·1· · · · · · · · ·IN THE UNITED STATES DISTRICT · · · · · · · · · · SOUTHERN DISTRICT OF FLORIDA ·2 · · · · · · · · · · CASE NO. 15-81782-CIV-MARRA ·3· ·______________________________________/ ·4· ·KIM PETER TILLMAN ·5· · · · · · ·Plaintiff, ·6· ·vs. ·7 · · ·ADVANCED PUBLIC SAFETY, ·8· ·INC., and TRIMBLE, INC., ·9· · · · · · ·Defendants. · · ·______________________________________/ 10 11 · · · · · · ·VIDEOTAPED DEPOSITION OF JEFFREY RUBENSTEIN 12 · · · · · · · · · · · · · · · Volume 1 13 · · · · · · · · · · · · · ·Pages 1 - 102 14 15 16 17· · · · · · · · · ·Tuesday, February 21, 2017 · · · · · · · · · · · ·9:56 a.m. - 12:13 p.m. 18· · · · · · · · ·1900 N.W. Corporate Boulevard · · · · · · · · · · ·Boca Raton, Florida 33431 19 20 21 22 · · · · · · · · · ·Stenographically Reported By: 23· · · · · · · · · · · ·Terri Becker, CSR · · · · · · · · · · Certified Shorthand Reporter 24 · · · · · · · · · · · · ·U.S.L.S.# 1524272 25 Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 · U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 1 of 140 Page 2 ·1· · · · · · · · · · · · · APPEARANCES ·2 · · ·ON BEHALF OF THE PLAINTIFF: ·3 · · · · · GUNSTER, YOAKLEY & STEWART, P.A. ·4· · · · 777 South Flagler Drive · · · · · Suite 500 East ·5· · · · West Palm Beach, Florida 33401 · · · · · Rfeicht@gunster.com ·6· · · · BY:· ROGER W. FEICHT, ESQ. ·7 · · ·ON BEHALF OF THE DEFENDANTS: ·8 · · · · · SMOAK, CHISTOLINI & BARNETT, PLLC ·9· · · · 320 West Kennedy Boulevard · · · · · Fourth Floor 10· · · · Tampa, Florida 33606 · · · · · Kcollins@flatrialcounsel.com 11· · · · Courtdocuments@flatrialcounsel.com · · · · · BY:· KELLY CHARLES-COLLINS, ESQ. 12 13· ·ALSO PRESENT: 14· · · · AMY MERSKY · · · · · Videographer 15 · · · · · RON SCHNELL 16 17 18 19 20 21 22 23 24 25 Page 3 ·1· · · · · · · · · · · INDEX OF PROCEEDINGS ·2 · · ·VIDEOTAPED DEPOSITION OF:· JEFFREY RUBENSTEIN ·3 · · · · · · · · · · · DIRECT· CROSS· REDIRECT· RECROSS ·4 · · ·BY MR. FEICHT· · · 5 ·5 ·6 ·7· · · · · · · · · · · · · · EXHIBITS ·8· ·PLAINTIFF'S· · · DESCRIPTION· · · · · · · · · ·PAGE ·9· · NUMBER· 1· · · ENGAGEMENT LETTER· · · · · · · ·10 · · · NUMBER· 2· · · INVOICE· · · · · · · · · · · · ·12 10· · NUMBER· 3· · · E-MAIL· · · · · · · · · · · · · 18 · · · NUMBER· 4· · · EXPERT REPORT· · · · · · · · · ·24 11 12 13· ·WITNESS INSTRUCTED NOT TO ANSWER:· PAGE 38, LINE 23 14 15 16· · · · · · · NOTE:· EXHIBIT NUMBER 6 IS NOT ATTACHED TO · · · · · · · · · · · ·THE TRANSCRIPT AND IS NOT IN THE 17· · · · · · · · · · ·CUSTODY OR CONTROL OF THE COURT · · · · · · · · · · · ·REPORTER. 18 19 20 21 22 23 24 25 Page 4 ·1· · · · · · ·Deposition taken before TERRI BECKER, ·2· ·Certified Shorthand Reporter and Notary Public in ·3· ·and for the State of Florida at Large, in the above ·4· ·cause. ·5· · · · · · · · · · · · ***** ·6· · · · · · ·THE VIDEOGRAPHER:· We are now going on to ·7· ·the record.· The time is approximately 9:56.· The ·8· ·date is February 21st, 2017.· We're here at 1900 ·9· ·Northwest Corporate Boulevard, Suite 200 East, in 10· ·Boca Raton, Florida for purposes of taking the 11· ·Videotaped Deposition of Jeffrey Rubenstein in the 12· ·case of Kim Peter Tillman versus Advanced Public 13· ·Safety, Inc. and Trimble, Inc. 14· · · · · · ·It is filed in the United States District 15· ·Court, Southern District of Florida.· The case 16· ·number is 15-81782-CIV-MARRA.· Video and reporting 17· ·services are being provided by U.S. Legal Support. 18· ·Counsel present please announce your appearance and 19· ·then the reporter will swear in the witness. 20· · · · · · ·MR. FEICHT:· Good morning.· Roger Feicht 21· ·on behalf of the plaintiff. 22· · · · · · ·MS. CHARLES-COLLINS:· Good morning. 23· · · · · · ·Kelly Charles-Collins on behalf of the 24· ·defendants. 