PH.D. produced
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` as a witness and duly sworn, was taken in the
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` above-styled and numbered cause on October 19, 2018,
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` from 9:07 a.m. until 4:15 p.m., before Suzanne Kelly,
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` CSR No. 1260, in and for the State of Texas, reported
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` by stenographic method, at the Law Offices of Baker
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` Botts located at 2001 Ross Avenue, Dallas, Texas
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` 75201, pursuant to Federal Rules of Civil Procedure
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` and the provisions stated on the record, if any.
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` JOB NO.: 3064870
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` PAGES 1 - 253
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 3 of 65 PageID #: 16320
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`testimony? 09:12:11
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` A. Yes.
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` Q. When did they ask that? 09:12:18
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` A. I don't remember exactly. 09:12:26
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` Q. Did you provide such a list? 09:12:27
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` A. There is no such a list. 09:12:32
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` Q. Have you provided declaration testimony 09:12:37
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`in -- to the Patent Trial and Appeal Board in an 09:12:42
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`inter-parties review proceedings? 09:12:50
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` A. Can you clarify the question, please? 09:12:53
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` Q. Well, I should have started with this: 09:12:56
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`At any time today if there is a question you 09:13:00
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`don't understand, will you please let me know 09:13:03
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`that you have a problem with it? 09:13:07
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` A. Yes.
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` Q. Thank you. I'm not sure what part of 09:13:10
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`the question you didn't understand. So I will 09:13:15
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`ask it again. 09:13:17
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` A. Thank you. 09:13:19
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` Q. Have you ever -- or maybe I'll change 09:13:20
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`it. 09:13:23
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` Have you ever heard of an 09:13:24
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`inter-parties review trial? Sometimes they are 09:13:26
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`referred to as IPRs. 09:13:29
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` A. Yes. 09:13:32
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 4 of 65 PageID #: 16321
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` Q. Have you ever provided declaration 09:13:34
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`testimony in an IPR? 09:13:38
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` A. No. 09:13:41
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` Q. Have you ever provided a declaration in 09:13:47
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`an IPR? 09:13:50
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` A. Yes. 09:13:51
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` Q. And did you tell the Baker Botts 09:14:02
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`attorneys that you had not provided any trial 09:14:04
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`testimony? 09:14:09
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` MS. BUTLER: Objection; form. 09:14:10
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` THE WITNESS: Yes. 09:14:11
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`BY MR. ASHBROOK:
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` Q. Were you considering IPR trial 09:14:16
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`declarations when -- as trial testimony? 09:14:19
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` MS. BUTLER: Objection; form. 09:14:22
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` THE WITNESS: Yes. 09:14:23
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`BY MR. ASHBROOK:
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` Q. And you told the Baker Botts attorneys 09:14:26
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`that you hadn't provided any such testimony? 09:14:28
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` MS. BUTLER: Objection; form. 09:14:31
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` THE WITNESS: Yes. 09:14:32
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`BY MR. ASHBROOK:
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` Q. But, in fact, was you have provided 09:14:45
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`declarations in IPR trials? 09:14:46
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` MS. BUTLER: Objection; form. 09:14:49
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 5 of 65 PageID #: 16322
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` Q. An you provided it in an IPR proceeding; 09:17:58
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`right? 09:18:03
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` MS. BUTLER: Objection; form. 09:18:04
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` THE WITNESS: Yes. 09:18:06
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`BY MR. ASHBROOK: 09:18:06
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` Q. Now, did you inform the lawyers of Baker 09:18:11
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`Botts of the declaration that you made that's in 09:18:13
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`Exhibit 2? 09:18:15
