6346 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XXIV 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:05 a.m., January 4, 14 2007, in Room 302 of the Polk County 15 Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 6347 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 Attorney at Law Roxanne Conlin & Associates, PC 4 Suite 600 319 Seventh Street 5 Des Moines, IA 50309 (515) 283-1111 6 RICHARD M. HAGSTROM 7 MICHAEL E. JACOBS Attorneys at Law 8 Zelle, Hofmann, Voelbel, Mason & Gette, LLP 9 500 Washington Avenue South Suite 4000 10 Minneapolis, MN 55415 (612) 339-2020 11 STEVEN A. LAMB 12 Attorney at Law Zelle, Hofmann, Voelbel, 13 Mason & Gette, LLP 550 South Hope Street 14 Suite 1600 Los Angeles, CA 90071 15 (213) 895-4150 16 ROBERT J. GRALEWSKI, JR. Attorney at Law 17 Gergosian & Gralewski 550 West C Street 18 Suite 1600 San Diego, CA 92101 19 (619) 230-0104 20 KENT WILLIAMS Attorney at Law 21 Williams Law Firm 1632 Homestead Trail 22 Long Lake, MN 55356 (612) 940-4452 23 24 25 6348 1 Defendant by: DAVID B. TULCHIN 2 STEVEN L. HOLLEY SHARON L. NELLES 3 JOSEPH E. NEUHAUS JEFFREY C. CHAPMAN 4 MICHAEL A. PLATT Attorneys at Law 5 Sullivan & Cromwell, LLP 125 Broad Street 6 New York, NY 10004-2498 (212) 558-3749 7 ROBERT A. ROSENFELD 8 KIT A. PIERSON Attorneys at Law 9 Heller Ehrman, LLP 333 Bush Street 10 San Francisco, CA 94104 (415) 772-6000 11 BRENT B. GREEN 12 Attorney at Law Duncan, Green, Brown & 13 Langeness, PC Suite 380 14 400 Locust Street Des Moines, IA 50309 15 (515) 288-6440 16 STEVEN J. AESCHBACHER Attorney at Law 17 Microsoft Corporation One Microsoft Way 18 Redmond, CA 98052 (425) 882-8080 19 20 21 22 23 24 25 6349 1 (The following record was made out 2 of the presence of the jury at 8:05 a.m.) 3 THE COURT: Who wanted to start? 4 MR. TULCHIN: Yes, Your Honor, thank 5 you. 6 Good morning. Happy new year. 7 THE COURT: Good morning. 8 MR. TULCHIN: I'd like first, Your 9 Honor, to hand up two memoranda. I don't know 10 if the Court has seen these yet. 11 Thank you, Your Honor. 12 THE COURT: Thank you. 13 MR. TULCHIN: The first was filed on 14 December 29. 15 I should say, Your Honor, both of 16 these pertain to Ronald Alepin and go to 17 fundamental questions about the scope of his 18 testimony. 19 The first of these memoranda was filed 20 on December 29, and I'll discuss that in a 21 moment. 22 The second, Your Honor, was served 23 last night and will be filed this morning, and 24 that second memorandum came to be, if I can put 25 it that way, as a result of demonstrative 6350 1 exhibits that the Plaintiffs provided to us in 2 the last 48 hours. Some I believe yesterday 3 and some the day before. 4 Demonstratives that they say they will 5 use on direct examination of Mr. Alepin. 6 And those demonstratives in particular 7 raise some very fundamental issues about what 8 Mr. Alepin will do and whether his testimony is 9 in direct conflict with prior orders of this 10 Court. 11 To take these though in order, Your 12 Honor, if I may, our memorandum filed last 13 week, again December 29, I believe it was the 14 very end of last week, pertains to Mr. Alepin's 15 qualifications to offer expert testimony on a 16 number of different subject areas. 17 And I'll try to make this brief, Your 18 Honor, but essentially, Mr. Alepin has 19 testified along the following lines. 20 First, he has not graduated from any 21 college. He has no college degree of any kind. 22 He's never taught a course, a college course 23 either. He's not published any papers in any 24 field. He is not an economist, and he's never 25 conducted any peer-reviewed study in any field. 6351 1 Beyond that, he has no experience 2 designing or developing operating systems for 3 personal computers. He has no experience 4 designing or developing applications, office 5 productivity applications such as those at 6 issue in this case. 7 He's never conducted any basic 8 research in the field of computer science, and 9 he has not constructed, and he has testified 10 that he's not qualified to construct, but-for 11 worlds, alternative worlds in antitrust cases 12 or in the context of an antitrust case. 13 And he certainly has no legal 14 qualifications that would permit him to offer 15 opinions about whether certain conduct is 16 anticompetitive. 17 Something that again, I think is a 18 legal conclusion and that -- but in any event, 19 Mr. Alepin has no qualifications in the field 20 of law or economics, certainly not in antitrust 21 economics. 22 He also apparently will be delving 23 into the question of Microsoft's compliance 24 with the final judgment in the government case. 25 And on that I'd like to say more just 6352 1 a little bit later. 2 So the memorandum filed last week, 3 Your Honor, makes the points that I've just 4 mentioned and explains the basis for which we 5 believe it is likely that Mr. Alepin will cover 6 the very subjects on direct examination that he 7 has conceded he does not have expertise in. 8 He neither has specialized scientific 9 knowledge nor the relevant experience to offer 10 opinions, for instance, about the design and 11 development of the kinds of software at issue 12 here. 13 We have cited to the Court the case of 14 Bornn, B-o-r-n-n, versus Madigan, 15 M-a-d-i-g-a-n. It's 414 N.W. 2d 646, Iowa 16 Court of Appeals 1987, where the Court of 17 Appeals affirmed a decision that a police 18 officer did not have expertise to testify about 19 accident reconstruction issues. 20 The police officer in question had 21 been on the force for 30 years, had 22 investigated in the prior ten years 100 23 accidents and in the prior 20 years before that 24 many more than that and was an expert in 25 accident investigation, but the Court found 6353 1 that he was not an expert in the related field 2 of accident reconstruction. 3 Mr. Alepin, for example, in his report 4 in this case devotes ten pages to what he calls 5 the alternative worlds, worlds that would have 6 existed, he says, in the absence of Microsoft's 7 alleged anticompetitive conduct. 8 But in his testimony in the federal 9 MDL case before this report was submitted, Mr. 10 Alepin testified that he is not qualified -- 11 that was the word -- to predict the existence 12 and describe but-for worlds in antitrust cases. 13 Nothing has changed between the date 14 of that deposition, and there's no assertion 15 that anything has changed with respect to his 16 opinions. 17 There is a great deal of material in 18 the demonstratives which we were recently 19 provided that seems to indicate that Mr. Alepin 20 will offer opinions about tying and bundling 21 and whether putting two products together in 22 one package, that is, so-called bundling is 23 anticompetitive. 24 He apparently will offer opinions that 25 certain bundling or tying -- excuse me -- 6354 1 eliminates competition or even violates the 2 antitrust laws. These are ultimate questions. 3 It's one thing to have an expert 4 testify on subjects within the scope of his 5 expertise. If Mr. Alepin has any expertise in 6 this case, it's in a very narrow area, and he 7 proposes to go well, well beyond that. 8 As another example, Your Honor, as the 9 Court knows from the opening statements and 10 otherwise, the Plaintiffs have made allegations 11 in this case that certain product 12 preannouncements constitute what they call 13 vaporware and that such conduct violates the 14 Iowa competition laws. 15 Well, it's one thing to talk about 16 preannouncements. Nobody has argued here that 17 product preannouncements are necessarily 18 unlawful, only that they're unlawful -- and 19 this is Plaintiffs' argument, I believe. 20 They're unlawful if the party making 21 the preannouncement does not have a good faith 22 basis for believing that the product can be 23 launched on the predicted date. 24 What Mr. Alepin does is to offer his 25 opinions about consumer behavior. He talks 6355 1 about product preannouncements, and then he 2 says I believe that these preannouncements 3 would have affected the market that consumers 4 would have reacted to a preannouncement in the 5 following way. 6 For example, consumers would not have 7 purchased a competing product because of a 8 Microsoft preannouncement. 9 Well, he's not an expert in consumer 10 psychology, he doesn't say he is, or consumer 11 behavior. He's not an expert in psychology at 12 all. He's not a sociologist. He has no 13 experience in the advertising business. And 14 this goes well, well beyond the scope of his 15 expertise. 16 It's one thing to talk about 17 preannouncements. It's another to offer this 18 ultimate opinion that consumers as a whole 19 would have responded to a preannouncement in a 20 particular way. 21 Ronald Alepin is certainly not 22 qualified to offer that opinion. 23 And then, Your Honor, getting to these 24 demonstratives that are the subject of the 25 second memorandum, and I must say that these 6356 1 subjects are closely related because 2 Mr. Alepin's lack of experience or training or 3 specialized knowledge in, for example, the 4 field of law or economics is an important fact 5 to keep in mind when thinking about the 6 demonstratives. 7 We received in the last couple of 8 days, I believe it's over 300 different 9 demonstrative exhibits or pages of 10 demonstrative exhibits from Plaintiffs' 11 counsel. 12 Many, many dozens of these, Your 13 Honor, are findings of fact that the Court has 14 given collateral estoppel effect to. 15 And let me just go through if I can, 16 as quickly as I can, and still make the points 17 that we need to make, let me go through why 18 what the demonstratives seem to show ought not 19 to come into evidence through this witness or 20 in some cases at all. 21 First, with respect to Mr. Alepin, 22 these many, many dozens of findings of fact, 23 and apparently Mr. Alepin's intention to 24 testify on direct examination about the meaning 25 and import and significance of the conclusions 6357 1 of law and findings of fact, all of that should 2 be off limits to him because none of it was 3 disclosed in his expert report. 4 Mr. Alepin did not say in his expert 5 report, which I believe is 165 pages, that he 6 would testify about the meaning or import or 7 significance of findings of fact. 8 He has no expertise in economics or 9 law. He doesn't claim to. 10 And clearly, we think that 11 collaterally estopped findings ought not to be 12 the subject of testimony in any event. 