Air Express International v. Log-Net, Inc.REPLY BRIEF to Opposition to MotionD.N.J.August 5, 2016Marc D. Haefner WALSH PIZZI O’REILLY FALANGA LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 Telephone: (973) 757-1100 Facsimile: (973) 757-1090 Attorneys for Defendant Log-Net, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY AIR EXPRESS INTERNATIONAL, d/b/a DHL GLOBAL FORWARDING CORPORATION, and Ohio Corporation, Plaintiff, v. LOG-NET, INC., a Delaware corporation, Defendant. Civil Action No. 3:12-cv-1732- MAS-TJB Filed Electronically REPLY BRIEF IN FURTHER SUPPORT OF LOG-NET’S MOTION FOR PARTIAL SUMMARY JUDGMENT Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 1 of 20 PageID: 3913 ii Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 2 of 20 PageID: 3914 i TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 LEGAL ARGUMENT .................................................................................................................... 2 ...................................................................................................................................... 2 SUMMARY JUDGMENT IS APPROPRIATE ON A CLAIM, EVEN IF OTHER SIMILAR CLAMS ARE NOT RESOLVED BY THE MOTION 2 POINT II ..................................................................................................................................... 5 THERE ARE NO RELEVANT DISPUTED FACTS 5 .................................................................................................................................... 8 LOG-NET MAY RECOVER ON DHL’S PRELIMINARY INJUNCTION BOND BECAUSE A GRANT OF SUMMARY JUDGMENT IS A FINAL DETERMINATION THAT LOG-NET WAS WRONGFULLY RESTRAINED 8 ................................................................................................................................. 12 LOG-NET’S DAMAGES ARISING FROM DHL’S PRELIMINARY INJUNCTION ARE STRAIGHTFORWARD AND FAR IN EXCESS OF THE $1 MILLION INJUNCTION BOND TO WHICH LOG-NET IS ENTITLED 12 CONCLUSION ......................................................................................................................... 15 Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 3 of 20 PageID: 3915 ii TABLE OF AUTHORITIES Cases Am. Bible Soc. v. Blount, 446 F.2d 588 & n.12 (3d Cir. 1981) ................................. 9 Avaya Inc. v. Telecom Labs, Inc., 2009 U.S. Dist. LEXIS 82609 (D.N.J. Sept. 9, 2009) ............................................................................................. 3 Carswell v. Borough of Homestead, 381 F.3d 235 (3d Cir. 2004) ................................................................................................................................ 8 Clark v. K-Mart Corp., 979 F.2d 965 (3d Cir. 1992) ....................................... 10, 11 Comm. Workers of Am. v. Rousseau, 417 N.J. Super. 341 (App. Div. 2010) ............................................................................................................... 6 Drzala v. Horizon Blue Cross Blue Shield, Civ. A. No. 15-8392, 2016 U.S. Dist. LEXIS 66122 (D.N.J. May 18, 2016) .......................................... 6 Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989) .......................................................................................................13 Kampf v. Franklin Ins. Co., 33 N.J. 36 (1960) .......................................................... 6 Kaufman v. Provident Life and Cas. Ins., 828 F. Supp. 275 (D.N.J. 1992) .......................................................................................................... 6 Kuibyshevnefteorgsynthez v. Model, 1995 U.S. Dist. LEXIS 1896 (D.N.J. Feb. 6, 1995) ...................................................................................15 N.J. Auto. Ins. Plan v. Sciarra, 103 F.Supp.2d 388 (D.N.J. 1998) ................................................................................................................................ 3 Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032 (9th Cir. 1994) ......................................................................................................10 Paris of Wayne, Inc. v. Richard A. Hajjar Agency, 174 N.J. Super. 310 (App. Div. 1980) ................................................................................15 RePass v. Vreeland, 357 F.2d 801 (3d Cir. 1966) .................................................2, 3 Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 4 of 20 PageID: 3916 iii Slidell, Inc. v. Millennium Inorganic Chems. Inc., 460 F.3d 1047 (8th Cir. 2006) ......................................................................................................10 Sprint Comm. Co. L.P. v. CAT Comm. Int’l, Inc., 335 F.3d 235 (3d Cir. 2003) .......................................................................................................13 U.S. D.I.D. Corp. v. Windstream Communs., Inc., 775 F.3d 128 (2d Cir. 2014) .......................................................................................................11 University of Texas v. Camenisch, 451 U.S. 390 (1981) .........................................10 V.A.L. Floors, Inc. v. Westminster Communities, Inc., 355 N.J. Super. 416 (App. Div. 2002) ................................................................................15 Statutes N.J.S.A. § 56:15-2 ...................................................................................................... 5 Rules Fed. R. Civ. P. 65(c).................................................................................................13 Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 5 of 20 PageID: 3917 1 PRELIMINARY STATEMENT In opposition to LOG-NET Inc.’s (“Log-Net”) partial summary judgment motion on the claim that James Bocchino (“Mr. Bocchino”) was reverse engineering Log-Net’s customs broker interface, Plaintiff Air Express International (“DHL) chooses to focus neither on the plain language of the contract between DHL and Log-Net nor on Mr. Bocchino’s plain words admitting that he spent several months reverse engineering the interface. Instead, in conflict with New Jersey law on contract interpretation, DHL asks this Court to adopt its expert’s self-serving definition of reverse engineering and to adopts its expert’s explanation of why Mr. Bocchino devoted so much time to trying to figure out not what customer data was in Log-Net’s system, but where that data went and why it went there. In contrast to DHL’s reliance on its paid expert, all Log-Net asks this Court to do is interpret the plain language of the contract against Mr. Bocchino’s admissions made under oath. This pedestrian exercise confirms that Mr. Bocchino was reverse engineering Log-Net’s software in violation of the parties’ contract to the detriment of Log-Net – actions he was permitted to take by the fact that Log-Net could not turn the software off due to the then pending injunction. DHL’s actions should result in it forfeiting that bond to LOG-NET at this point. Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 6 of 20 PageID: 3918 2 LEGAL ARGUMENT SUMMARY JUDGMENT IS APPROPRIATE ON A CLAIM, EVEN IF OTHER SIMILAR CLAMS ARE NOT RESOLVED BY THE MOTION DHL initially argues that summary judgment is not appropriate because no full claim will be resolved by Log-Net’s partial motion. (Opp.Br. at 19-21). DHL analysis, which relies on RePass v. Vreeland, 357 F.2d 801 (3d Cir. 1966), however, parses the question too finely and ignores traditional Third Circuit definitions of what makes up a “judicial unit.” In RePass, the Third Circuit specifically spoke to what constitutes a “judicial unit.” There, the defendant argued to the trial court that the plaintiff’s claims for professional malpractice could not go forward on the damages theory that the plaintiff/client had been damaged by the defendant/attorney’s failure to file within the statute of limitations. The defendant did not move on the other element of damages; specifically, that he had charged the plaintiff for work that occurred after he should have known the statute had run. The district court granted the defendant’s motion for partial summary judgment and eliminated the plaintiff’s claim for damages caused by the failure to timely file. Id. at 806. On an interlocutory appeal under Rule 54(b), the Third Circuit refused to hear the case because eliminating one item or theory of damages without concurrently eliminating a claim did not “give rise to a final order” that was appealable under Rule 54. Id. (citations omitted). The Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 7 of 20 PageID: 3919 3 Third Circuit explained that a judicial unit could be considered fully and finally resolved only either if: 1) the claims arise from separate occurrences or transactions, or 2) the allegations constituted separate causes of action traditionally understood.1 Here, the lesson to be learned from RePass is twofold: first, RePass is, on its face, not a case about Rule 56 at all, and the district court cases that rely on RePass to justify ignoring the plain language of Rule 56 are without basis; second, even if the progeny of RePass were well-reasoned the claims of reverse engineering in this matter are each unique and arise from separate facts and separate actions taken by different DHL employees such that the unique “judicial units” test of RePass is met and the instant motion for partial summary judgment is appropriate. Avaya Inc. v. Telecom Labs, Inc., 2009 U.S. Dist. LEXIS 82609 (D.N.J. Sept. 9, 2009), and N.J. Auto. Ins. Plan v. Sciarra, 103 F.Supp.2d 388 (D.N.J. 1998), both rely on RePass for the proposition that even though Rule 56 specifically permits motions on “part of a claim,” in fact, the Third Circuit will not permit a party to use Rule 56 in exactly the manner that the rule states it may be used. Avaya, 2009 U.S. Dist. LEXIS 82609 at *7; N.J. Auto., 103 F.Supp.2d at 396. A review of RePass, as set out above, however, discloses that the Third Circuit was not considering this issue when it decided the case fifty years ago – it was analyzing the finality of orders 1 The Court of Appeals decided that the single item of damages presented on the facts could not meet either test and thus demurred “explor[ing] the metaphysical distinctions between the two tests, if, in fact, any exist.” RePass, 357 F.2d at 805. Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 8 of 20 PageID: 3920 4 for the purposes of interlocutory appeals under Rule 54(b). Further, and more tellingly, in RePass, the defendant had moved pursuant to Rule 56 for partial summary judgment on part of a claim, and other than noting that was what had been done and finding that on order on such a motion was not final under Rule 54(b), the Third Circuit took no pains to complain about the District Court’s actions. It is difficult to imagine that in the allegedly seminal case marking out the Third Circuit’s refusal to abide by the plain language of Rule 56(a), the Third Circuit not only never managed to mention that holding but ignored the fact that the District Court in RePass had violated this newly-minted and contra-textual “holding.” Thus, this Court should be guided by the plain language of Rule 56(a) and permit Log-Net’s motion for partial summary judgment regardless of what claim or part of a claim it allegedly would leave undecided. Further, even were this Court constrained in its reading of Rule 56 by the Third Circuit’s reading of Rule 54, the partial summary judgment motion should be considered because the claim that Mr. Bocchino reverse engineered the Log-Net customs broker interface in violation of the parties’ License Agreement is a separate judicial unit from the claims that other DHL employees reverse engineered other components of the Log-Net system through other means. The evidence regarding Mr. Bocchino is limited to his admissions and the documents that show the steps that he took to discover how and why the Log-Net system moved information in the steps Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 9 of 20 PageID: 3921 5 that it did. That Brice Jones was simultaneously leading an effort to reverse engineer other functionalities that the Log-Net system had that the GTNexus system lacked is not relevant to this specific claim. Indeed, the motion sets out all the elements of a breach of contract – self-contained and whole. The evidence is fully presented and thus this Court should consider it on its merits. POINT II THERE ARE NO RELEVANT DISPUTED FACTS DHL makes arguments to support its contention that Mr. Bocchino’s statement that he was reverse engineering the Log-Net customs broker interface means something other than its plain language. First, DHL argues that “reverse engineering” in the contract should not be defined by its plain dictionary meaning (as required by New Jersey contract law) but should be given a meaning from the New Jersey Trade Secrets Act (“NJTSA”) or this Court should adopt DHL’s expert’s definition. DHL’s position ignores that the NJTSA was adopted and effective in January 2012, about four years after the parties’ License Agreement was drafted, and thus could not have been the source of meaning for “reverse engineering” because it did not exist at the time the parties entered into the License Agreement. See N.J.S.A. § 56:15-2 (noting that the statute’s effective date is January 5, 2012). Further, New Jersey contract interpretation does not permit the Court to go so far afield; rather, when applying New Jersey law “Courts are Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 10 of 20 PageID: 3922 6 required to give plain meaning to contract terms.” Kaufman v. Provident Life and Cas. Ins., 828 F. Supp. 275, 283 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993); see also Kampf v. Franklin Ins. Co., 33 N.J. 36, 43 (1960) (stating that where language of contract is clear, courts must interpret it according to its plain meaning). Similarly, DHL’s request that this Court adopt its expert’s definition of reverse engineering is outside the notion of plain meaning given by the New Jersey Supreme Court for defining contractual terms. Rather than statutes or experts, when finding plain meanings, the courts of New Jersey routinely turn to dictionaries. Comm. Workers of Am. v. Rousseau, 417 N.J. Super. 341, 356 (App. Div. 2010); Drzala v. Horizon Blue Cross Blue Shield, Civ. A. No. 15-8392, 2016 U.S. Dist. LEXIS 66122 at *10-11 (D.N.J. May 18, 2016) (“Determining a term’s plain meaning often involves consulting the dictionary definition of the term.”). This Court, in determining the legal meaning of “reverse engineering,” should adopt the plain meaning from the dictionary as offered by Log-Net, (see Log-Net Br. at 12), because that approach conforms with New Jersey contract law. When reverse engineering is properly read against Mr. Bocchino’s admissions it is plain that reverse engineering is exactly what he did. Here, Mr. Bocchino stated numerous times over the course of discussing the customs broker interface that he was trying to both determine: what customer data was necessary for DHL’s Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 11 of 20 PageID: 3923 7 customers’ containers to get through customs as run by UPS, and what Log-Net was doing with each piece of data. That is, he wanted to know not only what the data was but how the data eventually got used by Log-Net’s system. For example, Mr. Bocchino sent an email to a Log-Net employee in which he wanted to know what the data on a Log-Net custom broker form meant. (2016-05-23 Haefner Decl. Ex. F). He was quickly referred by the employee to a list of standard definitions available to anyone – a list that would show what type of data was on each line of one of the custom broker forms. (Id.; Haefner Decl. Ex. 1 at 191:16-192:20). Mr. Bocchino admitted that the list of standard definitions told him what customer data was on “all the different lines” of the form. (Id. at 191:16-20). However, Mr. Bocchino was not satisfied with this answer and then asked “what bucket are the three GE segments in this document mapped to?” (2016-05- 23 Haefner Decl. Ex. F). Mr. Bocchino explained that he “needed to understand exactly what the buckets were.” (Haefner Decl. Ex. 1 at 207:17-20). That is, he wanted to know what Log-Net did with the standard customer data to make the customs broker interface work. This is the very essence of reverse engineering – determining the logical steps that are taken to make an effective and efficient system and copying those steps. That DHL’s expert – who was deposed after Log-Net filed the instant motion – has a different more advantageous definition for DHL of reverse engineering is of no moment because the question of what “reverse engineering” Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 12 of 20 PageID: 3924 8 means in the License Agreement is for the Court; the expert may not opine on this legal question.2 Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (stating that an expert may not opine on questions of law). In the end, as set forth at length in the moving brief, Mr. Bocchino candidly explained that he was “reverse engineering” Log-Net’s customs broker interface for DHL’s benefit. While DHL now wishes to avoid its witness’s admission of reverse engineering, this Court cannot give DHL a better contract than the one it bargained for and Log-Net’s motion for partial summary judgment should be granted. LOG-NET MAY RECOVER ON DHL’S PRELIMINARY INJUNCTION BOND BECAUSE A GRANT OF SUMMARY JUDGMENT IS A FINAL DETERMINATION THAT LOG-NET WAS WRONGFULLY RESTRAINED DHL argues that Log-Net cannot recover on DHL’s preliminary injunction bond—even if the Court finds as a matter of law that DHL breached the License Agreement by reverse engineering Log-Net’s software—because Log-Net has not yet prevailed at trial and obtained a final judgment on the merits. DHL’s argument is incorrect because it misstates the law with respect to when a party may recover on 2 GTNexus’s testimony about reverse engineering is likewise irrelevant. The cited testimony is about the DPO documents – an aspect of dynamic allocation – not the customs broker interface. Further, regardless, it was DHL who had a contractual obligation not to do the very thing that Bocchino was doing. Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 13 of 20 PageID: 3925 9 an injunction bond. Generally, a party seeking to recover on an injunction bond may do so only after the court makes a final determination that the moving party was wrongfully restrained by the injunction. Am. Bible Soc. v. Blount, 446 F.2d 588, 594-95 & n.12 (3d Cir. 1981); see also Wright & Miller § 2972 (“In the case of an injunction bond, the claim . . . does not accrue until it is finally determined that plaintiff was entitled to the restraining order or injunction, or until something occurs that is the equivalent of a decision on this question.”). DHL’s argument that a final judgment following a trial on the merits is the only possible form of a final determination for purposes of the wrongfully-restrained analysis is flawed. Indeed, DHL’s argument cannot possibly be correct: if it were, then no party could ever recover on an injunction bond where it prevails on summary judgment and no trial is held. Here, a grant of summary judgment on Log-Net’s reverse-engineering claim is dispositive of whether Log-Net was wrongfully restrained by DHL’s preliminary injunction. See Slidell, Inc. v. Millennium Inorganic Chems. Inc., 460 F.3d 1047, 1059 (8th Cir. 2006) (holding that “a party has been wrongfully enjoined if it is ultimately found that the enjoined party had at all times the right to do what it was enjoined from doing”). Importantly, this inquiry does not turn on whether the court that issued the injunction properly exercised its discretion, but rather whether the Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 14 of 20 PageID: 3926 10 party seeking to recover on the injunction bond prevailed in the underlying litigation. Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir. 1994). DHL’s argument is based entirely on one sentence from the Third Circuit’s decision in Clark v. K-Mart Corp., 979 F.2d 965, 969 (3d Cir. 1992), namely, “[i]t is settled that one can recover on an injunction bond only after a trial and final judgment on the merits.” (Opp.Br. at 27). In Clark, the defendant appealed: (i) the propriety of a preliminary injunction that enjoined it from denying coverage for the plaintiff’s medical treatment; and (ii) the amount of the injunction bond. 979 F.2d at 966. The Third Circuit, relying on the Supreme Court’s decision in University of Texas v. Camenisch, 451 U.S. 390, 396 (1981), explained that the two issues— whether the district court erred by entering a preliminary injunction, and which party is ultimately liable for the costs incurred by complying with that injunction—are significantly different in that “[t]he former focuses primarily on whether [the plaintiff] demonstrated a sufficient likelihood of success on the merits, while the latter issue depends on the final decision on the merits of [the plaintiff’s] case.” Clark, 979 F.2d at 968. Third Circuit also observed that a party cannot recover on an injunction bond until the merits of its claim have been fully adjudicated, and in the context of Clark, full adjudication likely meant a trial on the merits. Id. at 969. The court did not address the propriety of recovering on an injunction bond after winning on summary Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 15 of 20 PageID: 3927 11 judgment and did not hold that a final judgment following a trial on the merits is the only possible form of a final determination. Indeed, such a holding would preclude parties from recovering on injunction bonds in numerous appropriate scenarios, such as where the plaintiff voluntarily dismisses a complaint after an injunction has issued against a defendant. See U.S. D.I.D. Corp. v. Windstream Communs., Inc., 775 F.3d 128, 140 (2d Cir. 2014). Here, a grant of summary judgment on the discrete issue that DHL reverse engineered a facet of Log-Net’s software will be a full adjudication of the merits of Log-Net’s breach of contract claim. Accordingly, Log-Net may properly pursue recovery on DHL’s preliminary injunction bond. DHL argues in the alternative that Log-Net may not recover on the injunction bond because Log-Net’s damages did not arise from the imposition of the injunction. (Opp.Br. at 27). This argument is factually incorrect because Log-Net’s damages did arise from the imposition of the injunction. The preliminary injunction prevented Log-Net from: (a) denying DHL access to its software and (b) withholding technical support. (Id. at 3). Log-Net opposed the injunction in part because it feared that if DHL continued to have access to Log-Net’s system, DHL would continue its efforts to copy and reverse engineer Log-Net’s software, (D.E. 38, at 38), and that is exactly what happened: after DHL obtained its preliminary injunction, Mr. Bocchino continued to, in his words, “reverse engineer” Log-Net’s software. (2016-05-23 Haefner Decl., Exhibit G at 290:19-293:7; id. at 296:24). In fact, contrary to DHL’s Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 16 of 20 PageID: 3928 12 assertions, (Opp.Br. at 28), Log-Net’s damages result directly from DHL’s continued access to Log-Net’s software and there are numerous examples of DHL’s reverse engineering that occurred well after 2011. (D.E 132-1 (August 13, 2014 Motley Cert.) ¶¶ 73-84; D.E. 98 (2013-11-21 Motley Cert.) ¶¶ 21, 27, 45). In fact, Mr. Wei testified that the exact Log-Net designs and processes on fictitious shipments that Log-Net provided DHL as a result of the injunction were given to GT Nexus in 2013. (Haefner Decl. Ex. 2 at 241:21-243:22). Accordingly, Log-Net’s damages are causally connected to DHL’s preliminary injunction because the injunction prevented Log-Net from “turning off” its software and protecting itself from DHL’s reverse engineering. As DHL accurately notes, “the only damages recoverable under an injunction bond . . . are those that arise from the operation of the bond itself . . . .” (Opp.Br. at 27). Log-Net is therefore entitled to recover under the bond. LOG-NET’S DAMAGES ARISING FROM DHL’S PRELIMINARY INJUNCTION ARE STRAIGHTFORWARD AND FAR IN EXCESS OF THE $1 MILLION INJUNCTION BOND TO WHICH LOG-NET IS ENTITLED Pursuant to Fed. R. Civ. P. 65(c), a successful applicant for a preliminary injunction is required to post a bond “in such sum as the [district] court deems proper, for the payment of such costs and damages as may be incurred or suffered Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 17 of 20 PageID: 3929 13 by any party who is found to have been wrongfully enjoined.” Sprint Comm. Co. L.P. v. CAT Comm. Int’l, Inc., 335 F.3d 235, 239-40 (3d Cir. 2003) (internal quotation omitted)). The injunction bond “provides a fund to use to compensate incorrectly enjoined defendants.” Id. at 240 (citing Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 804 (3d Cir. 1989)). As discussed above and in Log- Net’s opening brief, a grant of summary judgment on Log-Net’s reverse-engineering claim is dispositive of whether Log-Net was wrongfully enjoined. Log-Net’s damages arising from DHL’s preliminary injunction are straightforward. The injunction prohibited Log-Net from denying DHL access to Log-Net’s software and withholding technical support from DHL. Consequently, the injunction allowed DHL to continue copying and reverse engineering Log-Net’s software. Had the injunction not issued, Log-Net could have “turned off” its software and prevented DHL from continuing and completing its illegal copying. Therefore, Log-Net is entitled to the value of the work DHL stole. Log-Net’s Chief Executive Officer, John Motley, provided a clear breakdown of the costs associated with creating the specific software (namely, the electronic interface with Customs brokers) that DHL illegally copied. (D.E. 159-3 ¶¶ 10-11). Motley explained that each interface would require three parts: (a) the file layout and design; (b) the utility to translate the software from UPS format to GT Nexus format; and (c) the business logic to validate the message and connect it to the appropriate Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 18 of 20 PageID: 3930 14 data in GT Nexus and UPS. (Id.¶ 11). In fact, DHL’s own budget for 2012 and 2013 license fee payments, indicates that DHL planned to pay Log-Net in excess of one million dollars per year for 2011, 2012 and 2013 had the injunction not been in place. (Haefner Decl. Ex. 3 at 193:5-195:17). DHL’s assertions about the inherent uncertainty of Log-Net’s damages resulting from DHL’s acts, which Log-Net could not stop due to the injunction, are misplaced. The Appellate Division has emphasized that: The rule relating to the uncertainty of damages applies to the uncertainty as to the fact of damage and not as to its amount, and where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery. Although we require a reasonably accurate and fair basis for the computation of alleged lost profits, the fact that a plaintiff may not be able to fix its damages with precision will not preclude recovery of damages. V.A.L. Floors, Inc. v. Westminster Communities, Inc., 355 N.J. Super. 416, 424 (App. Div. 2002) (internal and quotations and citations omitted); see also Paris of Wayne, Inc. v. Richard A. Hajjar Agency, 174 N.J. Super. 310, 318 (App. Div. 1980) (holding that defendant’s lack of knowledge of extent of damages caused by defendant’s breach did not excuse defendant from consequential contract damages). And, of course, an injunction is an equitable remedy and a court of equity is to do equity. Therefore, permitting DHL to breach the contract and get away with it under the cover of the injunction would violate fundamental fairness. Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 19 of 20 PageID: 3931 15 In the alternative, should this Court decline to grant summary judgment in favor of Log-Net on the issue of damages, the Court can grant summary judgment on Log-Net’s reverse-engineering claim as it relates to the customs broker interface (i.e., on DHL’s underlying liability) and sever the issue of damages. See Kuibyshevnefteorgsynthez v. Model, 1995 U.S. Dist. LEXIS 1896, at *62 (D.N.J. Feb. 6, 1995), aff’d, 168 F.3d 479 (3d Cir. 1998) (granting summary judgment on claim for breach of contract but severing issue of damages). CONCLUSION For the reasons set forth above, Log-Net respectfully submits that this Court should grant its Motion for Partial Summary Judgment. BY: s/Marc D. Haefner Marc D. Haefner WALSH PIZZI O’REILLY FALANGA LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 Telephone: (973) 757-1100 Facsimile: (973) 757-1090 Attorneys for Log-Net, Inc. DATE: August 5, 2016 Case 3:12-cv-01732-MAS-TJB Document 169 Filed 08/05/16 Page 20 of 20 PageID: 3932 Marc D. Haefner WALSH PIZZI O’REILLY FALANGA LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 Telephone: (973) 757-1100 Facsimile: (973) 57-1090 Attorneys for Defendant Log-Net, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY AIR EXPRESS INTERNATIONAL, d/b/a DHL GLOBAL FORWARDING CORPORATION, and Ohio Corporation, Plaintiff, v. LOG-NET, INC., a Delaware corporation, Defendant. Civil Action No. 3:12-cv-1732-MAS-TJB Filed Electronically LOG-NET, INC.’S RESPONSE TO PLAINTIFF’S SUPPLEMENTAL STATEMENT OF DISPUTED MATERAL FACTS Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 1 of 15 PageID: 3933 On July 15, 2016, Plaintiff Air Express International d/b/a DHL Global Forwarding Corporation (“DHL”) submitted its Supplemental Local Civil Rule 56.1 Supplemental Statement of Disputed Material Facts in Opposition to Defendant LOG-NET, Inc.’s (“Log-Net”) Motion for Partial Summary Judgment. Pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1(a) of the United States District Court for the District of New Jersey, Log-Net hereby submits the following responses to DHL’s supplemental statement of allegedly disputed material facts. For the Court’s convenience, each of DHL’s alleged statement of disputed material fact is reproduced below, immediately followed by Log-Net’s response. 1. The express purpose of the License Agreement was to allow DHL to purchase licenses from Log-Net so that DHL could use Log-Net’s software to service DHL’s customers in connection with DHL’s shipping business. License Agreement at ¶ 3. Log-Net’s Response: Log-Net does not dispute that a portion of the express purpose of the License Agreement is set forth in the statement in paragraph No. 1. 2. The underlying shipping and transactional data of DHL’s customers belonged to each of those customers, and was not in any manner the “property” of Log-Net. Id. at ¶ 12; Nov. 25, 2014 Deposition of John Motley (“2014 Motley Dep.”) (Schleifstein Cert. Ex. C) at 45:1-6, 52:14-22. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 2. The transactional data is composed of both customer information and Log-Net processing and formatting instructions and information. The information created by the customer is their “property” however the transactional data in Log-Net transactions in the Log-Net system, screens, Electronic Data Interchange files are composed significantly of Log-Net proprietary information, which is “property” of Log-Net. 3. The License Agreement does not define the phrase “reverse engineering.” 2016 Motley Dep. at 71:6-9. Log-Net’s Response: Log-Net does not dispute the statement in paragraph No. 3. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 2 of 15 PageID: 3934 4. In 2008, DHL had become dissatisfied with its business relationship with Log-Net and explored the concept of moving its customers to a different supply chain management software platform. Jones Dep. at 71:7-11, 104:7-105:4; Bertsch Dep. at 92:5-14. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 4. As DHL asserts below, it conducted a Request for Proposal to select a new software vendor and Log-Net was included in that process. It is a reasonable inference that DHL would not have included Log-Net in that process if it was dissatisfied with its business relationship with Log-Net. DHL repeatedly advised Log- Net and its clients that it was enhancing its offering with a two system model. 5. DHL conducted a Request for Proposal (“RFP”) process to select a software vendor, in which Log-Net was invited to compete against several other companies. Jones Dep. at 71:12- 21. Log-Net’s Response: Log-Net does not dispute the statement in paragraph No. 5. 6. Following the RFP process, DHL ultimately selected GT Nexus as its new software partner, and those parties entered into a contract in November 2009. Bertsch Dep. at 92:21-93:4. Log-Net’s Response: Log-Net does not dispute the statement in paragraph No. 6. 7. Over the course of a four-year period from April 2010 to February 2014, DHL and GT Nexus migrated DHL customers from the Log-Net platform to the GT Nexus platform. Jones Dep. at 277:20-22, 236:10-25. Log-Net’s Response: Log-Net does not dispute the statement in paragraph No. 7, but for the fact that Log-Net has evidence, set forth in its opposition to DHL’s Motion for Summary Judgment that portions of the Log-Net system are still being used by DHL today. DHL also began providing LOG-NET proprietary and confidential information to DHL including infringing copies of its database designs and trade secret processing methods of this database design to GT Nexus as early as 2009. Haefner Decl. Ex 4 at 114:12-131:17; Haefner Decl. Ex. 5 at 146:3-174:10. 8. In his position as an IT Implementation Manager employed by DHL, James Bocchino was responsible for interfacing with DHL’s existing customers to determine and implement their business data requirements so that they could be transitioned to GT Nexus, which had a different method for formatting data than that used by Log-Net. Bocchino Dep. at 72:2-22. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 3 of 15 PageID: 3935 Log-Net’s Response: Log-Net disputes that the cited deposition testimony states anything about Mr. Bocchino’s role with GT Nexus. And indeed, Mr. Bocchino’s testimony states on its face that he interacted with customers to learn what data their EDI documents should contain. However, he submitted requests, through Ms. Costa of DHL as to the processing logic of Log-Net, without divulging to Log-Net the true intent of the use of this knowledge was to use the Log-Net transactions with GT Nexus. 9. As part of the project described in paragraph 8 above, Mr. Bocchino was required to familiarize himself with customer business data that was stored within the Log-Net software to ensure that all of the data was effectively transitioned to GT Nexus. Id. at 81:22-82:7. Log-Net’s Response: Log-Net disputes this statement. The cited testimony makes clear that Mr. Bocchino was inquiring why the software had an error message in a log file that was hundreds of pages long. Haefner Decl. Ex. 1 at 85:15-86:18. This was not a request for data but a request as to why there was an error message. Mr. Bocchino was inquiring about how Log-Net processed its processing instructions embedded in the Log-Net file format, not the customers’ business content. He confirmed he did not know the business process. He did not consult industry or customer sources and he was copying Log-Net’s processing methods. Id. at 176:3-180:17. As Mr. Bocchino testified he “was “was just trying to figure out exactly -- again, the data that was being loaded into Log-Net, exactly how it was being used so [he] could understand it to make sure that [he] did the same thing in the GT Nexus situation.” Id. 180:13-17. 10. The business data with which Mr. Bocchino was required to familiarize himself with might include, for example, quantity of products, volume of products, purchase order numbers, and shipping addresses. Id. at 82:16-18. Log-Net’s Response: Log-Net admits that this is the sort of business requirement data that Mr. Bocchino could properly be looking for from his clients. That is, what custom information they expected to see on their shipping documents. Notably, Mr. Bocchino never testified that he asked Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 4 of 15 PageID: 3936 his clients for anything, rather he looked through Log-Net. Finally, as set forth in the Moving Statement of Fact, what Mr. Bocchino was interested in finding out from Log-Net was not what data was contained but how Log-Net moved that data from place to place in the system. 11. None of the DHL customer business data that was being transitioned to GT Nexus constitutes proprietary information of Log-Net. License Agreement at ¶ 12; 2014 Motley Dep. at 45:1-6, 52:14-22. Log-Net’s Response: Log-Net does not dispute that customer business data could be transitioned to GT Nexus. Log-Net disputes that Mr. Bocchino was doing that. Mr. Bocchino was asking for Log-Net formatting and processing contained in Log-Net’s transactions see Response 9. 12. It was not necessary for Mr. Bocchino to know or understand how customer business data was actually stored or used within the Log-Net system, nor how the Log-Net software ultimately functioned with regard to that data; rather, his task was simply to ensure that all relevant customer business data was captured and transitioned to the GT Nexus platform. Bocchino Dep. at 82:2-7, 105:14-19, 135:11-20, 216:22-25, 237:4-8, 237:20-24. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 12. If Mr. Bocchino had no interest in Log-Net’s stored or used the data, he would not have demanded to know what buckets DHL’s client’s data was funneled to in the Log-Net system. As previously quoted in Response 9, Mr. Bocchino’s deposition testimony, Haefner Decl. Ex. 1 at 180:13-17, is in complete conflict with the fact claimed in Paragraph 12. 13. Although Log-Net would not provide Mr. Bocchino with the underlying logic of its applications, it did agree to provide him with “the usage parameters of the applications.” 