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` MS. BUTLER: Objection; form. 09:18:16
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` THE WITNESS: I am not permitted to 09:18:20
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`disclose what I do to others without consent and 09:18:21
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`permission. And if I don't have it, I don't 09:18:26
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`disclose it. 09:18:29
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`BY MR. ASHBROOK:
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` Q. Are there any depositions that you have 09:18:30
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`done that you have not disclosed? 09:18:33
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` MS. BUTLER: Objection; form. 09:18:42
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` THE WITNESS: Other than today not 09:18:51
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`being on the list, no. 09:18:52
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`BY MR. ASHBROOK:
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` Q. Are there other declarations that you 09:18:57
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`have given in IPRs that you did not disclose? 09:19:00
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` MS. BUTLER: Objection; form. 09:19:04
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` THE WITNESS: This is my list of 09:19:15
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`depositions. This is not a list of declarations 09:19:16
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 6 of 65 PageID #: 16323
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`or reports. 09:19:18
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`BY MR. ASHBROOK:
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` Q. I understand. My question goes 09:19:19
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`specifically to declaration testimony. 09:19:21
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` Are there other instances of 09:19:24
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`declaration testimony that you have given in IPRs 09:19:26
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`other than the one in Exhibit 2? 09:19:31
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` MS. BUTLER: Objection; form. 09:19:34
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` THE WITNESS: We need to take a 09:19:35
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`break. 09:19:39
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` MS. BUTLER: Let's take a break. 09:19:43
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` MR. ASHBROOK: Before we go off of 09:19:46
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`the record, there is a question pending. And 09:19:48
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`therefore, to the extent the witness wants to ask 09:19:54
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`a question of counsel for the Defendants 09:19:58
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`concerning privilege, I am fine with that. 09:20:02
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` And to the extent the witness wants 09:20:07
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`to ask a question of counsel for the Defendants 09:20:09
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`about her confidentiality obligations, I am fine 09:20:12
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`with that. 09:20:16
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` But there is a question pending, 09:20:18
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`and so I expect that counsel will not talk to the 09:20:20
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`witness about the substance of her response. 09:20:26
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` MS. BUTLER: All right. We will 09:20:33
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`take a break. 09:20:34
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` THE VIDEOGRAPHER: We are going off 09:20:34
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`of the record at 9:20 a.m. 09:20:35
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` (Recess taken.) 09:20:41
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` (Deposition Exhibits Numbers 3 09:25:46
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`through 12 are marked.) 09:25:49
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` THE VIDEOGRAPHER: We are going 09:26:20
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`back on the record at 9:26 a.m. 09:26:21
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`BY MR. ASHBROOK: 09:26:27
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` Q. Dr. Hall-Ellis, before we took the 09:26:27
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`break, you heard me say something about questions 09:26:31
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`about privilege and about confidentiality but not 09:26:35
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`about substance. 09:26:38
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` A. That's correct. 09:26:40
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` Q. Did you discuss the substance of the 09:26:41
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`answer to my question while you were outside the 09:26:46
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`room with your counsel? 09:26:51
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` MR. ASHBROOK: Objection; form. 09:26:52
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`BY MR. ASHBROOK:
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` Q. With counsel for the Defendants. 09:26:53
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` A. No. 09:26:55
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` Q. So the question I had asked before we 09:26:56
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`took a break was: Are there other instances of 09:26:59
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`declaration testimony that you have given in IPRs 09:27:07
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`other than the one in Exhibit 2? 09:27:10
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` A. Yes.