13 Your Honor, I'm sure you'll remember 14 that when it came time for the parties to file 15 motions in limine, the Plaintiffs filed a 16 motion seeking to exclude entirely the 17 testimony that we intended to offer of Dean 18 Richard Calkins -- that's C-a-l-k-i-n-s. And 19 in Dean Calkins' expert report, he had 20 indicated that he intended to provide the jury 21 with background and context about the 22 government case. 23 The Court granted Plaintiffs' motion 24 in limine thereby preventing us from calling 25 Dean Calkins, and in the Court's ruling, Your 6358 1 Honor stated, quote, any reference to the prior 2 United States government case is dealt with by 3 the collaterally estopped findings, unquote. 4 Well, besides the fact that Mr. Alepin 5 did not disclose in his expert report that he 6 would go through the findings and these 100 or 7 more findings that are demonstrative exhibits 8 now apparently show that he will, or that the 9 Plaintiffs hope he will, but besides that, 10 apparently what the Plaintiffs intend to do is 11 to use Mr. Alepin to bolster the findings. 12 And I just want to stop there for a 13 minute. 14 There are demonstratives that indicate 15 that Mr. Alepin is going to talk about a 16 particular finding of fact, apparently explain 17 it, perhaps read it to the jury, certainly show 18 it to the jury again, and then discuss the 19 evidence that underlies that finding of fact. 20 And Your Honor I'm sure will remember 21 your ruling on December 7, which I can refer 22 to, I think, as the antibolstering ruling, that 23 neither side should be permitted to offer the 24 same evidence from the government case to 25 bolster an existing finding. 6359 1 We go back to the principles of 2 collateral estoppel. The Plaintiffs sought 3 collateral estoppel. They obtained it on 146 4 findings. 5 By definition, we believe that means 6 that they cannot go back and use the same 7 evidence underlying those findings to bolster 8 or explain or embellish those findings with the 9 jury. 10 And Mr. Alepin actually does something 11 even worse than that with the findings. 12 According to the demonstratives, as 13 best we can tell, he will use a finding to 14 bolster an opinion he has about Microsoft 15 conduct outside the time frame of the 16 government case. 17 And just to provide an example, Your 18 Honor. There are a number of these. 19 Mr. Alepin talks about the conclusion 20 of law -- it's number four in the preliminary 21 instructions -- prohibiting OEMs from using the 22 active desktop feature of Windows. 23 And then there are a number of slides 24 in which Mr. Alepin wants to explain what that 25 means and how it works, and then go beyond the 6360 1 findings to use that conclusion -- I shouldn't 2 say findings. In this case it's a conclusion 3 of law -- to use that conclusion to bolster his 4 opinion about other Microsoft conduct. 5 Now, Your Honor, just by way of 6 example, it's one thing for a witness to say in 7 my expert opinion, assuming the witness is 8 qualified as an expert to offer this opinion, 9 in my expert opinion, here's what Microsoft did 10 in 2003, just to pick an example. 11 And I believe that that conduct had 12 the following consequences, again, assuming the 13 necessary expertise. 14 It's another thing to say the conduct 15 that took place in 2003 is the same kind of 16 conduct that in the government case the courts 17 found to be anticompetitive. 18 That's a legal conclusion that 19 Mr. Alepin certainly has no expertise to offer. 20 So what the demonstratives show is 21 that he will take a finding or a conclusion of 22 law, try to explain it, try to bolster it with 23 the underlying evidence, and then even worse, 24 go on and say there is other conduct outside 25 the government case that's of the same nature 6361 1 and is prohibited by the conclusions of law in 2 the government case. 3 Now, this gets, Your Honor, into the 4 question about the final judgment. 5 And, Your Honor, when I was either 6 delivering my opening statement, or perhaps it 7 was just before then, I think it was during the 8 midst of it, there was a question about the use 9 of the final judgment in evidence and whether I 10 could show portions of it to the jury. 11 And the Court at that time excluded, I 12 believe, the last eight or nine pages of the 13 final judgment. 14 These are pages which talk about the 15 enforcement mechanisms set up in the government 16 case. 17 And just by way of example, there's a 18 three-person technical committee that was 19 appointed. These are independent people; 20 they're not Microsoft people. And they are 21 people with expertise and a high reputation in 22 the software industry. 23 Those three people have a staff of 35 24 -- a staff of 35, and they are actually 25 stationed on Microsoft's campus, its 6362 1 headquarters in Redmond, Washington. 2 The Department of Justice, through the 3 technical committee and otherwise, has been 4 actively monitoring Microsoft's conduct to see 5 whether it complies with the final judgment 6 over the last four-plus years. 7 What Mr. Alepin apparently intends to 8 do is to, in effect, act as some super 9 technical committee or super Department of 10 Justice and to tell the jury that in his 11 opinion Microsoft's conduct after entry of the 12 final judgment does not comply with it. Or so 13 the demonstratives that we got in the last day 14 or two indicate. 15 And he even has some demonstratives 16 talking about Internet Explorer Version 7, 17 which was introduced, I believe, in October of 18 this past year, 2006; in other words, after the 19 close of the class period in this case, which 20 only runs through June 30, 2006. 21 And the demonstratives show that 22 Mr. Alepin will testify, or the Plaintiffs hope 23 he will testify about whether the release of 24 Internet Explorer 7 is in compliance with the 25 final judgment and accords with the Court's 6363 1 conclusions of law in the government case. 2 This is way, way beyond his expertise. 3 And, of course, if Mr. Alepin is going to 4 pretend that he, rather than the United States 5 government and the committee and the staff of 6 35, is the authority on Microsoft's compliance, 7 then, surely Microsoft must be able to examine 8 on cross Mr. Alepin about those last eight or 9 nine pages of the final judgment to show the 10 jury that it's not Mr. Alepin who was appointed 11 by the courts in Washington to monitor 12 compliance, but that there is this mechanism. 13 You know, it's one thing for 14 Mr. Alepin to say -- and he doesn't have the 15 expertise or training or background to say it 16 -- Microsoft hasn't complied. 17 I don't think he should be permitted 18 to say that. But if he is permitted, surely 19 Microsoft must be allowed to show the jury that 20 in the government case, the United States of 21 America Department of Justice set up this very 22 elaborate mechanism to try to ensure 23 compliance. 24 Mr. Alepin even proposes, according 25 again to the demonstratives, to violate this 6364 1 Court's ruling about innovation and lack of 2 choice. 3 There is demonstratives that we just 4 received earlier this week as we were all 5 filing back here from our respective holiday 6 period, demonstratives where Mr. Alepin 7 indicates that it is his opinion that 8 Microsoft's conduct regulates the pace of 9 innovation and inhibits technological 10 advancement. 11 He talks about less innovation, less 12 variety, less choice. 13 He talks about again inhibiting 14 technological advancement. 15 These are in slides that are Exhibit M 16 to the brief that we submitted. And I haven't 17 tried yet, Your Honor, to give you this large 18 book of exhibits. 19 And his slides go on to talk about the 20 ways in which Microsoft's conduct denies 21 consumers choice and leads to a world of less 22 innovation. 23 Now, this seems to be completely 24 contrary to the Court's clear ruling that a 25 loss of choice and a lack of innovation are 6365 1 claims that cannot be made in this action. 2 The Plaintiffs haven't tried to 3 challenge that ruling. They haven't asked for 4 reargument of it. I don't think they can get 5 through Mr. Alepin another bite at that apple. 6 And lastly, Your Honor, the Court also 7 ruled that settlements should not be put into 8 evidence. 9 There are demonstrative exhibits that 10 are time lines in which Mr. Alepin not only 11 refers to settlements that Microsoft has made 12 with competing companies, but, in fact, 13 demonstratives where he refers to lawsuits 14 being filed at a particular time. 15 So there's a demonstrative that says 16 that Sun, Sun Microsystems filed a lawsuit on a 17 particular day; that Be, the owner of the Be 18 operating system filed a lawsuit on a 19 particular day. 20 And yes, lawsuits are common in 21 America, and Microsoft has been sued by a 22 number of competitors, no question about that. 23 But this is another example of 24 Mr. Alepin's testimony apparently going in a 25 direction that is directly contrary to a Court 6366 1 ruling in this case, a ruling that evidence of 2 settlements ought not to come in. 3 Sorry for the length of this, Your 4 Honor, but there's an awful lot here pertaining 5 to Mr. Alepin that we think is just 6 fundamentally improper and ought not to be 7 permitted, and it seemed to me best that we 8 raise this in advance rather than interrupt the 9 examination in what would be essentially a 10 question-by-question basis and would probably 11 take the whole day with objections. 12 THE COURT: Was any of this brought 13 before the Special Master? 14 MR. TULCHIN: No, Your Honor. These 15 issues were not -- let me back up one second. 16 Demonstrative exhibits are not 17 disclosed by one side to another until, I 18 believe, 48 hours before -- 19 THE COURT: No, I meant the other 20 about the foundation for his opinion. 21 MR. TULCHIN: No, Your Honor. No. 22 There was no mechanism before the 23 Special Master to attack the testimony of 24 experts. The Special Master's job, if I can 25 recall correctly, was to deal with exhibits 6367 1 only, designated exhibits. 2 And with our motion that was filed on 3 December 29, this is directed to Mr. Alepin's 4 expertise and the apparent intention to put in 5 evidence that goes -- that pertains to subjects 6 that are beyond his expertise, that was not 7 something for the Special Master. 8 THE COURT: Thank you. 9 Response? 10 MR. WILLIAMS: Thank you, Your Honor. 11 I note that it's 8:30 on the first day 12 back from our holiday break, and I want to 13 address the last point that Mr. Tulchin 14 addressed. It really goes to the timeliness of 15 their motion. 