25· · · · · · ·THE COURT REPORTER:· Please raise your Page 5 ·1· · · · right hand, sir. ·2· · · · · · · · · Do you solemnly swear or affirm the ·3· · · · testimony you are about to give will be the truth, ·4· · · · the whole truth and nothing but the truth, so help ·5· · · · you God? ·6· · · · · · · · · THE WITNESS:· Yes, I do. ·7· ·THEREUPON: ·8· · · · · · · · · · · JEFFREY RUBENSTEIN, ·9· ·having been first duly sworn or affirmed, was examined and 10· ·testified as follows: 11· · · · · · · · · · · ·DIRECT EXAMINATION 12· ·BY MR. FEICHT: 13· · · · Q· · Good morning again, Mr. Rubenstein.· Would you 14· ·please state your full name for the record. 15· · · · A· · Jeffrey David Rubenstein. 16· · · · Q· · And have you gone by any other names of any 17· ·kind? 18· · · · A· · Just Jeff as a shorthand name. 19· · · · Q· · Do you understand the oath that you just swore 20· ·to tell the truth today? 21· · · · A· · I do. 22· · · · Q· · Any reason why you won't be able to tell the 23· ·truth today? 24· · · · A· · No. 25· · · · Q· · Are you currently taking any medication or do Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 2 to 5 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 2 of 140 Page 6 ·1· ·you have any medical issues that may inhibit your memory ·2· ·or your ability to answer questions today? ·3· · · · A· · No. ·4· · · · Q· · What is your current occupation? ·5· · · · A· · I'm the President and CEO of SmartProcure, Inc., ·6· ·SmartProcure one word, capital S, capital P, SmartProcure. ·7· · · · Q· · And what is your current address? ·8· · · · A· · Home or business? ·9· · · · Q· · Home, please. 10· · · · A· · Home is 17534 Grand Este Way, Boca Raton, 11· ·Florida 33496.· Work address is 700 West Hillsboro 12· ·Boulevard, Suite 4-100, Deerfield Beach, Florida 33441. 13· · · · Q· · Have you ever given a deposition before today? 14· · · · A· · I have. 15· · · · Q· · When was that? 16· · · · A· · Many years ago.· Nothing in the last like five 17· ·or ten years that I can recall. 18· · · · Q· · Do you recall what type of case your previous 19· ·deposition was regarding? 20· · · · A· · I don't.· It was many years past.· I just 21· ·remember being involved, I'm an attorney as well, so I 22· ·remember doing different things, I don't recall what the 23· ·depo was, but nothing that I can recall specifically. I 24· ·just don't want to be incorrect, so I believe I have. 25· · · · Q· · You believe you -- Page 7 ·1· · · · A· · Correct. ·2· · · · Q· · -- have not just taken it or defended ·3· ·depositions as an attorney but sat as a deponent before? ·4· · · · A· · I believe so.· I can't recall the specifics of a ·5· ·case, but yes. ·6· · · · Q· · Do you recall anything about the case at all? ·7· · · · A· · No. ·8· · · · Q· · Where it was, the approximate year, what role ·9· ·you were serving in? 10· · · · A· · No, I remember no specifics.· I just want to say 11· ·that just to make sure that I'm not inaccurate.· I believe 12· ·I have but I can't recall a single incident specifically. 13· · · · Q· · Have you personally been involved in a lawsuit 14· ·as either a plaintiff or a defendant? 15· · · · A· · My company has been sued in the past for sending 16· ·a fax, an unsolicited fax, at SmartProcure. 17· · · · Q· · Under the Junk Fax Prevention Act? 18· · · · A· · Right, under TCPA. 19· · · · Q· · That's a very odd statute. 20· · · · A· · I know, unbelievable. 21· · · · · · ·Has there been any other incident?· Possibly 22· ·while at APS/Trimble, Advanced Public Safety/Trimble, 23· ·but I don't recall. 24· · · · Q· · Do you have any recollection of being personally 25· ·named as either a plaintiff or a defendant in any sort of Page 8 ·1· ·litigation or legal proceeding? ·2· · · · A· · I don't believe so, no. ·3· · · · Q· · I know you're a lawyer and you sat in on Mr. ·4· ·Schnell's deposition last week, but I'll just go over some ·5· ·of the basics to make sure we're on the same page going ·6· ·forward today. ·7· · · · · · ·To ensure we have a good transcript, it's ·8· ·critical that you allow me to finish asking my questions ·9· ·and I'll allow you to finish your answers before moving 10· ·on to the next question so we're not speaking over each 11· ·other. 