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 8 of 65 PageID #: 16325
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` Q. How many? 09:27:25
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` MS. BUTLER: Objection; form. 09:27:26
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` THE WITNESS: I don't remember. 09:27:27
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`BY MR. ASHBROOK: 09:27:28
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` Q. Why didn't you disclose that earlier to 09:27:30
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`the attorneys at Baker Botts? 09:27:44
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` MS. BUTLER: Objection; form. 09:27:45
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` THE WITNESS: I am not willing to 09:27:46
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`breach confidentiality of work product for anyone 09:27:55
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`with whom I work. I am not able to do that. I 09:27:59
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`will not do that. 09:28:05
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`BY MR. ASHBROOK:
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` Q. And do you think that disclosing the 09:28:13
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`fact that you have given a declaration testimony 09:28:15
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`in an IPR is -- constitutes the disclosure of 09:28:17
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`work product? 09:28:26
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` MS. BUTLER: Objection; form. 09:28:28
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` THE WITNESS: My agreements with 09:28:28
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`attorneys is such that the confidentiality of the 09:28:34
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`document that I am writing or the materials that 09:28:39
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`I am examining remain confidential. If and when 09:28:42
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`they are filed publicly, I am not in charge of 09:28:47
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`that process. They are public documents at that 09:28:50
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`time. I have no control of the filing. 09:28:53
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`BY MR. ASHBROOK:
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 9 of 65 PageID #: 16326
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` Q. Do you understand that Exhibit 2 is a 09:28:57
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`public document? 09:29:01
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` MS. BUTLER: Objection; form. 09:29:02
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` THE WITNESS: I don't know if it's 09:29:03
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`filed yet. 09:29:04
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`BY MR. ASHBROOK:
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` Q. Before you told the attorneys and Baker 09:29:06
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`Botts that you hadn't given any other testimony, 09:29:10
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`did you check to see whether any of these 09:29:18
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`declarations that you had given in IPRs had been 09:29:19
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`made public? 09:29:26
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` MS. BUTLER: Objection; form. 09:29:27
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` THE WITNESS: No. 09:29:27
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`BY MR. ASHBROOK:
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` Q. Would you take a look at Exhibit 2, at 09:29:40
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`your Paragraph Number 48. Excuse me. Paragraph 09:29:42
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`49. 09:29:48
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` A. (Witness complies.) 09:30:10
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` Q. Have you read it? 09:30:11
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` A. Yes. 09:30:11
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` Q. Could you read aloud the first sentence 09:30:12
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`of your Paragraph 49? 09:30:14
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` A. "In signing this declaration, I 09:30:20
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`recognize that the declaration will be filed as 09:30:22
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`evidence in a case before the Patent Trial and 09:30:25
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 10 of 65 PageID #: 16327
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`Appeal Board of the United States Patent and 09:30:30
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`Trademark Office." 09:30:34
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` Q. Is that a true statement? 09:30:34
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` A. Yes. 09:30:35
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` Q. So with the recognition that the 09:30:40
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`declaration was going to be filed as evidence, 09:30:47
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`you nevertheless told the lawyers at Baker Botts 09:30:50
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`nothing about it because you didn't bother to 09:30:56
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`check whether, in fact, it had been filed as 09:31:01
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`evidence? 09:31:04
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` MS. BUTLER: Objection; form. 09:31:05
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`BY MR. ASHBROOK:
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` Q. Do I have that right? 09:31:06
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` A. I do not check to see when they are 09:31:07
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`filed. 09:31:08
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` Q. And is it your belief, after having 09:31:18
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`conferred with counsel for the Defendants, that 09:31:23
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`you have no obligation to disclose trial 09:31:26
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`testimony that was -- that you gave but that you 09:31:31
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`have not checked whether it's been made public or 09:31:40
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`not? 09:31:46
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` MS. BUTLER: Objection; form. This 09:31:47
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`is calling for a legal conclusion of what she has 09:31:50
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`an obligation to disclose or not disclose. She 09:31:52
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`is not here to interpret the Federal Rules of 09:31:54
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` THE WITNESS: I have ten. 09:43:50
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`BY MR. ASHBROOK:
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` Q. I believe you have Exhibit 2, Exhibit 3, 09:43:58
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`Exhibit 4, 5, 6, 7, 8, 9, 10, 11, 12. 09:44:10
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` A. I do not have an Exhibit 11. 09:44:14
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` Q. I apologize. I skipped Exhibit 11. 09:44:31
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` Dr. Hall-Ellis, I am handing you a 09:44:37
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`document that's been marked as "Exhibit 11." 09:44:39
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` Do you see that this is a 09:44:46
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`declaration you gave in an IPR for Patent 7807549 09:44:48
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`that you signed on September 30th, 2018? 09:44:55
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` MS. BUTLER: Objection; form. 09:45:04
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` THE WITNESS: I do. 09:45:04
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`BY MR. ASHBROOK: 09:45:05
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` Q. I represent to you that Exhibit 11 is 09:45:05
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`from IPR 201900004. 09:45:06
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` With the benefit of Exhibit 11, do 09:45:14
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`you agree that there are now 11 declarations that 09:45:16
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`you signed September 30th or later that were made 09:45:23
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`public in October? 09:45:25
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` A. Yes. 09:45:26
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` Q. Earlier, you testified that you didn't 09:45:28
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`remember whether there was more than one. 09:45:33
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` Do you remember that? 09:45:36
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` A. Yes.