16 Mr. Tulchin is correct that there was 17 no mechanism before the Special Master to raise 18 issues of expert qualifications to testify, but 19 this Court set up such a mechanism, and that 20 was the schedule on briefing and arguing 21 motions in limine, which both sides availed 22 themselves of, as is the practice in this 23 state, to try to get issues like this, issues 24 of qualifications of experts resolved before 25 trial so that we don't find ourselves in a 6368 1 situation that we're in right now at 8:35 with 2 the jury waiting in the room after being told 3 we want you to come back the first week of 4 January, we're going to start promptly at 8:30, 5 and here we are arguing something that should 6 have been raised back on September 15th, which 7 was the deadline for motions in limine. 8 Microsoft brought a motion challenging 9 one of our experts at that time, and we 10 responded in a timely fashion, and we argued it 11 as part of the three days of argument we had 12 before this Court back in October, as you'll 13 recall, and Your Honor ruled and ended up 14 denying that motion. 15 Plaintiffs brought some motions, 16 timely motions, challenging the qualifications 17 of some of their experts. We won some; we lost 18 some. But we all availed ourselves of that 19 process. 20 So I am absolutely bewildered by the 21 fact that a firm like Sullivan and Cromwell 22 with a high reputation, competent firm, why it 23 is they would wait until the last business day 24 of the year, December 29th at 4:30 p.m. during 25 the holiday break to raise issues which should 6369 1 have been raised three months earlier -- three 2 and a half months earlier. 3 Because, Your Honor, if you look at 4 the submission, the December 29th submission, 5 and you look at the exhibits to that 6 submission, you will find that all of those 7 exhibits were known to Microsoft and its 8 counsel far before -- long before the September 9 15th deadline. 10 I'll tell you what the exhibits are. 11 They're his expert report, Mr. 12 Alepin's expert report which was disclosed on 13 June 2nd of this year. 14 There's his curriculum vitae, which 15 was appended to that report. There's his 16 July 18, 2006 deposition, which they took. 17 There's a 2003 deposition from the MDL 18 proceeding of Mr. Alepin that Microsoft took. 19 And the other exhibit that they 20 attached for some reason is an excerpt of an 21 expert report of Professor Mackie-Mason from 22 June 2nd. 23 So there's absolutely no reason why we 24 should be hearing this and having the jury wait 25 in the anteroom to cool their heels so that 6370 1 Microsoft can get heard something that should 2 have been brought months ago. 3 So, Your Honor, what I propose we do, 4 and what we should do, is we have a jury here 5 that's ready to go; they're back from their 6 break. We have a witness here. We have now a 7 time of 8:35. 8 Let's get the jury in here, get them 9 seated, get the witness in the witness stand, 10 swear him in, and Mr. Lamb here, who is going 11 to be conducting the direct of Mr. Alepin, can 12 lay the foundation before the jury and before 13 Your Honor for Mr. Alepin's qualifications. 14 And, Your Honor, what you will find, 15 what you will hear, is that he has 35 years of 16 experience in the computer industry. He has 17 substantial experience developing software. 18 He has been a consultant for the 19 federal government in actions against 20 Microsoft, the state governments. 21 He's been a consultant and an expert 22 in the Economic Union on the proceedings over 23 there. 24 And you will hear in detail what his 25 expertise is. 6371 1 So I put that to Your Honor, and I ask 2 you how you want us to proceed. We can do it 3 that way, or I can go into a full-blown 4 argument and we might as well tell the jury to 5 go home because it's going take a while. 6 THE COURT: Why was this motion made 7 so late? 8 MR. TULCHIN: Well, Your Honor, there 9 are two motions, and nothing Mr. Williams says 10 applies to the second concerning the 11 demonstratives that we just received. 12 THE COURT: Let's talk about the first 13 then. 14 MR. TULCHIN: The first, Your Honor, 15 doesn't go to Mr. Alepin's qualifications in 16 toto. So it's not a question of trying to 17 exclude Mr. Alepin as a witness. It goes to 18 his qualifications to offer opinions on certain 19 subject matters that are outside the scope of 20 his expertise. 21 THE COURT: Did you know about these, 22 what he was going to offer? 23 MR. TULCHIN: Yes, we did, Your Honor. 24 THE COURT: Why did you wait till 25 December 29th? 6372 1 MR. TULCHIN: Well, Your Honor, 2 because we didn't believe that this was a 3 motion in limine which would otherwise -- 4 ordinarily a motion in limine goes to a 5 witness' qualifications in toto to testify. 6 THE COURT: Why would you file the 7 motion -- why not just wait till the witness 8 gets on the stand? 9 MR. TULCHIN: Well, we can, Your 10 Honor. 11 THE COURT: Either one or the other. 12 MR. TULCHIN: If we -- 13 THE COURT: If you knew about it back 14 in September, I don't know why you didn't file 15 the motion back then. 16 MR. TULCHIN: Again, Your Honor -- 17 THE COURT: You had the report. 18 MR. TULCHIN: We didn't believe that 19 this was an appropriate motion in limine. We 20 thought the way to do this was to go through 21 what we believed would be particular subject 22 areas that are outside the scope of his 23 expertise. 24 The demonstratives that we just 25 received this week, Your Honor, make it pretty 6373 1 clear unless there's -- unless they're not 2 going to use them, that Mr. Alepin indeed is 3 going to testify about the subject matters that 4 we think are beyond the scope of his expertise. 5 I would offer this as a suggestion, 6 Your Honor, because I must say -- I understand 7 Mr. Williams' concern about keeping the jury 8 waiting, and I don't want to keep the jury 9 waiting as a general proposition either. We 10 want to proceed and make progress. 11 Could we do this? If we're going to 12 commence now without any rulings on these 13 motions, could we do so with the understanding 14 that we are entitled to conduct a voir dire of 15 Mr. Alepin on his qualifications, which I 16 understand is permissible, in any event. 17 And, secondly, that the demonstrative 18 exhibits to which we object not be used or 19 shown to the jury until we've had a chance to 20 go through them with the Court? 21 MR. WILLIAMS: Your Honor, could I 22 respond to that? 23 First of all, they can ask Mr. Alepin 24 whatever questions they want that are properly 25 within the scope of his testimony. 6374 1 If they want to question his 2 qualifications, they're free to do that on 3 cross-examination. I don't see why we should 4 have to interrupt our direct to accommodate 5 them when they're three and a half months late 6 with a motion. That's the first point. 7 The second point has to do with a 8 demonstrative. They're untimely there, too, 9 Your Honor. 10 We had a procedure set up where 48 11 hours before a witness is to testify, the party 12 that's proffering the witness provides the 13 other side with the demonstratives that they 14 think they will use. We did that, and there's 15 no allegation that we were tardy at all. 16 24 hours later the other side is 17 supposed to provide their written objections. 18 They didn't do that one either, Your 19 Honor. They were late on that. And I have 20 here a stack of E-mails where we kept asking 21 them because they did indicate we have some 22 objections, but they wouldn't tell us what they 23 were. 24 And we kept asking them throughout the 25 day yesterday what are your objections? When 6375 1 are we going to see your objections? Oh, 2 they're coming. Oh, they're coming. 3 It wasn't until 10:30 last night that 4 we got a written document that summarizes what 5 their objections are. We still didn't get the 6 particularized one until I believe it was after 7 midnight, Your Honor. 8 So this is purely a problem of their 9 making. 10 And, again, we protest having to keep 11 the jury waiting, interrupt our direct to 12 accommodate them when they're the ones who 13 aren't timely, and I have yet to hear any 14 reason why. 15 THE COURT: Okay. Anything further on 16 this? 17 MR. TULCHIN: Just this, Your Honor. 18 I mean, ordinarily, one would be 19 entitled to conduct a voir dire on an expert's 20 qualifications in any event. So I'm not sure 21 why we wouldn't be permitted here. 22 And as far as the demonstratives, I 23 agree again with Mr. Williams that there is a 24 procedure. 25 We were all coming back from our 6376 1 holiday vacations, and that's the reason, along 2 with the fact that there are 300 pages of 3 demonstratives, that we were a little bit later 4 yesterday than we should have been. 5 MR. WILLIAMS: 14 and a half hours 6 later is not a little bit later. And I don't 7 want to quibble with Mr. Tulchin. 8 The fact of the matter is, we were all 9 coming back from the holidays. We met the 10 deadline. We complied with it. And we think 11 -- if they want to object to some 12 demonstratives, they should do it at the time, 13 and let's just -- let's get the testimony 14 going. We've been delaying this long enough in 15 our view. 16 THE COURT: Anything else? 17 MR. WILLIAMS: Not from Plaintiffs, 18 Your Honor. 19 MR. TULCHIN: No, sir. 20 THE COURT: Very well. 21 What we'll do is we'll start the 22 witness, and you can make your objections at 23 the appropriate time. 24 Demonstrative exhibits should be shown 25 first to counsel for Defendant. They can make 6377 1 their objection. The Court will rule on it at 2 that time before it's even shown to the jury. 3 And Iowa law does allow them to 4 conduct voir dire on the qualifications to make 5 any groundwork for a -- an objection based on 6 lack of expertise or foundation. So I'll let 7 them do that. 8 MR. TULCHIN: Thank you, Your Honor. 9 THE COURT: Anything else before we 10 start? 11 MR. TULCHIN: Just one piece of 12 information, Your Honor. 13 May it please the Court. Mr. Holley 14 will be examining Mr. Alepin. 15 THE COURT: Okay. 16 MS. CONLIN: Your Honor, this is Steve 17 Lamb, who will be examining Mr. Alepin. 18 MR. LAMB: Good morning, Your Honor. 19 One final thing, though, as a 20 practical matter there are a number of slides 21 that simply say, you know, this is who he is, 22 this is where he worked. They've all been 23 provided ahead of time. They haven't told us 24 which slides they object to. 25 THE COURT: That's too bad, isn't it? 6378 1 You got to show it to them first. That's the 2 practice in Iowa. 3 MR. LAMB: We have showed it to them 4 first, Your Honor. 5 THE COURT: They can object or not 6 object before you show it to the jury. Do you 7 have plates with them? 8 MR. LAMB: They have them. They've 9 all been provided. 10 THE COURT: Then we'll go through 11 them. 12 MR. TULCHIN: If we could -- 13 THE COURT: I don't know how else to 14 do it. 15 MR. LAMB: It's just going to be -- 16 serially it's going to be very difficult, Your 17 Honor, because of that. And it's going to 18 really break up the examination. 