2016 Motley Dep. at 82:7-86:7. Log-Net’s Response: Log-Net provided Mr. Bocchino with a standard list of warnings that the system generated, not an explanation of why those warning would occur. Log-Net usage documentation provides settings that will create information in Log-Net it does not describe how the processing will occur within Log-Net. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 5 of 15 PageID: 3937 14. Log-Net permitted Mr. Bocchino to receive information about how one of its allocation applications was used so that DHL could provide support to its customers. Id. at 90:13- 91:1, 92:5-6. Log-Net’s Response: Log-Net disputes that the cited testimony states this. Indeed, the testimony suggests that Mr. Bocchino was attempting a work around to discover how dating worked in the system after being told that the explanation would not be provided to him. Id. at 89:10-14. Mr. Bocchino and Ms. Costa also falsely claimed that the maintenance and enhancement requests being submitted were for a permitted use of the application and did not divulge to Log-Net that the use was to clone the capability in to GT Nexus. 15. Log-Net did not provide Mr. Bocchino with any information that it considered to be proprietary. Id. at 92:1-8. Log-Net’s Response: Log-Net disputes that the cited testimony states this. Log-Net also disputes that Mr. Bocchino could have a valid opinion on what was proprietary to Log-Net. In fact, Mr. Bocchino testified that states he did not know what he was asking for in this request to Log-Net. In reality Mr. Bochino was instructed by Mr. Jones to change the request to meet with a developer to get allocation logic that was not forthcoming from Log-Net. Haefner Decl. Ex. 1 at 93:1-11. Mr. Bochino admitted he did not know what the content was he was asking for, that Ms. Costa and Mr. Jones were driving the content of the request he was fronting, and that in fact he never even attended the conference with the developers for what was supposed to be his request. Mr. Jones and Ms. Costa swapped in to the conference changing the request for from date processing, id. 93:1-8, to weight, volume and invoice value handling in Log-Net allocation processes. Id. 129:1- 131:23. This is the same Log-Net processing logic that is the subject of the fake maintenance requests that were the subject of the injunctive relief which Log-Net was ultimately forced by the court to provide. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 6 of 15 PageID: 3938 16. When Mr. Bocchino asked a Log-Net software developer “what bucket” certain data was “mapped” to, he “was not really interested in how Log-Net maps anything”; instead, he “just wanted to know what the values of those fields were.” Bocchino Dep. at 202:13-15. Log-Net’s Response: Log-Net disputes this statement. Mr. Bocchino had already been told the field values. Wanting to know where data goes (that is where it is mapped to) is asking specifically what and how the Log-Net system uses the data – not what the data is. Haefner Decl. Ex. 1 at 202:13-15, 180:13-17. 17. When Mr. Bocchino told a Log-Net employee that he was “trying to identify [the] usage” of certain optional fields data, he meant simply that he was attempting to determine what customer data was being used in the optional fields – not how that data was being used or why Log-Net used, named or numbered particular fields as optional fields. Id. at 225:20-226:2, 232:11- 14. Log-Net’s Response: Log-Net disputes that Mr. Bocchino’s subsequent convenient recollection of what he meant can vary the import of what he actually said in his initial writing. Optional fields contain both customer and Log-Net control, meta data and processing instructions. In particular “reserved optional fields” are “reserved” for use by Log-Net in internal proprietary methods and formats. The existence of these reserved optional fields was well known to DHL. Haefner Decl. Ex. 1 at 236:6-11; Haefner Decl. Ex. 3 at 153:19-35. The majority of Mr. Bocchino’s processing requests, and those of the support demanded for the injunction involved divulging the format and use of these proprietary Log-Net “reserved optional fields.” 18. As part of his duties, Mr. Bocchino also created “task lists,” which outlined a list of reports and transactions used by DHL’s customers, and which were created merely to understand the customer data being loaded into Log-Net so that similar or identical data could also be loaded into GT Nexus. Id. at 288:20-295:12. Log-Net’s Response: Log-Net disputes that Mr. Bocchino’s task lists which describe is desire to “map” the functionality of Log-Net can be fairly understood to mean that he wanted to know what data was important to DHL’s customers. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 7 of 15 PageID: 3939 19. When he used the phrase “reverse engineering” to describe some of his activities, Mr. Bocchino was merely interested in (a) understanding, from Log-Net’s perspective, what certain data meant, (b) determining what customer data resided in Log-Net and accounting for that data in the new GT Nexus system, and (c) ensuring that there would be a “home” for the data in the new GT Nexus system – not in determining the location of the data in the Log-Net system or how the Log-Net system managed the data. Id. at 295:3-12, 296:3-297:20. Log-Net’s Response: Log-Net disputes that limited selections of Mr. Bocchino’s testimony, which also emphasized his desire to understand when and how Log-Net used data, see response to paragraph 16 above, can be used to vary his statement that he was reverse engineering Log-Net. 20. In the context of Log-Net’s software and services, reverse engineering would consist of “activities to actually replicate the source code or the technical design in some fashion, and not simply trying to understand underlying business functionality. Sterling Report at ¶ 71. Log-Net’s Response: Log-Net disputes that Mr. Sterling can fulfill the Court’s role of providing a plain meaning to an undefined contractual term. 21. Log-Net uses a completely different database technology from GT Nexus, which would make any kind of one-to-one copy of a database design impossible and of no use. Id. at ¶ 79. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 21. Mr. Sterling contradicted his own report when he correctly testified at his deposition that the GT Nexus database technology (Microsoft SQL Server) was originally the same (“a spin off”) as Sybase (noted as “Cybase” in the transcript). LOG-NET’s database technology is Sybase. Haefner Decl. Ex. 5 at 54:18-19. While his report states that they are “completely different” his testimony admits “Cybase [sic] and [Microsoft] SQL are pretty close.” Id. 206:1-2. This is also obvious from the very public industry facts that Sybase wrote the original versions of Microsoft SQL Server. Both systems also process the SQL-92 database language (Log-Net’s technology) identically. 22. Mr. Bocchino’s task lists of customer reports and transactions were required to ensure that the same information would be generated by GT Nexus. Id. at ¶ 97. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 8 of 15 PageID: 3940 Log-Net’s Response: Log-Net disputes that Mr. Bocchino had to understand how Log-Net used or mapped information in order to know what data customers wished to use. 23. Ensuring that the same customer report and transaction information would be generated by GT Nexus was a very common practice in the industry when migrating data and is necessary 100% of the time, as there was a need to provide DHL’s customers with the same information they had been getting from the Log-Net system. Id. Log-Net’s Response: Log-Net disputes the statement in paragraph 23. Insuring that a system can process customer information in the uses that customer would like is the industry standard practice of “Use Case Analysis.” Use case analysis is performed with a Customer. DHL’s analysis was of Log-Net’s functions and uses. Copying other people’s system is not a standard industry practice 100% of the time. 24. Nothing in the discovery record indicates that Log-Net’s reports were copied into the GT Nexus system (or could be), or that GT Nexus used any Log-Net source code of other Log- Net functionality to create reports. Id. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 24. The record is flooded with copied reports definitions, logic and wholesale cut and paste of Log-Net report definitions in its help guide to GT Nexus. Haefner Decl. Ex. 3 at 213:1-11. Even copies of reports provided to GT Nexus’s president by DHL directors who acknowledged to GT Nexus that there were copyright issues. Haefner Decl. Ex. 4 at 156:18-157:21. In some instances, DHL meticulously instructed GT Nexus to copy Log-Net’s reports and layouts to the millimeter, Haefner Decl. Ex. 6, in order to create an exact counterfeit in GT Nexus. DHL’s transgressions in this regard extended to providing infringing copies of LOG-NET’s database structure for these areas, Haefner Decl. Ex. 4 at 114:12-, and when the database definitions were not sufficient multiple rounds of e-mails on Log-Net database logic were provided by DHL developers in Hong Kong, Pierre Wong of DHL Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 9 of 15 PageID: 3941 Hong Kong, Mr. Jones to Ron Park, GT Nexus director of Product Development. Id. 116:4- 131:17; Haefner Decl. Ex. 5 at 188:22-293:10. 25. Mr. Bocchino’s actions in “mapping” certain customer data to GT Nexus reflect a typical migration process, in which DHL was attempting to determine the contents of EDI transactions being sent by DHL to Log-Net to enable DHL to remap them into GT Nexus, so that they would work with GT Nexus’s unique format. Id. at ¶ 105. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 25. Mr. Bochino’s queries greatly exceeded mapping customer data. Haefner Decl. Ex. 1 at 180:13-17. In some instances, his inquiries were only fronts where he would be the nominal party making a maintenance request and then Mr. Jones and others were swapped in to meetings with developer requesting completely different information that was explicitly not divulged through normal channels of communication. DHL’s audacity goes to the point that Mr. Bochino never even attended the calls requested on his behalf. Haefner Decl. Ex. 1 at 128:3-131:12; see also Response 9. 26. The mapping of customer data to GT Nexus is not copying the Log-Net system; rather, it is simply migrating the customer data from one system to another system. Id. Log-Net’s Response: Log-Net disputes that Mr. Bocchino engaged in simply migrating customer data and the use of the word “mapping” indicates that Mr. Bocchino was engaged in learning the location and processing logic of data in Log-Net – not simply the type of data at issue for a customer. Haefner Decl. Ex. 1 at 180:13-17, 128:3-131:112. 27. Mr. Bocchino loosely used the phrase “reverse engineering” in the context of his efforts to understand what certain data elements meant in the Log-Net system to know what to migrate, and he did so with Log-Net’s consent. Id. at ¶ 149. Log-Net’s Response: Log-Net disputes that Mr. Sterling can give an opinion on the meaning of “reverse engineering” or that Mr. Sterling can opine on what a witness meant when he used the phrase. Mr. Sterling, when questioned about errors regarding his testimony on EDI and his inability to answer questions regarding EDI transactions (the topic of this summary judgement) Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 10 of 15 PageID: 3942 repeatedly responded to these gaps in testimony stating: “I am not an EDI Specialist.” Haefner Decl. Ex. 5 at 267:13, 270:19, 277:2. DHL, however, relies on his testimony despite his clear and repeated admission that he does not know the subject matter well. Mr. Bocchino’s requests were for Log-Net reserved optional fields and for Log-Net processing based on the processing instructions in a file not simply the contents of the customer data. Haefner Decl. Ex. 1 at 180:13- 17. Mr. Bocchino exceeded the boundary of mapping data to a new system when he demanded Log-Net’s processing logic and the non-customer definition use and implementation of Log-Net’s reserved optional fields. 28. Mr. Bocchino’s use of the phrase “reverse engineering” was related to mapping data from Log-Net to GT Nexus and nothing more. Id. Log-Net’s Response: See response to paragraph No. 27. 29. Understanding what fields mean is not reverse engineering a “feature,” nor is it reverse engineering of Log-Net software. Id. Log-Net’s Response: Log-Net disputes the statement in paragraph 29. If the field at question is a proprietary processing instruction, formatting instruction, logical operator, formula or other instruction, means or method used by the Log-Net system then deriving an understanding of its meaning and, or, use is, as Mr. Bocchino confirmed, reverse engineering. 30. The act of looking at tables and pulling some information from them is not reverse engineering, and is a very common business practice for doing business intelligence systems or data warehousing, or on any occasion when one wants to “marry” the information from one system to another. Sterling Dep. at 219:11-17. Log-Net’s Response: Log-Net disputes the statement in paragraph 30. Log-Net has not sought summary judgment on DHL’s use of data. While the methods used by DHL in this example exceed the permitted uses under the License Agreement this issue is not material to this request for summary judgement. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 11 of 15 PageID: 3943 31. Mr. Bocchino was not a programmer; rather, his position was to manage and handle messaging systems coming in and out. Id. at 245:18-22, 254:11-13, 258:7-12, 279:9-12. Log-Net’s Response: Log-Net admits this statement. 32. Mr. Bocchino was primarily concerned about identifying the data elements and identifying what he was going to have to transpose from one format to a completely different format. Id. at 254:7-10. Log-Net’s Response: Log-Net disputes that Mr. Bocchino’s efforts to map the Log-Net system were limited to this type of transposition. Indeed, he stated he wanted Log-Net to tell him what buckets the data moved to at each stage and how Log-Net processing instructions worked. Haefner Decl. Ex. 1 at 180:13-17. 33. Mr. Bocchino’s use of the phrase “reverse engineering” was simply a poor choice of words on his part, because his job had only been to convert customer data from Log-Net’s EDI format to GT Nexus’s XML format. Id. at 249:24-250:23, 277:7-279:12. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 33. Mr. Bocchino’s plain usage of the term “reverse engineering” was a perfect description of his effort to recreate Log- Net’s functionality. 34. The mapping of customer data elements from the Log-Net system into the GT Nexus system during the transition process to GT Nexus required only looking at particular fields that were serving a particular business requirement for a customer as they came into the Log-Net system, and what they needed to do to meet the business requirements in the GT Nexus system. Jan. 26, 2016 Deposition of Philip Oberhausen and Ron Park (Schleifstein Cert. Ex. J) at 20:20- 21:1, 21:7-11. Log-Net’s Response: Log-Net disputes that this fact is material as GT Nexus’s employees were not asked about the custom broker interface at issue in this motion. 35. GT Nexus did not attempt to reverse engineer components of the Log-Net system in its efforts to provide services to DHL. Id. at 108:1-5. Log-Net’s Response: Log-Net disputes that this fact is material as GT Nexus’s employees were not asked about the custom broker interface at issue in this motion and the cited testimony does Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 12 of 15 PageID: 3944 not discuss that interface. The evidence in the case shows that DHL reverse engineered the Log- NET system, provided that information to GT Nexus and did participate in the furtherance of this reverse engineering. Haefner Decl. Ex. 4 at 114:12-131:17; Haefner Decl. 6; Haefner Decl. Ex. 5 at 155:12-175:3. 36. Any attempts to reverse engineer the Log-Net software would have been pointless because GT Nexus uses entirely different tools and technology to produce its software. Id. at 108:13-110:19, 121:10-23, 233:10-234:14. Log-Net’s Response: Log-Net disputes that the plain language definition of reverse engineering it limited to source code and technology. Rather, understanding the efficient logical sequences that Log-Net uses to permit shipping is subject to reverse engineering without stealing source code. As previously noted in response to question 21, Mr. Sterling contradicted his report when he correctly testified at his deposition that the GT Nexus database technology (Microsoft SQL Server) was originally the same (“a spin off”) as Sybase (noted as “Cybase” in the transcript). LOG- NET’s database technology is Sybase. Haefner Decl. Ex. 5 at 54:18-19. While his report states that they are “completely different” his testimony admits “Cybase [sic] and [Microsoft] SQL are pretty close.” Id. at 206:1-2. As was previously noted, Sybase wrote the original versions of Microsoft SQL Server. Both systems also process the SQL-92 database language (Log-Net’s technology) identically. 37. None of Log-Net’s financial statements indicated the individual product development costs for each of the items that it alleges had been reverse engineered by DHL. 2015 Motley Dep. at 16:21-17:15. Log-Net’s Response: Log-Net does not dispute the statement in paragraph No. 37. Log-Net financial statements are not required to do so. 38. In determining Log-Net’s research and development (“R&D”) costs, the hours spent by a particular employee on developing a particular feature were not contemplated; to the Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 13 of 15 PageID: 3945 contrary, R&D costs for several years were computed based on the salaries of Log-Net’s developers. Id. at 23:13-25:11, 28:11-22, 30:7-20. Log-Net’s Response: Log-Net disputes the statement in paragraph 38. LOG-NET’s allocation of research and development costs followed generally accepted accounting principles. LOG-NET R&D costs were prepared by Log-Net internal Certified Public Accountants and most years verified by external auditors. Individual hours by item were accounted for in numbers derived from LOG-NET’s Wally system. Haefner Decl. Ex. 7 at 70:21. 39. There were several years for which Log-Net could not determine, with certainty, how its accountants had calculated its R&D costs. Id. at 43:3-7, 49:17-50:10. Log-Net’s Response: Log-Net disputes the statement in paragraph No. 39. The question stated at the deposition was to provide the details of how a single number on an exhibit was calculated without the underlying document. The response simply stated that without the underlying details that calculation could not be performed in the deposition “sitting here today.” Haefner Decl. X. 7 at 43:3. The second citation was a reference to a transcription error on a summary document where Log-Net affirmed that the numbers calculated by their accounts were correct. Id. at 50:5-7. 40. None of Log-Net’s financial documents explicitly indicated how much time or cost was spent developing its optional fields. Id. at 191:6-192:1. Log-Net’s Response: Log-Net disputes that this fact is material and that the statement does not represent the testimony provided. Log-Net testified that DHL was provided the developer hour details and the resultant financial statements. The derivation of these costs was performed by CPAs and external auditors using their working papers to perform these calculations. Motley Decl. Ex. 7 at 191:20-192:2. 41. Log-Net’s payroll records cannot be used to arrive at a meaningful or reliable estimate of the company’s R&D costs, as there is no practical way to determine how many hours each employee (particularly those engaged in purely non-technical positions) devoted to such tasks. Daidone Dep. at 87:6-94:11. Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 14 of 15 PageID: 3946 Log-Net’s Response: Log-Net disputes the statement in paragraph No. 41 because as a legal matter, damages are not required to be calculated with precision to be awardable. BY: s/Marc D. Haefner Marc D. Haefner WALSH PIZZI O’REILLY FALANGA LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 Telephone: (973) 757-1100 Facsimile: (973) 757-1090 Attorneys for Log-Net, Inc. DATE: August 5, 2016 Case 3:12-cv-01732-MAS-TJB Document 169-1 Filed 08/05/16 Page 15 of 15 PageID: 3947 Marc D. Haefner WALSH PIZZI O’REILLY FALANGA LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 Telephone: (973) 757-1100 Facsimile: (973) 57-1090 Attorneys for Defendant Log-Net, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY AIR EXPRESS INTERNATIONAL, d/b/a DHL GLOBAL FORWARDING CORPORATION, and Ohio Corporation, Plaintiff, v. LOG-NET, INC., a Delaware corporation, Defendant. Civil Action No. 3:12-cv-01732-MAS-TJB DECLARATION OF MARC D. HAEFNER IN FURTHER SUPPORT OF LOG-NET INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Filed Electronically I, Marc D. Haefner, declare as follows: 1. I am a partner with the firm of Walsh Pizzi O’Reilly Falanga LLP, counsel for Defendant Log-Net, Inc., (“Log-Net”) in connection with the above captioned matter. 2. I make this Declaration in further support of Log-Net’s Motion for Partial Summary Judgment. 3. Attached hereto as Exhibit 1 is a true and correct copy of excerpts of the transcript of the February 25, 2016 deposition of Jim Bocchino. 4. Attached hereto as Exhibit 2 is a true and correct copy of excerpts of the transcript of the November 11, 2015 deposition of Alex Wei. Case 3:12-cv-01732-MAS-TJB Document 169-2 Filed 08/05/16 Page 1 of 2 PageID: 3948 5. Attached hereto as Exhibit 3 is a true and correct copy of excerpts of the transcript of the November 5, 2015 deposition of Corey Bertsch. 6. Attached hereto as Exhibit 4 is a true and correct copy of excerpts of the transcript of the December 11, 2015 deposition of Brice Jones. 7. Attached hereto as Exhibit 5 is a true and correct copy of excerpts of the transcript of the May 27, 2016 deposition of David Sterling. 8. Attached hereto as Exhibit 6 is a true and correct copy of Log-Net’s FCR Measured by DHL provided to GT Nexus for Implementation. 9. Attached hereto as Exhibit 7 is a true and correct copy of excerpts of the transcript of the December 7, 2015 deposition of John Motley. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Dated: August 5, 2016 s/ Marc D. Haefner Marc D. Haefner Case 3:12-cv-01732-MAS-TJB Document 169-2 Filed 08/05/16 Page 2 of 2 PageID: 3949 EXHIBIT 1 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 1 of 232 PageID: 3950 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 ___________________________ 3 AIR EXPRESS INTERNATIONAL Civil Action No. 4 d/b/a DHL GLOBAL FORWARDING 12civ.1732(MAS)(TJB) CORPORATION, an Ohio 5 Corporation, DEPOSITION UPON ORAL EXAMINATION 6 Plaintiff, OF COREY BERTSCH 7 -v- 8 LOG-NET, INC., a Delaware Corporation, 9 Defendant. 10 ___________________________ 11 12 T R A N S C R I P T of testimony taken 13 stenographically by and before MARGARET 14 VOLLMUTH-CORSON, a Certified Court Reporter and 15 Notary Public of the State of New Jersey, at the 16 offices of GREENBERG TRAURIG, LLP, 200 Park Avenue, 17 Florham Park, New Jersey, on Thursday, 18 November 5, 2015, commencing at approximately 19 9:56 a.m. 20 21 22 23 24 25 Job No. CZ2185335 Page 1 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 2 of 232 PageID: 3951 1 where that's the customer's business need requires 2 us to postpone that inventory decision until later 3 in the process. Some of our customers know where 4 they're shipping it when they place the order, and 5 therefore they don't need an IPO/DPO type solution, 6 and in reality most of the DHL customers don't use 7 that type of solution. 8 Q. And if I just want to send something to 9 Hamburg from Florham Park I can send it by DHL, 10 right? And I already know where I want it to go. I 11 just put it in the DHL envelope and send it? 12 A. Yeah. That's a DHL Express, which is 13 a completely different entity within DHL, you know, 14 from what we work at. 15 Q. But that was your point about some 16 customers already know where they want to send it; 17 they just are sending one thing, and they're sending 18 it one place? 19 A. Correct. 20 Q. And all of this allocation and 21 splitting and warehousing is irrelevant? 22 A. Correct. 23 Q. Even though it might happen at a much 24 larger scale? 25 A. Correct. Page 85 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 3 of 232 PageID: 3952 1 Q. Were there some customers that did need 2 this IPO/DPO technology though? 3 A. Yes. 4 Q. And was there a way to do it other than 5 through some sort of software system? 6 A. I'm sure you could technically do it 7 through, you know, more inefficient systems like, 8 you know, Microsoft Excel and doing it through 9 spreadsheets and things like that if you had to, but 10 it would be extremely inefficient. 11 Q. So the customers would want a more 12 efficient solution, right? 13 A. Yes. 14 Q. And how many of your customers in 2008 15 were using this IPO/DPO kind of technology? 16 A. I don't know the exact number. Less 17 than 10. 18 Q. And in 2012 how many were using it, 19 whether it was the Log-Net system or -- 20 A. Less than 10. 21 Q. And the GT Nexus system that you 22 migrated customers to, did it work the same way? 23 MR. SCHLEIFSTEIN: Objection to the 24 form. You could answer. 25 A. At a high level conceptually it did Page 86 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 4 of 232 PageID: 3953 1 their support folks and troubleshoot issues with 2 them. 3 Q. Okay. 4 A. That was, you know, from 2007 onwards. 5 Q. And did there come a time when GT Nexus 6 took on some other role vis-a-vis DHL of which you 7 were aware? 8 A. Well, the wider DHL used GT Nexus also 9 as a carrier type service for carrier bookings, 10 freight procurement, stuff that really isn't 11 directly related to what we were -- you know, my -- 12 or the business product that I supported used. In 13 2008 we initiated an RFP to, you know, look at other 14 vendors, and GT Nexus was included in that. 15 Q. And when you say "other vendors," other 16 vendors than whom? 17 A. Other IT vendors. 18 Q. And that was meant to provide logistic 19 support like Log-Net had been doing? 20 A. Correct. 21 Q. And GT Nexus was one of the -- 22 A. One of -- 23 Q. -- entities -- 24 A. Correct. 25 Q. -- that responded to the RFP? Page 92 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 5 of 232 PageID: 3954 1 A. Correct. I believe we invited 21 2 companies, if I'm not mistaken. 3 Q. And GT Nexus was selected? 4 A. Correct. 5 Q. And did GT Nexus have a product ready 6 to go on day one? 7 MR. SCHLEIFSTEIN: Objection to the 8 form. You can answer. 9 A. Yes, for certain customers on day one 10 it had a completely ready product. 11 Q. Did that product have IPO/DPO 12 functionality or the equivalent? 13 A. Not at that time, no. 14 Q. Now, you spoke earlier about a 15 forwarder's cargo receipt. So what is a forwarder's 16 cargo receipt? 17 A. It's a formal origin control document 18 that is a document created at origin. It actually 19 includes things like vendor charges that a vendor 20 has to actually pay the com- -- pay DHL to release a 21 forwarder cargo receipt, and that indicates that the 22 goods are no longer in their ownership. 23 Q. And so -- 24 A. It's a control transfer document 25 essentially. Page 93 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 6 of 232 PageID: 3955 1 Q. And so when you say "the vendor," I'm 2 sorry to make it dumb, but that would be like the 3 factory that made the goods? 4 A. Potentially. Sometimes the suppliers, 5 not the factory, but yeah, someone at origin that's 6 fulfilling an order, one of our customers' orders. 7 Q. Okay. And who prepares the forwarder 8 cargo receipt? 9 A. DHL. 10 Q. And when does the -- this origin 11 vendor, when do they come into possession of the 12 forwarder cargo receipt? 13 A. It depends whether it's a CFS or a CY. 14 Typically if it's a CFS they get it sometime around 15 the point in time when they actually physically 16 deliver the goods to us. 17 Q. And remind me what a CFS is? And I'll 18 write it down this time. 19 A. Container freight station. It's 20 essentially a warehouse, a DHL warehouse where we 21 hold customer product. 22 Q. And what's a CY? 23 A. A CY is a -- stands for container 24 yard. It typically implies a full container load 25 that's stuffed by the -- by the supplier or factory. Page 94 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 7 of 232 PageID: 3956 1 Pisano from Michael A. Nicodema, is marked for 2 identification by the court reporter.) 3 Q. I'm going to show you a document we've 4 labeled as Bertsch-5 for identification. This is a 5 letter dated July 11 from counsel for DHL to the 6 Court, and again, this -- have you seen this 7 document before? 8 A. I don't recall. 9 Q. Okay. 10 A. If I did, I don't remember it. 11 Q. Well, let me ask you this. Did you 12 understand on July 11 of 2012 that DHL was still 13 pressing its request for sanctions against Log-Net? 14 MR. SCHLEIFSTEIN: Objection to the 15 form. You could answer. 16 A. I don't recall at the time. Given the 17 timeline, I'm a little fuzzy on the timeline here. 18 Q. Okay. And on page 3 do you see that 19 DHL was seeking to immediately be reinstated so that 20 it could have access to the Wally system? 21 A. Yes, I see that. 22 Q. And that was so DHL could track 23 outstanding requests and their status, correct? 24 A. I assume that's what it implies, yes. 25 Q. And that would be outstanding WIDs or Page 127 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 8 of 232 PageID: 3957 1 requests for support, whether they had been given a 2 formal number or not? 3 A. I'm not confident of that. I think 4 Wally only would show if there was a number. 5 Q. Oh. Okay. 6 A. Because I think it was a manual 7 process. When we submitted to inbox I think someone 8 still had to manually create a work ID, so if there 9 was never a work ID given back to us we wouldn't be 10 able to find that in the system. 11 Q. But it was at least if you got into 12 Wally you would at least be able to see what was 13 happening with the number WIDs? 14 A. Correct. 15 Q. Like WID 58137 -- 16 A. Correct. 17 Q. -- in your certification? 18 A. I would assume so if it behaved the 19 way it did before, yes. 20 Q. Okay. 21 MR. HAEFNER: Label this as Bertsch-6. 22 (Exhibit Bertsch-6, E-mail from Irene 23 Costa to Corey Bertsch dated July 12, 2012, with 24 attachment, is marked for identification by the 25 court reporter.) Page 128 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 9 of 232 PageID: 3958 1 Q. Have you had a chance to look through 2 that document? 3 A. Yes. 4 Q. Do you know why Irene Costa sent this 5 to you? 6 MR. SCHLEIFSTEIN: Objection to the 7 form. You can answer. 8 A. I probably asked about it because I 9 think at one point Log-Net, once they reinstituted 10 support, was asking about the history of this 11 specific case. 12 Q. And what is the auditor in the first -- 13 I mean -- 14 A. I don't know what she means by 15 auditor. 16 Q. Okay. 17 A. I have no idea. 18 Q. So that wasn't a term you were familiar 19 with? 20 A. No. 21 Q. And IShare, that's the internal DHL 22 system, correct? 23 A. The old system, yes. 24 Q. And you had access to IShare? 25 A. Yes, I did. Page 129 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 10 of 232 PageID: 3959 1 Q. Did you have remote access to IShare? 2 A. Yes. It's an on-line system. As long 3 as I was within the DHL VPN I could access it. 4 Q. So you could have accessed it from 5 California? 6 A. Correct. 7 Q. And what does that -- the second and 8 third page, what are these pages? 9 A. The second one is a -- just a snapshot 10 or a screen shot of the actual IShare system, and in 11 this specific one it's looking at the case submitted 12 by Ryan Coggin who was an operations customer 13 support personnel within the IFC, DHL IFC. 14 Q. And is he in the United States or in 15 China? 16 A. He's in the United States. 17 Q. And when it says the origin office has 18 advised of an ISF that needs to be cancelled, who's 19 writing that information? 20 A. Ryan would have submitted that 21 request. 22 Q. And what does the origin office mean in 23 that context? 24 A. Wherever the shipment originated, 25 someone -- an operator or control tower type person Page 130 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 11 of 232 PageID: 3960 1 there in origin. 2 Q. And this is dated May 22, 2012, 3 correct? 4 A. That appears to be, yes. 5 Q. That's the start date. What does the 6 start date mean? 7 A. When the case was initially open. 8 Q. And there's a heading on page 2 called 9 "Closed Date" as well. What does that date mean? 10 A. When this specific case was closed. 11 Q. And when was this specific case closed? 12 A. This was May 23. 13 Q. And what does the third page show us? 14 A. It looks like a comment trail from 15 people that touched the case, which here would 16 include Chris Burris and Irene Costa. 17 Q. And how do you read these in terms of 18 chronology? 19 A. Bottom up it appears. 20 Q. Who is Chris Burris? 21 A. He is a support analyst that works for 22 Irene. 23 Q. And who is Medha, M-e-d-h-a? 24 A. Where are you looking at? 25 Q. The second line from the bottom. Page 131 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 12 of 232 PageID: 3961 1 A. Oh, Medha. She's a support -- 2 Q. Medha -- sorry. 3 A. -- person at Log-Net. 4 Q. And once it was sent to Log-Net it has 5 its WID number, correct? 6 A. Correct. 7 Q. And then Irene Costa told you or tells 8 Ryan, excuse me, that she'll cancel the ISF and then 9 transmit the cancel, correct? 10 A. That's what it says here. Normally I 11 would -- what I recall is that these would go to 12 Log-Net to do that. 13 Q. But in this case it appears Irene Costa 14 did it? 15 A. Somehow it appears that I sent the 16 cancel. I don't know if Medha -- Medha could have 17 done something to enable her to cancel it. I don't 18 know the details of this specific, you know, back 19 and forth dialogue between Irene and Medha. 20 Q. If any? 21 A. If any, correct. 22 Q. If Medha had done something, would that 23 typically be captured in the notes? 24 A. Not always. It would more than likely 25 be captured in the Wally notes. Page 132 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 13 of 232 PageID: 3962 1 page, the first page. 2 Q. And what was the point about it being 3 the end of the month in your e-mail to Mr. Jones? 4 A. I honestly don't remember. I believe 5 it's because we had a specific number of days in our 6 agreement we had to notify of reductions so, you 7 know, this would have taken us all the way up to 8 whatever that -- I think it was 60-day notice to get 9 confirmation on this stuff, so I believe that's why 10 I mentioned the one thing. 11 Q. And what did you mean when you said 12 that "Should we just give them numbers or take a 13 different approach?" 14 A. I don't remember. 15 Q. Why did you think it was important or 16 perhaps important to get clarity on how it would be 17 counted? 18 A. Probably just for tracking purposes 19 and knowing for record-keeping how many seats are 20 actually in which environment. 21 Q. And you say to Mr. Jones, "I still 22 don't think he has a way to count it on our current 23 build level, but I could be wrong." Do you see 24 that? 25 A. Fair statement. Yes. Page 175 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 14 of 232 PageID: 3963 1 Q. What did you mean by that? 2 A. Well, again, I didn't think there was 3 a way that they were -- they were tracking usage of 4 the documentation seat independently of the user 5 seat. 6 Q. And so did you mean you thought you 7 could use more than 250 documentation seats in Hong 8 Kong? 9 MR. SCHLEIFSTEIN: Objection to the 10 form. You can answer. 11 A. No, I don't believe I was thinking 12 that at all. 13 Q. Well, what would the point be of 14 whether they could be counted or not? 15 A. My point was that it does -- you know, 16 identifying these seats is kind of an irrelevant 17 exercise if there's no way to count it or measure 18 it, how much usage is being used. We knew in USW 19 and CPM our footprint of using docs in those 20 environments were so low, and that's where Brice 21 says, you know, take it down to -- up above says 22 take it down to 4 or 5, and then in the other e-mail 23 he says take it down to 50. 24 Q. So why were you guys so concerned about 25 whether they could be counted or not counted? Page 176 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 15 of 232 PageID: 3964 1 A. I don't know if we were necessarily 2 concerned. I think we just found it ironic that 3 they're asking us if they don't have a way to count 4 it. That was our belief. You can speak to Brice 5 and get his take on it, but that's what I recall 6 from this situation at the time. 7 Q. Well, who is in the top e-mail, the 8 first e-mail dated January 31, who is Julia? 9 A. Julia Peixoto. She's internal legal 10 counsel. Spell it? 11 Q. P-e-i-x-o-t-o, Peixoto? 12 MR. SCHLEIFSTEIN: Right. 13 MR. HAEFNER: I had a case with a 14 whole family of Peixotos. 15 Q. Do you know what letter was coming from 16 Julia early next week? 17 A. I don't remember, no. 18 Q. It says in the next sentence, "Copy her 19 on the response so she can add this to the breach 20 letter as well beyond just the 'normal' seats that 21 were in question." 22 MR. SCHLEIFSTEIN: Objection to the 23 form. You can answer. 24 A. I think -- I think this was related to 25 the documentation -- or sorry, the user seats that Page 177 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 16 of 232 PageID: 3965 1 were inactivated in our environment. I believe 2 that's what led to the breach letter that Brice is 3 referring to here. 4 Q. And so those concurrent user seats, 5 that's what you taught me, right, that's what 6 they're called? 7 A. I think so, yeah. 8 Q. And there were concurrent user seats 9 that were improperly deactivated? I mean 10 deactivated in violation of the contract in January 11 of 2012? 12 MR. SCHLEIFSTEIN: Objection. Are you 13 asking him for a legal conclusion? 