12· · · · · · ·Please let me know if you cannot hear or 13· ·understand one of my questions.· I'll be happy to 14· ·rephrase it.· If you do answer a question, I will assume 15· ·that you heard it and understood it; is that fair? 16· · · · A· · It is. 17· · · · Q· · And please let me know, as I mentioned before we 18· ·got started, if you need to take a break at any time, as 19· ·long as there's not a question currently pending, we can 20· ·take as many brakes as you need. 21· · · · · · ·Is it okay if I refer to the defendant 22· ·Advanced Public Safety, Inc., simply as APS in my 23· ·questions today? 24· · · · A· · Yes. 25· · · · Q· · And is it okay for me to refer to the defendant Page 9 ·1· ·Trimble, Inc., formally known as Trimble Navigation, ·2· ·Limited, simply as Trimble in my questions today? ·3· · · · A· · Yes. ·4· · · · Q· · Were you hired by the law firm of Smoak, ·5· ·Christolini & Barnett to provide expert opinions in this ·6· ·matter? ·7· · · · · · · · · MS. CHARLES-COLLINS:· Chistolini. ·8· · · · A· · Subject to the pronunciation error, the answer ·9· ·is "Yes". 10· · · · Q· · Okay.· And when were you first contacted by the 11· ·law firm regarding this case? 12· · · · A· · It was the Friday before the report was due in 13· ·January, so somewhere around January 13th, I believe, give 14· ·or take a day. 15· · · · Q· · Are you referring to the expert disclosure 16· ·deadline in this case? 17· · · · A· · I believe so. 18· · · · Q· · And what information was communicated to you 19· ·that you relied on during this initial conversation? 20· · · · A· · I'm not sure I understand the question. 21· · · · Q· · Sure, I can rephrase it.· During this initial 22· ·conversation when you were first contacted was any 23· ·information provided to you that you relied on in forming 24· ·your ultimate opinions in this case? 25· · · · A· · No, we had a very brief conversation at which Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 6 to 9 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 3 of 140 Page 10 ·1· ·point they indicated a potential interest in hiring me as ·2· ·an expert, had to go back to the client, and then they ·3· ·came back and said that they were going to hire me as an ·4· ·expert. ·5· · · · · · · · · MR. FEICHT:· I'll ask the court reporter ·6· · · · to please mark this as Plaintiff's Exhibit 1. ·7· · · · · · · · · (Plaintiff's Exhibit 1 marked for ·8· · · · identification). ·9· · · · Q· · Mr. Rubenstein, the court reporter has handed 10· ·you a document that we've marked as Plaintiff's Exhibit 1 11· ·and that is Bates stamped at the bottom of the page 12· ·APS-015644 through 646.· Do you recognize this document? 13· · · · A· · I do. 14· · · · Q· · What is it? 15· · · · A· · It is my engagement letter with the firm that 16· ·hired me. 17· · · · Q· · And what is your hourly rate for your work on 18· ·this matter? 19· · · · A· · 495 per hour, billable in quarter hour 20· ·increments. 21· · · · Q· · Do you plan on testifying at the trial scheduled 22· ·for August as an expert witness in this matter? 23· · · · A· · If so requested. 24· · · · Q· · Other than this engagement agreement that we've 25· ·marked as Plaintiff's Exhibit 1 with the law firm that Page 11 ·1· ·represents both APS and Trimble, do you currently have any ·2· ·contracts or agreements of any kind with APS? ·3· · · · A· · I do not. ·4· · · · Q· · Other than this engagement letter with the law ·5· ·firm that represents APS and Trimble, do you have any ·6· ·other contracts or agreements of any kind with Trimble? ·7· · · · A· · I do not. ·8· · · · Q· · Other than this engagement letter with the law ·9· ·firm that represents APS and Trimble, do any entities that 10· ·you have an interest in or control over have any contracts 11· ·or agreements with APS or Trimble? 