19 THE COURT: Mr. Lamb, you would agree 20 that opposing side has a right to make 21 objections, would you not? 22 MR. LAMB: Your Honor, I would, and I 23 would agree that we had a procedure to do so 24 and they haven't done so, and they've designed 25 this in order to break up this examination. 6379 1 And that's their purpose and that's what they 2 are accomplishing. And that's what I'm frankly 3 concerned about. 4 THE COURT: Have you gone through 5 the -- 6 MR. TULCHIN: Your Honor, if we could 7 know which, for example, Mr. Lamb intends to 8 use this morning. There are more than 300. 9 There's no indication of the order in which he 10 intends to use them. 11 THE COURT: Have you gone through them 12 all? 13 MR. HOLLEY: Yes, Your Honor, we have. 14 THE COURT: Do you know which ones 15 you're going to object to? 16 MR. HOLLEY: Yes. We intend to object 17 to every single one that purports to quote some 18 portion of a finding of fact. 19 We intend to object to every single 20 time line that refers to lawsuits filed against 21 Microsoft or settlements entered into by 22 Microsoft. 23 We intend to object to every single 24 one in which he purports to explain or 25 embellish a finding of fact or conclusion of 6380 1 law. 2 We do not object to the opening slides 3 where he touts his credentials. So if that's 4 Mr. Lamb's question, we do not object to those. 5 MR. LAMB: Your Honor, if I may, for 6 ease of the procedure, perhaps we could proceed 7 because I can represent to the Court that the 8 issues regarding the conclusions of law, those 9 won't happen until the second day, okay. So 10 that's not going to happen today. 11 As to a time line, we'll be happy to 12 review the time line before we put it up. 13 And as to any finding of fact -- what 14 we did was we provided them all the findings of 15 fact that were gone over in opening. We have 16 absolutely no intention of going over every 17 finding of fact. There's only a handful. So 18 we'll stop before we do any finding of fact, 19 and we'll designate the finding of fact. Is 20 that acceptable? 21 THE COURT: That's good. Anything 22 else? 23 MR. HOLLEY: No, Your Honor, just -- 24 THE COURT: You'll provide them a 25 written document stating exactly which 6381 1 objections you have to each of the 300? 2 MR. HOLLEY: Yes, we will do that. 3 I think they know that from the paper 4 that we filed this morning, but if there's any 5 doubt, we will go through them one by one, yes, 6 Your Honor. 7 MR. WILLIAMS: There is doubt, Your 8 Honor, and we would like that, just for the 9 record. 10 THE COURT: They'll do it then. 11 Also the examination is to be done 12 from that table there. You can I guess turn 13 that -- do you know how to -- 14 MS. CONLIN: Your Honor, can we just 15 stay in that chair? Can Mr. Lamb -- there's no 16 reason for us to move. 17 THE COURT: That's fine. That's 18 close. 19 MS. CONLIN: We really don't feel like 20 we need that. 21 THE COURT: Mr. Holley is allowed to 22 move closer to the jury for cross. 23 MR. HOLLEY: Thank you, Your Honor. 24 MS. CONLIN: But we don't feel like we 25 need that extra thing. 6382 1 THE COURT: Mr. Holley will probably 2 need it. 3 MR. LAMB: If we could have ten 4 minutes to set up because we also have a white 5 board that we want to put up, Your Honor. 6 THE COURT: Sure. Go ahead. 7 MR. WILLIAMS: Thank you, Your Honor. 8 (The following record was made in the 9 presence of the jury at 8:55 a.m.) 10 THE COURT: Good morning, Ladies and 11 Gentlemen of the jury. 12 Please excuse the delay. Had a legal 13 matter to take care of. Again, blame me, don't 14 blame anything. 15 I gave you a handout, or Carrie did, 16 of three instructions. Those instructions were 17 orally read to you. I put them in printed form 18 to put in your book. So at your convenience 19 you can put them at the spot they belong. That 20 would be great. 21 So everyone got pens and paper and all 22 that? 23 Plaintiffs may proceed. 24 MR. LAMB: Good morning, Your Honor. 25 If I may, I'd like to introduce myself to the 6383 1 jury since I haven't met them before if that's 2 okay. 3 THE COURT: You may. 4 MR. LAMB: Good morning, Ladies and 5 Gentlemen. 6 My name is Steve Lamb, and I have the 7 honor of representing the Plaintiffs in this 8 case, and I'll be calling the first witness, 9 Ronald Alepin. 10 THE COURT: Approach and be sworn. 11 RONALD ALEPIN, 12 called as a witness, having been first duly 13 sworn, testified as follows: 14 THE COURT: Please have a seat, and 15 you can adjust the microphone so we can hear 16 you. 17 Very good. Good ahead. 18 MR. LAMB: Thank, you Your Honor. 19 DIRECT EXAMINATION 20 BY MR. LAMB: 21 Q. Good morning, Mr. Alepin. 22 A. Good morning. 23 Q. It's going to be a little tight in 24 there, so bear with us, okay? 25 First, as we get started this morning, 6384 1 we're going to go through a series regarding 2 your background and your qualifications so the 3 jury understands who you are. 4 First of all, what is your occupation, 5 sir? What do you do? 6 A. I'm a computer industry consultant. 7 Q. And how long have you been a computer 8 industry consultant, sir? 9 A. Since 1981. That would be about 26 10 years. Going on 26 years. 11 Q. And during those 26 years, have you 12 had an occasion where you formed your own 13 company? 14 A. I did, yes. 15 Q. And can you tell the jury briefly the 16 name of that company and essentially what it 17 does? 18 A. It's the Los Altos Systems Research, 19 and it provides consulting services to computer 20 industry firms. 21 Q. Can you for the jury, please, identify 22 some of the clients you've done work for, sir? 23 A. I've done work for companies like 24 Intel, IBM, Oracle, Fujitsu, Toshiba, 25 RealNetworks, Sun Microsystems, Yahoo, and 6385 1 several dozens more. 2 Q. And you understand that you've been 3 retained to testify as an expert; correct? 4 A. Yes. 5 Q. And during the course of your 6 examination here today, you've gone through and 7 you've prepared some slides, some PowerPoint 8 presentations that will assist you in your 9 testimony; right? 10 A. I have. 11 Q. And we're going to go through those 12 from time to time. 13 Also, just so the jury knows, you have 14 a little clicker yourself so you can go back 15 and forth if you need to, if you need to 16 amplify or explain something that you feel is 17 necessary; okay? 18 A. That's the clicker right there. I 19 apologize, I left it at the table. 20 Q. Okay. 21 MR. LAMB: May I approach, Your Honor? 22 THE COURT: You may. 23 Q. We have the technology and 24 occasionally we use it properly. 25 Now we're armed with the clicker. 6386 1 MR. LAMB: Could I have the next 2 slide, please? 3 Q. And when did you start with Los Altos 4 Systems Research? 5 A. 1981. 6 Q. Where is it located, sir? 7 A. It's in what's call Silicon Valley. 8 That's just in the San Francisco Bay area. 9 Q. In your mind, is there any 10 significance to the Silicon Valley in relation 11 to the computer industry? 12 A. Well, it's the epicenter of high tech 13 and computer technology. 14 Q. And can you identify for the jury some 15 of the hardware companies that you've done some 16 work for? 17 A. As a consultant? 18 Q. Yes. 19 A. I've done work for Toshiba and Sun 20 Microsystems and Amdahl and Fujitsu, among 21 others. 22 Q. How about software companies, what 23 software companies have you been retained on 24 behalf of? 25 A. I've done work for -- Fujitsu also is 6387 1 a software company. So I've done work for 2 Fujitsu, for Yahoo, for Oracle, for Caere, 3 among others. 4 MR. LAMB: Could I have the next 5 slide, please? 6 Q. I understand you've also been a 7 technical advisor to Morrison & Foerster; is 8 that correct? 9 A. Yes, I still am. 10 Q. Can you explain to the jury what that 11 work entails as a technical adviser to Morrison 12 & Foerster? 13 A. It's a rather unique position. 14 Certainly it was a unique position when it was 15 created. 16 I'm essentially available to the 17 clients of Morrison & Foerster to help get an 18 understanding or help develop an understanding 19 about the technologies and the businesses and 20 the opportunities or transactions that they 21 would like to work through with the law firm. 22 Q. And during the course of that work, 23 are you called upon from time to time in your 24 work for Morrison & Foerster, do you have 25 occasions where you either accept or decline 6388 1 engagements? 2 A. Yes. 3 Q. Can you explain to the jury why that 4 happens? 5 A. Why I accept -- well, if I don't 6 believe that I can contribute to the 7 understanding or to the purposes that the 8 engagement seeks to achieve, I won't take that 9 matter. 10 Q. And have you ever been called upon in 11 relation to your work with Morrison & Foerster 12 to provide opinions relating to whether or not 13 claims are viable? 14 A. Absolutely, yes. 15 Q. And does that at times often conflict 16 with or go contrary to what it is the company 17 or client that you've been retained to wants to 18 pursue? 19 A. Yes, indeed that's quite often the 20 case. 21 Q. And in those circumstances, what do 22 you do, sir? 23 A. Well, sometimes I'm called upon to 24 assess independently the technology or the 25 claims, or what have you, and to provide an 6389 1 outside opinion without a vested interest in 2 the outcome. 3 So oftentimes it's like saying the 4 emperor has no clothes or in this dog won't 5 hunt, or whatever the prevailing expression is 6 for it. 7 But that's -- sometimes I have to 8 break bad news to the executives about what 9 they thought was a good business investment or 10 a good position in a potential litigation or 11 something like that. 12 Q. And you also mentioned that you've 13 done work for Fujitsu; correct? 14 A. I have, yes. 15 Q. And you've also been employed by 16 Fujitsu; correct? 17 A. Well, I was -- as an independent 18 consultant, I was employed by Fujitsu, but not 19 as an employee. 20 Q. Okay. Through your company then? 21 A. That's correct. 22 Q. And what position did you hold at 23 Fujitsu? 24 A. I held a variety of positions over the 25 course of my engagement, beginning as the chief 6390 1 technology consultant to Fujitsu, and 2 ultimately ending up as the vice president of 3 strategic planning and the chief technology 4 officer for Fujitsu software corporation. 5 Q. What does the chief technology officer 6 do? What is that position? 7 A. Well, that's a position -- I think 8 it's emerged over the past ten or 15 years in 9 high-tech companies particularly, and the basic 10 idea is that you have someone with experience, 11 and perhaps some insight, and the goal is to 12 think about the future, think big thoughts, and 13 see how technology is emerging and how that 14 technology can be exploited as business 15 opportunities. 