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` Q. Does this refresh your recollection? 09:45:37
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` A. Yes. 09:45:40
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` Q. How was it that you couldn't remember 09:45:47
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`whether there was more than one? 09:45:48
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` MS. BUTLER: Objection; form. 09:45:50
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` THE WITNESS: It is my practice not 09:45:50
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`to remember. I don't want to remember. 09:45:53
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`BY MR. ASHBROOK: 09:46:04
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` Q. Given your desire not to remember 09:46:06
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`things -- 09:46:08
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` A. Uh-huh. 09:46:09
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` Q. -- and your practice -- 09:46:10
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` A. Uh-huh. 09:46:12
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` Q. -- do you in the course of your work 09:46:13
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`take notes so that you can help remember things? 09:46:18
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` MS. BUTLER: Objection; form. 09:46:21
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` THE WITNESS: Yes. 09:46:22
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`BY MR. ASHBROOK: 09:46:24
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` Q. And in your course of preparing the 09:46:26
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`declaration that was Exhibit 1, did you take any 09:46:35
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`such notes? 09:46:38
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` A. Yes.
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` Q. Did you share those notes with counsel 09:46:42
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`for the Defendants? 09:46:45
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` MS. BUTLER: Objection; privileged. 09:46:47
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 13 of 65 PageID #: 16330
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` THE WITNESS: Yes. 10:05:59
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`BY MR. ASHBROOK:
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` Q. I will represent to you Exhibit 32 is 10:06:00
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`from IPR 201801296. 10:06:03
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` Now, I think we discussed before 10:06:19
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`that Exhibits 2 to 12 were from October. I will 10:06:22
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`represent that Exhibits 13 through 32 are all 10:06:33
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`from September. 10:06:41
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` Does that sound about right to you? 10:06:41
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` MS. BUTLER: Objection; form. 10:06:43
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` THE WITNESS: The documents suggest 10:06:43
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`that that is true. 10:06:46
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`BY MR. ASHBROOK:
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` Q. Do you recall your testimony in 20 10:06:52
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`different IPRs in September? 10:06:56
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` MS. BUTLER: Objection; form. 10:07:00
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` THE WITNESS: I see the documents. 10:07:01
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`BY MR. ASHBROOK:
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` Q. Well, does this refresh your 10:07:04
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`recollection that you -- 10:07:06
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` A. Yeah. 10:07:08
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` Q. -- gave testimony in 20 different IPRs 10:07:08
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`in the month of September? 10:07:11
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` A. I did prepare these written documents in 10:07:14
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`that month, yes. 10:07:17
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 14 of 65 PageID #: 16331
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` Q. So we are a couple of weeks into 10:07:22
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`October. The month of September and this portion 10:07:33
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`of October, I am counting 31 IPRs in which you 10:07:36
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`have given testimony. 10:07:47
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` A. Okay. 10:07:49
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` Q. Does that surprise you? 10:07:53
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` A. Maybe. Maybe not. 10:08:01
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` Q. My luggage coming here to Dallas was 10:08:08
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`only so big, so I didn't go back beyond 10:08:11
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`September. 10:08:14
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` A. Okay.