14 Q. Let me ask a different question. Were 15 there concurrent user seats that were deactivated in 16 January of 2012? 17 A. They were deactivated. The date I'm 18 not a hundred percent confident of. I don't 19 remember the exact date. 20 Q. Who deactivated them? 21 A. We would assume someone from Log-Net. 22 Q. It wasn't you? 23 A. No. 24 Q. Had you requested that they be 25 deactivated? Page 178 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 17 of 232 PageID: 3966 1 A. No. The only thing we had sent was 2 the actual notification letters to stop subscription 3 on those seats. Stop the subscription but not the 4 actual deactivation itself. 5 Q. What's the difference between stopping 6 the subscription and deactivating the seat? 7 A. Stopping the subscription would 8 essentially mean that those users wouldn't have 9 access to any upgraded software or the other 10 benefits of the subscription service. 11 Q. But the seat would still be in place? 12 A. Based on the idea that we had 13 perpetual rights to that seat, correct. 14 Q. And by this point in time, January 31, 15 2012, there were already seats which had been not 16 only taken off subscription, but deactivated? 17 A. Yes. 18 Q. Okay. And what do the documentation 19 seats have to do with that issue? 20 A. I don't think they're directly 21 related. 22 Q. So why was it necessary -- I mean, 23 maybe the answer is you don't know, but do you know 24 why it was necessary for you to copy Julia on your 25 response to Log-Net? Page 179 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 18 of 232 PageID: 3967 1 A. I don't -- 2 MR. SCHLEIFSTEIN: Objection to the 3 form. You could answer. 4 A. I don't recall the context. At that 5 time I, again, was listening to Brice and taking his 6 guidance. 7 Q. What did you understand Brice to be 8 saying in the second full sentence? 9 MR. SCHLEIFSTEIN: Objection to the 10 form. You could answer. 11 A. I think it was a typo. If I read that 12 correctly, I think it's -- I think he meant to say 13 because with perpetual license it doesn't matter, 14 but I could be wrong. 15 Q. That was actually part of my question. 16 I mean, do you remember reading it when you received 17 it? 18 A. I don't remember what happened five 19 years ago, almost six years ago, or four years ago. 20 Q. And the concurrent user seats that you 21 believed had been deactivated by January 31, 2012, 22 how many seats were deactivated? 23 A. I believe it was 45, I believe. 24 Q. And had they been upgraded? What 25 version were those seats running? Page 180 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 19 of 232 PageID: 3968 1 A. I don't remember. 2 Q. Do you know whether they were running 3 2012 software? 4 A. I don't remember, but that wasn't the 5 way Log-Net called versions. They didn't call it 6 2012, so -- 7 Q. Well, were they running a version that 8 had come out in 2012? 9 A. I don't know the detail. I don't 10 recall the detail. 11 Q. Do you know whether they were running a 12 version that came out in 2011? 13 A. Don't remember. 14 Q. Okay. The spreadsheet that you kept 15 that listed all the versions that were running on 16 each environment, would that answer the question? 17 A. Yes. Yes. 18 Q. Were the environments subdivided, so 19 like maybe some seats on ISC1 were running one 20 version and other seats on ISC1 were running a 21 different version? 22 A. That's the interpretation of 23 perpetual, that Log-Net would be able to allow that. 24 If you had perpetual seats that we were paying 25 subscription on, those -- those users should be Page 181 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 20 of 232 PageID: 3969 1 A. Yes. 2 Q. So you felt you were entitled to all 3 700 documentation seats even though some were not 4 subject to being upgraded because they were no 5 longer subject to subscription? 6 A. Correct. 7 Q. Okay. And is that how you understood 8 the concurrent user seats to work as well? 9 A. Yeah. I mean, I think the 10 perpetuality (sic) point of it was the same whether 11 it was a concurrent seat or a documentation seat. 12 Our belief was that there would be -- the perpetual 13 license acts in the same fashion. 14 Q. So this just happened to be -- the 15 documentation seats happened to be the subject of 16 these conversations, but the relationship between 17 the perpetual licenses to the seats and the seat 18 upgrades was the same regardless of whether it was 19 the license -- whether it was the documentation 20 seats or the concurrent user seats? 21 A. The handling, but the fact that, you 22 know, we interpret them as being two separate and 23 distinct things, right? A doc seat versus a user 24 seat were two completely independent things. 25 Q. Understood. That was your position, Page 189 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 21 of 232 PageID: 3970 1 but your position as to concurrent user seats was 2 also -- and I just -- again, you thought that they 3 were subject to a perpetual license, correct? 4 A. Correct. 5 Q. The total number that you had purchased 6 in 2008 pursuant to the contract, correct? 7 A. 700, correct. 8 Q. That you could eliminate subscriptions 9 to some of those 700 seats, correct? 10 A. Correct. 11 Q. That just because the subscription was 12 eliminated didn't mean that you could no longer use 13 the seat, correct? 14 A. Correct. 15 Q. It just meant that that particular seat 16 was no longer subject or permitted to receive free 17 upgrades? "Free" is the wrong word. 18 A. Correct. 19 Q. Was no longer given the bundle of 20 rights associated with the subscription, the 21 upgrades, -- 22 A. Correct. 23 Q. -- bug fixes, support? 24 A. Correct. 25 Q. Okay. And did you -- I don't want to Page 190 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 22 of 232 PageID: 3971 1 know what she said to you. Did you, in fact, send 2 this to Julia Peixoto? 3 A. I'm pretty confident I did, but I 4 don't remember the e-mail or what I wrote. 5 Q. Well, I wouldn't have asked you anyway. 6 MR. SCHLEIFSTEIN: Right. 7 Q. And it certainly wasn't produced to us, 8 nor would I expect it to be. 9 (Exhibit Bertsch-17, Two-page 10 spreadsheet labeled Past/Current Payments Bates 11 stamped DHL 00520079, is marked for identification 12 by the court reporter.) 13 Q. Tell me when you've had an opportunity 14 to look at this. 15 A. Okay. 16 Q. Do you know who prepared this document? 17 A. I believe this was my document. 18 Q. And what was the purpose of preparing 19 this document? 20 A. Just to chart out payments and 21 expected payments to Log-Net for subscription 22 purposes. 23 Q. And what was the payment period under 24 the contract? I mean, how long after you received 25 the invoice were you required to pay? Page 191 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 23 of 232 PageID: 3972 1 A. I believe the contract, the latest one 2 was net 30, I believe. Net 30 days. 3 Q. And for the third line down which 4 reads, "30-Apr," do you see that line? 5 A. Yep. 6 Q. Do you know why it says "No Invoice"? 7 A. I believe that's at that time Log-Net 8 wasn't invoicing us after those dates even though we 9 were expecting invoices, which is why we accrued for 10 them in the accrual column. 11 Q. Where did the Log-Net invoices go? I 12 mean, how did they get to you? 13 A. They would come from Wang Poon at 14 Log-Net. 15 Q. And to whom would they be sent? 16 A. To me directly. 17 Q. And they would be sent paper format or 18 electronically? 19 A. Electronic. I believe at one time she 20 also sent them paper to a mailing address in New 21 Jersey, but I typically managed the process through 22 pdf version of the invoices. 23 Q. And how would it be sent, via e-mail, 24 or was there some internal -- 25 A. E-mail. Page 192 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 24 of 232 PageID: 3973 1 Q. -- vendor system? 2 A. E-mail. 3 Q. All my questions are half a phrase too 4 long, Mr. Bertsch. 5 And there are subscriptions identified 6 that you're going to pay for in 2013. That's a 7 prediction, right? 8 A. Yes. 9 Q. Because -- 10 A. Future payments. 11 Q. Yes. Because this document lists past 12 payments and then future payments, so it must have 13 been created sometime in May or June of 2012, 14 correct? 15 A. Correct. 16 Q. Do you know why you created this 17 document? 18 A. I'm assuming it was for planning and 19 budgeting purposes. Within DHL they have very rigid 20 financial reporting and budgeting purposes where 21 each month I had to do a year-to-date plus whatever 22 remaining months in the forecast, and they required 23 an estimate of what they thought I was going to be 24 spending, you know, every month essentially. 25 Q. Were payments made in 2013 pursuant to Page 193 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 25 of 232 PageID: 3974 1 this schedule? 2 A. 2013. I don't believe so. 3 Q. And why not? 4 A. Well, after this point in time in 5 April 30 Log-Net stopped invoicing us, it got -- you 6 know, the legal teams from both sides got involved, 7 and after that we never received invoices. 8 Q. Okay. And just for the sake of the 9 record, I note that at one point you sort of 10 gestured to counsel, correct? 11 A. Correct. 12 Q. So at a certain point a lawsuit was 13 filed, correct? 14 A. Correct. 15 Q. And you're telling me that after that 16 the invoices stopped coming? 17 A. Correct. 18 Q. Okay. 19 A. At some point. In 2012 at some point 20 they stopped. I don't remember when. In 2013 I'm 21 fairly confident we didn't receive any invoices. 22 Q. Okay. And did you think that if you 23 didn't receive the invoices, you weren't required to 24 pay? 25 A. I guess we could assume that. Not Page 194 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 26 of 232 PageID: 3975 1 charged quarterly? 2 A. Quarterly, correct. 3 Q. And again, depending on what was 4 happening, parts of those fees could be higher or 5 lower? 6 A. Subscription is what it is, and this 7 -- actually, our subscriptions, we've bought some 8 new stuff that has actually driven this number up a 9 little bit, but not -- not, you know, by a lot. 10 Q. Okay. 11 MR. HAEFNER: Can you mark that as 12 Bertsch-20? 13 (Exhibit Bertsch-20, 20-page e-mail 14 string, top e-mail being from Alex Wei to Corey 15 Bertsch dated July 30, 2008, is marked for 16 identification by the court reporter.) 17 Q. I really just have questions about the 18 most recent series of e-mails. 19 A. Okay. 20 Q. Your e-mail at the bottom of the first 21 page dated July 30, 2008, I'm looking at Bertsch-20 22 for identification, what was your concern that you 23 were addressing to Alex Wei? 24 A. Well, a couple of concerns. The first 25 one was that Alex -- we didn't want Alex going Page 206 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 27 of 232 PageID: 3976 1 Q. I see. 2 A. The voice of the customer, 3 essentially. 4 Q. In the middle e-mail, well, the e-mail 5 from Natascha Northrup dated February 9, 2010, at 6 9:36 a.m., she references, "It is beneficial to 7 DGF." Who is DGF? 8 A. DHL Global Forwarding. 9 Q. Okay. And what are these other 10 acronyms, AMLA? 11 A. AMLA essentially means Latin America. 12 ASPA, A-S-P-A, equates to Asia Pacific, and EMEA is 13 Europe, Middle East, and Africa. 14 Q. Okay. And she wants people to -- it 15 says they were trying to establish standard reports 16 that the customers would want to use, correct? 17 A. Correct. Well, either customers or 18 that themselves, you know, for whatever they do, the 19 services they provide for our customers. 20 Q. Okay. 21 A. So these folks also run reports in the 22 system. 23 Q. And you are cc'd on the top e-mail from 24 Brice Jones to Michael Wiggins. Who is Michael 25 Wiggins? Page 235 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 28 of 232 PageID: 3977 1 A. Michael Wiggins at the time I -- he's 2 taken different positions over the course of the 3 last five years. At the time I believe he was still 4 working on the Toys-R-Us account. At one point he 5 was an in-plant at Toys-R-Us, so he actually sat at 6 Toys-R-Us, and then I believe at this time he was 7 one of the -- shifted out of that position and took 8 on a regional operation manager role, so he had -- 9 he was essentially a peer to Amy and Roberta who are 10 on copy here as well. 11 Q. Okay. And who is Bob Quinones? 12 A. Bob Quinones is the Americas 13 operations head, so Mike reported to Bob; Amy and 14 Roberta reported to Bob as well. 15 Q. And Bob asks, "Isn't there a way for 16 Log-" -- I'm now looking at Bob's e-mail -- or 17 excuse me, I'm looking at Michael Wiggins' e-mail of 18 February 10, 2010, at 10:18 p.m. He asks, "Isn't 19 there a way for Log-Net to run usage reports?" 20 What did he mean? What was your 21 understanding of what he meant? 22 MR. SCHLEIFSTEIN: Objection to the 23 form. You can answer. 24 A. I believe he's asking is there a way 25 to see how many times a report is executed in Page 236 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 29 of 232 PageID: 3978 1 Log-Net. 2 Q. And was there a way to do that? 3 A. Not directly from -- I don't believe 4 there's a standard report that you could do that, so 5 I don't -- I don't believe so. Maybe through a ODBC 6 connection that you could get it through the 7 database, but I'm not sure. 8 Q. Did someone ask Log-Net if they could 9 just do it? 10 A. I don't -- I don't know. 11 Q. Did you ask Log-Net if they could just 12 do it? 13 A. I don't remember. 14 Q. Why wouldn't you have just asked 15 Log-Net to run usage reports? 16 A. I don't know. 17 Q. Was it easier -- 18 A. I was never -- I don't believe, 19 according to this, I don't recall being asked to do 20 it, so theoretical question, I guess. 21 Q. Would it have been just easier to pull 22 every user ID for every customer to see what reports 23 they use? 24 A. No. I don't know if we have an easy 25 way to do that either, to pull user IDs and see what Page 237 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 30 of 232 PageID: 3979 1 C E R T I F I C A T E 2 3 I, MARGARET VOLLMUTH-CORSON, a Certified 4 Court Reporter and Notary Public of the State of New 5 Jersey, DO HEREBY CERTIFY that, prior to the 6 commencement of the examination, COREY BERTSCH was 7 duly sworn by me to testify to the truth, the whole 8 truth, and nothing but the truth. 9 I DO FURTHER CERTIFY that the foregoing is a 10 true and accurate transcript of the testimony as 11 taken stenographically by and before me at the time 12 and place and on the date hereinbefore set forth. 13 I DO FURTHER CERTIFY that I am neither a 14 relative nor employee nor attorney nor counsel of 15 any of the parties to this action and that I am 16 neither a relative nor employee of such attorney or 17 counsel and that I am not financially interested in 18 this action. 19 20 <%signature%> 21 _____________________________________________ 22 MARGARET VOLLMUTH-CORSON, C.C.R. 30XI00158400 Notary Public No. 2035720 23 24 This transcript was prepared in accordance with N.J.A.C. 13:43-5.9. 25 Page 307 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 31 of 232 PageID: 3980 EXHIBIT 2 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 32 of 232 PageID: 3981 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 ___________________________ 3 AIR EXPRESS INTERNATIONAL Civil Action No. 4 d/b/a DHL GLOBAL FORWARDING 12civ.1732(MAS)(TJB) CORPORATION, an Ohio 5 Corporation, DEPOSITION UPON ORAL EXAMINATION 6 Plaintiff, OF 7 -v- ALEX WEI 8 LOG-NET, INC., a Delaware Corporation, 9 Defendant. 10 ___________________________ 11 12 T R A N S C R I P T of testimony taken 13 stenographically by and before Joanne L. Sekella, a 14 Certified Court Reporter and Notary Public of the 15 State of New Jersey, at the offices of GREENBERG 16 TRAURIG, LLP, 200 Park Avenue, Florham Park, New 17 Jersey, on Wednesday, November 11, 2015, commencing 18 at approximately 9:45 a.m. 19 20 21 22 23 24 25 Job No. CZ2183971 Page 1 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 33 of 232 PageID: 3982 1 Q. Do you recognize it from your work with 2 GT Nexus? 3 A. No. 4 Q. Okay. And you came to learn this 5 information that we have discussed, you told me, 6 because of implementing Toys-R-Us International onto 7 the GT Nexus platform, correct? 8 A. Yes. 9 Q. Okay, did Log-Net have a shipment item 10 level? 11 A. Yes. 12 Q. Okay, did GT Nexus have a shipment item 13 level? 14 A. Yes. 15 Q. And was it called a shipment item 16 level? 17 A. In GT Nexus? 18 Q. Yes. 19 A. I am not sure it is called shipment 20 item level or line item level. 21 Q. Okay. And let me show you a document 22 which we have labeled Wei-41 for identification. 23 MR. HAEFNER: Tell me again what my 24 time limit is, I didn't write it down. 85 minutes. 25 MR. SCHLEIFSTEIN: We were going to Page 241 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 34 of 232 PageID: 3983 1 5:46. 2 MR. HAEFNER: 5:46, that is right. 3 I'd hate to forget the deadline. 4 MR. SCHLEIFSTEIN: I won't let you. 5 Q. And you see that you provided 6 information to Mr. Jones in a series of imbedded 7 replies. The imbedded replies have your initials, 8 correct? 9 MR. SCHLEIFSTEIN: Objection to the 10 form. 11 You can answer. 12 A. Yes. 13 Q. Okay, and Mr. Jones is asking you about 14 the Toys-R-Us discount invoice value for the DPO 15 process, correct? 16 A. Yes. 17 Q. Okay, and in the imbedded replies, you 18 are telling him your understanding of how it works, 19 correct? 20 A. Yes. 21 Q. And you suggest that you should be 22 using a shipment optional field, correct? 23 A. In GT Nexus, yes. 24 Q. Right. But you use the phrase shipment 25 optional field, correct? Page 242 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 35 of 232 PageID: 3984 1 MR. SCHLEIFSTEIN: Maybe if you showed 2 him where you are reading from. 3 A. Yes, can you show me where you are 4 reading from? 5 Q. Sure, let me just find it again. 6 A. Because we use different terminology 7 to represent. 8 Q. Well, let me ask you this, you do use 9 the language shipment line level, correct? It is in 10 bold on the first page? 11 A. Yes. 12 Q. And that is a Log-Net term, correct? 13 MR. SCHLEIFSTEIN: Objection to the 14 form. 15 You can answer. 16 A. Yes. 17 Q. At page 3 you tell the GT Nexus team 18 the existing Log-Net process, correct? 19 A. Yes. 20 Q. And you also gave him some solutions 21 that you thought might work for GT Nexus, correct? 22 A. Yes, options. 23 Q. And why did you think it was necessary 24 to tell him the Log-Net process in order to tell him 25 solutions that you had seen for -- solutions you had Page 243 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 36 of 232 PageID: 3985 1 in your head for the GT Nexus process? 2 MR. SCHLEIFSTEIN: Objection to the 3 form. 4 You can answer. 5 A. Well, the purpose is to tell them that 6 the process between Toys-R-Us and US are different. 7 Q. Okay. 8 A. Yes. 9 Q. And -- 10 A. It is actually not directly related to 11 system. Because we had been using Log-Net for over 12 ten years, so if you replace Log-Net process with 13 Toys-R-Us process, then that is the information I am 14 trying to provide to GT Nexus. 15 Q. And when you say "Toys-R-Us process," 16 that is not how it appeared to Toys-R-Us, though, 17 correct? 18 MR. SCHLEIFSTEIN: Objection to the 19 form. 20 You can answer. 21 A. It is not -- sorry, say that again. 22 Q. When you say -- I will just ask you a 23 new question. 24 When you say this is based on your 25 current system knowledge -- Page 244 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 37 of 232 PageID: 3986 1 C E R T I F I C A T E 2 3 I, JOANNE L. SEKELLA, a Certified Court 4 Reporter and Notary Public of the State of New 5 Jersey, do hereby certify that prior to the 6 commencement of the examination the witness was duly 7 sworn. 8 9 I DO FURTHER CERTIFY that the foregoing is a 10 true and accurate transcript of the testimony as 11 taken stenographically by and before me at the time, 12 place and on the date hereinbefore set forth. 13 14 I DO FURTHER CERTIFY that I am neither a 15 relative nor employee, nor attorney or counsel to 16 any of the parties involved; that I am neither 17 related to nor employed by such attorney or counsel, 18 and that I am not financially interested in the 19 outcome of the action. 20 Notary Public of the State of New Jersey 21 22 <%Signature%> ______________________________ 23 JOANNE L. SEKELLA, C.C.R. License No. 30X100155300 24 My Commission expires: August 3, 2016 25 Page 298 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 38 of 232 PageID: 3987 EXHIBIT 3 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 39 of 232 PageID: 3988 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 ___________________________ 3 AIR EXPRESS INTERNATIONAL Civil Action No. 4 d/b/a DHL GLOBAL FORWARDING 12civ.1732(MAS)(TJB) CORPORATION, an Ohio 5 Corporation, DEPOSITION UPON ORAL EXAMINATION 6 Plaintiff, OF COREY BERTSCH 7 -v- 8 LOG-NET, INC., a Delaware Corporation, 9 Defendant. 10 ___________________________ 11 12 T R A N S C R I P T of testimony taken 13 stenographically by and before MARGARET 14 VOLLMUTH-CORSON, a Certified Court Reporter and 15 Notary Public of the State of New Jersey, at the 16 offices of GREENBERG TRAURIG, LLP, 200 Park Avenue, 17 Florham Park, New Jersey, on Thursday, 18 November 5, 2015, commencing at approximately 19 9:56 a.m. 20 21 22 23 24 25 Job No. CZ2185335 Page 1 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 40 of 232 PageID: 3989 1 Q. What does it mean to you when she says, 2 "When you are comparing this case to Production test 3 case the production log shows that the IPO shipment 4 was found and hence the data is on the DPO shipment 5 too." 6 MR. SCHLEIFSTEIN: Objection to the 7 form. You could answer. 8 A. I'm assuming that Johnny provided some 9 reference to it, a similar use case in production 10 where it actually didn't do what it was supposed to 11 do, and he's asking why it didn't do that in this 12 test case, and she's providing him an explanation of 13 that, why the difference. 14 Q. Why is this urgent if the production 15 test case is working? 16 A. Because the customer, I believe, 17 again, I wasn't involved with the whole context of 18 what the customer was looking for, but they wanted 19 to change their allocation logic, and that that's 20 probably what led to all these test cases. 21 Q. But wouldn't the production test case 22 matter as opposed to -- 23 A. No. Because production would have 24 been what was currently in place. Tests would have 25 been what -- what we're actually looking to change. Page 152 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 41 of 232 PageID: 3990 1 Q. And if I had more questions about this, 2 I mean, more detailed questions about what wasn't 3 working, what the issues were, who should I ask? 4 A. I would probably ask -- well, any of 5 the people in this string would probably know more 6 than me about the specifics, but Johnny Woo would 7 probably be the closest to it, and then Irene would 8 -- you know, her name is all over this too, and she 9 was involved with some of the testing at the time. 10 Q. Okay. If you turn to the next page, 17 11 of 23, -- 12 A. Okay. 13 Q. -- there is a reference in the e-mail 14 that has begun on page 16 of 23. There's an e-mail 15 between Medha and Irene that is at the top of page 16 17. Do you see that e-mail? 17 A. Yes. 18 Q. What are the reserved optional fields? 19 A. Yeah. They're Log-Net optional 20 fields, and I'm not the architect of Log-Net, but 21 from what I understand, they're Log-Net optional 22 fields that are reserved for a specific purpose, 23 using the same architecture as the regular optional 24 field, so they take certain optional field IDs that 25 are reserved for other uses. Page 153 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 42 of 232 PageID: 3991 1 Q. And what's a non-reserved optional 2 field that like would make sense to me? 3 A. A non-reserved one? 4 Q. Yes. You said they take standard 5 optional fields. Like what's an example? 6 A. Just like on a purchase order, for 7 instance, a customer might have their own brand ID 8 or something that's affiliated with a purchase 9 order, and because that wouldn't be a standard field 10 on the Log-Net's core application Log-Net has the 11 flexibility to create these fields on the fly and 12 relabel them and use them however you need to -- 13 Q. Okay. 14 A. -- to accommodate the customer's 15 unique purchase order. 16 Q. So those are the sort of standard 17 optional fields that -- 18 A. Correct. 19 Q. -- customers, like maybe they want to 20 -- like you said, they want different brands, they 21 want to say fall collection, you know, color, I 22 don't know. 23 A. Right. 24 Q. How do those -- I'm sorry if you 25 answered this and I didn't understand it, but how Page 154 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 43 of 232 PageID: 3992 1 did those differ from reserved optional fields? 2 A. Reserved optional fields, I believe, 3 used the same type of field framework and database 4 architecture. Again, I'm not a database expert by 5 any means, but they've been reserved by Log-Net for 6 other purposes. 7 Q. And like what purposes would they be 8 reserved for? 9 A. I don't honestly know. I don't 10 remember off the top of my head. I know on certain 11 occasions we couldn't use like certain optional 12 field IDs, and there was a list of ones that they 13 designated as reserved. 14 Q. And do you know what Log-Net did with 15 them? 16 A. I don't -- don't recollect, no, 17 exactly. 18 Q. Okay. 19 A. I just know they were generally used 20 -- they were reserved for a specific program or 21 purpose at the application. 22 Q. Were you given a list of those reserved 23 optional fields? 24 A. I don't recall. I'm assuming at some 25 point we had a list of them, but I don't Page 155 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 44 of 232 PageID: 3993 1 Q. -- at the executive summary, what was 2 -- do you understand -- I mean, what's your 3 understanding of what this means? 4 MR. SCHLEIFSTEIN: Objection to the 5 form. You can answer. 6 A. It looks like they want to get rid of 7 this doing dual entry in two environments and 8 instead do it in one from the way I interpret it. 9 Q. And what would that mean for Log-Net? 10 MR. SCHLEIFSTEIN: Objection to the 11 form. You can answer. 12 A. I need to read the whole e-mail in 13 context. I can't deduce that from the executive 14 summary. 15 Q. But Avon would no longer be -- I mean, 16 I don't even know what the phrase "Avon's instance 17 of Log-Net," what does that mean? 18 A. I believe Avon had a direct contract 19 with Log-Net, if I'm not mistaken, and they had 20 their own environment that they maintained that we 21 didn't maintain. 22 Q. And Avon would no longer need that 23 independent environment if this was done, correct? 24 A. It sounds that way, but again, I'm not 25 familiar with this project. Page 212 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 45 of 232 PageID: 3994 1 Q. Does the phrase "vanilla reports" mean 2 anything to you in the context of GT Nexus? 3 A. Yes. 4 Q. What does it mean? 5 A. It was an attempt to identify a 6 standard set of reports that our customers that 7 would move off of Log-Net onto GT Nexus would use in 8 a similar fashion, so obviously our customers use 9 Log-Net reports, when they move to a new system 10 they're going to need some type of report similar to 11 what they had been using before. 12 Q. And who was in charge of figuring out 13 what those reports that the customers would need? 14 A. It was a joint effort between the 15 business implementation team, which was comprised of 16 a group of project managers and me and others on the 17 IT side that were more subject matter experts at the 18 time of GT Nexus. 19 Q. And how did you go about figuring out 20 what the standard or vanilla reports should be? 21 A. We inventoried -- I believe Alex Wei 22 and his team inventoried current usage of reports, 23 so they did an internal analysis to determine what 24 was actually being used. 25 Q. And how did they undertake that Page 213 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 46 of 232 PageID: 3995 1 internal analysis? 2 MR. SCHLEIFSTEIN: Objection to the 3 form. You can answer. 4 Q. To the extent you know. 5 A. All I know is they interviewed account 6 managers, specific staff that knew those accounts at 7 origin and destination. 8 (Exhibit Bertsch-22, E-mail exchange 9 between Phil Oberhausen and Corey Bertsch dated 10 December 22, 2009, is marked for identification by 11 the court reporter.) 12 A. Okay. 13 Q. The first e-mail here is dated December 14 22, 2009, at 7:42 a.m., and I'm looking at 15 Bertsch-22. First, who is Phil Oberhausen? 16 A. Phil Oberhausen is the GT Nexus 17 project manager that was tasked with the DHL Galaxy 18 project from a GT Nexus point of view, so 19 essentially, you know, all the on-boarding of our 20 customers from Log-Net to GT Nexus. 21 Q. And what is the Galaxy project? That's 22 just the name for the whole -- 23 A. That was the name at the time when we, 24 you know, selected a vendor, did our business case, 25 it was an internal name so people could refer to it. Page 214 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 47 of 232 PageID: 3996 1 C E R T I F I C A T E 2 3 I, MARGARET VOLLMUTH-CORSON, a Certified 4 Court Reporter and Notary Public of the State of New 5 Jersey, DO HEREBY CERTIFY that, prior to the 6 commencement of the examination, COREY BERTSCH was 7 duly sworn by me to testify to the truth, the whole 8 truth, and nothing but the truth. 9 I DO FURTHER CERTIFY that the foregoing is a 10 true and accurate transcript of the testimony as 11 taken stenographically by and before me at the time 12 and place and on the date hereinbefore set forth. 13 I DO FURTHER CERTIFY that I am neither a 14 relative nor employee nor attorney nor counsel of 15 any of the parties to this action and that I am 16 neither a relative nor employee of such attorney or 17 counsel and that I am not financially interested in 18 this action. 19 20 <%signature%> 21 _____________________________________________ 22 MARGARET VOLLMUTH-CORSON, C.C.R. 30XI00158400 Notary Public No. 2035720 23 24 This transcript was prepared in accordance with N.J.A.C. 13:43-5.9. 25 Page 307 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 48 of 232 PageID: 3997 EXHIBIT 4 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 49 of 232 PageID: 3998 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 ___________________________ 3 AIR EXPRESS INTERNATIONAL Civil Action No. 4 d/b/a DHL GLOBAL FORWARDING 12civ.1732(MAS)(TJB) CORPORATION, an Ohio 5 Corporation, DEPOSITION UPON ORAL EXAMINATION 6 Plaintiff, OF BRICE E. JONES 7 -v- 8 LOG-NET, INC., a Delaware Corporation, 9 Defendant. 10 ___________________________ 11 12 T R A N S C R I P T of testimony taken 13 stenographically by and before MARGARET 14 VOLLMUTH-CORSON, a Certified Court Reporter and 15 Notary Public of the State of New Jersey, at the 16 offices of GREENBERG TRAURIG, LLP, 500 Campus Drive, 17 Florham Park, New Jersey, on Friday, December 18 11, 2015, commencing at approximately 10:07 a.m. 19 20 21 22 23 24 25 Job No. CZ2200068 Page 1 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 50 of 232 PageID: 3999 1 Q. Okay. 2 A. But I don't have a list litanized out 3 of what they are. 4 Q. No. Again, it reads as most things in 5 the con- -- are in the contract, right? So this was 6 more just a general comment on the contract as a 7 whole? 8 A. Correct. 9 Q. Okay. 10 MR. HAEFNER: Can we mark this as 11 Jones-11? 12 (Exhibit Jones-11, E-Mail string, top 13 e-mail being from Brice Jones to Pierre Wong and 14 Frankie Lo dated January 11, 2010, is marked for 15 identification by the court reporter.) 16 Q. I'm going to show you a document we've 17 marked as Jones-11, which is a series of e-mails and 18 somewhat dense, so please take a moment to look at 19 it. 20 A. This has your writing on it. 21 Q. Oh, I'm sorry. That was just a note to 22 myself. 23 MR. HAEFNER: Is it all right -- 24 MR. NICODEMA: That's fine. 25 MR. HAEFNER: -- if we switch the Page 114 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 51 of 232 PageID: 4000 1 exhibit number? It's just -- I'll show it to you, 2 Mr. Nicodema. 3 MR. NICODEMA: No, it's fine, Marc. 4 MR. HAEFNER: It has my initials -- 5 MR. NICODEMA: It's okay. 6 MR. HAEFNER: -- and the number 23 7 with a -- 8 MR. NICODEMA: We didn't even need to 9 switch them. 10 MR. HAEFNER: -- previous -- 11 MR. NICODEMA: Okay. 12 MR. HAEFNER: Oh, well, we can't 13 switch them because I made more notes on this -- 14 THE WITNESS: Right. 15 MR. HAEFNER: -- copy that I thought 16 was mine. 17 THE WITNESS: Again, I'm new to the 18 process, so I'm just pointing out that there's words 19 on there. 20 MR. NICODEMA: That's okay. 21 (Cross-talking.) 22 MR. HAEFNER: For the record, I'm just 23 going to represent that the exhibit we've labeled as 24 Jones-11 by the court reporter I had previously made 25 a notation on of "MDH 23," which meant it was going Page 115 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 52 of 232 PageID: 4001 1 to be my copy to use, but I forgot that and gave it 2 to Mr. Jones anyway. I need to write bigger. 3 A. Okay. I think I've reviewed it. 4 Q. All right. And I'm starting at the 5 first e-mail chronologically, which is the last 6 e-mail. 7 A. Okay. 8 Q. And -- 9 A. The one from Ron Park? 10 Q. Correct. And I apologize for the way 11 these end up printing out. It's some function of 12 the translation of the various systems. And this is 13 an e-mail from Ron Park dated January 8, 2010, at 14 10:57 a.m. 15 Who is Ron Park? 16 A. As it says here, he's director of 17 product management at GT Nexus. 18 Q. And what was his role in the Galaxy 19 project? 20 A. He was basically a liaison between us 21 and the development side of GT Nexus. 22 Q. Okay. And who is -- the e-mail is, in 23 part, to Pierre Wong. Who is Pierre Wong? 24 A. Pierre Wong, I don't know what his 25 official title is here, but Pierre Wong ran a group Page 116 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 53 of 232 PageID: 4002 1 -- was in our IT department in Asia and had a 2 variety of people that reported to him, support 3 people, things like that. 4 Q. And what was his role in the Galaxy 5 project, if any? 6 A. I don't think he had a role 7 specifically to the Galaxy project. He was involved 8 with IT over there. His role would have -- we had 9 training issues around support, so he owns people 10 that were involved with support. Relative to what 11 this is talking about, the ISC Plus is an internal 12 application. He was responsible for that 13 application, among other things. 14 Q. And what is the ISC Plus internal 15 application? 16 A. ISC Plus was an application that we 17 used for interfacing between in the past Log-Net, as 18 well as GT Nexus and our financial system. 19 Q. And the -- in this -- the course of 20 this e-mail there's a reference which appears in 21 bold again, and I don't know if that's because it 22 was bolded originally or if that's a function of the 23 translation of the production, but for example, we 24 see "tariff_chg_short_desc." Do you see what I'm 25 referring to? Page 117 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 54 of 232 PageID: 4003 1 A. Yes. It's about two-thirds of the way 2 down. 3 Q. And what is that reference? 4 A. It's a table name in the ISC Plus side 5 of the application describing the short description 6 of the charge. 7 Q. And is that -- 8 A. Or column name, I should say. I'm 9 sorry. A column name, not a table name. 10 Q. And I'm sorry. I didn't hear your 11 answer when you changed it. 12 A. I called it a table name, but it's 13 actually a column within the table. 14 Q. Okay. And is that a Log-Net column in 15 the table? 16 A. I don't know. I believe it's a column 17 inside ISC Plus, but I don't know with confidence. 18 Q. And isn't that -- and also, for 19 example, "shipment_reference," isn't that the -- a 20 column in the Log-Net database internal 21 architecture? 22 A. I believe it is the name of a field 23 inside Log-Net, but it could also be a field inside 24 ISC Plus. 25 Q. And similarly on the following page we Page 118 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 55 of 232 PageID: 4004 1 see a series -- 2 A. Previous page you mean? 3 Q. Excuse me? Yeah. Well, previous, -- 4 A. Okay. I see it. 5 Q. -- following, who knows. There are a 6 couple of other references. 7 A. Um-hum. 8 Q. You know, "shipment_reference," for 9 example. Again, these are Log-Net field names, 10 correct? 11 A. I believe they are field names in 12 Log-Net, but they are simply identifiers of the 13 field in Log-Net. They are potentially field names 14 inside ISC Plus. I don't know the structure of 15 those tables to tell you with confidence that they 16 don't have the exact same name. 17 Q. So who created ISC Plus? 18 A. It predates my existence with DHL, but 19 my understanding is it was written by Pierre's team, 20 which Frankie Lo is on here. He was one of the guys 21 who developed. I don't think it was any specific 22 single individual. 23 Q. Is that a -- is ISC Plus, is that a 24 program? 25 A. Yes. It's an application. As I said, Page 119 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 56 of 232 PageID: 4005 1 we used it for multiple ways. It was primarily 2 integrating back into our back-end financials so 3 that we could have accounts receivable, accounts 4 payable. We also used it for generating invoices to 5 customers. 6 Q. And the -- when Mr. Park is asking 7 Pierre -- I mean, it's directed "FCR Questions 8 Pierre, Brice, and team." So this is, in part, 9 directed to you. And I'm sorry. I'm back on the 10 original e-mail. I was -- 11 A. Okay. Yes. 12 Q. And he says, quote, Please help me 13 understand the business meaning for the following 14 fields. 