12· · · · A· · They do not.· Actually, let me rephrase that. I 13· ·think APS and/or Trimble may be a subscriber to 14· ·SmartProcure.· We have many thousands of customers.· At 15· ·one point APS was a client where they paid a few thousand 16· ·dollars a year to access the database, like any other 17· ·customer.· I do not know if they are still a client. 18· · · · Q· · So, at least at some point in time recently the 19· ·defendants in this case, APS or Trimble, were customers of 20· ·your current business, SmartProcure, Inc.? 21· · · · · · · · · MS. CHARLES-COLLINS:· Object to the form. 22· · · · A· · Potentially. 23· · · · Q· · Okay. 24· · · · A· · I believe so.· But I don't know for sure. 25· · · · Q· · Okay.· Do you recall approximately when either Page 12 ·1· ·APS or Trimble were customers of SmartProcure? ·2· · · · A· · I don't.· We started in 2011 so it would be ·3· ·sometime between 2011 and today. ·4· · · · Q· · So sometime in the last six years or so -- ·5· · · · A· · That's correct. ·6· · · · Q· · -- APS or Trimble or potentially both were ·7· ·customers of SmartProcure? ·8· · · · A· · Potentially.· I don't ever recall seeing ·9· ·Trimble's name and I believe that I saw APS's name. I 10· ·don't recall the initial question, but I believe Peter 11· ·Tillman was also a customer of SmartProcure, so if that's 12· ·relevant. 13· · · · Q· · Other than APS and possibly Trimble being 14· ·customers of SmartProcure, do you or any entities 15· ·controlled by you or that you have an interest in have any 16· ·other sort of business relationships or relationships of 17· ·any kind with APS or Trimble? 18· · · · · · · · · MS. CHARLES-COLLINS:· Object to the form. 19· · · · A· · No. 20· · · · · · · · · (Plaintiff's Exhibit 2 marked for 21· · · · identification). 22· · · · · · · · · MR. FEICHT:· This is the invoice.· I'm 23· · · · going to go through all the files.· I have extra 24· · · · copies of some. 25· · · · · · · · · MS. CHARLES-COLLINS:· Okay. Page 13 ·1· · · · Q· · The court reporter has just handed you a ·2· ·document that we've marked as Plaintiff's 2, and that is ·3· ·Bates stamped APS-015684 through 685.· Do you recognize ·4· ·this document? ·5· · · · A· · I do. ·6· · · · Q· · What is it? ·7· · · · A· · It is my January bill to the law firm that hired ·8· ·me. ·9· · · · Q· · From January 12th through January 31st did you 10· ·perform three -- excuse me -- 34.5 hours of time and bill 11· ·the defendant's law firm a total of $17,250? 12· · · · A· · Yes. 13· · · · · · · · · MS. CHARLES-COLLINS:· Just for the 14· · · · record, for our agreement as to the fact that we're 15· · · · not waiving anything as far as attorney/client 16· · · · privilege or work product with regard to the 17· · · · invoice, but we did provide it to you unredacted. 18· · · · Q· · Your time entry for January 13, the second entry 19· ·down, there is a notation for teleconference with Larry 20· ·Thompson, .25.· Do you see that there? 21· · · · A· · I do. 22· · · · Q· · On January 13th did you have an approximately 15 23· ·minute telephone conversation with current Trimble 24· ·employee Larry Thompson? 25· · · · A· · I don't know -- Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 10 to 13 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 4 of 140 Page 14 ·1· · · · · · · · · MS. CHARLES-COLLINS:· Object to form. ·2· · · · A· · -- his status at Trimble, but I believe he's ·3· ·still employed there, and yes, I did speak with him for ·4· ·15 minutes on that date. ·5· · · · Q· · And what did Larry Thompson tell you during that ·6· ·conversation? ·7· · · · A· · That conversation was very brief.