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` Q. And as you know, Attachment 7 to your 10:08:15
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`report does not disclose any of these IPRs. 10:08:27
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` MS. BUTLER: Objection; form. 10:08:30
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`BY MR. ASHBROOK:
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` Q. Right? 10:08:31
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` A. Exhibit 7 is only a listing of those in 10:08:33
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`which I have appeared in person. 10:08:37
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` Q. And did you disclose any of the 10:08:48
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`IPR testimony in Exhibits 2 through 32 to -- in 10:08:50
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`this matter in conjunction with your report in 10:08:58
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`Exhibit 1? 10:09:04
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` MS. BUTLER: Objection; form. 10:09:05
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` THE WITNESS: I don't know what you 10:09:06
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`are asking me. Can you clarify? 10:09:07
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 15 of 65 PageID #: 16332
`HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY
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` Q. What about 1? 10:20:17
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` A. No. 10:20:18
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` Q. Okay. How about 1b. Did you read that 10:20:23
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`one before you signed your declaration? 10:20:25
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` A. Yes.
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` Q. Can you go through and tell me which 10:20:34
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`ones you read -- 10:20:36
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` A. Sure. 10:20:37
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` Q. -- and which ones you didn't before you 10:20:37
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`signed your declaration? 10:20:38
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` A. Sure. I read 1a, 1b, 2a, 2b, 2c, 3a, 10:20:40
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`3b, 3c, 4a, 4b, 4c, 5a, 5b, 6a, 6b, 6c. 10:21:01
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` Q. Now, I take it by omission, you did not 10:21:29
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`read Exhibit 1; is that correct? 10:21:35
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` A. That is correct. 10:21:37
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` Q. You did not read Exhibit 2? 10:21:37
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` MS. BUTLER: Objection; form. 10:21:40
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` THE WITNESS: That is correct. 10:21:41
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`BY MR. ASHBROOK:
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` Q. Excuse me. I meant to say attachment. 10:21:42
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`Let me start over. 10:21:45
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` A. Okay. 10:21:46
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` Q. I take it by your omission in the list 10:21:46
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`of the attachments that you did read -- 10:21:48
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` A. Uh-huh. 10:21:51
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 16 of 65 PageID #: 16333
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` Q. -- that you did not read Attachment 1 10:21:51
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`before you signed your declaration? 10:21:54
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` MS. BUTLER: Objection; form. 10:21:56
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` THE WITNESS: I did not. 10:21:57
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`BY MR. ASHBROOK:
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` Q. Did you read Attachment 2 before you 10:21:58
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`signed your declaration? 10:22:01
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` MS. BUTLER: Objection; form. 10:22:02
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` THE WITNESS: Did not. 10:22:03
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`BY MR. ASHBROOK: 10:22:04
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` Q. Did you read Attachment 3 before you 10:22:05
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`signed your declaration? 10:22:06
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` MS. BUTLER: Objection; form. 10:22:08
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` THE WITNESS: Did not. 10:22:09
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`BY MR. ASHBROOK: 10:22:10
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` Q. Did you read Attachment 4 before you 10:22:10
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`signed your declaration? 10:22:12
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` MS. BUTLER: Objection; form. 10:22:13
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` THE WITNESS: Did not. 10:22:14
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`BY MR. ASHBROOK: 10:22:14
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` Q. Did you read Attachment 5 before you 10:22:15
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`signed your declaration? 10:22:17
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` MS. BUTLER: Objection; form. 10:22:18
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` THE WITNESS: I did not. 10:22:19
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`BY MR. ASHBROOK: 10:22:19
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 17 of 65 PageID #: 16334
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` Q. What is an on-order record? 12:24:15
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` A. Say again. 12:24:18
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` Q. On-order record. 12:24:21
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` A. On-order? 12:24:23
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` MS. BUTLER: Objection; form. 12:24:25
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` THE WITNESS: An on-order record is 12:24:25
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`one that libraries have an option to use to let 12:24:28
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`people know something is coming. It's a 12:24:34
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`temporary record, I would say, in some cases. In 12:24:35
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`other cases, it becomes the basis for what 12:24:39
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`evolves into the record. 12:24:41
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`BY MR. ASHBROOK:
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` Q. Is an on-order record in MARC format? 12:24:47
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` A. It depends. 12:24:52
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` Q. It can be; is that correct? 12:24:53
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` A. It may be. 12:24:55