15 A. Um-hum. 16 Q. What fields do you understand him to be 17 referring to? 18 A. I presume it's the list inside. As 19 you say, the formatting makes it difficult to 20 understand, but the other part of that sentence, 21 "This will ensure we are sending you the proper data 22 elements," this topic is in relation to having FCR 23 financial information put into a Web service so that 24 we could feed ISC Plus from the FCR process inside 25 GT Nexus. Page 120 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 57 of 232 PageID: 4006 1 Q. And let's break that down. 2 A. Um-hum. 3 Q. So what was -- what do you tell -- what 4 are you telling me was trying to be accomplished 5 through this initial e-mail? 6 A. Okay. In this e-mail we know we need 7 ISC Plus. As a result of the FCR creation process 8 we have a financial component. We had to pass the 9 accounts receivable back over to the accounting 10 system. ISC Plus does that. We have a need to 11 capture payables, it feeds to the accounts payable 12 system. So in the world within Log-Net there was a 13 vehicle for how that got to ISC Plus. Inside GT 14 Nexus this topic here was about okay GT Nexus, we 15 still need to use ISC Plus, the DHL application, to 16 go back to our accounting system. We need the FCR 17 data as a result of generating the FCRs in your 18 application. The solution was to create a Web 19 service. This is the research going into what 20 fields do we need, and these fields that he's asking 21 about that are highlighted, I believe, are the 22 fields that ISC Plus currently got. So he's trying 23 to understand what would you like me to put in these 24 fields from the GT Nexus side of the equation. 25 Q. And when you say they were the fields Page 121 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 58 of 232 PageID: 4007 1 that ISC Plus currently got, -- 2 A. Um-hum. 3 Q. -- where did they -- where did it get 4 them from? 5 A. Those -- the data that goes in those 6 fields would have come out of the FCRs we created in 7 Log-Net. 8 Q. Okay. And the -- who created the -- 9 this sort of column receipt_date, issue_date? These 10 -- these were column titles created by whom? 11 A. I don't know. I didn't create them. 12 I would presume that Pierre's team made them, but 13 I'm assuming, and I'm not supposed to assume or 14 guess. 15 Q. And do you know whether Log-Net created 16 them? 17 A. I don't know. 18 Q. And can you tell from this whether Ron 19 Park and Pierre Wong are discussing the internal 20 architecture of the Log-Net system? 21 A. I can't tell that, but I don't believe 22 that was the issue. What he was looking at is I 23 have a file structure from Pierre that says here's 24 the data I need inside ISC Plus. So Ron is looking 25 at that going, okay, I know what that means. Here's Page 122 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 59 of 232 PageID: 4008 1 where it comes from from GT Nexus. I know what that 2 means. I don't know what this means. What do you 3 mean? And that's them going back and forth around 4 the data elements to try and figure out, okay, ISC 5 Plus wants to catch a set of data. What do these 6 fields mean? Because Ron doesn't know. It's not 7 his application. Then try and relate those fields 8 to what they mean inside GT Nexus. 9 Q. At various points in time in the course 10 of the depositions people have said to us, and I 11 don't remember whom, and so I don't -- don't hold 12 this against me, but that DHL doesn't really have 13 programmers who -- who program applications. Is -- 14 I mean, were Pierre and Frankie, though, were they 15 programmers in some sense? 16 A. Frankie is a developer, yes. Pierre, 17 I don't believe so. 18 Q. And -- 19 A. At some level of developer. I mean, 20 there's lots of definitions. I don't think Frankie 21 could write C++. 22 Q. Were there other people who did work 23 similar to Frankie Lo? 24 A. I believe there was an Anthony, and I 25 don't remember his last name. Page 123 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 60 of 232 PageID: 4009 1 Q. And why -- at one level I guess I don't 2 -- I mean, I'm not sophisticated enough to 3 understand. Why does Ron Park say, "Please help me 4 understand the business meaning for the following 5 fields"? 6 MR. NICODEMA: Object to the form. 7 Q. Do you know what he -- 8 MR. HAEFNER: Yeah. It's a perfectly 9 reasonable objection. 10 Q. Do you know what he means? 11 A. Again, going back to what I explained 12 previously, if Pierre is saying here's the data I 13 need for ISC Plus, so he sent a list with field 14 names, and Ron, looking at that, is going, I don't 15 know what that means. What would you like -- what's 16 the business mean of that so I can make sure I get 17 the Web service that they're going to develop to 18 send the right data elements for Pierre. So he's 19 just not understanding when somebody says "a list" 20 what that means. 21 Q. If we look at the first page of the 22 document, there's an e-mail from Pierre Wong dated 23 January 10, 2010, at 11:45 p.m. to yourself, Ron 24 Park, and -- 25 A. I'm sorry. I'm not with you. Page 124 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 61 of 232 PageID: 4010 1 Q. -- Frankie Lo. 2 Certainly. So the first page, and 3 then -- 4 A. That's January 11. 5 Q. No. No. The next e-mail down. So 6 from -- 7 A. Pierre to me at January 10. Okay. 8 I'm sorry. I'm with you now. 9 Q. When he says -- well, why don't you 10 read the e-mail to yourself first just because these 11 are very dense e-mails. 12 A. Yes. And the other challenge is I 13 think, as you pointed out, the format, these are 14 like embedded conversations of the same e-mail with 15 Pierre's words and my words, and therefore, it's 16 difficult to always tell who wrote what. 17 Okay. 18 Q. So what's the -- this is a further 19 discussion of these FCR questions, correct? 20 A. Yes, it would appear that as Pierre 21 has written, I've -- I've gone in, and my comments I 22 think were in here at some point, then the one 23 below, and then Pierre has now come back again with 24 his two cents on top of my two cents. 25 Q. Right. And there's a discussion, the Page 125 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 62 of 232 PageID: 4011 1 words "shipment_reference" occur. 2 A. Um-hum. 3 Q. There's a dash, there's open -- there's 4 brackets, it reads, "Ron." 5 A. Um-hum. 6 Q. There's a question, what is this field 7 -- "What is the field? We have a 'line item ID' 8 field that may be similar." Then there's new 9 brackets, "[Pierre] it is the unique field to link 10 to shipment_item table (cargo receiving table)" and 11 then it continues, but before I continue I just -- 12 is it your understanding that the brackets are the 13 portion that Ron Park has written? 14 A. Yes. The part that follows Ron I 15 believe is Ron. The part that follows Pierre I 16 believe is Pierre. 17 Q. Okay. And then subsequent to the 18 section that follows the Pierre brackets there's a 19 new set of brackets that begin Brice. Is that -- 20 A. Um-hum. 21 Q. Is the following portion what you 22 wrote? 23 A. It appears to be, yes. 24 Q. Okay. And that reads, quote, Further 25 on this, as we know, Log-Net has us create a unique Page 126 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 63 of 232 PageID: 4012 1 receipt for each order item in both CFS and CY. 2 That record has a shipment_reference assigned to it 3 that is the primary key." Do you see that? 4 A. Yes. 5 Q. And what is -- what information are you 6 conveying there? 7 A. I'm trying to give context to what the 8 value means and why it exists because Pierre 9 understands it, but Ron does not, which is why the 10 question is still out there. 11 Q. And what's the relevance of the way 12 that Log-Net has DHL create -- well, here the "us" 13 refers to DHL. Is that correct? Or does it refer 14 to ISC Plus or -- 15 A. No. The "us" refers to DHL. When we 16 create a receipt in the system it has us create, so 17 that's what the "us" relates to, DHL, yes. 18 Q. Okay. And -- and what is CFS, that 19 acronym? 20 A. Cargo freight station. It refers to 21 the model where a vendor delivers cargo to us. 22 Q. Okay. And CY? 23 A. Container yard. And that refers to 24 the condition where the vendor loads up an ocean 25 container and delivers it directly to the carrier. Page 127 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 64 of 232 PageID: 4013 1 Q. Okay. And the reference to that you -- 2 the quote, That record has a shipment_reference 3 assigned to it, that is the primary key, end quote. 4 What is a shipment_reference? 5 A. In this context it's a field within 6 one of Log-Net's tables. 7 Q. And how did you know that was the name 8 of a field within one of Log-Net's tables? 9 A. It -- it's -- I'm not sure when I 10 learned it, but it's -- again, this information is 11 out there. It shows up on the screens. It comes in 12 some of the different reports that we look at as 13 well. The data is somewhere in the course of the 11 14 years that preceded this. 15 Q. Where is the shipment item table that 16 is referenced at -- there's a -- 17 A. I'm not sure. I don't know if this is 18 a shipment item table in Log-Net, or if it's a 19 shipment item that is inside ISC Plus. 20 Q. Okay. And this -- when you say that 21 this shipment_reference appears on Log-Net documents 22 or Log-Net reports, does it appear in that format, 23 or does it appear as in some different fashion? 24 A. I believe in different places it will 25 appear with different labels, and again, we also had Page 128 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 65 of 232 PageID: 4014 1 -- we talked about this level of detail frequently 2 and worked back and forth between us as an 3 organization, so when I first learned of this field 4 I don't know, but it was not a secret. 5 Q. And -- and you say it wasn't a secret. 6 I mean, was it -- in what sense wasn't it a secret? 7 A. The shipment reference shows up when 8 you run EDI programs. It's on the -- it shows up on 9 the screen when you create these receipts that we're 10 talking about. It says this is the shipment 11 reference. So it's one of the most frequently used 12 fields that's in the system. And that field, 13 therefore, was very common since we were working 14 with work IDs frequently about how we wanted to 15 change things, how we wanted them to do 16 enhancements, knowing that name of that field in 17 itself was something we certainly were expected to 18 know. 19 And the reason that the CFS versus CY 20 is significant is that, as I said, here in Log-Net 21 in both models we had to create receipts. Inside GT 22 Nexus one of the differences in their design is in a 23 CY shipment you didn't have to create a receipt, so 24 there was no such thing as a receipt area for that 25 at all. We went straight from a booking into a Page 129 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 66 of 232 PageID: 4015 1 shipment plan and shipped it. With CFS we did 2 indeed create receipts, so this understanding was 3 important because of the difference and distinction 4 we couldn't use -- a receipt wasn't always going to 5 exist, so we couldn't just have it represent a 6 receipt, which is primarily what the shipment 7 reference meant at this point, was a linkage to a 8 specific receipt. Since we didn't have receipts for 9 all our cargo, we couldn't use that same solution. 10 Q. And why was it important for Ron Park 11 to know the Log-Net solution that there would be a 12 receipt for every piece in order for him to develop 13 a programming solution to the business problem of 14 issuing, you know, this business end? 15 A. Well, Ron needed to know what it 16 meant, so by my describing what it meant and how it 17 was used to describe a unique receipt and that we 18 had it for both CY and CFS, he knew, as I did, that 19 he -- that the GT Nexus solution didn't have that. 20 It would point him in the right direction to how do 21 would get some similar business purpose field, some 22 other purpose reference field in their application 23 that will come over that would uniquely represent 24 the items that are involved, whether it's CY or CFS. 25 Q. What was the value of explaining that Page 130 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 67 of 232 PageID: 4016 1 the key to the shipment item table was a Log-Net 2 field, the shipment_reference? 3 A. Was trying to give Ron context to the 4 ISC Plus application, which was built on the primary 5 assumption that the only FCRs it was ever going to 6 get would come from Log-Net. So I was trying to 7 give context between why this is the model of how it 8 worked, and then, like I said, with the CFS/CY 9 distinction, since Nexus works differently -- 10 THE REPORTER: I'm sorry. CF -- 11 THE WITNESS: CFS/CY. 12 THE REPORTER: CY distinction. 13 A. That works differently in GT Nexus, 14 that would point him in, okay, now, Ron, go figure 15 out from your side what field you're going to give 16 us as part of the FCR that's going to have a similar 17 business purpose. 18 Q. And was this part and parcel of 19 generating the FCR, or is this some other portion of 20 the FCR process? 21 A. This is subsequent to an FCR being 22 created. This has to do with the Web service we 23 were trying to create. We needed an ability to get 24 the FCR financial data with enough shipment 25 transaction information about it to get it into ISC Page 131 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 68 of 232 PageID: 4017 1 of the vendor. This is his ID, names, and 2 addresses. This is all defined within ANSI. You 3 wouldn't need a guideline to understand that. 4 Q. For each and every line, or -- 5 A. Some lines you would -- you would not 6 know what it means. For example, the BSN where it 7 says TRU, HKU, that's some transaction value that a 8 source transship system would create. Under the 9 rules of ANSI, that's what you're supposed to put 10 there. Where that comes from or what it means, 11 you'd need to know from Log-Net's specification. 12 Q. Okay. 13 A. And we use this file to translate into 14 the format we had to send to Toys because before we 15 went to this change the program that sent out what 16 we received was a custom TRU program, as is 17 virtually all the EDI for Toys-R-Us. 18 MR. NICODEMA: Is this a good time to 19 take a stretch before you move on to another topic? 20 MR. HAEFNER: That's fine with me. 21 MR. NICODEMA: Yeah. Okay. 22 THE VIDEOGRAPHER: Going off the 23 record. The time is 3:02 p.m. This is the end of 24 disk three. 25 (Recess taken from 3:02 to 3:17 p.m.) Page 155 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 69 of 232 PageID: 4018 1 (Exhibit Jones-15, E-Mail string, top 2 e-mail being from Brice Jones to John Urban dated 3 November 15, 2010, is marked for identification by 4 the court reporter.) 5 THE VIDEOGRAPHER: We're back on the 6 record. The time is 3:17 p.m. This is the 7 beginning of disk four. 8 Q. Mr. Jones, I'm going to show you a 9 document we've labeled as Jones-15 for 10 identification. 11 A. Okay. 12 (Exhibit Jones-16, DHL Toys-R-Us 13 Manifest Bates stamped DHL 00123570, is marked for 14 identification by the court reporter.) 15 A. Okay. I assume 16 is related to 15? 16 Q. Yes, sir. 17 A. Okay. 18 Q. And who is John Urban? 19 A. John Urban is the president/CEO. At 20 different times he had different titles at GT Nexus. 21 Q. Okay. And did you, in fact, send him 22 this DHL Toys-R-Us manifest which we've labeled as 23 Jones-16? 24 A. If that's what manifest pdf is on this 25 e-mail, then yes. Page 156 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 70 of 232 PageID: 4019 1 Q. We believe it to be so because it 2 occurs next in the sequence of Bates stamps, and -- 3 when you said to him, "I have attached one for TRU 4 out of Log-Net production" -- 5 A. Um-hum. 6 Q. -- you were referring to a manifest, 7 correct? 8 A. Yes. 9 Q. And the -- and the sentence I just read 10 was from Jones-15, just for the record. 11 And the document we labeled as Jones-16 12 is, in fact, entitled a Toys-R-Us manifest, correct? 13 A. Yes. 14 Q. And this is how the manifest appeared 15 in Log-Net, correct? 16 A. In the Hong Kong instance of Log-Net, 17 yes. 18 Q. Okay. And -- and it's labeled at the 19 bottom, Jones-16 is, as "Copyright Log-Net" and 20 "Confidential," correct? 21 A. That's what it says, yes. 22 Q. And were you concerned about sending it 23 to Mr. Urban? 24 A. No. 25 Q. And why was that? Page 157 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 71 of 232 PageID: 4020 1 A. Again, it's a report of data about our 2 customers, with our customers' information, and as I 3 said in the e-mail, it's a custom version of the 4 manifest; therefore, it -- we as DHL provided input 5 into the discussion as to how it would actually be 6 formatted. 7 Q. And when you told Mr. Urban that, 8 quote, that said, neither of us wants a nuisance and 9 there may be copyright issues, what did you mean? 10 A. Again, not being a lawyer, and I was 11 advising him that -- of this dialogue so that he 12 could perhaps if they had some concern, but to me, 13 I'm not a copyright issuest. I don't know what is 14 or isn't a copyright. I'm simply trying to advise 15 because I don't want -- didn't want to have any kind 16 of problems or have to go through potential 17 problems. 18 Q. And so what were you asking him to do 19 with that -- I mean, why were you providing him that 20 information? 21 A. Again, not being a copyright expert or 22 a lawyer, I knew it said it was copyrighted. I knew 23 it said it was confidential. I knew it was a custom 24 version of ours. I thought if Nexus is -- based on 25 the string of what's underneath, Nexus is working on Page 158 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 72 of 232 PageID: 4021 1 C E R T I F I C A T E 2 3 I, MARGARET VOLLMUTH-CORSON, a Certified 4 Court Reporter and Notary Public of the State of New 5 Jersey, DO HEREBY CERTIFY that, prior to the 6 commencement of the examination, BRICE JONES was 7 duly sworn by me to testify to the truth, the whole 8 truth, and nothing but the truth. 9 I DO FURTHER CERTIFY that the foregoing is a 10 true and accurate transcript of the testimony as 11 taken stenographically by and before me at the time 12 and place and on the date hereinbefore set forth. 13 I DO FURTHER CERTIFY that I am neither a 14 relative nor employee nor attorney nor counsel of 15 any of the parties to this action and that I am 16 neither a relative nor employee of such attorney or 17 counsel and that I am not financially interested in 18 this action. 19 20 <%signature%> 21 _____________________________________________ 22 MARGARET VOLLMUTH-CORSON, C.C.R. 30XI00158400 Notary Public No. 2035720 23 24 This transcript was prepared in accordance with N.J.A.C. 13:43-5.9. 25 Page 290 Cruz & Company - A Veritext Company 973-467-4123 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 73 of 232 PageID: 4022 EXHIBIT 5 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 74 of 232 PageID: 4023 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY - - - - - - - - - - - - - - - AIR EXPRESS INTERNATIONAL, : Civil Action No. d/b/a DHL GLOBAL FORWARDING : CORPORATION, an Ohio : 3:12-cv-1732 (MAS/TJB) corporation, : : Plaintiff, : : -vs- : : LOG-NET, INC., a Delaware : corporation, : : Defendant. : - - - - - - - - - - - - - - - TRANSCRIPT of the proceedings in the above-entitled action, taken by and before DEBORAH J. TAKACS, a Certified Court Reporter and Notary Public of the State of New Jersey, at the office of GREENBERG TRAURIG, LLP, 500 Campus Drive, Suite 400, Florham Park, New Jersey, on Friday, May 27, 2016, commencing at 10:11 a.m. HUDSON REPORTING & VIDEO 1-800-310-1769 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 75 of 232 PageID: 4024 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 53 1 metadata. 2 Q And the -- it says in paragraph 3 that 3 you've worked with database systems such as Cybase. 4 Correct? 5 A Correct. 6 Q When did you work with Cybase? 7 A I would say the late '90s through the 8 early 2000s. 9 Q And so you weren't using -- were you 10 using Cybase with DEC? 11 A No. 12 Q Okay. And did that DEC stock control 13 and integrated management -- integrated material 14 planning system have some sort of database? 15 A We used DEC's RDBMS system. RDBMS, 16 which is Relational Database Management System. It's 17 DEC's product. 18 Q And do you know -- do you recall as you 19 sit here today what the Tultex logistics and shipping 20 systems, what database product, if any, they use? 21 A They also use DEC RDBMS. 22 Q Okay. And when did you use -- when do 23 you recall using Cybase? 24 A Through many projects with First Union 25 National Bank. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 76 of 232 PageID: 4025 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 54 1 Q And when was that? When did that occur? 2 A As I mentioned, late '90s, early 2000s. 3 Q Oh, thanks. That's right. 4 And you've also used the Microsoft SQL 5 server? 6 A That's correct. 7 Q And what is that? 8 A Microsoft's SQL server, it's their, 9 their database system. 10 Q And just for the sake of the court 11 reporter, when you say SQL server, you're -- 12 A SQL or -- 13 Q We'll say SQL. But it's an acronym, 14 right? 15 A Right. 16 Q And when did that -- do you recall when 17 that Microsoft product became available? 18 A The starting year I don't recall. I do 19 know that it was a spinoff from Cybase. 20 Q Okay. And the -- and was it originally 21 written by Cybase? 22 A I believe so. 23 Q And MySQL, what's that? 24 A That is an open source SQL database 25 engine. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 77 of 232 PageID: 4026 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 55 1 Q And when do you recall using that? 2 A Started or -- 3 Q Let's say start to begin with. 4 A Probably about five years ago. 5 Q Okay. So that's a more recent addition? 6 A It's -- it's -- because it's open 7 source, it's used by a lot of European companies. 8 Q And Oracle also has a database 9 functionality. Is that correct? 10 A That's their primary function, yes. 11 Q And when did you first use the Oracle 12 database? 13 A I would say 1990s, 2000. 14 Q And with whom did you do that? 15 A Mainly the bank projects that I did 16 there. First Union used it extensively. 17 Q And they also used Cybase? 18 A Yes. 19 Q What was your role in the Microsoft 20 Consulting Services? 21 A I've had multiple roles with them. 22 Q And what was the first? 23 A I believe the first directly with 24 Microsoft Consulting Services was with Time Warner 25 Cable. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 78 of 232 PageID: 4027 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 144 1 A The closest analogy is that it's much 2 like a spreadsheet where we have what's called rows 3 and columns. And columns are often called fields. 4 And basically that's what it is. It's a grid for the 5 most part. 6 Q Okay. And the -- what do the rows 7 contain -- I mean, so the columns, you know, run right 8 to left, I mean in a typical table. 9 A Right. 10 Q And what are the -- what would be on the 11 rows? 12 A The fields or the columns represent the 13 information in the table. The rows represent multiple 14 entries within that table. 15 Q Okay. And how are -- so the columns and 16 the rows are in the table and then the table is in the 17 database? 18 A Right. 19 Q And how is, this may not even make 20 sense, how is the table in the database? 21 MR. WEIDER: Object to form. 22 A It is one of the main components. It's 23 in order to store the information. The database is 24 actually what we would call a database engine. 25 It's -- it needs a place to store things. It needs a Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 79 of 232 PageID: 4028 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 145 1 way to organize those storage so it uses tables to do 2 that. 3 Q And the -- and what -- I mean, I'm just 4 going to use Cybase as an example. That's a database 5 product. 6 A Correct. 7 Q Because I see in the course of the 8 report you talk about LOG-NET and GT Nexus use 9 different database software. Is that the right 10 terminology? 11 A Database engines, that's correct. 12 Q Okay. So different database engines. 13 But one of them that somebody uses is Cybase. I think 14 LOG-NET. Correct? 15 A LOG-NET uses Cybase, yes. 16 Q And -- 17 A Or at least did at this time. 18 Q Yeah. And the -- and so I would put 19 something into Cybase and it would make it into a 20 table and then it would be in the database that I'm 21 hosting on my server. Is that -- 22 MR. WEIDER: Object to form. 23 A Can you -- yeah, can you rephrase that? 24 Q I guess I'm just curious, like if I sat 25 down at my desk tomorrow with my brand-new copy of Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 80 of 232 PageID: 4029 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 146 1 Cybase -- 2 A Um-hmm. 3 Q Well, let's pretend I did it at a time 4 when they didn't make everything easy. Like how, how 5 would a database like this -- how would a table get 6 crafted for a database at issue in this case? 7 A Crafted in what means? In other words, 8 how would I create one? 9 Q Yeah, I just mean like physically, like 10 somebody sits down at a computer and types or like you 11 can scan something? I don't know. 12 A It can be done -- 13 Q Punch cards? 14 A It can be done -- it can be done through 15 T-SQL, which is, which is a way of defining it using 16 the command line, if you want to call it that. The 17 command line is a way to talk to the database not 18 through a user front-end, but to talk to it through 19 T-SQL. 20 Q Okay. 21 A That's one way to do it. 22 The other way is that all of these 23 engines provide what we call management interfaces 24 which allows me to right click and say create table. 25 Q Okay. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 81 of 232 PageID: 4030 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 147 1 A Okay. 2 Q And then do I have to know a special 3 computer language to create my tables? 4 A No. 5 Q Okay. And -- 6 A Well, in the case of T-SQL, you would 7 need to know T-SQL. If you're using a management 8 interface, it's intended to be for non-technical 9 people to be able to do it. 10 Q Oh okay. But if I were a computer 11 programmer, I would probably not be using -- I mean, 12 if I were making it from scratch. 13 A It would depend on what you were 14 creating and how many tables you were creating at the 15 time. 16 Q Okay. And so -- 17 A But most people would use the management 18 interface because it's faster. 19 (Exhibit Sterling 15 marked for 20 Identification.) 21 Q I'm going to show you a document we've 22 marked as Sterling 15 for Identification. 23 And so if you can take a look at this 24 document. I'll represent this was produced by DHL in 25 the course of discovery. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 82 of 232 PageID: 4031 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 148 1 A Um-hmm. 2 Q And I just have some questions. If you 3 look through it, like these are -- what -- if we turn 4 to page, you know, 5 of the document. 5 A (Witness complies.) 6 Q When it lists dec when I'm looking at 7 this LOG-NET fcr items sections. 8 A Okay. 9 Q And then like one, two, three, four, 10 five, four or five items down there's a row that's 11 shp_itm_qty. 12 Do you see that? 13 A Yes. 14 Q Okay. And at the end of that line it 15 reads, dec (12,3). 16 A Correct. 17 Q What does the dec (12,3) mean? 18 A It's a data type known as decimal. 19 Q And what does it mean in -- well, what 20 does -- okay, what does it mean to a lay person? 21 A Dollar amount is a decimal. It's a, 22 it's a number point, some fraction of a number point. 23 Q Oh okay. 24 So, and what is the -- so that means 25 that the, what, the 12 and the 3 will be expressed as Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 83 of 232 PageID: 4032 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 149 1 a decimal or -- 2 A It means that there's going to be 12 3 numbers in front of the decimal point. 4 Q Okay. 5 A And then three numbers after the decimal 6 point. 7 Q Oh okay. 8 And why is there -- not all of these are 9 in -- well, the one right above it reads, varchar(40). 10 A Correct. 11 Q That is -- what does that mean? 12 A That is, stands for variable characters. 13 So the characters being, a character is a letter or a 14 number, and it means that it's linked as 40. 15 So varchar means that it -- it's -- in 16 the database it's stored variable. So it means that I 17 don't have to have 40 characters. It could be 10 18 characters. It could be 20 characters. It could be 19 up to 40. 20 Q I see. 21 A And it's a way of optimizing the storage 22 in a database. 23 Q And it's not expressed as a number with 24 a decimal? 25 A Correct. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 84 of 232 PageID: 4033 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 150 1 Q And if I want to express a number with a 2 decimal, do I have to use this dec? 3 A It depends on the database language or 4 the database itself, but, yes, generally you would. 5 Q Okay. 6 A So in this case where it's saying dec, 7 you know, (12,3), that's the way it's expressed in 8 this particular SQL. 9 Q And is this -- you know, when I look at 10 this it, you know, it's not English per se. I mean, I 11 can follow -- like some of it I see it says, you know, 12 shipment reference. Like I get that that's a shipment 13 reference but it's not -- but it has this underscore 14 in the middle of it. 15 Is this in SQLT? 16 A This is -- no. This is, this is the way 17 that the field is called. 18 Q So the first row is the name of the 19 field? 20 A Actually, I can tell by the field name 21 column. 22 Q Oh, I'm sorry. 23 A That's the field name. 24 Q So there's a field name column? 25 A Correct. And for most developers they Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 85 of 232 PageID: 4034 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 151 1 would assume this was ship item quantity. 2 Q And -- okay. And you're looking at the 3 one that's shp_itm_qty? 4 A Correct. And the reason that we do that 5 is from a database perspective we didn't, at least 6 back in the day, we needed to keep the names of fields 7 and tables as short as possible. There were some 8 databases that were extremely limited. Like IBM's 9 database was very, very limited in terms of how long a 10 field name could be. 11 Q I see. 12 A So we had to find standard 13 abbreviations. 14 Q And why does it have to have the 15 underscores? 16 A For readability. 17 Q Oh, because otherwise, yeah, everything 18 would be jumbled together. 19 A Yeah. 20 Q And then these -- under LOG-NET fcr 21 items they -- it says -- or I say under, next to, 22 beside, it says selection, table name. 23 A Correct. 24 Q And then it lists the same table name 25 shipment_item over and over. Correct? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 86 of 232 PageID: 4035 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 152 1 A Right. 2 Q And so that's the name of the table in 3 the database? 4 A It's the name of the table in this 5 database where these fields are coming from. That 6 would be my assumption. 7 Q And then length in LOG-NET, like we, 8 we've discussed what some of these specific things 9 mean, but what does that length in LOG-NET mean to 10 you? 11 A Length in LOG-NET would be the size of 12 the field in LOG-NET'S system. 13 Q And, and then the, these sub parts 14 where -- like the varchar that we discussed, the 15 decimals that we discussed, these are different I 16 guess expressions? 17 A They're -- they're -- 18 MR. WEIDER: Object to form. 19 A They're types of data. 20 Q Okay. Different types of data. 21 A So a decimal would assume that it had to 22 be a numeric, it would have to be numbers only. 23 Q Okay. 24 A Okay. Varchar means it could be any 25 character. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 87 of 232 PageID: 4036 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 153 1 Q And the one that's char(17), what is 2 that? 3 A That is saying that it -- that the field 4 is 17 characters and it must be 17. 5 Q That's what I was going to ask. So it 6 can't be 11? 7 A Right, that's where the varchar comes 8 in. 9 Q And then seeing I'm not well on my way 10 to crafting databases, I'm just going to ask, the last 11 one says integer. That just means it has to be an 12 integer? 13 A Correct. 14 Q I'm guessing. 15 A Well, an integer within a certain range, 16 1 to 32,000. 17 Q Oh, how do I know that? 18 A Well, there's another, there's another 19 type not shown here called long which allows you to go 20 longer. 21 Q I see. 22 A But an integer specifically is intended 23 for small numbers. 24 Q Okay. And, and what -- I mean, is this 25 in data definition language? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 88 of 232 PageID: 4037 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 154 1 A No. 2 Q What is this in? 3 A Looks like handwritten. 4 Q So this is just English as -- I mean -- 5 A For the most part. I mean, it's just a 6 way to say, here's the field, here's the table it 7 comes from, here's the size. 8 Q And -- but these terms like integer that 9 it goes up to 32,000, I mean, that's -- that's not 10 what the English word integer means. 11 MR. WEIDER: Object to form. 12 A Integer as it's defined generally in the 13 industry. 14 Q Okay. 15 A Most everyone would know. Some would -- 16 some databases would use int instead of integer, but 17 it's generally known that integer, especially at this 18 time when, you know, we're talking about the period of 19 2011, what have you, systems were often 32 bit. 20 You wanted to, if you use long, which 21 would be a much larger number, you try to optimize the 22 database storage. You don't want to store more than 23 you need to. 24 Q Right. 25 A Okay. So, so if I, if I know this is Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 89 of 232 PageID: 4038 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 155 1 going to be a number between 1 and 10, then I'm going 2 to use an integer so that I'm saving space. If I put 3 in long all the time, I'd be taking up much more space 4 when I don't need. 5 Q Right, no, I get the reasoning. 6 A Um-hmm. 7 Q I just -- what I -- I mean, varchar, 8 v-a-r-c-h-a-r, I mean, that's not a readily understood 9 English word. 10 MR. WEIDER: Object to form. 11 A Correct. 12 Q And so is that like a term from Cybase? 13 Is it a term from SQL? I mean, like how do, how do 14 people know what that means? 15 A It's a common nomenclature is the better 16 way to put it. 17 Q Okay. 18 A It's a nomenclature for most database 19 systems. 20 Q Okay. But it's not what we talked about 21 earlier, data definition type language? 22 A No. 23 Q And -- okay. And, and if this, you 24 know, decimal 12,3, I mean, if this is the way the 25 item quantity is stored or is defined, I mean, is that Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 90 of 232 PageID: 4039 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 156 1 what we would say, it's defined in the database? 2 MR. WEIDER: Object to form. 3 A It would mean, yes, that that's the way 4 it's defined in the database, yes. 5 Q And so how does the data then when I 6 have a quantity to enter, which I guess has, like you 7 said, has to be, on this database this line has to be 8 numeric, when I have a numeric quantity to enter, how 9 does it end up on this table in the database? 10 MR. WEIDER: Object to form. 11 A I don't understand. 12 Q Well, I mean, I'm just -- I mean, I'm 13 asking a question that's so basic that's probably why 14 you're confused. 15 I just mean like people enter data like 16 I get 133 items, right? 17 A Okay. 18 Q Somebody types that into data entry 19 somewhere. It ends up in this table somehow. I'm 20 just -- 21 A It either comes in through a user 22 interface. It comes in through an external program. 23 It can come in through a web service. It can come in 24 through a batch process. There's no particular way 25 data gets put into a database. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 91 of 232 PageID: 4040 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 157 1 Q Okay. But something has to happen at 2 the database engine to get it from wherever it got -- 3 however it got entered into the table as data at rest? 4 A As I mentioned, yeah, data at rest means 5 that the database doesn't put this in there. This is 6 put in by an external source. 7 Q Okay. And so the database engine is 8 interfacing with these different external sources to 9 get the quantity of the shipped items into this column 10 row that we're talking about? I don't know. 11 A Some external force would have to make a 12 call to the database using the database itself. The 13 database, like I said, is static. It's, it's at rest. 14 So this information would have to get pushed to it, to 15 use your term. So it would have to be pushed somehow 16 to be put into this field. 17 Q And how does the database know that it 18 has to be a number and it can be up to 3 decimal 19 points but presumptively not more? 20 A That's how the field is defined in the 21 database itself. So when I define it in the database 22 and I create a table and I create a column and I use 23 this format, then that's what the computer -- that's 24 what the database engine expects. 25 Q Right. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 92 of 232 PageID: 4041 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 158 1 A So if I sent abc to a decimal, it's 2 going to reject it. 3 Q And once it all does get entered and 4 entered as a number not as letters, where -- where 5 does it finally get stored? It gets stored on this 6 shipment item table? 7 A It would appear so from this, yes, 8 because they're saying that it's from this table. 9 Q Okay. And what is a system table? Is 10 this the system table? 11 A No. 12 Q And is a system table -- what is a 13 system? 14 A System tables are used by the database 15 itself. So there are -- there's a master database 16 table, for example, or master database entry which 17 basically is a -- has system tables in it which is 18 used, for example, to list all the databases that are 19 in the database. 20 Q Okay. 21 A Okay. 22 Q List all the databases in the database 23 or the tables in the database? 