16 So translating technological evolution 17 into business opportunities that the company 18 can or cannot pursue. 19 Q. Okay. And during the course of that 20 work, have you -- did you have an opportunity 21 to actually review computer code? 22 A. Yes, I do that as a regular matter. 23 Q. Okay. And when you do that, can you 24 explain to the jury what that means? When you 25 say you're reviewing a computer code, what do 6391 1 you do physically? 2 A. Well, for people who are practitioners 3 of software developers, reading code is like 4 reading a book or reading -- 5 Q. For you maybe. 6 A. Yes. 7 There's not a lot of character 8 developing and not a big plot in there, but 9 it's a very -- it might be like an architect 10 reading a blueprint. But this is more 11 detailed, and there are more steps to it. But 12 -- and when I say more steps, some programs can 13 have millions of steps in them, and so the 14 review is a lengthy process. 15 It's an involved process, but it's 16 like reading a book. 17 Q. And you believe you're qualified to do 18 that? 19 A. Yes, very much so. 20 Q. Okay. 21 MR. LAMB: Could I have the next 22 slide, please? 23 Q. I also understand that you generally 24 have four separate practice areas. Can you 25 just as an overview explain to the jury what 6392 1 those are? 2 A. Excuse me. This is kind of an ex-post 3 review. 4 I'm looking back and saying well, 5 these are actually the way my business has 6 turned out. 7 Generally the four roles are, one is 8 an industry participant where I'm actually 9 perhaps running a business or assisting a 10 business in actually executing a business plan 11 or software development. 12 Second one is where I'm involved in 13 transactions. I'm called in because somebody 14 wants to evaluate a technology or negotiate a 15 contract or a deal, a licensing deal to get 16 some technology. 17 The third role is in public policy 18 where I've been engaged to advise and explain 19 technology and how or what policymakers and 20 government agencies should do vis-a-vis the 21 technology or the emerging trends in the 22 computer industry. 23 And the last one is like today, where 24 there's some litigation or dispute. 25 MR. LAMB: Could I have the next 6393 1 slide, please? 2 Q. Now, as an industry participant, give 3 us a little bit more detail about what you've 4 done as an industry participant. Have you 5 worked both in hardware and software? 6 A. Yes, I have. 7 Q. And I understand you've worked as an 8 executive; correct? 9 A. That's correct, yes. 10 Q. You mentioned some companies. I think 11 Fujitsu, Caere, and Amdahl; right? 12 A. Yes. 13 Q. Tell the jury what it was that you 14 did, other than what you've already testified 15 to, regarding Fujitsu in relation to being an 16 industry participant. 17 A. Well, I was -- I think before I was 18 the vice president of strategic planning, I was 19 the general manager of Fujitsu's -- Fujitsu 20 software's enterprise, software division. 21 I had responsibility for the 22 development, the testing, the planning, the 23 sales, the marketing, basically everything to 24 do with Fujitsu's line of enterprise software. 25 Q. Okay. What does Fujitsu do as a 6394 1 company? Generally give us a broad brush of 2 that. 3 A. Well, I think Fujitsu is perhaps the 4 third or fourth largest computer company in the 5 world. 6 They make computers from 7 supercomputers. I think their supercomputer 8 today is the fastest, but that could change on 9 a daily basis every day. 10 They make mainframe computers. They 11 make portable computers, laptops and tablets 12 that you can see sometimes in hospitals. They 13 make server computers. They make operating 14 system software, middleware, applications 15 software. 16 They're the largest service provider 17 providing consulting services and development 18 services for their customers in Japan and 19 Europe and in the United States. They're a 20 global IT company. 21 Q. Okay. When you say IT, what does that 22 mean? 23 A. Information technology. 24 Q. Okay. You also mentioned a couple 25 terms, and we're going to go into some more 6395 1 detail in a bit and actually go through and 2 have you explain to the jury some of the terms 3 that you're going to use, but you referred to 4 enterprise software. Can you tell the jury 5 what that means, enterprise software? 6 A. Enterprise software is software that's 7 used by businesses, not small businesses, but 8 businesses that have hundreds and hundreds of 9 employees. 10 Q. What does it do? 11 A. Well, it basically helps large 12 companies do the kinds of things that large 13 companies need to do involving large capacity, 14 high volumes, rapid response time. 15 So, for example, you can think of an 16 airline company reservation system as being an 17 enterprise software application, and the 18 database that stores all of the records is an 19 enterprise software -- is a piece of enterprise 20 software as well. 21 Q. And you also mentioned middleware. 22 What's middleware? 23 A. Middleware is a layer of software that 24 gets its name because it sets in the middle 25 between operating system software and 6396 1 applications software. 2 Q. You also mentioned that Fujitsu has an 3 operating system; correct? 4 A. Fujitsu has several operating systems, 5 yes. 6 Q. And again just in general terms, we'll 7 get into more detail later, but what's an 8 operating system for the jury? 9 A. An operating system is a software 10 program that allocates and manages the 11 resources in the computer. 12 By resources, I mean the memory, the 13 disk drive, the keyboard, the mouse. 14 And allows application programs that 15 the user is using to get access to the CPU, to 16 the central processing unit, to execute and to 17 interact with the user. 18 Q. And during the course of time that you 19 worked with Fujitsu, did you review the 20 operating code? 21 A. I did, yes. 22 Q. Okay. And did you also review the 23 middleware? 24 A. In addition to authoring it, I did 25 review it, yes. 6397 1 Q. When you say in addition to authoring 2 it, what does that mean? Tell the jury what 3 that means, authoring it. 4 A. Well, we -- sometimes you can take 5 analogies too far, but as I mentioned before, 6 software is like a book, and we sometimes refer 7 to writing code as authoring software. 8 Q. So you participated in the writing of 9 that code? 10 A. Yes. 11 Q. Now, in relation to Caere, can you 12 describe to the jury what type of company Caere 13 is or was? 14 A. Caere was a -- it's changed names now, 15 but Caere was a company that was founded by Bob 16 Noyce, who was one of the founders of Intel 17 Corporation in the mid-1980s, and it developed 18 hardware and software that did optical 19 character recognition. 20 Q. What does that mean, optical character 21 recognition? 22 A. If you've looked at the bottom of your 23 check, for example, you can see that there's a 24 funny kind of encoding. The digits are printed 25 in a very specific way on the bottom of the 6398 1 check, and that's called optical character 2 recognition font. And what that enables banks 3 to do is they can read your check 4 automatically. 5 Back in the old days, we didn't have 6 very sophisticated handwriting recognition 7 software, so -- or even recognition software 8 that worked with different fonts and different 9 typesetting, so the -- there was a need to use 10 a specific font on information or business 11 records that you wanted to be able to process 12 without error electronically. 13 Q. And what did you do for Caere? 14 A. I did a number of things, one of which 15 was to create software that managed a network 16 of UPC scanning devices. 17 UPC is bar codes, and that's -- if you 18 look at that laser light at the checkout, I 19 developed software that allowed a network of 20 these scanners to be operated from a single 21 computer. 22 I also worked on software that -- 23 passports, you have now two lines of 24 information written on the bottom, encoded on 25 the bottom of the photograph page of your 6399 1 passport. That was something that the passport 2 office back in 1986, I think, mandated. So 3 they said we're going to start switching to 4 those kinds of passports. And that required a 5 breakthrough in technology. It seems pretty 6 simple now. 7 But to be able to read two lines of 8 information in a single swipe, even though the 9 passport officer might have tilted the passport 10 as it was being read through the scanner. 11 And I worked on helping to get that to 12 work. 13 I also helped the company establish a 14 skunk works project that ultimately led to 15 their development of true optical character 16 recognition for any kind of font. 17 Q. What's a skunk works project, sir? 18 A. Skunk works project is a project that 19 a company will launch outside of the normal 20 chain of command in a company. 21 So what you do is you -- you don't 22 want to distract perhaps your current 23 engineers, or you're not certain that they 24 possess the correct skill set because you're 25 trying to take the company in a new direction, 6400 1 so you go off and you set up a parallel or 2 autonomous organization somewhere, and you tell 3 them we want you to do this and don't worry 4 about filling in the normal time records and 5 don't worry about filling in the normal daily 6 reports and stuff like that. Just focus on 7 doing this one thing for us. 8 Q. How about Amdahl, what did you do at 9 Amdahl, sir? 10 A. Well, I was -- I came to Silicon 11 Valley in 1976 to work for Amdahl Corporation. 12 They were a manufacturer of mainframe 13 computers that were IBM compatible. 14 I came to start or to be a part of 15 their software development organization. 16 And I then progressed -- I was an 17 employee at that time. I progressed to be the 18 manager of the benchmarking and performance 19 analysis center. 20 And ultimately my last job at Amdahl 21 before I left to start my own company was as 22 the head of product marketing for Amdahl's next 23 generation of mainframe computers. So I did a 24 number of different things. 25 Q. And Amdahl is a hardware company? 6401 1 A. Amdahl is a hardware, software and -- 2 or was a hardware, software, and services 3 company. 4 Q. What type of hardware did they engage 5 in? 6 A. They made multimillion dollar, very 7 big mainframe computers. 8 Q. So they didn't make any of the 9 personal computers? 10 A. No. 11 Q. And in relation to software, what 12 types of software did Amdahl do? 13 A. They made -- developed operating 14 systems software and systems software that 15 worked with the mainframe computers. 