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` Q. And can an on-order record have a fixed 12:25:02
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`Field 008? 12:25:10
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` A. It will have pieces of it. 12:25:11
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` Q. Will it have a date and characters 00 12:25:15
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`through 05? 12:25:23
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` A. If it's entered that way, it would have 12:25:24
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`a date, yes. 12:25:26
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` Q. And such an on-order record may have a 12:25:33
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`date in fixed Field 8 before the reference is 12:25:40
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 18 of 65 PageID #: 16335
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`even published; is that correct? 12:25:48
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` MS. BUTLER: Objection; form. 12:25:50
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` THE WITNESS: That's a pretty broad 12:25:51
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`assumption that I would not choose to make. 12:25:57
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`BY MR. ASHBROOK:
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` Q. Well, is it possible -- 12:25:59
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` A. I don't know. 12:26:02
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` Q. -- that an on-order record would have a 12:26:03
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`date in characters 00 through 05 of fixed Field 8 12:26:05
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`before the reference is published? 12:26:10
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` MS. BUTLER: Objection; form. 12:26:13
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` THE WITNESS: Theoretically 12:26:14
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`possible. I can't imagine why anyone would do 12:26:17
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`it. 12:26:21
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`BY MR. ASHBROOK:
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` Q. Is it possible that a on-order record 12:26:23
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`can make it in as a MARC record in the OLOC (sic) 12:26:27
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`database? 12:26:33
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` MS. BUTLER: Objection; form. 12:26:37
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` THE WITNESS: No. I don't want 12:26:37
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`those in there. 12:26:38
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`BY MR. ASHBROOK: 12:26:39
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` Q. I understand you don't want them, but is 12:26:39
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`it possible? 12:26:41
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` A. I don't know of anybody that does it. I 12:26:41
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 19 of 65 PageID #: 16336
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`have never seen one. 12:26:44
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` Q. How could you tell if an entry in the 12:26:45
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`OLOC (sic) database began as an on-order record? 12:26:48
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` A. That's an entirely different question. 12:26:53
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`You are asking me if it started as an on-order 12:26:56
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`record. They are not what the database is to 12:27:00
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`contain. 12:27:08
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` And if, in fact, it ends up in 12:27:09
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`there, the probability is very low that it would 12:27:11
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`still be an on-order record. On-order records 12:27:14
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`are generally suppressed at the local site. 12:27:19
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` Q. Are they always suppressed at the local 12:27:24
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`site? 12:27:28
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` MS. BUTLER: Objection; form. 12:27:29
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` THE WITNESS: Hard to say. 12:27:29
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`BY MR. ASHBROOK:
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` Q. What does the term "shelf-ready 12:27:31
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`resource" mean to you? 12:27:36
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` A. Shortcut in investment. 12:27:43
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` Q. How does a shelf-ready resource work? 12:27:45
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` A. You are a library that chooses for any 12:27:52
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`number of reasons to have your supplier do some 12:27:56
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`of the initial work for an item. 12:28:00
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` Q. What do you mean "work for an item"? 12:28:07
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` A. You might have a mylar jacket placed on 12:28:10
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`Case 2:17-cv-00577-JRG Document 243-2 Filed 12/10/18 Page 20 of 65 PageID #: 16337
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`it. You might have a spine label placed on it. 12:28:14
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`You might have a bar code placed in it. You 12:28:16
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`might have something delivered to you with a 12:28:19
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`basic MARC record that your staff would review. 12:28:22
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` Q. If an item were delivered to you with a 12:28:25
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`basic MARC record already created -- 12:28:31
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` A. Uh-huh. 12:28:34
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` Q. -- as a shelf-ready resource -- 12:28:35
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` A. Uh-huh. 12:28:38
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` Q. -- is it possible that that MARC record 12:28:40
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`would have date characters in 00 through 05 of 12:28:42
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`fixed Field 008? 12:28:49
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` MS. BUTLER: Objection; form. 12:28:52
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` THE WITNESS: Yes. It would have a 12:28:52
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`date. 12:28:54
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`BY MR. ASHBROOK:
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` Q. In that case, the shelf-ready resource 12:2
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