24 A In some cases both. They're -- system 25 tables are -- the definition from a database engine Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 93 of 232 PageID: 4042 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 159 1 perspective is that they're system tables that the 2 database engine uses. 3 Q Okay. 4 A Okay. 5 Q So my database could have sub databases? 6 A Absolutely. 7 Q Oh okay. Maybe I'm not ready to be a 8 database engineer. 9 The -- and the system table, I mean, 10 that would have all of the -- that would have all of 11 this same information on it? 12 A No, this would be considered a user 13 table. 14 Q Okay. 15 A The system tables in the system 16 databases that are used by the database engine, we 17 usually do not interact with at all. 18 Q Okay. And, I mean, but you can -- can 19 you see them with your eyes? I mean, are they -- 20 A Through the user interface you can see 21 what the names are. 22 Q Okay. 23 A But generally, like I said, we don't -- 24 do not interact with system tables. 25 Q Okay. And -- Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 94 of 232 PageID: 4043 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 160 1 A Unless I wanted to get a list of all the 2 databases that were there. 3 Q Right. Okay. 4 I mean, does the system table list the 5 columns that are on each table or does it just list 6 the table names? 7 A To make the distinction, there's system 8 tables which are part of the database engine, and then 9 there's user tables which are part of a user database. 10 Q Okay. 11 A Okay. They're two different things. 12 Q Okay. And the system table for its 13 part, I'm asking does that list the columns and like 14 would that have this information about decimals? 15 MR. WEIDER: Object to form. 16 A It may -- it's going to have the 17 cross-reference of how this is defined in the user 18 database. 19 Q Okay. 20 A But it's, like I said, it's not 21 something you would ever look up. 22 Q Okay. And why wouldn't I look it up? 23 A You would go to the user database. You 24 wouldn't go to the system tables to look at this. 25 Q And why would I -- I guess I don't know Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 95 of 232 PageID: 4044 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 161 1 why I would be looking at this in the first place. 2 A Well -- 3 Q Why would one have a desire to look at 4 the -- the user tables that you're talking -- that 5 you've mentioned, what is -- say that again, user? 6 A User databases and user tables. 7 Q And what do the user tables consist of? 8 A They consist of columns and rows. 9 Q And why would one be interested in 10 seeing those? 11 A To understand the data that's being 12 stored in it. 13 Q And it's a -- so if I had the user table 14 for the shipment item table, it would -- would it have 15 this information? 16 A Yes. 17 Q And -- but it would not be in this 18 format I'm guessing? 19 A Not in this format, no. 20 Q And -- 21 A And, again, that would depend on how you 22 were looking at it. But for the user interface you 23 would see a column name and it would tell you next to 24 it this was the format. 25 Q Okay. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 96 of 232 PageID: 4045 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 162 1 (Exhibit Sterling 16 marked for 2 Identification.) 3 Q So I'm showing you a document we've 4 marked as Sterling 16 and? 5 MR. WEIDER: Has this been produced before, 6 counsel? 7 MR. HAEFNER: No, not in the course -- not 8 with the Bates stamp. I mean, it was, you know -- 9 MR. WEIDER: Produced in some other format? 10 MR. HAEFNER: Well, I mean, we'll, we'll get 11 to the, we'll get to that in a moment. But, no, this 12 document is new for this deposition. 13 Q So the -- this is a internal view of the 14 LOG-NET tables. 15 A I can only assume but I'll take your 16 word for that. 17 Q Okay. And the shipment item table is at 18 the top. 19 A That's -- it's labeled as that, yes. 20 Q Okay. And if we look at the rows in the 21 shipment item table and this list from page 5 of 22 DHL23392 -- 23 A Yup. 24 Q -- there's the shipment reference, order 25 item, shipment item quantity, shipment item kilograms, Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 97 of 232 PageID: 4046 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 163 1 shipment item cubic meters and shipment item cartons, 2 correct, we see all of those tables here. Correct? 3 A Yes. Well, actually, hang on. Those 4 aren't tables. 5 Q Oh, I'm sorry. 6 A These are fields. 7 Q Fields. 8 A Okay, yes. 9 MR. WEIDER: Counsel, you know, I'm going to 10 allow you to ask the questions. I certainly have some 11 concerns over a document that hasn't been produced 12 before but that's not a basis to tell him not to 13 answer, may be a basis of whether you can use of this, 14 but a number of this stuff is redacted from that. 15 Are you making any represent -- it certainly 16 appears as if this document doesn't represent the 17 entire shipment item table, or if it does there's 18 certain information redacted. Is that -- 19 MR. HAEFNER: A fair point. I'll, I'll 20 clarify for the record that we've redacted the -- a 21 number of other table names on the -- if you look at 22 the shipment item table, for example, -- 23 MR. WEIDER: Right. 24 MR. HAEFNER: -- on the top, you will see on 25 the left-hand side, shipment item (glob_tech). Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 98 of 232 PageID: 4047 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 164 1 Do you see where I'm looking. 2 MR. WEIDER: Yes. 3 MR. HAEFNER: Above and below that redacted 4 are a variety of tables with different names that are 5 not the shipment item table. 6 MR. WEIDER: Okay. 7 MR. HAEFNER: So -- 8 MR. WEIDER: And then with respect to the 9 redactions that are on the right-hand side? 10 MR. HAEFNER: So those are redactions within 11 the shipment item table itself. 12 MR. WEIDER: Okay. So the shipment item 13 table contains other information other than what's 14 listed here? 15 MR. HAEFNER: Agreed. That is in fact the 16 case. 17 MR. WEIDER: Okay. All right. You can 18 proceed. 19 Q Okay. And then these length in 20 LOG-NET -- well, let me ask you this. 21 In the shipment item table, then there's 22 a, there's a heading at the top that says P Key, 23 capital P, capital K-e-y? 24 A Correct. 25 Q What does -- do you know what that Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 99 of 232 PageID: 4048 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 165 1 means? 2 A Yes, primary key. 3 Q Okay. And what does -- 4 MR. WEIDER: I'm sorry, I just -- where are 5 we at? Because I got lost. 6 THE WITNESS: He's looking at this right 7 there. 8 Q And what does -- what does primary key 9 mean? 10 A Primary key means the way you access -- 11 well, it's the primary key would be to make sure that 12 those two fields together are unique in this table. 13 Q Okay. And then -- and when you say 14 those two fields, you mean the two that are checked 15 with -- under that heading? 16 A That's correct. 17 Q And then there's another column called 18 name. 19 A Correct. 20 Q And those are the names of fields? 21 A Correct. 22 Q Okay. And then there's a column called 23 ID? 24 A Correct. 25 Q And that appears to me to be numeric? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 100 of 232 PageID: 4049 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 166 1 A It's the order of the fields as they 2 appear in the table. 3 Q Okay. 4 A So if you were looking at your fields 5 left to right, this would be the number. 6 Q Okay. And then data type? 7 A Data type indicates the type of data 8 that's supposed to be in that field. 9 Q And that's what we talking about 10 earlier, and we see the same, like the varchar, the 11 v-a-r-c-h-a-r? 12 A Yes. 13 Q And the integer, for example? 14 A Yes. 15 Q And then what -- and then there's a 16 column labeled size? 17 A Size is the, the length of the field. 18 Q Okay. And then there's a column labeled 19 scale? 20 A Correct, and that applies to, as in the 21 case of decimal, the size -- or the scale means 3, 22 which is .3. 23 Q Oh, so that's the -- 24 A That's the comma 3. 25 Q The equivalent of the 12,3, size is 12 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 101 of 232 PageID: 4050 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 167 1 and the scale is 3. 2 A Correct. 3 Q And then there's a column labeled nulls? 4 A Correct. 5 Q And what is that telling us? 6 A Nulls indicates if it's, if it's -- 7 these are unchecked, whereas there is one that is 8 checked. It means if it's nulls it can allow for what 9 we call a null value. A null value is nothing. 10 Q Okay. So I can some of these blank but 11 not all of them? 12 A In this case, ship fcr date could be 13 left blank. 14 Q Oh, so when it's checked that means it 15 could be blank? 16 A Correct. 17 Q Okay. But otherwise it has to go in? 18 A It has to have data. 19 Q And then there's a heading called 20 Unique? 21 A Correct. 22 Q What does that mean? 23 A That means whether it has to be unique 24 in the table or not. 25 Q And then there's a table or a heading, I Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 102 of 232 PageID: 4051 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 168 1 guess column is the word I'm looking for called value? 2 A Correct. 3 Q And some of them have a number 0 or a, 4 that's what it looks like to me, and then others don't 5 have anything. 6 A Correct. 7 Q And what is that representing? 8 A That is the default value. So if I were 9 to create -- so, in other words, the ship item 10 quantity, the default value is 0. 11 Q Okay. So, and then there's a place to 12 put comments in? 13 A Correct. 14 Q Okay. And the -- and so this document 15 that we marked as Sterling 15, which is labeled ICS+ 16 to GT Nexus integration document. 17 A Correct. 18 Q The information contained in the 19 shipment item, this LOG-NET fcr items section that 20 we're looking at? 21 A Correct. 22 Q This is information that's also found in 23 the shipment item table. Correct? That is Sterling 24 16. 25 A It appears to be, yes. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 103 of 232 PageID: 4052 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 169 1 Q Okay. And is there a technical term for 2 taking the information that we see in this view of the 3 shipment item table from Sterling 16 and putting it in 4 this language we see on page 5 of Sterling 15? 5 MR. WEIDER: I'm sorry, can you, can you 6 actually repeat that question for me. 7 (Reporter read back as requested.) 8 MR. WEIDER: Object to form. 9 A This is simply a shorthand notation for 10 what you're seeing here. 11 Q And when you say this, just for the 12 record, you're referring to Sterling 15? 13 A Right, Sterling 15 on page 5. 14 Q Is a shorthand notation for what I'm 15 seeing on Sterling 16? 16 A Correct. 17 Q Okay. And, and is this information that 18 we see on Sterling 15, the shorthand notation from 19 Sterling 15 to use your word, is that shorthand 20 notation a copy of the information contained in 21 Sterling 16's shipment item table? 22 MR. WEIDER: Object to form. 23 A It's simply a list of certain field 24 names and the length. 25 Q And the field names, the data type, the Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 104 of 232 PageID: 4053 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 170 1 length and the scale have all been copied into 2 Sterling 15. Correct? 3 MR. WEIDER: Object to form. 4 A They've been written down. I wouldn't 5 say copied. 6 Q Why wouldn't you say copied? 7 A It's just indicating what the size of 8 the field is. It's not, I mean, it's not a copy of 9 this. It's a copy in terms of the information it 10 provides. 11 Q Okay. 12 A But the format is different. 13 Q All right. 14 A So if you notice, decimal is 15 full-time -- full type data type is decimal, the size 16 is 12, and then the scale is 3. 17 Q Okay. 18 A This is shorthand notation for decimal 19 12,3. 20 Q Okay. And why -- so it's translated 21 into this shorthand notation? 22 A Yeah. 23 Q And what is your understanding, and this 24 may be addressed in paragraph 71 of your report, but 25 what's your understanding as to why one would be going Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 105 of 232 PageID: 4054 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 171 1 to the trouble of creating this shorthand notation? 2 MR. WEIDER: Object to form. 3 A 71? 4 Q Yes. I might be mistaken, for which I 5 apologize if it's the case. I thought this is where 6 the document was referenced. 7 MR. WEIDER: I don't believe that's -- it 8 doesn't look like the case. 9 MR. HAEFNER: Well, the witness can 10 certainly testify to that. 11 MR. WEIDER: Sure. 12 Q If you turn to page 73, or excuse me, 13 paragraph 73. 14 A Okay. Okay. 15 Q There's a reference to document DHL 16 00023388. Correct? 17 A Correct. 18 Q And that's the document we've labeled as 19 Sterling 15. Correct? 20 A Assume so, yes. 21 Q And so why was it -- was it necessary 22 for GT Nexus to see the thing that, the document that 23 we've labeled as Sterling 16? 24 MR. WEIDER: Object to form. 25 A That document? This document? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 106 of 232 PageID: 4055 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 172 1 Q Yeah, Sterling 16, the GT Nexus -- 2 A There would be no reason for them to see 3 this. 4 Q And -- but it says in paragraph 73, "The 5 documents cited reflect information that GT Nexus 6 required with respect to mapping data exchanges that 7 were previously occurring between LOG-NET and DHL's 8 ICS+ program..." 9 A This again, document Sterling 15, is 10 ISC+, a program written by DHL to GT Nexus 11 integration. Okay. 12 My assumption would be that these were 13 the data elements that they put in ISC+. 14 Q And they in this context would be DHL? 15 A Correct. 16 Q And those are the data elements from -- 17 and where did those data elements come from? 18 A I would assume from ISC+. 19 Q So those are tables in ISC+ not tables 20 in LOG-NET? 21 A Correct. 22 Q Okay. So do we know then why the tables 23 appear in the LOG-NET database that we've marked as 24 Sterling 16? 25 MR. WEIDER: Object to form. You can Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 107 of 232 PageID: 4056 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 173 1 answer. 2 A The ISC+ was, to my knowledge, was 3 reading information from the LOG-NET database. This 4 integration was to replace that reading from LOG-NET 5 to read from GT Nexus. 6 Q And so I'm -- still I'm not -- so ISC+ 7 was reading things off of the LOG-NET database? 8 A My understanding is that ISC+ was 9 pulling information -- reading information from the 10 LOG-NET database which it was using to feed into its 11 accounting system. 12 Q Okay. And the -- these tables on 13 Sterling 15 that we're discussing, or fields I should 14 perhaps say, those are fields that existed in 15 LOG-NET'S database? 16 A Correct. 17 Q Okay. 18 A I assume by the diagram. I can't verify 19 where this is from but. 20 Q Why, why was it necessary for ISC+, I'm 21 sorry to reach, in Sterling 15 when ISC+ is talking to 22 GT Nexus, why is it necessary for them to explain 23 where the data came from in LOG-NET, why not just 24 explain where it was already stored in the ISC+ 25 database? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 108 of 232 PageID: 4057 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 174 1 MR. WEIDER: Object to form. 2 A This doesn't necessarily mean they're 3 saying that's the length in LOG-NET, that doesn't 4 necessarily mean these came from LOG-NET. 5 Q And what does it mean? 6 A It means that these are the names that 7 they used in ISC+ program. 8 Q And the -- so ISC+ has a set of database 9 tables that are named identical -- identically with 10 LOG-NET'S tables? 11 A That would be my assumption from these 12 two documents, yes. 13 Q And ISC+ has a set of tables that have 14 the same size and scale as the LOG-NET tables, the 15 ones we've -- I mean, we've looked at a limited 16 number, I don't -- 17 A It would be my assumption that if you're 18 reading information from a database and the size is 19 12,3, then you would match that size to 12,3. 20 Q So ISC+ simply recreates a number of 21 LOG-NET fields from the LOG-NET database, specifically 22 here the shipment item table? 23 A They're defining a field in their 24 database that uses the same name and the same size as 25 the field in LOG-NET. If I were pulling information Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 109 of 232 PageID: 4058 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 175 1 from LOG-NET, I would want to put it in the same 2 format. 3 Q Okay. 4 A If I called this shipped_item_quantity, 5 then it might be difficult for me to cross-reference 6 what was what. 7 Q Okay. So it's your understanding that 8 ISC+ recreated certain of these shipment item table 9 fields in ISC+? 10 A That would be my assumption, yes. 11 Q Okay. And do you know if DHL ever -- 12 why is it necessary to have -- let me start all over 13 again. 14 Shipment item quantity, why is it 15 necessary to have three decimal places for items? Can 16 you -- it's a lot of places. 17 A That's, that's to allow for a fractional 18 number that goes out to three digits. 19 Q And did DHL ship things in fractional 20 quantities? 21 A I don't know, but I know for a fact that 22 if I'm trying to take information out of one database 23 and put it into another and I did not use the same 24 size, it would truncate that information. 25 Q Right. So if you, if you were using a Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 110 of 232 PageID: 4059 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 176 1 fractional quantity, is that the right word? 2 A Yes. 3 Q A fractional quantity in one database 4 and it was 12.3, and then you moved it to a database 5 that only -- that didn't have the decimal places, it 6 would just take the .3 away? 7 A It would -- well, yeah. A better 8 example would be if it was 0.0001, or .001 -- 9 Q Oh. 10 A -- and it went into .00, that it might 11 truncate that or could round it and make it 1 instead 12 of -- .01 instead of .001, which means the data 13 doesn't represent the actual data. 14 Q Yeah, and it could -- if you had a 15 partial item and it rounded down, you might just be -- 16 you might not know that you have the partial thing -- 17 A Correct. 18 Q -- anywhere? 19 A Correct. 20 Q Did DHL ship any partial items? 21 A I do not know that. 22 Q Did Toys R' Us ship partial items? 23 A I do not know. 24 Q Like part of a Lego? 25 A I would imagine not but, you know, I Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 111 of 232 PageID: 4060 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 187 1 documents that are put before Mr. Sterling that 2 either, A, were not produced in the litigation and 3 perhaps equally significantly aren't referenced 4 anywhere in Mr. Motley's report as a basis for Mr. 5 Motley's as being not proper scope of the expert 6 inquiry. But, like I said, I'm not going to instruct 7 him not to answer, I just want to make it clear that 8 we reserve all our rights with respect to those 9 subjects. 10 MR. HAEFNER: Understood. 11 Q And we see here that there is a document 12 ID section on this screen, under the list of documents 13 there's document ID, document description, number of 14 originals received, so forth and so on. Correct? 15 A Correct. 16 Q And do you know what these two-letter 17 document ID abbreviations signify? 18 A Well, right next to it there's a 19 document description, so document ID PL, document 20 description is packing list. 21 Q And do you know why it's two letters? 22 A Could be any number of reasons. 23 Q And -- 24 A It could be shorthand notation. It 25 could be abbreviation. It could be any number of Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 112 of 232 PageID: 4061 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 188 1 reasons. 2 Q And could it be part of an ANSI 3 compliant standard? 4 A It could be. 5 Q And, and but you don't, as you sit here 6 today, you don't know for certain one way or the 7 other? 8 A Correct. Because even if it was part of 9 an ANSI standard, if I call it a packing list on the 10 screen, it could be stored as PL. I don't know that. 11 Q Okay. And the -- and do you know what 12 the purpose of the document ID section of this is? 13 A No, I do not. 14 Q Okay. And is what you just described, 15 that it can be stored in different ways in the screen, 16 I mean, is that in the discretion of the author of the 17 software? 18 A Yes. 19 Q Okay. And -- 20 (Exhibit Sterling 19 marked for 21 Identification.) 22 Q I'm going to show you a document we've 23 marked as Sterling 19 for Identification. This is a 24 screen shot contained in the production of DHL's of 25 the GT Nexus Manage FCR, and as provided by DHL ISC Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 113 of 232 PageID: 4062 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 189 1 Hong Kong Limited from Eric-tk Li. And that's Eric-tk 2 Li. 3 So Eric-tk Li has sent this screen shot. 4 You'll -- do you notice that there is a document ID 5 field column, let me say that, -- 6 A Yes. 7 Q -- under documents? 8 And do you know why there is an empty 9 document ID field in the screen? 10 A I have absolutely no idea. 11 Q Okay. Is it -- I thought I read in your 12 report it's bad practice to have empty fields. 13 A It depends on what that document ID 14 field is used for. Looking at a screen, I can't tell 15 you what it means. 16 Q Okay. So -- 17 A Document ID could be 1, 2, 3, 4, 5. It 18 could be a, b, c, d, e. I don't -- there's no 19 definition or context around this. 20 Q Well, there's no certainly no values 21 entered in it. Correct? 22 A Correct. 23 Q And so do you know what it was being 24 used for? 25 A No. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 114 of 232 PageID: 4063 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 190 1 Q And, but it does also have a document 2 description field. Correct? 3 A That's correct. 4 Q And a received date? 5 A That it does. 6 Q The number of originals? 7 A That it does. 8 Q The number of copies? 9 A Yes. 10 Q And then there's a blank reference field 11 as well? 12 A That's correct. 13 Q And so do you know where GT Nexus got 14 this list of six items to include? 15 MR. WEIDER: Object to form. 16 A No. 17 Q And below that there's a section called 18 Charges. Correct? 19 A Correct. 20 Q And it has a series of columns as well, 21 Location, Charge Description, Units, Basis, Rate, 22 Currency and Amount. Correct? 23 A Correct. 24 Q And the LOG-NET screen at Sterling 18, 25 it contains the same series of information, doesn't Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 115 of 232 PageID: 4064 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 191 1 it? 2 MR. WEIDER: Object to form. 3 A I'm assuming you're talking about the 4 middle section? 5 Q Yes, sir. 6 A It does not. 7 Q And how does it differ? 8 A There's no -- the LOG-NET screen shows 9 charge number. There's no charge number on the GT 10 Nexus screen. 11 Q Okay. 12 A It says Location first on -- I'm sorry. 13 LOG-NET screen shows Tariff ID. On the GT Nexus 14 screen it calls it Location. 15 Q Okay. 16 A I would assume, because it seems to have 17 the same information, same type of information. 18 There is a description field on both. 19 LOG-NET calls it Description, GT Nexus calls it Charge 20 Description. 21 LOG-NET has a required field. There is 22 no required field on the GT Nexus screen. 23 The last four fields, which are slightly 24 different names -- oh, they're the same names, Units, 25 Basis, Rate, Currency and Amount are the same on both Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 116 of 232 PageID: 4065 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 192 1 screens. 2 Q And would you consider the screens to be 3 substantially similar? 4 A I would say they're holding similar 5 information. 6 Q I'm just talking about the, the -- 7 MR. WEIDER: Just for the record, object to 8 the form of the last question. Object to the form of 9 the last question. 10 Q And leaving aside whether they're 11 holding the same information -- 12 A I would say similar information, not 13 exactly the same. 14 Q Sorry. I apologize. 15 Would you describe them as substantially 16 similar in format? 17 A No, they're in a different order and the 18 columns are different colors -- or different names. 19 Q Okay. And that's fine. 20 And do they appear to be functionally 21 equivalent? 22 MR. WEIDER: Object to form. 23 A I -- I -- not knowing either system's 24 purpose for this particular screen, they appear to be 25 showing similar information, but whether they're being Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 117 of 232 PageID: 4066 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 193 1 used for the same purpose I don't know. 2 Q Okay. 3 MR. WEIDER: Marc, we've been going for a 4 fair bit, over an hour, want to take a break? 5 MR. HAEFNER: Yeah, let me -- that makes 6 sense. 7 (Short break, 3:08 p.m.) 8 (Back on the record, 3:18 p.m.) 9 Q So we're back on the record. 10 Mr. Sterling, I just looked at my phone 11 to tell what time it was and then I didn't write it 12 down. 13 So, so in your Joe's Lemonade Stand 14 hypothetical, one of the things that happens is, on 15 paragraph 33 specifically, Jill wants to replace her 16 system, she's going to get Michelle to make the new 17 system. Correct? 18 A Correct. 19 Q And so she asks Rick to provide the 20 exact format the cup company needs. Correct? 21 A Correct. 22 Q And you call this replacing interfaces? 23 A Correct. 24 Q And is that a recognized term in the 25 software world? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 118 of 232 PageID: 4067 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 194 1 A Yes. 2 Q As a term of art? 3 A Interface? 4 Q Well, replacing interfaces. 5 A Well, replacing an interface means I 6 have an interface. It means I'm replacing it. So I 7 had a connection and I'm replacing it. 8 Q And is the -- you put it in quotes on -- 9 A I put all of the points in quotes. 10 Q When you say points in quotes, what do 11 you mean? 12 A In other words, where I'm referencing 13 what I'm saying. So, for example, wish list is in 14 quotes. 15 Q Okay. And so that doesn't necessarily 16 mean wish list is a technical term that everyone uses, 17 does it? 18 A It's a cross-reference so that when I 19 summarize it -- 20 Q Okay. 21 A -- that I'm able to identify what I'm 22 talking about. 23 Q Okay. And what I don't necessarily 24 understand about Jill's problem with the cup company 25 is, the cup company has requirements. Correct? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 119 of 232 PageID: 4068 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 195 1 A In this story -- 2 Q Yes? 3 A -- Jill -- the cup company and Rick 4 worked out what the interface would be so that they 5 would be able to get the information for Jill and 6 provide it in the format that the cup company wanted. 7 Q And in the story is it the cup company 8 that decides the way it wants to receive the 9 information or is it Jill who instructs the cup 10 company how they will take it? 11 A It's actually how Rick and the cup 12 company will do it. 13 Q And so in the story have Rick and the 14 cup company come to a mutual agreement or did one of 15 them tell the other, here's what we're going to do, 16 you make it work on your end? 17 A It could go both ways. It's a 18 handshake. So Jill needs it. Rick was the one who 19 designed the system, so Rick understands where his 20 information is stored. The cup company, they know 21 what information they'll -- they're going to ask Rick 22 what information do you have, gee, can you give us 23 this information, is there any supplemental 24 information they need, and then they'll make an 25 agreement about what the format of that information Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 120 of 232 PageID: 4069 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 196 1 will be. 2 Q And the -- I mean, in this hypothetical, 3 what, what data does Jill have that needs to be kept 4 track of for the migration, vis-à-vis the cup company? 5 A The information being what her cups are 6 on hand so that she knows what to order. 7 Q Right. And how -- if Rick didn't -- 8 Rick was hired to create this software. Correct? 9 A Correct. 10 Q By Jill? 11 A Correct. 12 Q So this is really like bespoke software 13 that Jill paid for? 14 A Correct. 15 Q And so if Jill wants Rick to -- I mean, 16 is it a work for hire in the hypothetical under the 17 copyright laws of the United States? 18 A I'm sorry -- 19 MR. WEIDER: Object to form. 20 A I don't understand the question. 21 Q Under the copyright laws there's a thing 22 called a work for hire. It's not referenced in the 23 document. I'm not trying to trick you. You may know 24 what it is, you may not. 25 A Just if you explain what the context is. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 121 of 232 PageID: 4070 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 197 1 Q Sometimes if you write it down you can 2 agree with someone, I want you to draw me something, I 3 want to own the copyright in it. When you're done 4 drawing it, you would call that a work for hire? 5 A Correct. And I would say no in this 6 case. 7 Q So in this case Jill didn't have this 8 work done as a work for hire? 9 A Well, she paid for him to do it. 10 Q But did she -- does she own the 11 copyright in the software that Rick drafted or -- 12 A There wouldn't be a copyright on an 13 interface -- 14 Q Well, I'm just -- 15 A -- necessarily. 16 Q No, that's fine. But, I mean, I'm 17 talking about the software as whole now. 18 A The software as a whole, she doesn't 19 ask -- she didn't ask for it and she wouldn't get it. 20 Q Okay. So in the story the software as a 21 whole, the copyright holder is Rick? 22 A Correct. 23 Q And does -- does Rick and Jill's 24 hypothetical handshake deal, I'm assuming they're -- 25 they seem friendly, does their hypothetical handshake Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 122 of 232 PageID: 4071 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 198 1 deal require Rick to provide Jill the exact data 2 interface that the cup company wants? 3 A It would be more of a professional 4 courtesy and an industry standard to do so. 5 Q Okay. And because the data that 6 Michelle needs going forward is the cups on hand 7 and -- excuse me? 8 A Go ahead. Go ahead. 9 Q Is the cups on hand, right, for this 10 interface? 11 A For -- yes. 12 Q Paragraph 33? 13 A Right. 14 Q And one way Rick could provide that data 15 to Michelle and Jill is he could write out on a piece 16 of paper with a pen in longhand X number of small 17 cups, x number of medium cups, so forth so on, list 18 all the cups on hand on a piece of paper, written in 19 longhand with a pen, tear it out, hand it to Michelle 20 and Jill and say, here's all the data. Correct? 21 A No. 22 Q He can't do that? 23 A Well, he could -- 24 Q Okay. 25 A -- but then what he's doing is Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 123 of 232 PageID: 4072 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 199 1 essentially saying you need to recreate this from 2 scratch. You need to contact the cup company. You 3 need to find out exactly the fields formats that they 4 need, the sizes of the fields that they need, and so 5 effectively you're going to have to rewrite the wheel. 6 So you're going to have to start all over. 7 Q Okay. 8 A Okay. So that's why I say as a 9 professional courtesy we don't generally do that 10 because idea was that you're asking for them to say, I 11 already have the format but I'm going to write it out 12 in longhand so it's more difficult to deal with. 13 Q And that would be the -- I mean, but 14 there's way to transmit just Jill's customer data, 15 cups on hand, to Jill, short of providing her all of 16 the interface information, fields, et cetera, that the 17 cup company needs? 18 A He could write it out in longhand, 19 that's correct. Although, again, like I said, as a 20 professional courtesy, if I already have it in an 21 electronic formal, that would be the way I would 22 provide it. 23 Q What if the program has a functionality 24 where you can craft an Excel spreadsheet report that 25 lists cups on hand and he says, I've the report Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 124 of 232 PageID: 4073 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 200 1 functionality, here's an e-mail with the current 2 version of Excel spreadsheet, all the cups on hand? 3 A The information in the interface is not 4 the information in the database at rest. There's a 5 difference. 6 Q Okay. 7 A Okay. The database at rest would be 8 cups on hand. 9 Q Okay. 10 A Okay. The information that I'm sending 11 to the cup company may be the number I want to order, 12 the date I want to order it. You follow me? 13 Q Sure. 14 A So the interface, the interface of what 15 I'm sending to the cup company, what the cup company 16 expects, and probably what the cup company is going to 17 send back to me to say, we have your order, we got 18 this number, we got it on this date, it'll be 19 delivered on those dates, that interchange, okay, is 20 the piece I'm talking about. 21 Q Okay. And presumptively in our, our 22 hypothetical, the cup company knows how it likes to 23 receive electronic orders? 24 A Correct. 25 Q And typically when you're dealing with a Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 125 of 232 PageID: 4074 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 201 1 bunch of little people who are buying from some big 2 cup conglomerate, they do it way the cup conglomerate 3 wants it done? 4 A Generally. 5 Q And is there a way that, if you and I 6 were just sitting down, you know, for the first time 7 and I was saying I got this, you know, really great 8 lemonade idea, I want to order cups from the cup 9 conglomerate, can you figure out how I can do it 10 electronically, what would you do? Would you call the 11 cup company to get how they want the order submitted? 12 A Yeah, generally, if it was a large 13 conglomerate. 14 Q Yeah. 15 A It could also be a mom and pop that may 16 be different. 17 Q Oh, yeah, sure. Well, in, you know, in 18 my hypothetical it's a conglomerate? 19 A Okay. 20 Q So the -- so, so when Jill migrates to 21 Michelle, I mean, in the process of prior to even that 22 migration occurring, couldn't Michelle call the cup 23 conglomerate and say, I'm making up a module that'll 24 electronically send orders out to you when inventory 25 levels reach certain numbers, what do you want those Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 126 of 232 PageID: 4075 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 202 1 electronic orders to look like? 2 A Theoretically in a conglomerate you 3 could. 4 Q And in the hypothetical why doesn't 5 Michelle do that? 6 A It's already been done. 7 Q By Rick? 8 A Right. So why re -- why start over from 9 scratch? 10 Q What if Rick spent a lot of time 11 figuring out the best way to formulate the electronic 12 order? 13 A That would be even more important to 14 understand. Now, granted, how he formulates that 15 order, we're not looking for that. We're looking for 16 the format. 17 Q And is that, I mean, is that format 18 always identical? 19 A What do you mean format? 20 MR. WEIDER: Object to the form. 21 Q Well, you said you want the format that 22 Rick is using. Correct? 23 A So, so if I've been, I'm Jill, and I've 24 been working with this conglomerate and I've been 25 using Rick's program to get the information out, and Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 127 of 232 PageID: 4076 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 203 1 I'm sending the same format and it's coming back to me 2 in the same format week-in, week out, then I don't 3 want to have to start over and say, well, you know, 4 let's start -- let's go meet with them, let's find out 5 their exact format, let's work out the information 6 back and forth and start all over from scratch. 7 Q Okay. 8 A It's a message transaction. It's a 9 handshake. So the idea is it's back and forth. 10 Granted, Rick can say, you know, forget it, I'm not 11 going to give it to you. 12 Q Okay. 13 A Okay. In which case Michelle would have 14 to go meet with the conglomerate, they'd have to go 15 back through the whole process, and they'd have to 16 start over from scratch. That would mean that Jill 17 would have to pay Michelle additional money to figure 18 that out. 19 Q And, and no one wants to pay more money. 20 A Right. And of course Michelle is going 21 to still have to figure out how to pull information 22 out of Michelle's program to fit that format. So it's 23 going -- she's going to have to do some work anyway. 24 Okay? 25 Q Right. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 128 of 232 PageID: 4077 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 204 1 A But the point is is you don't want to 2 start from zero when you can start from five. 3 Q And if the contract that Jill and Rick 4 have specifically says, when this is all over between 5 us, for any reason, I don't have to give you anything, 6 I don't have help you integrate into a new system or 7 do anything, if that was the deal, and I'm not -- 8 A That would be -- 9 Q That's not the deal that's written in 10 your report, I'm just saying. 11 A But if that were the deal, that would be 12 Rick's prerogative. 13 Q Okay. And in that case then, you know, 14 Michelle would just have to figure it out on her own? 15 A Correct. 16 Q And the -- is it typical in these sorts 17 of large-scale IP solutions to do this kind of data 18 integration for free? 19 MR. WEIDER: Object to form. 20 A Data in a -- it's a professional 21 courtesy in the terms of messages. There's a 22 difference between data and messages. 