16 Q. And were you involved in that software 17 development? 18 A. I was, yes. 19 Q. In what way? 20 A. I developed three of their software 21 products. 22 Q. What were those? 23 A. Well, they're kind of complicated. 24 They're very deep down inside the bowels of the 25 operating system. 6402 1 But the first of which was a 2 hyperviser, something that would enable a 3 mainframe computer to run more than one 4 operating system at a time and to do it very 5 efficiently. 6 Q. And that's called a hyperviser? 7 A. Well, today it's called VM, virtual 8 machines, because each machine thinks that it's 9 in control of the computer, but it's not 10 really. 11 Q. What other products did you develop? 12 A. I made a piece of software that 13 enabled multiple mainframe computers to share 14 data with integrity. 15 By that I mean you could make sure 16 that no application would write or overwrite 17 data that another application on a different 18 computer was using. 19 Q. You also have Boole & Babbage listed. 20 What did you do for Boole & Babbage? 21 A. For Boole & Babbage I developed a 22 system utility kinds of software for them. 23 Q. What does that mean, system utility 24 software? 25 A. Well, for mainframe computers in 6403 1 particular, and especially in those days, every 2 second counted, mattered to the owner of the 3 computer because they were spending millions of 4 dollars on the computer and millions of dollars 5 in salaries, and people who would mount tapes 6 on the computer and change disk drives on the 7 computer. It was a very big operation. Raised 8 floor, water cooling. So every second counted. 9 And that meant that there were 10 companies that could provide or could sell 11 products that optimized or improved their 12 ability to use the computer. 13 One of those was a piece of software 14 that I wrote that saved a fraction of a second 15 when by rearranging the data files on a disk so 16 that the arm, like that turntable arm, didn't 17 have to move from one end of the disk to the 18 other. So it optimized the position of the 19 files so that they'd be underneath the heads. 20 That saved fractions of a second every 21 minute or so. And, you know, fractions of a 22 second every now and then can add up to minutes 23 over time, and companies were willing to spend 24 money for that. 25 Q. So fractions of a second are important 6404 1 in your industry? 2 A. Fractions of a second were very 3 important, yeah. 4 Q. I want to move to the next slide and 5 talk about the second practice area, 6 transactions. 7 A. Uh-huh. 8 Q. Why don't you describe for the jury 9 what that means, what that practice area 10 entails as you're involved. 11 A. Well, it's not hard and fast, but 12 generally the kinds of engagements involve due 13 diligence, which is -- means that I'm called in 14 to make sure that things are from a technical 15 sense or from a business sense as they're 16 represented to be. 17 So if I'm representing one side who's 18 -- who wants to buy a company or a piece of 19 technology, I'm called in to go in and poke 20 around and make sure that the technology can do 21 what they say it does and that the customers 22 are happy. 23 Q. And when you do that, when you review 24 that technology, have you from time to time 25 reviewed source code and operating code? 6405 1 A. I have, yes. 2 Q. What's the next major or subcategory, 3 that licensing negotiations, what does that 4 involve? 5 A. Well, some engagements involve my 6 helping a company, particularly a large 7 company, negotiate contracts and where they can 8 license a particular technology and use it in 9 their software or in their systems or another 10 kind of licensing negotiations where we 11 negotiate a patent cross license, where the -- 12 in our business, it's quite common that we 13 negotiate cross licenses, that you can use my 14 patents and I can use your patents, and so you 15 have to come to terms on that and value. How 16 important are your patents; how important are 17 my patents? And we come to some sort of deal 18 on that. 19 Q. Okay. On the slide, you list a couple 20 of references to Fujitsu. What did you do for 21 Fujitsu in relation to transaction work? 22 A. Well, I've got done a number of 23 things, but sort of on the vein of patent cross 24 licenses, I negotiated or helped to negotiate 25 the patent cross license between Fujitsu and 6406 1 Intel. Both companies are semiconductor 2 manufacturers. 3 I mentioned Fujitsu was a computer or 4 an IT participant, but they're also a large 5 manufacturer of semiconductor devices, CPU 6 chips, and other stuff. 7 So I helped to negotiate patent cross 8 licenses between those two firms. 9 Q. How about for Toshiba? 10 A. For Toshiba, I've had a number of 11 engagements, one of which was to determine the 12 extent to which certain kinds of problems were, 13 in fact, real problems with hardware suppliers. 14 Q. What type of company is Toshiba? What 15 do they do? 16 A. Toshiba -- we don't hear much the term 17 used these days, but it's a conglomerate. It's 18 a company that makes -- if you plug it in and 19 it uses electricity, Toshiba probably makes it. 20 They make television sets and DVD 21 players and laptop computers and disk drives. 22 They make the disk drive, I think, that's in 23 the iPod. They make just about everything that 24 you can plug in. 25 Q. Okay. And then you also have Oracle. 6407 1 What did you do for Oracle in relation to 2 transaction work? 3 A. I've in the past assessed or done due 4 diligence on -- excuse me -- an Oracle 5 acquisition of a software company to determine 6 whether the software in question did what it 7 was represented to do by the sellers. 8 Q. What type of company is Oracle? 9 A. Oracle is the -- I'm going to say it's 10 the second largest computer software company in 11 the world, but it may be the third. I'm not 12 sure. 13 Q. What types of software does Oracle 14 deal with? 15 A. Oracle sells -- develops and sells two 16 different kinds of software. One is enterprise 17 applications. Those are the kinds of things 18 that larger companies use to manage payroll, 19 human resources, their accounts payable, 20 accounts receivable. So there's that kind of 21 enterprise application software. 22 And they make a second kind of 23 software which is middleware and including the 24 -- I think they're the largest supplier of 25 database software for industry. 6408 1 Q. And you also did some work for Yahoo 2 in transactional areas? 3 A. I did, yes. 4 Q. Can you tell the jury what that was? 5 A. Yahoo -- I think it's the most visited 6 website in North America. 7 And they have a number of services 8 that they provide, including Yahoo groups and 9 chats and telephone, and all kinds of other 10 stuff. Some of that they develop in-house. 11 Some of that they've acquired. 12 And I've worked in -- with Yahoo in 13 some of its acquisitions of software that fills 14 in the portfolio of services that Yahoo 15 provides to its users. 16 MR. LAMB: Can I have the next slide, 17 please? 18 Q. In relation to public policy, describe 19 what you've done for the jury in relation to 20 that practice area of public policy. 21 A. I've advised government policymakers, 22 essentially the -- on how or what steps should 23 be taken to make -- to interact with the 24 information technology industry. 25 So this could involve, for example, 6409 1 establishing the correct level of protection, 2 intellectual property protection for software 3 or how the government -- the U.S. government, 4 federal government should establish procurement 5 policies for acquiring information technology. 6 Q. And you listed a couple examples 7 there. Why don't you explain to us, when you 8 say the 1984 IBM undertaking, what does that 9 mean? 10 A. In the late 1970s, the European 11 community, France and England, Italy, Germany, 12 and several other companies began an 13 investigation into IBM -- certain IBM practices 14 in the mainframe computer industry. Mainframe 15 computers were the dominant kind of computer 16 paradigm at the time. 17 And this -- the result of this 18 investigation in which I participated both to 19 advise the commission on the nature of the 20 industry culminated in an agreement that IBM 21 undertook in 1984 to change certain of its 22 business practices and that's -- 23 Q. What was your role in relation to the 24 IBM undertaking? 25 A. Well, I participated in advising the 6410 1 commission on the nature of the industry and 2 who the players were and how the business 3 worked and how consumers -- consumers being big 4 businesses who were spending millions of 5 dollars -- were affected. 6 And so I had that kind of role at the 7 beginning, and then afterwards I was advising 8 them on the -- on how it was working, how the 9 undertaking actually worked in practice. 10 So the undertaking went on for more 11 than a decade, I believe. 12 And so periodically, there would be 13 these kind of well-baby checkup events where 14 the commission would say, well, how are things 15 working? Is it doing the job? Is everybody 16 happy with this? 17 Q. And what would you physically do in 18 response to that question, how is it working? 19 A. Excuse me. 20 Well, I would take a look at the 21 information, talk with the development teams 22 who were using the information and make a 23 determination about what the disclosures were, 24 whether they were adequate. 25 So whether there was enough -- IBM was 6411 1 asked to -- or agreed to disclose information 2 specifications about its computer equipment, 3 and I was asked to review it for adequacy. I 4 was asked to review it for completeness and for 5 price; how IBM could charge for certain of this 6 information. So I was asked to determine how 7 much it should cost. 8 Q. From a technological perspective, is 9 it important in the industry, in the computer 10 industry that there is this disclosure 11 information? 12 THE COURT: Hang on one second. I 13 didn't know if he had water or not. 14 MS. CONLIN: He brought his own. 15 THE WITNESS: Thank you. 16 MR. HOLLEY: Your Honor, I object to 17 that question. 18 I thought we were in the process of 19 establishing the witness' credentials and that 20 we're now going into substantive areas, and I 21 would ask Mr. Lamb focus in the first instance 22 on qualifications. 23 THE COURT: Please rephrase the 24 question. 25 Q. The question was, in the industry, is 6412 1 the disclosure of the type of information that 2 you're talking about that IBM disclosed 3 important from a technological perspective in 4 your -- 5 MR. HOLLEY: Your Honor, same 6 objection. 7 THE COURT: Overruled. You may 8 answer. 9 A. The -- 10 Q. Do I need to repeat it again? 