23 Q Okay. 24 A Okay. It's a professional courtesy if 25 you want to, you know, keep a relationship of any Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 129 of 232 PageID: 4078 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 205 1 kind. 2 If you decide you don't want to supply 3 the information, or your agreement said that you would 4 not supply some information, well, then everybody's at 5 a loss. 6 Q And -- 7 A And, again, I do clarify this is 8 messages, not data. 9 Q Right. No. I'm not sure I understand 10 the distinction still, but I don't think that's your 11 fault. 12 So -- I apologize. I have to get, get a 13 document from the box of documents. 14 I meant to discuss these with you when 15 we were on paragraph 73, 72, 73 of your report, so I 16 apologize. My -- I had new people helping me with my 17 deposition prep and my system is not as foolproof as 18 it has been in the past. 19 So one of the things that you say in 20 the, you know, discussion of the database is, and tell 21 me if I'm wrong, is that LOG-NET and GT Nexus were 22 running on different database engines? 23 A Correct. 24 Q And what's the level of sort of 25 cross-over ability of those database engines? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 130 of 232 PageID: 4079 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 206 1 A It depends. Cybase and SQL are pretty 2 close, but if you were just, for example, go to IBM 3 DB2, it would be completely different. 4 Q And here, though, everyone was on -- GT 5 Nexus was on SQL. Correct? 6 A SQL server, Microsoft SQL Server. 7 Q And log-Net was on Cybase? 8 A Correct. 9 Q And if you -- could you execute the same 10 instructions on both? 11 A They both use a flavor of what they call 12 T-SQL, which is Transact-SQL. The internal commands 13 are different to some degree. 14 (Exhibit Sterling 20 marked for 15 Identification.) 16 Q So I will represent to you this is a 17 document from DHL's production 23402. And it's an 18 internal document. It was not forwarded to LOG-NET 19 and I don't believe it was sent to GT Nexus. It's a 20 screen shot somewhere in the production. And I think 21 I can represent that this -- there's an indication in 22 the e-mail that goes with this document that it was 23 written by Frankie, who is a DHL employee in China. 24 A Okay. 25 Q So these words were written by Frankie. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 131 of 232 PageID: 4080 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 207 1 This is part of a -- Doug, this is part 2 of a very large Excel spreadsheet, and so this is a 3 screen capture of the first page, the database tab, 4 because if I printed out the whole thing it would be 5 giant, very -- too small to read and -- 6 MR. WEIDER: So, so this 23402, this isn't 7 actually -- this is a -- this isn't an exact replica 8 of what 23402 is? 9 MR. HAEFNER: Well, 23402, if you go to it 10 in the DHL production reads, Document produced in 11 native. 12 MR. WEIDER: Okay. Okay. So you -- 13 MR. HAEFNER: So 234202 is not on its face 14 anything. I mean, you know what I mean? And then 15 there's a native XL spreadsheet associated with it. 16 MR. WEIDER: I understand. 17 So just to be clear, what you've done is 18 you've taken a screen shot from the native, placed it 19 on this document, put the 23402, so it's a reference 20 that the screen shot is from the native that's 23402, 21 it's just not -- this isn't just the entirety of 22 23402? 23 MR. HAEFNER: Exactly. 24 MR. WEIDER: Okay. 25 MR. HAEFNER: And I, as I said, I did that Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 132 of 232 PageID: 4081 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 208 1 because I didn't have questions about any of the rest 2 of it and it was pages and pages and pages long. 3 MR. WEIDER: Okay. 4 MR. HAEFNER: So. 5 MR. WEIDER: Can you, at least just to help 6 try to figure out -- well, I guess its not too hard. 7 So it looks like there are multiple tabs so obviously 8 this is from the database tab of the spreadsheet? 9 MR. HAEFNER: Correct. 10 MR. WEIDER: Is that the beginning of that 11 section? 12 MR. HAEFNER: This is the I think the 13 entirety -- it is cut off, I will -- so I won't say 14 entirety. This is the only thing that appears on the 15 database tab. Well, only thing. You know what I'm 16 trying to tell you. 17 MR. WEIDER: Okay. 18 MR. HAEFNER: It's a screen capture of the 19 only thing that appears and we've lost the end of the 20 sentence. 21 Q So Frankie indicates that ISC+ can run 22 with any of the following database -- it says database 23 servers. Is -- I mean, is that -- is database servers 24 the word you would use there or would you say database 25 engine? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 133 of 232 PageID: 4082 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 209 1 A Database servers is the -- is equivalent 2 to database engine. 3 Q So that's just one of those either/or 4 sort of things? 5 A Yes. 6 Q Okay. And it -- the ISC+ program, for 7 lack of a better word, can run on Syabse -- that -- we 8 think the S-y-a-b-s-e -- 9 A Yeah. 10 Q -- that is a typo for Cybase? 11 A Misspelled, yes. 12 Q Microsoft SQL 2005 or Oracle 8i, 9i or 13 10g? 14 A Yes. 15 Q And then apparently one also needs a 16 driver to do this? 17 A Oracle requires an ODBC driver. And 18 ODBC stands for Open Database Connectivity. 19 It also indicates that Cybase would need 20 an ODBC driver as well. 21 Q And so whoever wrote this ISC program, 22 ISC+ program for DHL, which -- well, let me ask that. 23 Do you know who wrote this ISC+ program for DHL? 24 A No. 25 Q Does DHL, to your understanding, have Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 134 of 232 PageID: 4083 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 210 1 computer programmers who could write a program? 2 A I would imagine most any large company 3 has at least some programming background, some 4 programming experience. 5 Q And, and were you ever told whether 6 there were specific individuals at DHL -- well, you 7 told me you didn't know who wrote it so I guess that 8 would answer the question. 9 But whoever wrote this ISC+ wrote it so 10 that it could run with any of these database servers. 11 Correct? 12 A Correct. 13 Q And this Microsoft SQL 2005 database 14 server, that's also the database server that GT Nexus 15 uses? 16 A Correct. 17 Q Okay. 18 A I -- well, I would assume so. The 19 version is not -- you know, I mean, it could be a 20 different version but it's basically the same thing. 21 Q Okay. Paragraph 79 indicates in the 22 last full sentence that "LOG-NET uses a completely 23 different database technology from GT Nexus which 24 would make any kind of one-to-one copy of a database 25 design impossible and of no use." Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 135 of 232 PageID: 4084 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 211 1 A Correct. 2 Q And is that still your opinion? 3 A Yes. 4 Q Then how is it that ISC+, which is 5 apparently a copy of portions of the LOG-NET database, 6 can run on both Cybase and Microsoft SQL? 7 A Well, more importantly, that it can run 8 on Oracle. 9 Q Okay. 10 A Okay. These three types of databases 11 indicate that if I can run on all three of these then 12 I'm using nothing more than native tables, which means 13 the same as having spreadsheets. I'm not using any of 14 the programmability. I'm not using any of the actual 15 functions of the database. So it's just data storage. 16 That's all that's being used. 17 Q And what if LOG-NET used SQL 92? 18 A Wouldn't have mattered. 19 Q And in what sense wouldn't it have 20 mattered? 21 A Natively, database tables are defined 22 the same pretty much in all database engines. All 23 right. Because the native idea is row and column. 24 Q Okay. 25 A Okay. The only difference is IBM DB2 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 136 of 232 PageID: 4085 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 212 1 because it uses a different kind of character 2 sequence. 3 These three databases use what's called 4 ASCII. And that's A-S-C-I-I. Okay. DB2, which is 5 IBM's product, uses EBCDIC. And that's E-B-C-D-I-C. 6 Okay. 7 The idea is that data in any one of 8 these databases is going to look relatively the same. 9 The data on a IBM D2 database would be completely 10 different. Okay. I would have to translate from one 11 to the other. 12 So the definition used for Cybase and 13 for SQL, because SQL actually was created from Cybase, 14 have a very similar table structure. 15 Q Okay. 16 A Okay. The difference in an Oracle -- 17 the fact that they're using Oracle means that they're 18 using a very generic form of that table structure. 19 Okay. 20 What it does mean by being able to 21 support these three, means that they're not using any 22 stored procedures, because T-SQL, which is 23 Transact-SQL, used in Cybase, which is a little 24 different than the Transact-SQL used in SQL, is 25 completely different in the PL/SQL used in Oracle. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 137 of 232 PageID: 4086 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 213 1 Q Okay. 2 A Okay. 3 Q So you would take this to mean -- so 4 tell me then -- I mean, I heard what you said and I 5 think I followed, but like what's the -- is there a 6 take-home from that? 7 A It means that I could probably use it in 8 a hundred different kinds of databases that use that 9 very generic format. 10 Q And -- so to go back from Sterling 20 to 11 paragraph 79, the -- explain to me again why it is 12 that there's no relevance to the LOG-NET database 13 design to GT Nexus? I'm saying put the document 14 aside. You can reference it if you want. I just, I 15 mean asking -- 16 A Explain to me one more time? I want to 17 make sure I answer your question. 18 Q I forgot your answer to the question 19 before we looked at Sterling, so I'm sort of reset. 20 A Okay. 21 Q So in paragraph 79 you say that the 22 LOG-NET database structure would be irrelevant to GT 23 Nexus. Correct? 24 A Correct. 25 Q And why is that? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 138 of 232 PageID: 4087 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 214 1 A Because the ISC+ program had its own 2 tables defined, evident by Sterling 20. 3 Q Okay. 4 A Okay. So it has its own tables defined. 5 Having these tables defined in ISC+ would mean nothing 6 to GT Nexus. 7 Q And why is that? 8 A They're not going to bring the ISC 9 tables into GT Nexus. It's a -- ISC+ was intended to 10 be a reading system that read using ODBC from LOG-NET 11 to pull data from LOG-NET into the ISC system, or 12 program, whatever you want to call it. Okay. So it's 13 reading a subset, very small subset of information. 14 In GT Nexus' point of view, they would 15 be looking at their database and their format to 16 figure out how to give them the information that they 17 were previously getting. 18 Q I see. 19 A So, two different, two different 20 animals. 21 So the, the table names and the field 22 names and everything would be completely different in 23 a GT Nexus system. The idea is that they're saying 24 this is the data element we need. Okay. So the 25 naming was -- and it would be my contention that ISC+ Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 139 of 232 PageID: 4088 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 215 1 simply followed the name with LOG-NET when they first 2 created the program just to make it easier. Okay. 3 So that I wasn't saying, okay, well, I'm 4 going to call it shp_itm_quantity, or qty, and that's 5 what LOG-NET is, and I'm going to call it ship item 6 quantity. Because if LOG-NET changed their name, the 7 field name, it would make my system break, okay, and 8 I'd have to rewrite my extract. 9 Q Right. 10 A Okay. So, but GT Nexus may call it ship 11 item quantity, okay. So they're going to have to 12 figure out how to take ship item quantity and move 13 into ISC+ as shp_itm_qty. 14 Q Yeah, and only to make it match up now 15 with GT Nexus. 16 A Right, GT Nexus is going to have to 17 figure -- well, in order for the ISC program to 18 operate, to pull the same information, it's going to 19 have to figure out where that information is in GT 20 Nexus. 21 So giving them the copy of this, if you 22 were to put it that way, would be of no use to GT 23 Nexus. It's only useful for GT Nexus to know what 24 they have to extract to give to ISC+. 25 Q Right. Now, if you turn to page 41 -- Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 140 of 232 PageID: 4089 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 216 1 or paragraph 41, excuse me, of your report -- 2 MR. WEIDER: I'm sorry, what page? 3 THE WITNESS: 41. 4 MR. HAEFNER: It's paragraph 41. 5 A (Witness complies.) 6 Q Have you had a chance to look at 7 paragraph 41? 8 A Yes, sir. 9 Q Okay. So there's two things. First, 10 you offer the opinion that you disagree with 11 Mr. Motley that there's been a violation of the 12 contractual provision on reverse engineering. 13 Correct? 14 A Correct. 15 Q Okay. And that's your one sort of 16 contract opinion for the case? 17 A Correct, my definition of what I know 18 from contract. 19 Q Okay. And what's the basis of your 20 opinion that there's been no reverse engineering? 21 A Reverse engineering, as far as an 22 industry standard goes, is to effectively take 23 something and replicate its function and form. 24 Q Okay. And the -- and it's your position 25 that that's not -- that there's no evidence that that Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 141 of 232 PageID: 4090 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 217 1 happened here? 2 A In relation to ISC+ or in relation to 3 the case? 4 Q In relation to the case as a whole? 5 A In relation to the case I think it's 6 not, or either way. 7 Reverse engineering in my case -- from 8 my understanding, and I know I've done reverse 9 engineering myself, is to take the functionality of a 10 program and disseminate it and reverse engineer it 11 specifically so that I can reuse it. 12 Q And -- okay. 13 A And I do have a definition in this 14 report about my position on reverse engineering. I 15 don't know where it is. 16 Effectively, in my case, in my opinion, 17 my professional opinion -- 18 Q Sure. 19 A -- reverse engineering tells me the how, 20 not the what. 21 Q Okay. 22 A Okay? So that would be, at least in my 23 opinion, the general industry standard of that. Okay? 24 Q And when you say the how versus the 25 what, can you give me a concrete example of that Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 142 of 232 PageID: 4091 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 218 1 that's easier for me to follow? 2 A How LOG-NET may have booked shipping 3 orders, okay, exactly how they did it, exactly how the 4 code worked, that's the how. 5 The fact that the information is the 6 same in two different systems, that's the what. Okay? 7 So the idea is to reverse engineer it, I 8 would actually have to reproduce it in exact of how it 9 was working exactly, in screen-wise and everything 10 else. 11 Q And would I have to copy -- to be guilty 12 of reverse engineering, in your definition, would I 13 have to copy the source code or could I just gain 14 access -- well, let me, let me ask one question at a 15 time as opposed to a compound question. 16 Under your definition of reverse 17 engineering, would I have to copy the source code? 18 A I would say yes. 19 Q Okay. And what if I just copied data 20 definitional language, database definition language? 21 A They did not. 22 Q Oh, I'm not saying they did it. Again, 23 I'm asking about your definition of -- 24 A If I were to copy the data definition 25 language, the DDL, that would indicate that I'm trying Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 143 of 232 PageID: 4092 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 219 1 to take the entire database. 2 Q And would that be reverse engineering? 3 A The entire database? 4 Q Yes. 5 A Yes. 6 Q And if I were taking -- is there a 7 distinction between the entire database and a portion 8 of the database in your mind? 9 A Yes. 10 Q And what's hat distinction? 11 A If I'm looking at a few table and 12 pulling some information for a few tables, that's 13 hardly reverse engineering. That's effectively taking 14 information. It's a very common business practice for 15 doing business intelligence systems, for doing data 16 warehousing, any time that I want to marry that 17 information from this system to this system. 18 So if I have a shipping system and I 19 have an enterprise resource planning system, and I 20 want to combine information together for my purposes, 21 it's very common practice to allow that. Most 22 companies provide what's call an application program 23 interface that allows you to do exactly that. 24 Q And that's interesting. 25 What is -- so when you say most Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 144 of 232 PageID: 4093 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 220 1 companies, you mean software companies? 2 A Correct. 3 Q I'm not -- I don't mean -- I'm not 4 trying to be snarky. So -- I'm just trying to figure 5 it out. 6 A Certainly. 7 Q So most software companies have, what 8 did you call it? 9 A An application program interface, or an 10 API. 11 Q Okay. So can we call it API so I don't 12 have to remember it? 13 A So you API, or they provide access to 14 data within the system. 15 Q Okay. And -- 16 A API is a, is a, is a nicer way to do it. 17 But they may just give you, for example, if I have a 18 people-soft system, that generally would track my 19 locations, it would have my customers in it, it would 20 have that kind of information. 21 I may allow, which they do, for you to 22 access the customer list so that you can use that 23 customer table in your other systems so that you have 24 one source of the truth. 25 Does it make sense? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 145 of 232 PageID: 4094 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 221 1 Q Oh, yeah, okay. So I have -- I run a 2 drug company. I have a list of customers that the 3 sales reps go and visit. 4 A Correct. 5 Q And that's the most important piece of 6 information I have to me. 7 A For whatever reason. 8 Q For whatever reason. 9 And so the people-soft software that 10 you're talking about, for the sake of the way I'm 11 thinking about it, that's my master list of people I 12 sell to? 13 A Correct. 14 Q And so I have other processes that do 15 billing or, you know, send out marketing, who knows 16 what they do, and I want them to be able to look at 17 that table you're talking about, this master table of 18 customers, read it so that they can produce e-mails to 19 send about the, you know, barbecue? 20 A Certainly. That's one application. The 21 idea is that, you know, either SAP, which is another 22 system, either of these kind of systems which maintain 23 lists like customers, or sales information, or how my 24 customers -- which salesperson is assigned to my 25 customer, this kind of information to pull is standard Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 146 of 232 PageID: 4095 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 222 1 practice. 2 The idea is that when I go to create a 3 new customer, I'm creating them in that system to 4 begin with. Therefore, it becomes my master list. 5 Okay. 6 So rather than me having to copy that 7 information to other systems, thus maybe missing a 8 customer, okay, or manually entering it into two 9 different places, which is prone to error, I'm able to 10 consider one as my master. 11 Q Right. Okay. So, and that's -- yeah. 12 So now I'm on the same page. 13 A Okay. 14 Q Because like I have billing, I have 15 shipping, I have marketing and I have this master 16 salespeople meet with the customers list, and I'd have 17 to put it four places? 18 A Correct. 19 Q And type it in each time and transpose 20 zip code digits, and drug shipments are going to Waco 21 and they're supposed to go to Austin and like -- 22 A Right. And you'd be relying on somebody 23 to manually enter it four times. 24 Q Yeah. 25 A In which case the chances of them Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 147 of 232 PageID: 4096 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 223 1 getting an error is very high. 2 Q Right. Exaggerating the possibilities. 3 And the -- you talked earlier about the 4 databases can have sub databases in them. Correct? 5 A Not really sub databases. They can have 6 related databases. 7 Q Okay. And -- 8 A You don't have a database in a database. 9 Q Okay. 10 A Unless, unless it's Microsoft SQL, which 11 allows you to have an access database inside of a SQL 12 database. 13 Q Okay. 14 A But that's, that's a rare occurrence. 15 Most of the time it's I have database and I have 16 related databases. 17 Q Okay. And if I have a big database, I 18 mean, there may be -- I mean, are there separate 19 tables in the bigger database that are perhaps only 20 used for specific parts of the software programming? 21 A I'm not sure I understand. 22 Q Well, the database, you know, it might 23 have a thousand tables in it, right? 24 A Correct. 25 Q And there might be some functionality Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 148 of 232 PageID: 4097 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 224 1 that I need the data in the database for that only 2 takes advantage of a select number of tables. 3 Correct? 4 A If I'm following you correctly, it would 5 be, for example, a specific function may use a subset 6 of tables. 7 Q Right. 8 A Okay. Yes. 9 Q Okay. And whatever that function was, I 10 mean, if that functions were a unique and valuable 11 function, it would be helpful -- you would want to 12 keep secret which database tables were necessary to 13 make the unique and special function work. Correct? 14 A That wouldn't give you the whole story. 15 Q Okay. Why not? 16 A Because the data is at rest. You don't 17 know how the data got from A to B. 18 Q What would you do to find out how the 19 data got from A B? 20 A Reverse engineer the source code. 21 Q Okay. And would there be any other way 22 to figure it out short of reverse engineering the 23 source code? 24 A It would be a guess at best. 25 Q Okay. Paragraph 97, this is a very -- Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 149 of 232 PageID: 4098 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 225 1 it's on the second page of paragraph 97. I mean, you 2 can read the whole thing. You know, I'm not trying 3 to -- 4 A Bear with me. Okay. 5 Q It says in the last paragraph -- last 6 sentence, excuse me, and I'm truncating it, there's, 7 you know, nothing indicates that LOG-NET'S reports 8 were copied or that GT Nexus used any LOG-NET source 9 code of other LOG-NET computer functionality to create 10 reports, period. 11 Do you see that? 12 A Yes. 13 Q Is that supposed to be or? 14 A Yes, I think that is or. 15 Q Okay. And I wasn't -- I'm not trying to 16 be picky. I just -- 17 A No, but by all means let's make sure 18 it's correct. 19 Q I really did have a question about the 20 second half, though, if it was supposed to be or. 21 What, what does other LOG-NET computer 22 functionality mean in this context? Because you make 23 a distinction then between source code or other 24 LOG-NET computer functionality. 25 A Stored procedures' other, other -- Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 150 of 232 PageID: 4099 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 226 1 again, stored procedures being the "programming 2 language" for SQL server or Cybase. 3 Q Okay. 4 A Calling a specific function within, 5 within a stored procedure can have a dramatic effect 6 on a system. 7 There can be combinations of temporary 8 tables and information combined in order to produce 9 something, and that would have been of no -- GT Nexus 10 would not have used that in any way that I would see 11 that would be possible. 12 Q And -- 13 A Or probable. Let's put it that way. 14 Q Are the stored procedures part of the 15 data at rest in the database? 16 A They are functionality that you 17 pre-program, which is optimized to particularly get 18 that data. 19 An example would be if I wanted to get a 20 customer -- customer and their address, and those were 21 in two different tables. If I do a select to get the 22 customer ID and I do a select to get their address, 23 that's two hits on the database. I can create a 24 stored procedure which is going to optimize that and 25 return it to me in one call. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 151 of 232 PageID: 4100 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 227 1 Q And that would reduce your total number 2 of keystrokes at the computer? 3 A Not necessarily. It's not a 4 relationship to the keystrokes. It's going to reduce 5 the weight -- or the load on the database. 6 Q Oh, because even if I only have to hit 7 one button to make it happen, if it has to go to the 8 database twice and there's a thousand other people 9 doing the exact same thing -- 10 A It's going to affect your performance, 11 correct. 12 Q And so it would be better, I mean, I 13 guess both my points are true though. If I had to hit 14 get customer name, then I had to wait, then hit get 15 address, that would be a real pain in the neck for the 16 user. 17 A Correct. But it would have the same 18 effect as having to call the database twice. 19 Q Right. And the -- so that's part of the 20 stored procedures, that's an example of the stored 21 procedure? 22 A Correct. 23 Q Would there be other solutions to that 24 same problem? I mean, the hypothetical you made up 25 about the customer name and then the customer address, Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 152 of 232 PageID: 4101 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 228 1 could you combine them on the same table? 2 A You could combine them on the same table 3 if that was more efficient. 4 Q And, and in the end is that sort of the 5 work of a database engineer is thinking like through 6 this kind of problem? I mean, I know this is a very 7 simple problem, but like I could have, I could have a 8 stored procedure, I could have it on one table and 9 then they -- 10 A In other words, if I'm understanding 11 your question, you're asking me if a table defines the 12 story? 13 Q No, I'm asking you in database 14 engineers, is this the sort of thing they sit around 15 and think about? Like in your hypothetical the 16 problem we have is, as we sit here today, it makes two 17 calls in the database. That's the problem we have. 18 A Correct. 19 Q And so it's -- the database is very 20 slow? 21 A Correct. 22 Q In our bizarre hypothetical. 23 So the database engineer has more than 24 one -- there's more than one solution. There can be a 25 stored procedure, which is what you told me about. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 153 of 232 PageID: 4102 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 229 1 A Correct. There can be -- 2 Q I suggested combining the tables, which 3 you said could work. 4 A Right. 5 Q And I'm just asking, like that's what 6 database engineers do, isn't it? 7 A That's correct. 8 Q They make a choice between those two 9 choices? 10 A They, they, they work out what is most 11 optimal for what you're trying to do. 12 So as an example, to use the other way 13 to look at it, assume we did combine the entire table. 14 Q Okay. 15 A Okay. The problem there is that I'm 16 storing more information. Okay. If I wanted to get 17 the customer and the customer address, we'll that's 18 great, it's all in one place. But if I'm always 19 calling the customer number and rarely getting the 20 address, then that's inefficient. 21 So a database engineer -- 22 Q Oh. 23 A -- looks to see what they're getting and 24 decides whether it's more efficient to just get the 25 customer ID, or is it better to get the customer ID Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 154 of 232 PageID: 4103 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 230 1 and the address, or is it better to split those tables 2 out. 3 And we can also do what we call 4 relations, okay, which allows me to do a selection 5 based on a where clause, okay. 6 Q Okay. 7 A Those where clauses, the select 8 statement that I may do, generally is not as efficient 9 as taking that same select and putting it into a 10 stored procedure. 11 Q Okay. So there's -- 12 A But there's another way to do it. 13 Q That's what I was about to say. So it's 14 not -- so my example is, it's not that it's wrong, 15 it's just that it's incomplete. There's -- and we've 16 made up a very simple example about two pieces of 17 data, a customer name and the customer has an address. 18 And in our example that address is all one big block, 19 like it doesn't -- it's not pieces of data where like 20 it's Texas plus the zip code. I'm just saying -- 21 MR. WEIDER: Or the example I'm thinking of 22 anyway. 23 THE WITNESS: Well, no. Yeah, go ahead. 24 Q So, so we're really jump combining two 25 things. But your point is that there's even another Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 155 of 232 PageID: 4104 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 231 1 way to do it with these select and join statements. 2 A Correct. It's what we call inner and 3 outer joins. 4 Q So, and is there -- if we come up, for 5 our imaginary database, with the most efficient 6 procedure to bring these two pieces of information 7 back to us when we want it but not when we don't want 8 it, is there value in that? 9 MR. WEIDER: Object to form. 10 A Value in doing it optimally? 11 Q Yes. 12 A Well, of course. 13 Q Okay. I thought it was self-evident but 14 I never know unless I ask. 15 So in paragraph 95, right above where we 16 were -- oh, let me just finish. I'm sorry, go back to 17 97, or other LOG-NET computer functionality. And this 18 is -- 19 A Okay. 20 Q Other than the stored procedures that 21 you were talking about, you know, and the, I mean, 22 would these same ideas of select and join statements, 23 are those computer functionality? 24 A They're -- some, yeah. I mean, I would 25 say they were, they were there similar. But, again, Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 156 of 232 PageID: 4105 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 232 1 we're talking about two systems that are extremely 2 mature. I wouldn't -- I wouldn't see the purpose in 3 trying to say, well, my data is spread out over here 4 and this one has got data spread out over there, and 5 it's not going to be beneficial to me, I'm going 6 manage to do it most optimally for my system. 7 Q And, and so when you're talking about 8 two mature systems, you're talking about LOG-NET and 9 GT Nexus? 10 A Correct. 11 Q Okay. Again, I knew it was self-evident 12 but. 13 If we look at paragraph 95 now, oh, I'm 14 sorry, just to finish on 97, is there anything else 15 that's computer functionality that's not source code 16 that you haven't told me about? 17 A I -- off the top, I think we've covered 18 most of the ones I can think of that are obvious. 19 Q Okay. Fair enough. 20 Now, in paragraph 95 you talk about, you 21 know, use cases, and wish lists, and how DHL went 22 about, you know, figuring out what it needed. 23 Correct? 24 A Correct. 25 MR. HAEFNER: Give me -- apologize. Can we Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 157 of 232 PageID: 4106 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 233 1 go off the record for a second. It's 4:11, so it's 2 been almost an hour anyway. I apologize. 3 MR. WEIDER: You want to take a break? Is 4 that -- 5 MR. HAEFNER: Yeah. I'm sorry, yeah, five 6 minutes. 7 (Short break, 4:11 p.m.) 8 (Back on the record, 4:19 p.m.) 9 Q All right. So we're back on the record. 10 So I wanted to ask you about Jill's 11 lemonade stand at the end of paragraph 95. 12 A Okay. 13 Q Because, try as I might, I love the 14 simple examples. It's the only thing I can get my 15 head around. 16 So you say, "As with Jill's Lemonade 17 Stand, Jill would never ask a customer what her 18 requirements were." 19 Here -- 20 A Correct. 21 Q -- the her refers to what -- is a -- the 22 antecedent for her is the customer. Correct? 23 A Not necessarily. 24 Q Okay. 25 A In other words, Jill defines the Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 158 of 232 PageID: 4107 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 234 1 requirements. Okay. Now, she may ask what some of 2 her requirements of her customers may be, but she may 3 have her own requirements, okay, and that would be the 4 idea. 5 So Jill has her requirements. She may 6 want to add a whole new function. She may want to -- 7 anything. Think about, you know, lemonade. She wants 8 to staff offering soda, okay. Those requirements are 9 going to be hers. 10 Q Okay. So -- 11 A But she may take a -- because in not 12 every case am I servicing a customer like DHL services 13 their customers, okay? 14 Q Sure. 15 So the sentence as redrafted, based on 16 what you've just told me could read, As with Jills' 17 Lemonade Stand, Jill would never ask a customer what 18 Jill's software requirements were? 19 A Correct. 20 Q And Jill may ask her customers, would 21 you like this new flavor? Would you like to have 22 sodas? Would you like to have cookies? But those 23 aren't the software kinds of questions that you're 24 talking about in the first part of the sentence? 25 A And like I said, that would depend. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 159 of 232 PageID: 4108 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 235 1 Now, in a case of where Jill's selling 2 lemonade, or selling sodas or cookies, right, the idea 3 is that she might ask her customers, or her customers 4 may ask her for something, okay. But in the end the 5 customer, her third party, so if you're looking at DHL 6 who's dealing with a company like Toys 'R Us -- 7 Q Okay. 8 A Okay. Toys 'R Us may say, we really 9 need this functionality. Okay. In the end, it's 10 DHL's decision as to what functionality Toys 'R Us is 11 asking for, whether -- how they're going to implement 12 it. Okay. 13 There may be other considerations. If 14 they were to support what Toys R' Us asked for, but 15 some other company they support, I don't know their 16 list of customers, but some other customer came in and 17 by providing that to Toys 'R Us would break something 18 else in the system, they may opt to say, sorry, Toys 19 R' Us, we can't do that. We'd like to help you out, 20 okay, let's work out some of other way to do it. 21 Okay. 22 In a case of where it's a customer 23 supporting other customers, there's a majority of -- 24 all of it has to take into account the impact on the 25 system, okay, and the whole process flow that goes Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 160 of 232 PageID: 4109 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 236 1 around it. Okay. 2 So if I were to -- if I'm DHL and 3 they're going to, you know, I want to use DHL and I 4 have a requirement that's going to make them have to 5 manually enter a bunch of information, they may say 6 that's -- that's too -- that's difficult for us to do. 7 So it kind of gives them the option of saying yes or 8 no. In the end, though, DHL is responsible for 9 providing what they've committed to. So that's their 10 requirements. 11 Do you understand what I mean? 12 Q Yeah. 13 A Okay. So you may have multiple 14 requirements. Customers may come to me and say we 15 really want these cookies. Well, okay, well, now, I 16 have to go back and I have to go say, okay, I'm 17 willing to accept that, I want to get your cookies, 18 okay, I want to sell you guys cookies. 19 So what I have to do is go find a 20 supplier for cookies and am I willing to take that 21 overhead and make that a requirement? Now, I have to 22 make a requirement to the cookie company. I need this 23 many cookies, I need them on this week, I need them in 24 this variety. You following? 25 So, so it's really, the end result is Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 161 of 232 PageID: 4110 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 237 1 who's the master of the domain. Okay. So the master 2 of the domain in this case would have been DHL. And 3 the master of Jill's case, it would be Jill. Okay. 4 Even though she's incorporating customer requirements 5 in, it's still requesting it because she's ultimately 6 got to deliver it. 7 Q And in the case at hand, is DHL in the 8 end really the master of the domain or is it Toys R' 9 Us? 10 A DHL is. Because DHL is a supplier -- 11 Toys R' Us is a customer of DHL. Okay. But DHL has 12 many other customers. Okay. So it's not just Toys R' 13 Us that they're going to take the input from. They're 14 going to take their input from all of their customers. 15 In the end, DHL is responsible for 16 delivering that, regardless of what system they're 17 using or regardless of how it works. It's a matter of 18 they're taking a risk. Who's taking the risk in the 19 end? Okay. 20 Okay. So you may tell a customer -- am 21 I talking too fast? 22 REPORTER: You can slow down a bit. 23 A So DHL may say, okay, well, you want 24 some special feature, whatever that is. Is that worth 25 my risk? Is that going to -- does that put my other Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 162 of 232 PageID: 4111 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 238 1 customers at risk? Does it mean that I have to put 2 additional investment into it? Does it mean that I 3 have to do manual entry? I have to hire a bunch of 4 more people? Am I willing to take that risk? Okay. 5 So the point is is that by not providing 6 the feature to Toys R' Us or to any other customer, I 7 might lose the customer. Is that the risk? Right? 8 Q Right. 9 A So, so if I lose the customer, well, 10 maybe I'm willing to take that risk if it's going to 11 impact everybody else. Okay. 12 So, so that's -- it's a little 13 different. It's kind of the hub-and-spoke sort of 14 thing. 15 Q Right. 16 A So DHL being the hub, and they've got a 17 web of customers that are the spokes. Well, I'm not 18 going to sacrifice, you know, I'm not going to 19 sacrifice all of my spokes and blow the wheel just for 20 one of those spokes. Okay? 21 Q Right. 22 A So, so that's, that's basically what it 23 is. So in the end DHL is the responsible party. Even 24 if they're using a third party like GT Nexus or 25 LOG-NET, if a decision that DHL makes affects that Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 163 of 232 PageID: 4112 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 239 1 system that gets implemented, DHL decides they want to 2 do it and it screws up the system, it's not the third 3 party that's going to be responsible. It's going to 4 be DHL. 5 Q And you were talking -- in the course of 6 your answer you mentioned like manual entry. 7 A Um-hmm. 8 Q And just -- and I wanted to think about 9 that for a second. 10 I mean, conceivably a solution could be 11 crafted to someone's business requirement that was not 12 an optimal solution? 13 A Certainly. 14 Q And it required an hour of data entry 15 instead of 10 minutes. 16 A Correct. Sure. 17 Q And that would still be meeting the 18 business requirement though. Correct? 19 A It would depend. If -- 20 Q Well, let -- I'm sorry. 21 A Go ahead. 22 Q I was just going to -- if I were bearing 23 the risk, if I were doing it for you and I said I'll 24 do all the data entry, and then I made up the software 25 and I was like, oh, man, I made this so I have to Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 164 of 232 PageID: 4113 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 240 1 spend an hour an day entering data for Mr. Sterling, 2 this is a really crummy solution to this problem, I 3 mean, if that was the only thing I had to do all day 4 you wouldn't care as long as your data got entered? 5 A Right. In the end I wouldn't care. 6 Okay. As long as I'm getting what I'm asking for. 7 Okay. 8 But, again, again, the point is is that 9 now you've realized that you've created a bad 10 solution, you're not only going -- you're going to 11 have absorb to that problem. Okay. 12 So, so now it's a situation, especially 13 with manual entry, where data entry problems, errors, 14 whatever, I've missed transactions, or whatever it 15 might be, the problem is is that you've taken a risk. 16 Well, if that risk turns out to not only 17 cost you money but then in the end I'm actually not 18 getting my solution, then I'm going to fire you. 19 Q Yeah, so that's the worst of both 20 worlds. 21 A Correct. 22 Q Right. So instead of -- you know, each 23 thing you send me takes me an hour to enter because I 24 have a bad solution, you usually only send -- I've 25 agreed to enter as many as you send a day, you usually Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 165 of 232 PageID: 4114 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 241 1 only send one, it turns out three times a month you 2 send 24. 3 A Right. 4 Q That means I'm doing it all night. I 5 can't even get it finished. 6 A Correct. 7 Q And so I'm not -- 8 A Now you're not able to provide we with 9 what I asked for. 10 Q So I have a solution to that problem, 11 too, though. I could hire -- I could pay for some -- 12 because I told you I'd do it, right, I'm not going to 13 charge you. I got to hire someone else to sit next to 14 me at another terminal and we could each do it for 12 15 hours straight but then I got to pay this guy for 12 16 hours of work. 17 A So it's going to, it's going to be an 18 impact on you. 19 Okay. Now, that's also, if you take the 20 12 hours, or 12 hours for two people now, that person, 21 if that's a person that was doing some other part of 22 your business has to be taken away from that, so 23 that's more that you've lost. 24 Q Right. 25 A Okay. So now you're not able to support Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 166 of 232 PageID: 4115 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 242 1 another customer that may need something different. 2 Okay. So that basically is the snowball effect. 3 Q Right. 4 A Okay. So, so what ends up happening is, 5 the more and more you're spreading yourself out, 6 you're not able to service your other customers. 7 Okay. Or you're having to take on additional people 8 and pay more money for no gain. 9 Q Right. Yeah, and my incentive is to not 10 pay this guy overtime and so my incentive is for him 11 to finish his 12 hours of work in eight hours, which 12 is your point about errors, that's how errors get 13 made. 14 A Correct. 15 Q Like I'm, do it faster, do it faster. 16 So then you're both -- it's costing me more plus it's 17 not working. 18 A Correct. 19 Q Which is a worst-case scenario. 20 A Correct. 21 Q Because working and costing me more is 22 bad but survivable perhaps. 23 A Correct. And it's all a matter of, of, 24 you know, again, the hub-and-spoke thing. It's a 25 matter of who is ultimately responsible. Okay. Who's Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 167 of 232 PageID: 4116 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 243 1 actually responsible for providing the service. Okay. 2 So if I, if I have a -- if I use 3 Microsoft Word and I'm typing in things, okay, I'm 4 writing theses, okay, so I'm at a college and I have 5 guys coming and giving me theses and I'm typing them 6 up in Word and I'm giving them back to them. Okay. 7 If Microsoft Word keeps crashing and I 8 lose half of the theses, okay, which -- 9 Q Been there. 10 A -- it's happened, so, if I lose this, 11 even though -- Microsoft is not responsible, I am. 12 Even though it's a product it's off-the-shelf product, 13 usually pretty good, but if that product fails, it's 14 my responsibility to make up for that. Okay. 15 So, now, well, maybe I have to go to 16 Word Perfect, or maybe I have to go to Parallware or 17 something other than Microsoft Word. Okay. Because I 18 can't afford that crashing. Okay. Because not, not 19 only do I lose the work which I've typed in, but now 20 I've lost the time too. 21 So rather -- you know, if it's halfway 22 through, I just lost half of what I was going to get 23 back in money. 24 Q Right. 25 A So I'm going to lose revenue. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 168 of 232 PageID: 4117 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 244 1 Q Sure. 2 A Right. So that's kind of the thing. 3 So the idea is that the, you know, in 4 the hub-and-spoke, right, it's regardless of who the 5 bicycle is, I got to keep the wheel rolling. Okay. 6 Because if I fall off of the bicycle, nobody else 7 cares. All of my customers are going to care because 8 I'm no longer able to provide the services. 9 Q Sure. 10 And you mentioned Word Perfect. I miss 11 those days. It's a complete saga now. 12 A Believe it or not, it was the number one 13 up until Microsoft Word. 14 Q I always said, it was so much better. 15 MR. WEIDER: Lawyers were the last converts 16 to. Until our clients used Word and we just didn't 17 have any choice. But let's go on. 18 MR. HAEFNER: The software we've loved and 19 missed. 20 Q Okay. The -- and I wanted to ask you -- 21 I just have to see what paragraph I'm on here. 22 If you turn to paragraph 91 of your 23 report. 24 A (Witness complies.) 25 Q This is in the context of a discussion Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 169 of 232 PageID: 4118 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 245 1 of certain LOG-NET screens and electronic commerce 2 applications really is what we're talking about. 3 Mr. Motley states that GT Nexus' 4 resultant electronics commerce applications were 5 derived from this protected LOG-NET work. And then 6 there's a site -- he sent you to a number of 7 documents. I say you. Sent one. 8 A Correct. 9 Q And the first one is a series of e-mails 10 between Jim Bocchino and LOG-NET personnel regarding 11 error messages in the processing of a LOG-NET file. 12 A Correct. 13 Q Did you read that in the context -- did 14 you read that document in the context of the Jim 15 Bocchino's deposition? 16 A No, I read it in the context of the 17 e-mail. 18 The -- basically I happen to know that 19 by his deposition he's an, he's an electronic data 20 interchange guy, EDI. He's not a programmer. His, 21 his whole position within DHL was to manage and handle 22 messaging systems coming in and out. 23 So in his particular case he was 24 noticing errors in the processing. In this particular 25 case it was warnings. If I were the guy loading Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 170 of 232 PageID: 4119 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 246 1 information and I saw warnings in the log file that 2 was showing me that I had potential errors, I'd be 3 concerned. It doesn't necessarily have to be an 4 error, it can be just simply a warning. Okay? 5 Q Right. 6 A But either way I'm going say, what is 7 this? 8 Q And did -- in the course of his 9 deposition, did he -- did you see whether he admitted 10 in fact that the product was working as it was 11 intended to? 12 A He thought so. He was concerned about 13 the warnings. 14 Q And the warnings didn't pop up on the 15 screen, though, they were contained in a log file. 16 Correct? 17 A That's correct. 18 Q And, now, DHL document 00724825, which 19 is the next document down, you say no such document 20 exists. Correct? 21 A I could not find it. 22 Q Okay. And -- 23 MR. WEIDER: It may be one that's -- it may 24 be -- in retrospect, it may be one of these ones that 25 was produced as a native. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 171 of 232 PageID: 4120 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 247 1 Q It was. It was produced in native 2 format. 3 A Okay. 4 Q And so the page number, the -- this page 5 number 724825 reads, it just says document produced in 6 native format and then at the bottom it has this Bates 7 stamp. 8 A Okay. 9 Q And so -- 10 A Well, actually, for that particular 11 number I believe I could not find it. It's possible 12 that it was not provided to me. 13 Q Okay. Well, I'm going to represent to 14 you that this document which -- this document which we 15 marked as Bocchino 3 at Jim Bocchino's deposition and 16 which it doesn't really have a title per se, at the 17 top it does read, Bocchino 000099. So those are the 18 first words that appear on it for later reference. 19 But I'll represent to you that Mr. 20 Bocchino at his deposition said that -- confirmed for 21 us that this was in fact DHL 00724825. 22 A Okay. 23 Q And we didn't make copies of it because 24 it's about 600 pages long. 25 And do you know what this document is by Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 172 of 232 PageID: 4121 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 248 1 looking at it? I don't mean like specifically. Do 2 you know this type of document? 3 A Yes. 4 Q And what is it? 5 A It is a log file. 6 Q Okay. And what would the -- what is 7 your understanding of why Mr. Bocchino was printing 8 out this 600-page log file? 9 A From what I understand, he was trying to 10 understand what was going on with the messages. 11 Q And do you know where in the -- I mean, 12 I understand -- you haven't seen this document before. 13 I mean, you -- 14 A No, not this particular one, no. 15 Q Okay. So you wouldn't know where in the 16 five, four or five, six hundred pages, I don't -- I'm 17 estimating and I don't remember what exactly it is 18 when it's printed out onto paper, you don't know where 19 in the course of those pages these warnings that 20 concerned Mr. Bocchino appeared, do you? 21 A No. In the e-mail he had indicated. A 22 small, obviously a very small subset of this. 23 Q Right. And, I mean, it's not the first 24 line, for example. I mean, it doesn't immediately -- 25 the first words aren't, warning, warning? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 173 of 232 PageID: 4122 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 249 1 A Correct. 2 Q So I don't know where it does appear. 3 I'm just saying you don't, as you sit here today, 4 you're not sure what part of it he was specifically 5 speaking about? 6 A Where in this one, no. 7 Q Okay. And would it strike you as normal 8 practice for Jim Bocchino in 2010 to be, in December 9 of 2010, to be printing out 400 page log files and 10 reading through them to find specific warning 11 messages? 12 MR. WEIDER: Object to form. 13 A If it was my employee, I certainly would 14 say what are you doing. It would all depend on the 15 situation of what -- what he was dealing with. 16 If -- I certainly wouldn't print it, but 17 it could also be just to understand what, what 18 messages were actually being processed. 19 Q Okay. And the -- if we turn to page -- 20 this one I have to take back because it's the only -- 21 if we turn to paragraph 149. 22 A (Witness complies.) 23 Okay. 24 Q So at his deposition, as you know, Jim 25 Bocchino used the term reverse engineering in the Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 174 of 232 PageID: 4123 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 250 1 context of his efforts to figure out certain things 2 that were happening in the LOG-NET system so that he 3 could map them into the GT Nexus system. 4 A Correct. 5 MR. WEIDER: Object to form. 6 THE WITNESS: Oh, sorry. 7 Q And you used the phrase, you say that 8 you wouldn't consider what he was doing reverse 9 engineering. Correct? 10 A Correct. 11 Q Okay. And instead you say that he 12 loosely used the term reverse engineering. And what 13 is the -- what's the lose meaning of -- is there a 14 lose meaning for reverse engineering? 15 A It was a poor choice of words on his 16 part. Okay. His job is EDI messaging, okay. His job 17 was to take information that they were receiving, in 18 this particular case was UPS. 19 Q Right. 20 A Receiving it in a certain format and 21 trying to understand the message format in order to 22 convert that message format from an EDI format into an 23 XML format in GT Nexus. 24 Q Were they getting information from UPS 25 or were they trying to send information to UPS because Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 175 of 232 PageID: 4124 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 251 1 UPS was their customs broker? 2 A I think it was information inbound. 3 Q Okay. And did it have -- do you recall 4 whether it had, also had an outbound element? 5 A It probably did. I would -- most 6 messages have a handshake acknowledgment. 7 Q And the purpose of UPS in DHL's life was 8 to be its custom broker. 9 Did you understand that from 10 Mr. Bocchino's deposition? 11 A Yes. 12 Q And DHL's clients had a business 13 requirement that things get through customs? 14 A Yes, they're international shipping, and 15 having shipped myself for international customers, if 16 you don't have the proper paperwork it's going to be a 17 problem. 18 Q It's not a lot of value to have things 19 offshore of Long Beach? 20 A That's correct. 21 Q And the -- Jim Bocchino -- so, I mean, 22 is that the business requirement, get things through 23 customs, or is that too general a level? 24 A It's to comply to customs regulations 25 and be able to provide the customs information needed Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 176 of 232 PageID: 4125 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 252 1 both ways. So throughout the shipment, wherever a 2 shipment is going, it obviously has to have customs 3 information. 4 Q Sure. I'm just wondering what's the 5 business -- what would the business requirement from 6 Toys R' Us look like to DHL? 7 A To DHL for? 8 Q This customs issue. 9 A They may have -- well, they would 10 obviously get it through. What do you need from us is 11 more the better way to look at it. 12 Q Okay. And so Toys R' Us' question would 13 be, like what do you need me to tell you? 14 A Correct. 15 Q Because, frankly, my business 16 requirement is, I bought this stuff in China, I want 17 it to get to the warehouse in Long Beach, I have no 18 other interest in -- like I want it to get through 19 customs? 20 A All right. I sell toys, okay. 21 Q Yeah? 22 A So I'm selling toys. I want to 23 concentrate on selling toys. I buy toys. I want to 24 concentrate on buying toys. How do I buy the toys and 25 how do I get them through customs, what information do Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 177 of 232 PageID: 4126 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 253 1 you need from me in order to make sure that that 2 information is supplied to you. So do I need waybill 3 number? Do I need, you know, addresses? Do I need 4 shippers' names? What do I need? 5 I know I've shipped to Costa Rica. It 6 was a nightmare to go through customs, okay. 7 Q Right. 8 A I had to report exactly what the, you 9 know, in the case of our water machines, which are 10 refrigerate, what kind of refrigerant do we use? 11 Okay. So we had to file papers. We had to go back to 12 get a paper to say that this uses RFC12, or whatever 13 it was. So we have that and then plus what's the 14 weight, what's the, what's the -- you know, so 15 everything that we needed to go through customs. And 16 it was one thing to go through customs in the U.S. and 17 then to have it received in customs in Costa Rica. 18 So in reality I had to ask the shipper, 19 what do you need from me? That's not my job, I don't 20 know everything that you need, so you need to ask me 21 what kind of information -- what do I need to supply 22 you in order to get it? 23 Now, I obviously have to be able to 24 supply that information, so it's important for me to 25 know as much as I can about it. But, again, getting Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 178 of 232 PageID: 4127 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 254 1 it through is -- I'm relying on the shipper to do 2 that. 3 Q Sure. And the -- was Bocchino's concern 4 about the formatting of the messages, or the data 5 contained in the messages, or the logical processes on 6 how the data got into the message? 7 A I think he was more concerned about 8 identifying the data elements and identifying what he 9 was going to have to transpose from one format to a 10 completely different format. 11 Again, he's not a programmer. He could 12 care less what the program did. He was more concerned 13 about when the information came in, what did it mean. 14 And one of the notes in that e-mail was to ask, we're 15 getting a status 8. We know what status 1, 3 and 5 16 is, we don't know what a status 8 is. Okay. 17 As an EDI person that's responsible for 18 that data movement, if 08 is something very vital for 19 some reason, well, you know, if I'm doing a validation 20 on that data to say I'm looking for these three status 21 codes and I see an 8, it could, number 1, throw a, you 22 know, could blow up in the process. It could be an 23 error. It could be a status that's not supposed to be 24 being sent. It could be a case of where it means 25 something totally different. In other words, I need Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 179 of 232 PageID: 4128 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 255 1 to be sending that message elsewhere. Okay. And his 2 job was importing all that information. 3 So my understanding by the e-mails read 4 back and forth was that LOG-NET was not forthcoming in 5 this information so it was very difficult for him to 6 understand what he was looking at. 7 Q And does it matter, I mean, how LOG-NET 8 is using the 8 code versus how GT Nexus is using it? 9 A It may or may not. Okay. If the 08 10 code means something to LOG-NET that doesn't mean 11 anything to anything else, then fine, we don't need 12 it. 13 But if it is something, the point is, 14 you need an answer, is it important or not. Okay. If 15 that status 8 means, I don't know, whatever, okay, it 16 means something specific that I need to know about, do 17 I need to know about it or not. That's the answer. 18 Okay. So -- that's the question. 19 So, hey, that's an 08 code, that means 20 something to us, it doesn't mean anything to you, 21 fine, I'm done with it. 22 If it does mean something and I need to 23 address that and I need to worry about that when I'm 24 going to a new system, well, then I need to figure out 25 what that is. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 180 of 232 PageID: 4129 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 256 1 Q In all of Bocchino's troubles with this 2 customs brokers interface, UPS was the customs 3 broker -- 4 A Um-hmm. 5 Q -- and UPS had more than one client. 6 A Correct. 7 Q And UPS must know how they want 8 messages. 9 A True. 10 Q Why wouldn't you just call UPS? 11 A There may be optional information. 12 Remember, that a messaging is a handshake. 13 Q Right. 14 A Okay. Now, in every messaging system, 15 EDI, XML, you name it, especially anything that falls 16 underneath an ANSI standard, which is the American 17 National Standards Institute, anything that falls into 18 that, the whole reason for having a standard is to 19 facilitate these handshakes, okay, so that I'm not 20 reinventing the entire wheel when I go to talk to a 21 different customer or when I go to talk to a different 22 supplier. 23 Q Sure. 24 A So there's optional information in all 25 of these formats that allow me to have something Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 181 of 232 PageID: 4130 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 257 1 optional. I can say to UPS, send me an 8 code, and 2 that means something to me. Okay. UPS may set that 3 up. UPS may not remember why they did it. Okay. 4 It's better to go to who asked for the information 5 instead of who's sending the information. Okay. 6 So, again, it's a case of where do I -- 7 do I -- do I need to start over from scratch here? Do 8 I need to completely rewrite everything and just go 9 back to UPS and say, okay, UPS, let's start over, you 10 know, what format do you need and let's try to go from 11 there. And, you know, I've been sending it to you 12 this way but I can't send it that way anymore, so I 13 need you to tell me what I was sending you. 14 Okay. So in the case of where LOG-NET 15 was sending one particular format, when LOG-NET is 16 sending one particular format to UPS, okay, that may 17 have been something that was done 10 years ago, 18 whatever, five years ago, and then information was 19 coming back from UPS in a specific way, well, then 20 we're starting all over again. 21 Q Sure. And that's inefficient? 22 A It's inefficient and it's 23 unprofessional. 24 Q And in what sense -- if it -- if it's -- 25 in what sense is it unprofessional? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 182 of 232 PageID: 4131 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 258 1 A Well, what I mean is it's not 2 necessarily professional in terms of what he was 3 trying to ask for. What he was asking for was what 4 does status code 8 mean. Okay. 5 So, so the idea is that the, the 6 information, it's a handshake. So, so, and, again, 7 this guy is not a developer, okay, he's not a 8 programmer. He's concerned about the content of the 9 messages. All he's trying to do is do data integrity 10 trying to make sure that the data he thinks he's 11 sending and then he's got to send now using a 12 completely different format, matches up. 13 Now, we could easily say, UPS, we'd go 14 to UPS and start all over from scratch and start all 15 over, but that's going to create a disadvantage for me 16 while I'm doing that process. Okay. So, and it means 17 that it's going to take me longer on this back end to 18 figure out how to get that new handshake in place. 19 Q Now, we -- you talked in the course of 20 this about EDI messages and so, lo and behold, -- 21 A There you go. 22 Q -- you reference in your report this 23 Microsoft document. So let me have this marked for 24 us. 25 (Exhibit Sterling 21 marked for Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 183 of 232 PageID: 4132 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 259 1 Identification.) 2 Q So this is referenced in paragraph 53 of 3 your report. 4 A Right. 5 Q You know, I don't know that you need to 6 look at it. I just, you know -- 7 A I know I referenced it so. 8 Q And actually I think it's 54, just for 9 the record. 10 Okay. And this is an EDI Implementation 11 Guide for 850 purchase orders. 12 A Correct. 13 Q And the -- and these things are -- can 14 be ANSI compliant, these 850s, right? 15 A The 850 is the number ANSI assigned to 16 it. 17 Q So they're always ANSI compliant if you 18 call them an 850, at least that's what it's supposed 19 to be, right? 20 A Supposed to be. 21 Q Okay. And the one you have directed us 22 to has -- if you look at page 31. 23 A (Witness complies.) 24 Q And I printed this off the Internet so-- 25 A That's fine. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 184 of 232 PageID: 4133 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 260 1 Q -- you can -- 2 And this on page 31 it has, it has a 3 reference, what do we call these reference elements? 4 A It's -- well, tell me what you're 5 talking about. 6 Q Oh, the CE and EU and the ZZ. 7 A These are called codes underneath the 8 element name, yes. 9 Q And these are ref elements, right? Is 10 that correct? 11 A Yes. 12 Q Sooner or later, if this case lasts long 13 enough, I'll be fully conversant in the world of EDI. 14 And ZZ identifies a mutually defined 15 element. Correct? 16 A Correct. 17 Q And what does that, what does that mean 18 when it says mutually defined element? 19 A Again, it's a, it's a handshake. 20 Q Okay. 21 A Okay. So you're going to tell me what 22 you think ZZ means and I'm going to tell you what ZZ 23 means to me. Okay. So if I needed to, as, you know, 24 knowing from the examples that were listed in the 25 report, this is color blue versus whatever it is, you Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 185 of 232 PageID: 4134 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 261 1 need to know that when I send this transaction to you 2 this a mutually defined field. I'm going to tell you, 3 color blue. Okay. I could say, you know, oranges and 4 apples. It doesn't matter what I put in here as long 5 as it's a mutually defined agreement. Okay. It's the 6 same as using an optional field or an optional 7 reference where I'm passing additional information 8 that may, may even flow through your system and into 9 another system. 10 Q Okay. 11 A Okay. So in a case of UPS, not that 12 that would be an example, but if I had a third-party 13 provider, so I'm buying from Amazon, but Amazon is 14 sending it to a third-party company, okay, I may not 15 be on that second part of the transaction. Okay. I 16 may have information that I need to pass to that third 17 party. Okay. So we agree when we're dealing with 18 Amazon we're going to pass this instructions that go 19 to the third party. 20 Q I see. 21 A So it's a mutually agreed deal. 22 Q And here Microsoft is -- there's -- 23 under mutually defined it says, Description: Usage 24 country. 25 A Right. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 186 of 232 PageID: 4135 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 262 1 Q Correct? 2 A Correct. 3 Q And then if we look at one of their 4 examples, and there's one on page 38. 5 A 38. Okay. Okay. 6 Q And then so this is -- is this an EDI 7 message for an 850? 8 A It appears to be for -- for -- well, it 9 says, yes, in the very top that it's an 850, yes. 10 Q And there's a start and an end, and 11 that's the first line and the last line. Correct? 12 A Correct. 13 Q And part of it is I think the envelope, 14 I can't remember. But, regardless, we see in here at 15 certain points there's a ref*ZZ*, and the one I'm 16 looking at that I think occurs first is then CA and 17 then there's a little squiggly line. 18 A Tilde. No. Yeah. 19 Q That's -- yeah, I was going to call it a 20 tilde but -- 21 A Well, it's not, it's not a raised tilde 22 so it's -- I don't know. It's a squiggly. I'll leave 23 it at that. 24 Q Okay. And so that's a usage for -- of 25 Microsoft using this ZZ element to identify country, Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 187 of 232 PageID: 4136 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 263 1 here Canada. 2 A In their -- well, actually, Canada would 3 generally be CN. Oh, no, actually, Canada, you're 4 right. CN would be China. 5 The -- yeah, they're referencing in this 6 one Canada. If you see the one down below that, 7 that's the U.S. 8 This is a mutually agreed upon that 9 Microsoft needs to know where their software goes. 10 Okay. It's very important to them obviously from the 11 Patriot Act and from, you know, the -- which countries 12 can they ship to, can they not ship to. 13 Q I see. 14 A Okay. So in this case ZZ in their 15 particular case happens to be, the mutually agreed is, 16 you will send us, it's not necessarily mutually 17 agreed, but you will send us the country where it's 18 going to. 19 Q Okay. And, and that's just how 20 Microsoft is defining the term and if you want to 21 shake hands with Microsoft you're going to define it 22 the same way. 23 A You're going to provide this information 24 because that's what they need. 25 Q And if I type in -- if I make up my PO Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 188 of 232 PageID: 4137 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 264 1 to send to Microsoft and I make it 850 ANSI 2 compliant -- 3 A Okay. 4 Q -- but I decide, for whatever reason, 5 it's important for me to use these ZZ elements to 6 track something else, to say something else, and I put 7 numbers in -- 8 A Okay. 9 Q -- what happens when I send that to 10 Microsoft? 11 A They'll reject it. 12 Q That's what I thought. Like it's not 13 going to work. 14 A Correct. It's a handshake. 15 Q Yeah, and Microsoft and I have to have 16 agreed on what those ZZ elements are going to be? 17 A Correct. 18 Q And the -- and the point here is, I 19 mean, I guess if I were a big enough company 20 conceivably I could call up Microsoft, I don't know 21 who that company would be, and say, look, my ZZ 22 elements are going to say this and you're going to 23 like it and maybe they'd say okay, you know. 24 A In which case we have a product called 25 Microsoft BizTalk for that. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 189 of 232 PageID: 4138 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 265 1 Q Oh, okay, so there's some translation -- 2 A There's talks as it comes in this way, 3 it goes out that way. 4 Q I see. Right. And -- because people 5 have their own -- how do -- the things that those 6 people put in their ZZ elements, I mean, they might 7 put in something like blue, like they want to keep 8 track of that. 9 A Maybe. Yeah. 10 Q So, so that gets sent to, to the 11 conversion tool. 12 A Correct. 13 Q And then does that data get lost or does 14 it get rearranged somehow and then sent on to 15 Microsoft? 16 A It could be rearranged. And I'll give 17 you a perfect example where -- 18 Q Okay. 19 A Let's say it was the language, okay, 20 even though in this particular case they're saying the 21 country, okay. But if I had ref ZZ EN, meaning 22 English. 23 Q Okay. 24 A Okay. But the national code for EN is 25 actually 1033. Okay. So if I was translating this Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 190 of 232 PageID: 4139 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 266 1 to, let's say, SAP, and SAP said, well, you know, you 2 can say English if you want, but our system takes 3 1033. 4 Q Okay. 5 A BizTalk will say, okay, if it's EN, then 6 turn it to 1033 before you turn that transaction 7 around. 8 Q Okay. 9 A Okay. So that translation is -- again, 10 these are just messages. They're just text messages. 11 That was the whole idea of why they created EDI. 12 The whole reason for sticking to this 13 standard format was so that we were all kind of 14 generally close. 15 Q Right. 16 A Okay. That we had this -- the common 17 elements were in there, but that we had additional 18 areas where we could do what we needed to do. 19 Q Okay. 20 MR. WEIDER: Marc, can I just go off the 21 record for just 30 seconds? 22 MR. HAEFNER: Sure. 23 MR. WEIDER: I've got to check something at 24 the reception desk. 25 (Short break, 5:01 p.m.) Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 191 of 232 PageID: 4140 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 267 1 (Back on the record, 5:01 p.m.) 2 Q I don't remember what I was asking you, 3 I apologize. So -- oh, I know. 4 If, if I had -- but if -- you gave me an 5 example where I'm identifying the language English 6 through a ZZ ref that is EN and the Germans want that 7 same information told to them as a number. Correct? 8 A That's one example, yeah. 9 Q And, and -- but what if I want something 10 in my ZZ that is, like I said, the color blue, and is 11 the conversion machine capable of putting that some 12 other place? 13 A Yes. I'm not an EDI specialist. 14 Q Okay. 15 A Okay. But yes. You know, if that was 16 the way it needed to translate then, yes, that could 17 happen that way. 18 Q And who are the parties that have to 19 agree to the mutual definition for this EDI to work? 20 A If there's an A and B, A and B have to 21 decide. 22 Q And that may -- could that be internal 23 to a single corporation? 24 A It could be. Again, it's the first leg 25 of the handshake. Okay. So the first leg of the Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 192 of 232 PageID: 4141 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 268 1 handshake they need to agree. If it goes from A, B, 2 C, then B and C need to decide what their format is 3 going to be. Okay. 4 Q Okay. 5 A So the idea is through the course of the 6 translation it's a handshake. So every handshake has 7 to match. 8 Q Okay. And I'm just imagining I might 9 have a system that does shipping and then billing and 10 then keeps track of unpaid accounts and they might be 11 three separate computer systems for some reason. I 12 have a really big company for the sake of this -- 13 A Well, you could have a distribution 14 system that manages your trucks. 15 Q Okay. 16 A You could have a shipping system that 17 does your international shipping. 18 Q Okay. 19 A You know, so you could have SAP, which 20 is recording a purchase order to begin with. Okay. 21 You could have an ERP, which is how do I build it, 22 Enterprise Resource Planning, which is my 23 manufacturing component. Okay. 24 So, yeah, you might distribute this 25 message any which way to each one of those systems Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 193 of 232 PageID: 4142 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 269 1 depending upon what they need. 2 Q And so when I distribute it, what I'm 3 calling internally between my distribution system and 4 my SAP billing system, I mean, I'm in a sense, I mean, 5 I could be in charge of both those things and I could 6 say, well, I want ZZ to mean in these messages the 7 color blue, or whatever color code I'm going to put 8 in. 9 A If that's what you want, sure. 10 Q Yeah, and, and so that's an option. I 11 mean, whatever the company is doing they're free to 12 figure out their own EDI protocols? 13 A Correct. 14 Q And, but your point is once you go 15 outside that box where you're in charge of everybody, 16 you know, Microsoft might tell you, I don't care what 17 you want to put in it. 18 A Correct. 19 Q You're going to put the country code in 20 when you send it to me. 21 A Right. Right. But, see, but, see, 22 Microsoft, okay, might have the country code in there, 23 but they may have this flow through, okay, depends on 24 what you're buyinng from Microsoft. Okay. 25 So if I'm actually buying Microsoft Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 194 of 232 PageID: 4143 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 270 1 Press book, which is from Microsoft, I may send a 2 purchase order into Microsoft using this format. 3 Okay. Microsoft Press is actually a separate company 4 from Microsoft. Okay. They may reissue this, this 5 transaction, to Microsoft Press. 6 Microsoft Press doesn't actually print 7 their books. Okay. I know, I've done authorship. 8 Okay. So they don't actually print the books. They 9 actually use a third party that does their printing. 10 There are actually several different third parties 11 that do it. So this could actually split off and go 12 into multiple different systems and the ZZ may be 13 different for each one. 14 Q Right. And it just has to be mutually 15 acceptable on both sides? 16 A Any messaging system, it has to be 17 mutually acceptable on both sides regardless of what 18 the format or any optional fields or any comments are 19 made. Again, I'm not, I'm not an EDI specialist. 20 Q Okay. So the -- but the decision as to 21 what's going into those ZZ fields, that's up to 22 authors and the people they're dealing with? 23 A Correct. 24 (Exhibit Sterling 22 marked for 25 Identification.) Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 195 of 232 PageID: 4144 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 271 1 Q So this is from the DHL production, but 2 it's a, you know, I'll represent to you that this is 3 an example of a LOG-NET 850. 4 A It appears to be a LOG-NET 850A. 5 Q And, and it says that -- we know that 6 because it says it at the top. Correct? 7 A Under the GS, that's correct, yes. 8 Q And the ZZ reference segments that are 9 being used here, these GDX OPT:, and then there's 10 additional information, there's a number of different 11 ones, what are -- what are those? 12 A They're apparently options of 13 information being passed. 14 Q And the -- they're not in the -- these 15 ZZ format -- this ZZ format, this is not what 16 Microsoft wants? 17 A No, Microsoft would reject this, right. 18 Q Okay. Because I'm supposed to put in a 19 two-letter country code? 20 A Correct. It's not -- again, it's a 21 handshake. It's expecting this. 22 Q Yeah. And so this would not work. 23 And the -- and what are these optional 24 GDX pieces of information? 25 A Well, it would appear that it's passing Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 196 of 232 PageID: 4145 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 272 1 a version number. It would appear that it's passing a 2 delivery request date, a booking date, availability 3 date, a UCC-EAN code and a consignee/agent. 