11 A. Let us be safe. 12 Q. Okay. From a technological 13 perspective in relation to your testimony that 14 you just gave about IBM's disclosures, is it 15 important that those disclosures take part in 16 the industry? 17 A. Absolutely. It's essential that 18 disclosures of technical specifications take 19 place, yes. 20 Q. Can you just briefly explain why 21 that's important to the jury? 22 A. Well, the technical specifications of 23 a product -- a software product or a hardware 24 product involve the ways in which you can 25 attach other pieces of technology to those 6413 1 products. 2 And without the rules or the 3 specifications for attachment, you can't get 4 them to work, or if you can get them to work, 5 you can't get them to work well together. 6 So in our business, specifications are 7 the life -- the air supply for interconnection 8 and interoperation. 9 Q. Okay. Briefly, the 1989 European 10 union, quote, software directive, end quote, 11 what was that? 12 A. The -- I mentioned the European 13 community, the member states having each 14 different laws and the laws governing in 15 particular information technology and software. 16 So what were the copyright laws for 17 software was different in France from Germany 18 and England, and the European community had 19 sort of set as a goal to harmonize the laws 20 among the member states that affected commerce, 21 and software development is part of commerce, 22 so they were concerned about having a 23 consistent set of laws in the community. 24 My role was to help the commission 25 determine the appropriate level of protection 6414 1 for software should it be something other than 2 copyright, which was a real question, or should 3 it be copyright but with certain exceptions. 4 And that's what I did. 5 Q. Okay. And then the 1995 IBM consent 6 decree sunset, explain generally what that was 7 to the jury. 8 A. Excuse me. In 1956 -- that's a long 9 time ago -- IBM entered into a settlement 10 agreement with the Department of Justice, and 11 since that time, I believe almost all -- all 12 settlement agreements with the Department of 13 Justice for antitrust -- this is not -- I'm not 14 an authority here on that particular aspect, 15 but they began -- they had a provision that 16 said they'll expire. So ten years from the 17 date that we sign the settlement agreement, 18 they fall away. 19 The 1956 consent decree didn't have a 20 sunset provision, didn't have a provision that 21 would cause it to end. 22 IBM came to the department in '95, I 23 think, and said, you know, we'd like to end 24 this, and so the department asked me to 25 determine what -- whether it still mattered and 6415 1 what the policy goals were from 1956 and how we 2 could transition to the end of that particular 3 decree. 4 So I have to look at the industry and 5 look at the provisions and go into the archives 6 and understand what was -- what everybody was 7 thinking then and now. 8 Q. Let's turn to the next slide, the last 9 practice area, litigation. 10 Take a moment and just describe the 11 general areas in which you're involved in that 12 particular practice area, sir. 13 A. Well, I get involved in three 14 different areas in litigation, and it's 15 probably not a precise category, but most of 16 the time I work in alternative dispute 17 resolution, which is kind of like mediation, 18 where my job is to go in there and try and talk 19 with the experts on the other side and the 20 people who were making the decisions and see if 21 we can get some kind of understanding about 22 what the technical issues are and why they're 23 important and why they matter and how we might 24 reach an agreement outside of a litigation 25 context. 6416 1 As a consultant to counsel, I -- I'm 2 available to assist in these engagements to 3 help counsel understand the technology in a 4 litigation and to review documents and help 5 them and the lawyers get up to speed on this 6 independent from the in-house folks. 7 So it's a separate set of eyes that is 8 looking at that, and I can help there. 9 And, finally, when it gets down to 10 litigation as today, an expert witness. 11 Q. Okay. You've listed some examples, 12 just briefly for the jury these four cases. 13 Fujitsu versus IBM arbitration, what areas were 14 you engaged in in that particular case? 15 A. Well, in 1983 Fujitsu and IBM entered 16 into a contractual agreement which had a clause 17 that said if we disagree at some point in the 18 future, we're going to go to arbitration. 19 IBM and Fujitsu were the -- were two 20 very large IT companies, and the dispute 21 involved billions of dollars, involved the 22 licensing of technology and copyright and all 23 kinds of related problems. 24 Basically, my engagement began as the 25 technical consultant to the firm Morrison & 6417 1 Foerster and to the Fujitsu, and I had to 2 explain the industry, and then I had to conduct 3 probably the world's largest analysis of 4 operating system software that's ever been done 5 involving more than 20 million lines of code. 6 And at one point I had a team of 30 7 engineers reporting to me. We developed tools 8 for the analysis, mechanical analysis of 9 software. 10 An entire system was developed to 11 compare the source codes of several operating 12 systems and dozens of products that were system 13 software, including language software and other 14 middleware. 15 And then I had to present or -- 16 complete the analysis and present the reports 17 to the arbitration panel. 18 The result was an agreement. The 19 parties entered into an agreement that called 20 for a period where they would license 21 specifications between the two companies. 22 And my job was to determine what 23 specifications were approvable under that these 24 were interface specifications, and to review 25 all of the specifications passing between the 6418 1 two companies, as well as to administer a 2 secured facility. 3 We created a secured facility in which 4 the source codes of the other company's 5 software could be put and members of one side 6 could review the source code of the other 7 company, and that was done in a facility that 8 had all kinds of safeguards and independent 9 monitoring, and it was very, very elaborate. 10 Q. When you say interface specifications, 11 what do you mean by that, sir? 12 A. Well, earlier I mentioned the ways in 13 which the pieces of IT components fit together. 14 That's -- the connection point is the 15 interface. It's the interface between one 16 software component and another software or 17 hardware component or the user. 18 Sometimes we call it the user 19 interfaces, your interface to a piece of 20 software. 21 Q. So how they communicate to each other? 22 A. That's how they communicate and how 23 you can -- a little more formally it's how you 24 can request and receive the services of another 25 piece of hardware or software. 6419 1 Q. Okay. The next case, Tripole versus 2 Novell. Briefly, what did that involve and 3 what was your engagement in that case? 4 A. That was a more recent one. So that 5 was a contractual dispute over Novell -- its 6 acquisition of another company. 7 Q. Why don't you tell us what Novell is 8 first for the members of the jury who don't 9 know. 10 A. Novell is a company that I think 11 started in 1980s. It was -- about ten years 12 ago it was the largest independent software 13 vendor that made Workgroup server software, 14 file and print servers, and middleware, 15 including directories, electronic directories, 16 and maybe people are familiar with Groupwise. 17 At one point Novell owned WordPerfect. 18 Novell was a very large software company. It's 19 not so large today. 20 Q. Okay. And what did you do in relation 21 to that litigation, sir? 22 A. I did a couple of things, one of which 23 was to assess the state of the industry, 24 middleware, and particularly server computing 25 software around 2000, 2002, the time frame of 6420 1 the transaction, and to determine why the 2 transaction didn't work out as everyone had 3 hoped it would work out. 4 Q. Okay. 5 A. And the second part of that was to 6 review the source code for the product to 7 determine whether or not pieces of the source 8 code from the licensing company had -- were 9 still in use in the Novell product. 10 Q. And this case, where you reviewed the 11 source code and you reviewed the status of the 12 industry, during what time period was this case 13 going? 14 A. Well, it -- my involvement in the case 15 just concluded in early December, I think. 16 Q. Okay. 17 The next case, Iconix versus 18 NetPickle, what was your engagement in that 19 case, sir? 20 A. It wasn't to choose the name of the 21 company. 22 Q. Okay. We won't blame you for that. 23 A. Basically, this involved a company 24 that developed software for social networking 25 websites. 6421 1 Social networking websites are like 2 myspace.com or Friendster, and this particular 3 company developed the ability to put slide 4 shows in your space. So My Space, each user 5 gets on, and they can create their own little 6 website pictures of themselves and blogs and 7 friends, and it's all kind of a community for 8 each individual user. It's very popular among 9 my children and -- I don't have a space. 10 But this particular software was -- 11 enabled the user to create a slide show and to 12 put animation and little flowers and things 13 like this on it and that other people could 14 come and visit your slide show and say, wow, 15 that's a great slide show. 16 It was very exciting, lots of 17 minihits. Lots of visitors to the slide show 18 creation company. 19 And it was a copyright dispute and an 20 employment services dispute, and I was called 21 upon to analyze the source code for the website 22 to determine whether it had been copied. 23 Q. Whether it had been what? 24 A. Whether it had been copied. How one 25 company, whether the NetPickle folks had copied 6422 1 the software from Iconix. 2 Q. And then the last case, Micro Unity 3 versus Intel, what was the nature of your 4 involvement in that case? 5 A. Excuse me. Micro Unity was a company 6 that -- or still is a company that developed 7 semiconductor chips that were very good at 8 processing multimedia. 9 Multimedia is like audio tracks, video 10 clips, that kind of stuff. 11 And they were -- they came into being, 12 I think, in the mid-1990s to try and get their 13 chips adopted. 14 And Intel in the -- a little bit 15 later, recognized the importance of multimedia 16 and began incorporating into its chips 17 extensions, into its central processing chips 18 extensions that would enable it to process 19 multimedia data faster. 