4 Q And are these codes that you're familiar 5 with? 6 MR. WEIDER: Object to form. 7 A Again, I'm not the EDI specialist. 8 Q Okay. 9 A The actual content of the messages I -- 10 as you can see below that, there's additional ones. 11 GDX OPT PO1, or PO1 line number, a vendor sku, a UPC, 12 an origin country. 13 Q So -- 14 A So, again, these are informational items 15 being passed, which are almost the equivalent of -- 16 well, they're optional information being passed. 17 That's all I can tell you. 18 Q Okay. And do you know why the LOG-NET 19 850A is passing this information? 20 A I would assume because it's needed on 21 one end or the other. 22 Q And is the -- what is the purpose of 23 passing this kind of information, if you know? 24 A It would stand to reason that they're 25 passing information. How they're using it, I couldn't Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 197 of 232 PageID: 4146 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 273 1 tell you. 2 Q Okay. And what was Jim Bocchino trying 3 to figure out from the -- this -- well, I don't -- 4 leave Jim Bocchino out of it. 5 What is the data that's contained in, 6 for example, Ref ZZ GDX OPT Booking date, and then it 7 provides a booking date? 8 MR. WEIDER: Object to form. 9 A Can you -- 10 Q Well, I don't want to read the whole 11 thing again. 12 A Go ahead. Go ahead. 13 Q If you look down one, two, three, four, 14 five, six, seven, eight, seven lines, there's a ZZ GDX 15 about booking date. 16 Do you see that? 17 A Yes, I do. 18 Q Okay. And so my question is, what part 19 of that is the data? 20 A It would appear to be the data to the 21 far right, 2009-08-11, because that would be a date 22 format. 23 Q And that's some customer's date that 24 something got booked. Correct? 25 A Correct. Assumption, yes. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 198 of 232 PageID: 4147 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 274 1 Q Well, presumptively. 2 And that piece of data -- when -- that's 3 the part of this that the customer, DHL's customer, 4 let's say Toys 'R Us just because they're the ones 5 that send the most stuff, right, if this is Toys R' 6 Us, an 850A for Toys R' Us, that -- on that line 7 that's the thing that Toys R' Us owns. Correct. 8 MR. WEIDER: Object to form. 9 A That they own the dates? 10 Q Well, they own their data. 11 A Yes. 12 Q And the data is that there's a booking 13 date of 2009 August 11th. Correct? 14 A But ownership of a message is a little 15 vague. 16 Q Well, I don't mean the message. I just 17 mean in this line of the message there's one snippet 18 of data. Correct? 19 MR. WEIDER: Object to form. 20 A That's correct. However, ownership, 21 again, is, is subjective. 22 Q Okay. 23 A Okay. The ownership of the data, this 24 could have been when it was booked by DHL. It could 25 be when it was booked by LOG-NET. It could be when it Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 199 of 232 PageID: 4148 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 275 1 was booked by a third party. 2 Now, as far as who owns the actual data, 3 in the end it would be Toys R' Us. 4 Q Okay. Yeah, that's -- 5 A It's their historical information. They 6 want to know when this PO was filed and what the 7 booking date was and that's the date. 8 Q Right. And so some day in 2011 for some 9 reason they might want to know this? 10 A Correct, it's a historical record. 11 Q And the line two above that about GDX 12 Version*1.07, do you see that line? 13 A Yes, I do. 14 Q Okay. That version, 1.07, is any part 15 of that Toys 'R Us' data? 16 A I don't know because I don't know which 17 version it's referring to. It could be. There's 18 multiple reasons to use a version. I don't know what 19 it belongs to. 20 Q Okay. So from looking at it you can't 21 tell if it's a version of LOG-NET or it's a version of 22 GDX? 23 A That -- that would -- it could be a 24 version of the message format. 25 Q That's what -- yeah, right? Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 200 of 232 PageID: 4149 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 276 1 A It could be, it could be the version of 2 the PO record. It could be -- the version is not 3 defined as what that version belongs to. It's very 4 similar to using a field called status. 5 Q Okay. 6 A Okay. Status means something to you, 7 status means something to me. Okay. So that version 8 is nothing specific. There's nothing that identifies 9 specifically what that means. 10 Q Okay. And if it were the version of the 11 invoice that ended up getting booked, that 12 information -- that data would be Toys 'R Us' data? 13 Like they had multiple versions of this invoice, 14 that's their business? 15 A If that's what it was -- 16 Q Yeah, I'm just -- 17 A I'm speculating, but if that's what it 18 was, they would want that for historical reasons. 19 Q Right. And if it were something else, 20 like it was a reference to the actual version of GDX 21 that LOG-NET had built into this thing, that would not 22 be Toys 'R Us' data, they don't care? 23 A Not necessarily. Yeah, no. 24 Q And is this field a prescribed field? 25 Can you take it out and still run the message and be Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 201 of 232 PageID: 4150 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 277 1 ANSI compliant? 2 A Again, I am not an EDI specialist and I 3 don't know. 4 Q Okay. 5 A Because if you were -- I don't know. 6 Q That's fine. 7 And when Jim Bocchino was doing his EDI 8 specialty work, what did you understand him to be 9 trying to pull out of these kinds of messages? 10 A I think he was trying to be able to 11 figure out how to translate the data that he was 12 currently getting and sending, and he was trying to 13 figure out how to connect that to GT Nexus which was a 14 completely different format. 15 Q And if GT Nexus had a completely 16 different format for its EDI, its 850, then why did it 17 matter how LOG-NET'S 850 had worked and processed? 18 MR. WEIDER: Object to the form. 19 A He may be receiving it this way. He 20 doesn't necessarily know that that's an optional or is 21 an optional field or what that version may mean, just 22 like I don't. And his job is to map information to 23 information. He doesn't want to lose anything that 24 might be required. Okay. 25 Just like, for example, where we say in Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 202 of 232 PageID: 4151 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 278 1 a Microsoft spec, okay, where they say you have to 2 send the country. Okay. If -- I -- I may not know 3 what CA means. Okay. We do in this case but I may 4 not know what CA means. Okay. It could be a 5 different -- could be CZ. Could be CZ which means 6 Czech Republic, right. So I may not care what that 7 is. 8 All I know from a messaging perspective 9 is I need to make sure that whatever information I'm 10 getting now, that I'm sending the same information 11 back out. Okay. 12 So he's just -- it was my belief that he 13 was trying to make sure that he wasn't losing 14 anything. Okay. If I miss something, it could cause 15 everything to fall apart. Okay. Particularly when 16 I'm going to an XML format, which is different than a 17 EDI format. I have to structure XML much differently. 18 Okay. 19 So I'm going to try to make sure that I 20 cover every single element in here and then decide if 21 there's something in here I don't need I can remove 22 it. 23 Q Okay. 24 A Okay. But if it's something I do need 25 for whatever reason, again, like I said, version is Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 203 of 232 PageID: 4152 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 279 1 very vague. Okay. Now, yes, it could be the version 2 of GDX. It could be the version of LOG-NET. It could 3 be the version of the transaction type. It could be 4 the version of the PO revolution. Who knows. It 5 could be any version number. The idea is that they 6 have to -- he's -- he's not responsible for the data. 7 He's making sure the data is accurate. Okay. And 8 that's what he was trying to do. 9 So, again, he's not a programmer. He 10 doesn't necessarily know what this means. Okay. All 11 he's trying to do is replicate the elements to make 12 sure that the message is complete. 13 Q Would you expect Toys R' Us to have its 14 own 850 PO requirements, like what it wanted? 15 A Microsoft does. 16 Q And is that a yes? 17 A Yes. 18 Q Okay. 19 A SAP does. Amazon does. 20 Q So all these big companies? 21 A Every company can dictate what they 22 want. 23 Q So, and so couldn't Jim Bocchino just 24 ask Toys 'R Us like what's the 850 standard you want? 25 A So if I have a hundred customers -- Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 204 of 232 PageID: 4153 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 280 1 Q Sure. 2 A Okay. Am I going to go to a source like 3 LOG-NET who creates all those messages or am I going 4 to go to all my 100 customers and ask them? 5 Q How did the -- how did LOG-NET create 6 the EDIs for all those hundred customers to begin 7 with? Didn't they get business specs from DHL who had 8 gotten them from the customers? 9 A Yes, but it would -- 10 Q Did DHL not keep the business specs? 11 A You never know. There was many 12 revolutions of that company. If I recall, they 13 started out as USC and then they were bought by 14 another company. 15 Q Or CSC. 16 A Or whoever. And so they all evolved. 17 So I can guarantee you that in the course of an 18 evolution of a company you're going to lose 19 documentation. Okay. And there's no way, and I know 20 a lot of people consider it shelfware. And back in 21 the day everything was on paper. Okay. We didn't 22 necessarily electronically store everything. Okay. 23 So they may have had a piece of paper like this where 24 they've marked it all up. Okay. And that ended up in 25 Bob's desk and Bob is long gone and it's dusty, nobody Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 205 of 232 PageID: 4154 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 281 1 knows what it was, they get rid of Bob's desk, this 2 goes with it. Okay. All right. So, so the bottom 3 line is that you don't know. 4 So the idea is do I go to the system of 5 record, which is LOG-NET, or do I go out to all my 6 hundred customers and sound like a real dummy because 7 I don't know what information I'm sending you. 8 Q Okay. Well, I follow. 9 The -- some of these things, like you 10 talked about translate, transcate database log files? 11 Can you -- well, let me ask this. 12 Database log files, can they be 13 translated into a human readable form? 14 A They generally are. Well, it depends. 15 Transactional logs are not really readable, though you 16 could technically read them. There's, you know, 17 programs that allow you to read what the log files 18 are. 19 If you look at what we call the 20 universal log system which Microsoft uses, you can 21 read them but it's extremely difficult to do so. 22 Just to give you an example, if I'm 23 looking at -- actually, I think it's unified log 24 system. So unified log system, or ULS, is a standard 25 that Microsoft uses across SQL server, SharePoint. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 206 of 232 PageID: 4155 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 282 1 BizTalk, they use a standard log format. Okay. 2 There are what we call ULS readers which 3 allow me to read what they are. I can filter by 4 certain things. But to pick up the log file and try 5 to read through the multitude of transactions would be 6 a nightmare. 7 Q And is this a log file that is hard to 8 read through? Is this a different thing? I'm not -- 9 A It depends. Now, there's two different 10 kinds of log files. You have database log files which 11 are generated by the database engine. 12 Q Okay. 13 A You have application log files -- 14 Q Oh, this is the application file. 15 A -- which are generated by the 16 application. So what information appears in that log 17 file is whatever LOG-NET put in there. 18 Q I see. 19 A Okay. So I may have step one, step two 20 to step 25. I may have worked, didn't work, worked, 21 didn't work. It's up to me what I want to put in the 22 log file. 23 Q Sure. And the -- can you convert java 24 class files to some sort of human readable form? 25 A With a decompiler, yes. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 207 of 232 PageID: 4156 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 283 1 Q Okay. And, yeah, I mean, they don't 2 come that way, right? 3 A Correct. 4 Q And did DHL -- DHL hosted the LOG-NET 5 software and database. Correct? 6 A To the best of my knowledge, I 7 understood it to be that they had a version of LOG-NET 8 that they host -- or they -- not hosted is the wrong 9 term because they weren't providing it -- they weren't 10 hosting it. 11 Q Right. 12 A The other customer -- LOG-NET has a 13 hosted version -- 14 Q Right. 15 A -- that they use and multiple tenants 16 use it. 17 DHL had a single tenant copy of that. 18 That's the understanding that I have. 19 Q Yeah, and I think that's what I 20 understood too. 21 And if DHL had that at a server in 22 Cyberjaya, DHL could have read against -- could have 23 decompiled -- had access to the LOG-NET software such 24 they could have decompiled the things. Correct? 25 A If it -- if the source was not Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 208 of 232 PageID: 4157 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 284 1 protected. 2 Q Okay. 3 A I mean, and what I say by the source is 4 that if the -- there are tools out there that allow 5 encryption to prevent that. 6 Q Right. 7 A So it would actually be if it was 8 available, but that's pure speculation. 9 Q No, yeah, I understand. You're not 10 offering an opinion on whether it happened or not or 11 whether it was possible? 12 A Right. 13 Q It -- depending on the levels of 14 protection, fire walls, et cetera, et cetera, it may 15 or may not be possible? 16 A Right. And I do know that it is 17 possible to make it not possible. 18 Q Fair enough. 19 So, so why don't we take a quick break 20 while I figure out what, if anything else. 21 (Short break, 5:24 p.m.) 22 (Back on the record, 5:29 p.m.) 23 Q So I ended up with only one copy of each 24 of these somehow. I'm just going to have them marked 25 and we'll just show them to you. I apologize. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 209 of 232 PageID: 4158 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 285 1 They've been marked at other things. 2 (Exhibit Sterling 23 and Exhibit 3 Sterling 24 marked for Identification.) 4 MR. HAEFNER: Doug, this document has a DHL 5 Bates stamp number and we've marked it as Sterling 23. 6 This document is a shot of a LOG-NET screen, which 7 it's my recollection is in the production as well but 8 this is not the production copy. And I may be 9 mistaken that it's in the production. So I just want 10 you to be able to renew your objection to it. 11 MR. WEIDER: Okay. 12 MR. HAEFNER: And if it is in the 13 production, you know, I'll obviously not swap it out, 14 but I'll identify it for you. 15 MR. WEIDER: Okay. 16 MR. HAEFNER: But I understand your 17 objection to it subject to contingent events. 18 MR. WEIDER: Thank you. 19 Q So my question, Mr. Sterling, is just 20 about these descriptions and marks. You know, you see 21 here there's a list of marks and numbers. I apologize 22 for reaching. As I said, I didn't, didn't make 23 additional copies of this one. 24 And this is from, I'll represent to you 25 this is from GT Nexus' system as forwarded by Alex Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 210 of 232 PageID: 4159 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 286 1 Wei, and this is from the LOG-NET system. 2 And my question to you is if you have an 3 opinion on whether the mark macros that we see here 4 are substantially similar? 5 MR. WEIDER: Well, before you finish that 6 question -- 7 MR. HAEFNER: Sure. 8 MR. WEIDER: So where is the reference on 9 this that this is actually the GT Nexus screen? Does 10 it -- I don't -- I just don't -- I'm just not seeing 11 that on the face of this document. 12 MR. HAEFNER: It's my understanding from 13 Mr. Wei's deposition that was his testimony. So that, 14 you know, that may be mistaken. You know, I don't -- 15 MR. WEIDER: So you want to repeat your 16 question? 17 MR. HAEFNER: I guess let's -- I'll rephrase 18 the question to take out, you know, the assumptions 19 buried in it. 20 MR. WEIDER: Right. 21 Q The examples that you see of marks here 22 and here, would you consider those to be substantially 23 similar? 24 A Is that the question? 25 Q Yes. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 211 of 232 PageID: 4160 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 287 1 A They look similar. 2 Q And the descriptions, would you consider 3 them to be substantially similar? 4 A In this -- in this example? Well, it's 5 got similar information, which is what I would expect. 6 Little different format but they would be -- appears 7 that most of the information is broken up between 8 description and marks. 9 This one shows a description, whereas, 10 the -- yeah, it's hard to say. It's a description 11 down here and it's -- they're similar. I'll leave it 12 at that. 13 Q Okay. And I don't have any other 14 questions about that document. 15 (Exhibit Sterling 25 and Exhibit 16 Sterling 26 marked for Identification.) 17 Q So, again, I'm going to show you what we 18 have marked as Sterling 25 and 26. Let me see 25 19 again. This is 25. 20 And Sterling 25 is labeled DHL 113684. 21 Correct? 22 A Correct. 23 Q Okay. 24 MR. HAEFNER: And then Sterling 26 is this, 25 Doug. And this is a non Bates stamped copy. This is Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 212 of 232 PageID: 4161 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 288 1 just a LOG-NET FCR. There's one in the production. 2 That I am positive about. I know this was produced in 3 this format. I just -- I don't know why this is -- 4 the Bates stamp is not on this one but we will provide 5 it to you. Not provide the document, I'll provide you 6 to Bates stamp. 7 MR. WEIDER: Just so I make clear on the 8 record, my objections to these, in some cases to these 9 documents have been that they've not been produced 10 before. 11 But I also make an additional objection to 12 make it clear that we're not waiving any further 13 contention, that it's our position that any evidence 14 that LOG-NET intended to rely upon upon its expert 15 report was required to be reflected in Mr. Motley's 16 report. Accordingly, we reserve all our rights to 17 challenge any offer of evidence from an expert 18 standpoint that wasn't delineated in the initial 19 report. So call that as a caveat, you may proceed. 20 MR. HAEFNER: No, I understand your 21 position. That's understood. 22 Q So my question first about just looking 23 at Sterling 25 is, which I'll represent to you is a 24 non LOG-NET forwarder's cargo receipt, the -- what is 25 the -- do you know how the particular format of this Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 213 of 232 PageID: 4162 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 289 1 document is created? Is it subject to any 2 international standards? That's what I'm really 3 trying to ask. 4 A I can't say because I'm not an FCR 5 expert. I would, I would contend that generally 6 formats for documents for shipping international are 7 required to follow a similar format. 8 Q And required by whom? 9 A Usually the government. 10 Q Okay. And the government of the 11 specific countries? 12 A It may be, but the idea, it's the same 13 reason all pilots speak English. 14 Q So that things don't crash around it? 15 A Correct. So that, in other words, I 16 don't have to translate 15 different ways to 17 understand where the information is going to be 18 located. 19 If I'm going to be scanning information 20 and OCR-ing it, for example, having completely 21 different formats for every single shipper would not 22 make any sense at all. 23 Q Okay. And the -- but as you sit here 24 today, you're not aware of an international -- the 25 name of an international standard? I'm not trying to Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 214 of 232 PageID: 4163 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 290 1 call you out, but, I mean -- 2 A No. But as I said, I'm not a, you know, 3 not an expert in FCRs, but it's a forwarder's cargo 4 receipt. My understanding of a what that's for is 5 forwarding cargo, that it would make no sense to have 6 multiple formats. 7 Q So you sort of have an assumption that 8 for it to work in any rational way there must be some 9 international standard that's agreed to, you just are 10 not -- not being an expert in it you're not aware who 11 that entity is? 12 A Not with this particular one, but 13 generally any information passing between countries, 14 and I know this from doing government arms shipments 15 of all things, the format of the documents are 16 required to have the same information. They're 17 generally, as you can tell, this is very plain for the 18 most part, it's not necessarily customized in any 19 particular way, it's just a table with a bunch of 20 boxes, that this would be likely. Okay. 21 The point being is that at certain 22 points when someone comes in to look for some 23 information, if in this case the FCR number is here, 24 and then in the next one the FCR number is there, and 25 the next one the FCR number is here, it's going to Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 215 of 232 PageID: 4164 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 291 1 create errors, it's going to create problems in 2 shipping. 3 Q And just for the sake of the record, 4 when you were indicating here, here and here on the 5 page, you were pointing to three separate corners of 6 the paper -- 7 A Correct. 8 Q -- to indicate, like if I were used to 9 finding the FCR number in the upper right-hand corner 10 but then it were in the lower left-hand corner, and 11 then on the next one it was in the middle, that would 12 be a pain in the neck? 13 A It would be very burdensome for whoever 14 had to deal with this document. Okay. Or the 15 documents of this type. 16 So if I had multiple different companies 17 that were providing FCRs and everyone was doing it 18 differently, the people that are moving the goods are 19 not exactly rocket scientists. Okay. So if I had to 20 say, well, if you get this from Company X and the FCR 21 is going to be in the upper right, and you get this 22 from Company Y and it's going to be right in the 23 middle of the page, and you get in from Company X and 24 it's going to be down in the lower right, you know, 25 right, left corner, or right bottom corner, that kind Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 216 of 232 PageID: 4165 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 292 1 of makes things difficult for everybody. 2 Q Sure. 3 And do you have any sense of whether any 4 portion of Sterling 25, if we assume for the sake of 5 argument -- if we accept your presumption that some 6 portion of it is prescribed as an international 7 standard, do you know whether any portion of it is 8 sort of open to the parties' desires? 9 A In any standard there's always 10 variation. 11 Q Okay. 12 A It would depend on the information. If 13 you look at the boxes, the boxes are essentially -- 14 well, not the same because they're not lined up the 15 same. The information to the lower left is different. 16 Q And how is the information to the lower 17 left different? 18 A There is a description, there's a 19 labeling charge that doesn't appear on -- that's on 20 the LOG-NET that does not appear over here that I can 21 tell. 22 Q Can you just refer to them? 23 A But it could be -- 24 Q -- by their numbers. I'm sorry. 25 A I'm sorry. Sterling 26 there's labeling Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 217 of 232 PageID: 4166 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 293 1 charge. In Sterling 25 I don't see that there's a 2 labeling charge. There's some information that 3 appears to be the same, but the actual charge 4 descriptions are different. So that's all I can tell 5 you. 6 Q Okay. And as we said, I mean, you don't 7 have a sense of to what extent any of these things are 8 open to one's creative variation not being an FCR 9 expert? 10 A Correct. 11 (Exhibit Sterling 27 marked for 12 Identification.) 13 (Off-the-record discussion.) 14 Q Do you know who CMS is? 15 A I understood that CMS was one of the 16 companies that ended up getting rolled up into DHL. 17 Q Okay. 18 A I believe. If I'm correct. And I'm not 19 positive of that. 20 Q And, no, that's in fact the case. 21 A Okay. 22 Q So, and -- 23 MR. WEIDER: Got one right on the exam. 24 Let's see what the next question is. 25 Q The -- and the -- this is in fact Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 218 of 232 PageID: 4167 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 294 1 forwarder's cargo receipt. 2 Do you understand that to be the case? 3 A I'm looking for the mark. Hold on. 4 It does not say FCR on this page. 5 Q Right. It says cargo receipt at the 6 top. 7 A Oh, cargo receipt. Well, okay -- 8 Q But it doesn't say forwarder's cargo 9 receipt. 10 A Right. So it's a cargo receipt. 11 Whether it's a forwarder's I don't know. So I don't 12 know what the distinction, difference between the two. 13 Q And the reason you don't know is, as you 14 said, you're not an FCR expert? 15 A Correct. 16 Q So you're not in a position to tell. 17 This document is vastly different than both Sterling 18 25 and 26. Correct? 19 MR. WEIDER: Object to form. 20 A Correct. It's also considerably older. 21 Q Yes, this document is dated the Fourth 22 of July 1994. Correct? 23 A Correct. 24 Q So let's all try to remember what we 25 were doing that weekend. Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 219 of 232 PageID: 4168 Connecticut Nationwide 1-800-310-1769 Pennsylvania New York Hudson Reporting & Video New Jersey 305 1 2 CERTIFICATE OF OFFICER 3 4 5 I, DEBORAH J. TAKACS, a Certified Court 6 Reporter and a Notary Public of the State of New 7 Jersey, do hereby certify that prior to the 8 commencement of the examination the witness was duly 9 sworn by me. 10 I DO FURTHER CERTIFY that the foregoing 11 is a true and accurate transcript of the testimony as 12 taken stenographically by and before me at the date, 13 time and place aforementioned. 14 I DO FURTHER CERTIFY that I am neither a 15 relative nor employee, nor attorney or counsel to any 16 parties involved; that I am neither related to nor 17 employed by any such attorney or counsel, and that I 18 am not financially interested in the action. 19 20 21 _____________________________________ C.C.R. License No. 1157 22 23 24 25 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 220 of 232 PageID: 4169 EXHIBIT 6 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 221 of 232 PageID: 4170 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 222 of 232 PageID: 4171 EXHIBIT 7 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 223 of 232 PageID: 4172 1 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF 3 NEW JERSEY 4 Civil Action No. 3:12-cv-1732(MAS)(TJB) -------------------------------------x 5 ) AIR EXPRESS INTERNATIONAL d/b/a ) 6 DHL GLOBAL FORWARDING CORPORATION, ) an Ohio Corporation ) CONFIDENTIAL 7 ) VIDEOTAPED ) DEPOSITION OF 8 Plaintiff, ) JOHN MOTLEY ) 9 ) v. ) 10 ) ) 11 LOG-NET, INC., a Delaware ) Corporation. ) 12 Defendant. ) ) 13 -------------------------------------x 14 15 16 CONFIDENTIAL VIDEOTAPED DEPOSITION of JOHN 17 MOTLEY, taken on December 7, 2015 at 9:57 a.m., at 18 the office of Connell Foley, One Newark Center, 1085 19 Raymond Boulevard, Newark, New Jersey. 20 21 22 23 24 25 Page 1 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 224 of 232 PageID: 4173 1 CONFIDENTIAL 2 A. I believe I previously stated that it 3 was in 2011. We provided that specific version to 4 you. 5 Q. I just want to make sure I had the date 6 right. All right. 7 Now, for -- so if we look at the first 8 two columns, Log-Net Feature ID, which is basically 9 a numbering of the different features up to 193, 10 right? 11 A. Yes. 12 Q. And then column two which is the short 13 description of the feature. 14 Can you tell us the date on which each 15 of the 193 features was first used by Log-Net? 16 A. No. 17 Q. Are there documents existing in Log-Net 18 indicating the first date on which each one of those 19 193 features was used by Log-Net? 20 A. I'm not sure. 21 Q. Okay. If you had to look for those 22 documents, where within Log-Net would you look for 23 them? 24 A. They could be help guides that date as 25 far back as 1990. Page 69 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 225 of 232 PageID: 4174 1 CONFIDENTIAL 2 Q. Do you have those? 3 A. No, not that far back. 4 Q. Okay. How far back do you have help 5 guides? 6 A. I think we produced some guides that 7 were from 1993. 8 Q. Do you have all the help guides from 9 1993 to the present? 10 A. All of them, no, I don't think so. 11 Q. Can you tell me which ones you do have? 12 A. Off the top of my head, no, I cannot. 13 Q. Can you identify specific documents 14 showing the circumstances under which each one of 15 the items 1 through 193 were created? 16 A. Not with that specificity. 17 Q. Are there documents within Log-Net which 18 would show that? 19 A. For many of these features, yes. 20 Q. What about for all of them? 21 A. The majority would be in WALLY, but not 22 all of them. Some of these date back to the 23 inception of the company. 24 Q. And the ones that date back to the 25 inception of the company, would there be documents Page 70 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 226 of 232 PageID: 4175 1 CONFIDENTIAL 2 showing the circumstances under which the feature 3 was created? 4 A. No. Many of those features I wrote off 5 the top of my head. 6 Q. Can you identify for each of the 193 7 items, specific documents showing who first came up 8 with the idea for each of these features? 9 A. There's, as I mentioned, documentation. 10 For some of the ones that came from the inception of 11 the company, no, there is no documentation. 12 Q. And to the extent that there are 13 documents showing who came up with the idea for each 14 feature listed in your chart, where would those 15 documents be located? 16 A. The WALLY system. 17 Q. Now, each of the features -- 18 A. I'm sorry. Could you rephrase your 19 prior question? 20 Q. I forgot it. We're gonna have to read 21 it back. 22 (The record was read back by the reporter.) 23 MR. HAEFNER: Was that the question or 24 did you want the one before that? 25 THE WITNESS: No, that was the one. Page 71 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 227 of 232 PageID: 4176 1 CONFIDENTIAL 2 intellectual property." The context of this 3 paragraph was always about optional fields plural, 4 reserved optional fields plural, functions plural, 5 so it was never optional fields alone. 6 Q. Okay. So in paragraph 30, what I'm 7 looking for is documents that a financial expert 8 could look at to figure out whether you actually 9 spent $20 million on optional fields, reserved 10 optional fields and the other things that you talk 11 about in paragraph 30. 12 MR. HAEFNER: Objection to the form of 13 the question. 14 You could go ahead and answer. 15 A. So an expert would be able to go through 16 the -- this starts at 4800 and goes through 5300 -- 17 so many pages of financial documents that have been 18 provided to -- and some of those documents as we 19 reviewed earlier have ratios assigning an allocation 20 or percentage of time, they are not exact numbers. 21 So there is no direct number correlation 22 where somebody said here's optional fields. I could 23 represent that a significant portion of the 24 investment involved optional fields. 25 MR. HAEFNER: Just for the sake of the Page 190 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 228 of 232 PageID: 4177 1 CONFIDENTIAL 2 record, the witness when he was 3 referring to the Bates numbers, was 4 referring to Log-Net 3. 5 MR. NICODEMA: Yeah. 6 Q. You talk about time allocation in 7 Log-Net 3. Log-Net 3 doesn't tell you how much of 8 the time or how much of the cost or how much of the 9 anything was spent on optional fields or reserved 10 optional fields, does it? 11 A. No. I presume that's why you asked me 12 here today. 13 It was a significant number and I could 14 represent that. 15 Q. I'm looking for, Mr. Motley, document 16 backup for your representation. Is there any? 17 MR. HAEFNER: Objection to the form of 18 the question. Asked and answered. 19 You could go ahead and answer. 20 A. We have provided the WALLY background, 21 we have provided specifications and design documents 22 to you, we have provided almost a thousand pages of 23 financial data, there is plenty of information there 24 for you to establish the fact that it was a very 25 large percentage and you probably could get an Page 191 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 229 of 232 PageID: 4178 1 CONFIDENTIAL 2 expert that could give you a number. 3 Q. Do any of the financial documents in 4 Exhibit 3 even mention the words optional fields or 5 reserved optional fields? 6 MR. HAEFNER: Objection to the form of 7 the question. 8 You could go ahead and answer. 9 A. They are financial documents, they do 10 not reference optional fields. 11 Q. Okay. Let's move on to something else. 12 Let's turn to Exhibit M, if you would. 13 Does Exhibit M relate to the issue of 14 optional fields? 15 A. Yes, it does. 16 Q. How so? 17 A. It is a listing of optional fields. 18 Q. Okay. There's a third column that says 19 Log-Net Optional Field Name and then there's a 20 listing of names? 21 A. Yes. 22 Q. And are each of these optional fields in 23 the Log-Net System? 24 A. Yes, they are. 25 Q. Does this document, Exhibit M, indicate Page 192 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 230 of 232 PageID: 4179 1 CONFIDENTIAL 2 that GT Nexus incorporated each of these optional 3 fields into its system? 4 MR. HAEFNER: Objection to the form of 5 the question. 6 You could go ahead and answer. 7 A. I believe this document was traded 8 between Jim Bocchino of DHL and MuiYong Tan of DHL, 9 Phil Oberhausen of GT Nexus, the intent was to 10 implement Kids "R" Us, I believe. These fields are 11 specifically used in that process. 12 Many of the fields have a Required in 13 GTN column, my assumption is that those marked with 14 a yes were implemented by GT Nexus. There are 15 question marks in several that -- particularly those 16 that begin with 4, there is many that are 40100, 17 40102, 40110, those Mr. Bocchino has question marks, 18 he doesn't understand what those are. 19 Q. What would you need to look at to 20 determine exactly which optional fields actually 21 exist in the GT Nexus system? 22 A. Based on the last column, Input Comments 23 from Document Reviewers, there is a Prod Ref Number 24 2, for example, Prod Ref Number 4 -- 25 (Reporter clarification.) Page 193 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 231 of 232 PageID: 4180 1 2 C E R T I F I C A T I O N 3 4 I, KELLY MORGAN BRENNAN, being a Certified 5 Court Reporter and Notary Public of the State of New 6 Jersey, do hereby certify that the foregoing is a 7 true and correct transcript of the proceedings. 8 I DO FURTHER CERTIFY that I am neither a 9 relative nor employee nor attorney or counsel of any 10 of the parties to this action and that I am neither 11 a relative nor employee of such attorney or counsel 12 and that I am not financially interested in the 13 action. 14 15 <%Signature%> 16 ________________________ 17 KELLY MORGAN BRENNAN, R.P.R, C.C.R. License No. 30XI00230400 18 Notary No. 2414690 Commission expires: 11/17/2016 19 20 21 22 23 24 25 Page 263 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 Case 3:12-cv-01732-MAS-TJB Document 169-3 Filed 08/05/16 Page 232 of 232 PageID: 4181 Marc D. Haefner WALSH PIZZI O’REILLY FALANGA LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 Telephone: (973) 757-1100 Facsimile: (973) 57-1090 Attorneys for Defendant Log-Net, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY AIR EXPRESS INTERNATIONAL, d/b/a DHL GLOBAL FORWARDING CORPORATION, and Ohio Corporation, Plaintiff, v. LOG-NET, INC., a Delaware corporation, Defendant. Civil Action No. 3:12-cv-01732-MAS-TJB CERTIFICATE OF SERVICE Filed Electronically I, Marc D. Haefner, hereby certify that, on the date set forth below, I caused a true and correct copy of the following documents submitted on behalf of Defendant LOG-NET, Inc. (“Log-Net”) to be filed with the United States District Court for the District of New Jersey, Clarkson S. Fisher Federal Building and U.S. Courthouse, 402 East State Street, Trenton, New Jersey in accordance with the Court’s electronic filing procedures: • Reply Brief in Further Support of Log-Net’s Motion for Partial Summary Judgment; • LOG-NET’s Response to Plaintiff’s Supplemental Statement of Disputed Material Facts; • Declaration of Marc D. Haefner with Exhibits 1-7 annexed thereto; and • This Certificate of Service. Case 3:12-cv-01732-MAS-TJB Document 169-4 Filed 08/05/16 Page 1 of 2 PageID: 4182 I further certify that, on the date set forth below, I caused a true and correct copy of the afore-mentioned documents to be served on all counsel of record via electronic filing and email. I further certify that I will cause a courtesy copy of the afore-mentioned documents to be sent via First-Class Mail to the Honorable Michael A. Shipp, U.S.D.J., at the United States District Court for the District of New Jersey, Clarkson S. Fisher Federal Building and U.S. Courthouse, 402 East State Street, Trenton, New Jersey. Dated: August 5, 2016 s/ Marc D. Haefner Marc D. Haefner Case 3:12-cv-01732-MAS-TJB Document 169-4 Filed 08/05/16 Page 2 of 2 PageID: 4183