20 And that it turns out was a patent 21 matter. The Micro Unity folks had some 22 important patents in that area. 23 And so my job was to assess the 24 importance of multimedia and multimedia 25 extensions to the software and hardware PC 6423 1 industry. 2 MR. LAMB: Your Honor, would now be a 3 good time to take a break, or do you want me to 4 continue on for a while? 5 THE COURT: We'll take a ten-minute 6 recess. 7 Remember the admonition that I've 8 given you before. Leave your notebooks here. 9 We'll be in recess till 10 a.m. 10 All rise. 11 (A recess was taken from 9:48 a.m. 12 to 10:01 a.m.) 13 THE COURT: Everyone else be seated. 14 You may continue, Mr. Lamb. 15 MR. LAMB: Thank you, Your Honor. 16 THE COURT: Sir, you're still under 17 oath. 18 MR. LAMB: Can we get the next slide, 19 please? 20 Q. I want to turn now to 21 Microsoft-related engagements, Mr. Alepin, and 22 could you please describe for the jury what 23 you've been retained to do in relation to 24 Microsoft engagements other than this case that 25 we're here for today? 6424 1 A. Okay. Excuse me. 2 In late 1993 I was hired by the 3 Department of Justice, the antitrust division, 4 the special trial counsel, to assist the 5 department in an investigation of Microsoft's 6 practices. And my job was at that time to 7 provide the department with an understanding of 8 the industry, the major players, to help them 9 understand the technology and the products and 10 then to review the documents Microsoft had 11 provided in conjunction with the department's 12 investigation, as well as finally to meet with 13 industry participants, other companies. The 14 development teams had other companies who were 15 in the same business or related businesses to 16 Microsoft. 17 Subsequently, I was retained by the 18 Assistant Attorney General. The Department of 19 Justice has an attorney general, who was Janet 20 Reno at the time, and there are a number of 21 other divisions within the department, one of 22 which is the antitrust division, and Anne 23 Bingham was the Assistant Attorney General, and 24 she hired me to be her consultant in some 25 proceedings that the -- in September of 1994 6425 1 and again in nineteen -- at the beginning of 2 1995 when there was another investigation that 3 the department undertook of different Microsoft 4 practices. 5 Q. Let's back up a bit, sir. 6 When you say that you reviewed 7 documents, give the jury a sense of the type of 8 documents that you reviewed in relation to this 9 engagement. The number of documents, things of 10 that nature, if you would, sir. 11 A. Well, the number of documents was I 12 want to say infinite, but it was something less 13 than infinite. But there were hundreds of 14 boxes of documents, each of which contained 15 business records, E-mails, presentations, 16 market analyses, financial reports that 17 Microsoft had turned over to the government at 18 the government's demand. 19 And in addition, there were records 20 and reports and interviews of other companies 21 that had been taken, which I also reviewed. 22 Q. Okay. What else have you done in 23 relation to Microsoft related engagements? 24 A. Well, I was the department's adviser 25 or consultant with the Microsoft/Intuit 6426 1 acquisition. Microsoft and Intuit -- Intuit 2 was the maker of -- or still is -- the maker of 3 personal accounting checkbook management 4 software, Quick Books or Quicken, and Microsoft 5 and Intuit went -- made an agreement to merge. 6 And the Department of Justice was 7 concerned about the impact of that, and so I 8 was asked to participate in the review of the 9 impact of that. 10 I was asked to -- forgive me, I'm not 11 sure whether your question meant in addition to 12 the Department of Justice or -- 13 Q. No. Just with the DOJ right now, sir. 14 I apologize. 15 A. I was also the chief consultant to the 16 attorney -- Assistant Attorney General for the 17 investigation into Microsoft -- the MSN network 18 and other issues associated with Microsoft's 19 release of Windows 95 in that time frame. 20 Q. What were you asked to do in relation 21 to that engagement, sir? 22 A. There were a number of things, but the 23 most important one was to determine the 24 potential impact of some bundling of 25 Microsoft's network MSN with Windows 95. 6427 1 Q. Okay. From a technological 2 perspective, when you say bundling, what do you 3 mean? 4 A. From a technological perspective, 5 bundling is when you combine two things 6 together, two separate products in the same box 7 and sell them as one. 8 Q. Okay. We'll talk about that further 9 later. 10 Have you also been retained by various 11 states' attorneys general? 12 A. Yes. 13 Q. When did that happen? 14 A. In 1997, I believe. 1997, I think. 15 Q. Okay. And what was the nature of that 16 engagement? 17 A. Well, the -- excuse me -- the states' 18 attorneys general, that's not all of the 19 states, but a significant number of them, the 20 attorneys general began an investigation into 21 certain Microsoft practices, and that 22 investigation led to some litigation, and I was 23 the consultant that advised the attorneys 24 general on the industry, on the technology and 25 on the impact of the practices on the business. 6428 1 Q. Okay. 2 MR. LAMB: Go to the next slide, 3 please. 4 Q. Let's turn to Microsoft-related 5 engagements in relation to certain industry 6 association. 7 First, if you could explain to the 8 jury what the CCIA is. 9 A. Well, the information technology 10 industry is like a lot of industries. We have 11 organizations where companies get together and 12 try and develop policy recommendations or 13 common positions to represent the interests of 14 the industry participants. 15 The Computer and Communications 16 Industry Association is one of those kinds of 17 associations. 18 They help formulate policy on -- on 19 H-1 visas, for example. So do we need more 20 technology people to be available. 21 So there are a number of different 22 policy areas and different issues that affect 23 the industry, and that's the computer and 24 communications industry. 25 Q. And what were you engaged by them to 6429 1 do? 2 A. I was engaged by them to assist in 3 their intervention before the European 4 Commission in proceedings -- in an 5 investigation of Microsoft. 6 Q. How about the SIIA, what's that? 7 A. Like the CCIA, the SIIA is the 8 Software and Information Industry Association. 9 Their focus is a little more tuned to 10 software and information versus computer and 11 communications, but they have an overlap of 12 members, and they are an industry association. 13 Q. And what was the nature of your 14 engagement in relation to the SIIA? 15 A. I had a similar position which was to 16 assist in their intervention -- that's kind of 17 an intervention in European context, I 18 understand anyway, is where you petition and 19 you ask to be heard before the commission and 20 the judges in proceedings. 21 So I was asked to represent the 22 technology and the business interests of the 23 members before the commission and the courts. 24 Q. Okay. How about the ECIS, what's 25 that? 6430 1 A. ECIS, the European Committee for 2 Interoperable Systems, that's an organization 3 that was founded back in 1988, '89, the purpose 4 of which was to ensure that interoperability 5 specifications, interoperability information 6 would be available and that public policy would 7 favor the disclosure of interface information, 8 among other things. 9 So they're an organization that number 10 -- IBM is a member, Sun is a member, Oracle is 11 a member. And they, too, intervened in 12 proceedings against Microsoft. 13 Q. Now, aside from Microsoft-related 14 engagements in relation to these industry 15 associations, are you a member of any other 16 professional association or industry 17 association? 18 A. I am. Just to be clear, I'm not a 19 member of these. I'm an independent consultant 20 to these organizations. 21 Q. Right. I'm saying apart from these. 22 A. Right. 23 Q. What associations are you a member of, 24 sir? 25 A. I'm a member of the ACM. 6431 1 Q. What's that? 2 A. The Association for Computing 3 Machinery, which for some people it's 4 interesting. I like it. 5 Q. What others, sir? 6 A. I'm a member of the IEEE. 7 Q. What's the IEEE? 8 A. The Institute for Electrical and 9 Electronic Engineers. 10 Q. What's admission for IEEE? 11 A. Well, you can get there if you have a 12 degree in engineering or if the institute board 13 deems that your experience and qualifications 14 are sufficient to merit membership. 15 Q. And do you have a degree in 16 engineering? 17 A. No, I don't. 18 Q. And how did you attain membership? 19 A. I have met the criteria that the 20 institute applies for membership. I qualified. 21 Q. Do you have a degree? 22 A. No, I don't. 23 Q. Did you attend college? 24 A. I did. 25 Q. When did you attend college? 6432 1 A. From 1967 on to 1970 or '71. 2 Q. And at some point in time you left 3 college; right? 4 A. I did. 5 Q. Why did you leave college? 6 A. I got an offer from a company that had 7 every kind of computer possible, and they would 8 hire me and let me go to school at the same 9 time. 10 Q. What company was that? 11 A. That was Bell Canada. 12 Q. We'll talk about that some more later. 13 A. Sure. 14 Q. Let's turn to the next slide, if we 15 could. 16 Microsoft-related engagements on 17 behalf of private parties. 18 A. Uh-huh. 19 Q. Could you describe what the nature of 20 your engagement was in relation to 21 RealNetworks? 22 A. I was hired by RealNetworks in 23 conjunction with a lawsuit that they had 24 brought here in the United States and in 25 conjunction with RealNetworks in Europe to 6433 1 review the degree to which Microsoft's Windows 2 media player was or was not an integral part of 3 Microsoft's Windows operating system. 4 Q. And what were you physically doing? I 5 mean, were you reviewing code? Were you 6 reviewing documents? What did you do? 7 A. Well, I was reviewing some documents, 8 but publicly available documents, as well as 9 Microsoft documentation available publicly, but 10 the big -- the heavy lifting here was to take 11 the operating system and to pull it apart piece 12 by piece and to put it together in different 13 ways and then to test it to determine whether 14 or not it worked with or without the Windows 15 media player. 16 Q. And you physically did that? 17 A. I did that, yes. 18 Q. Okay. We'll talk about that a little 19 bit later. 20 How about your engagement in relation 21 to Sun? 22 A. With Sun, I was asked to review the 23 degree to which Microsoft's Office applications 24 relied on interface information that was not 25 available to other people to other companies.