· It was mainly ·8· ·about setting up a meeting for that Sunday, which I ·9· ·believe was the 15th of January.· That's another -- 10· · · · Q· · Anything else that he informed you at that time? 11· · · · A· · Nothing specific that I recall. 12· · · · Q· · Do you recall anything generally else about that 13· ·call that Larry Thompson communicated to you? 14· · · · A· · No. 15· · · · Q· · What did you tell Larry Thompson during this 16· ·telephone conversation? 17· · · · A· · That I was hired as an expert witness and I 18· ·needed to do an objective review of Mr. Schnell's expert 19· ·report and was reviewing material from the law firm and 20· ·also wanted to ask him some questions if he had some time 21· ·reference the source code and history -- 22· · · · Q· · Did you -- Sorry. 23· · · · A· · -- of APS. 24· · · · Q· · Did you ask any of those questions during that 25· ·initial call or was it during the subsequent meeting? Page 15 ·1· · · · A· · It was during the subsequent meeting. ·2· · · · Q· · Okay, we'll get to that in just a second.· Then ·3· ·that next entry on that date is:· "Conversation REF.SOX," ·4· ·in all capital letters, slash, "REV/REC with Jim Fenoglio, ·5· ·previous APS CFO, .50."· What does that particular entry ·6· ·mean? ·7· · · · A· · That was a conversation that I had with Jim ·8· ·Fenoglio, who was the Chief Financial Officer at APS, also ·9· ·currently works with me at SmartProcure, reference some 10· ·questions that I had referencing SOX, which is the 11· ·Sarbanes-Oxley Act.· Sarbanes-Oxley, SOX, Sarbanes-Oxley, 12· ·and REV/REC standing for Revenue Recognition. 13· · · · Q· · And what did you tell Jim Fenoglio during this 14· ·conversation? 15· · · · A· · That I was hired as an expert witness and I had 16· ·some questions to refresh my memory regarding how we 17· ·recognize revenue with SmartConnect. 18· · · · Q· · And what did he tell you in response to those 19· ·questions? 20· · · · A· · Just answered the questions regarding and 21· ·confirming my understanding of recognizing revenue only 22· ·when we delivered the product. 23· · · · Q· · As it regards to the SmartConnect product in 24· ·particular that is the subject of this case, did Jim 25· ·Fenoglio provide any other information regarding revenue Page 16 ·1· ·recognition of SmartConnect? ·2· · · · A· · No. ·3· · · · Q· · Anything else that you can recall during this ·4· ·half hour conversation between you and Jim Fenoglio? ·5· · · · A· · No. ·6· · · · Q· · Did you rely on any of the information provided ·7· ·by Jim Fenoglio in forming your expert opinions in this ·8· ·case? ·9· · · · A· · No. 10· · · · Q· · Other than this telephone call noted in your 11· ·invoice, have you spoken to or exchanged any written 12· ·communications with Mr. Fenoglio regarding this case? 13· · · · A· · No. 14· · · · Q· · On January 15th there is a time entry for, 15· ·quote, "Meeting to review source code with Larry 16· ·Thompson," and in parentheses the number 4.· Did you meet 17· ·in person with Larry Thompson for approximately four hours 18· ·on January 15th? 19· · · · A· · Yes. 20· · · · Q· · What did you tell Larry Thompson during this 21· ·meeting? 22· · · · A· · I asked Larry Thompson to walk me through the 23· ·source code of ZebraLoader, ZebraLoader, one word, and 24· ·QuickTicket. 25· · · · Q· · Anything else? Page 17 ·1· · · · A· · No. ·2· · · · Q· · What did Larry Thompson tell you during this ·3· ·meeting? ·4· · · · A· · He reviewed the code with me and the different ·5· ·functions that each section of the code performed. ·6· · · · Q· · When you were reviewing this code were you ·7· ·reviewing a document on a piece of paper or were you ·8· ·reviewing it on a computer? ·9· · · · A· · A document on a piece of paper provided by 10· ·counsel. 11· · · · Q· · Did it have -- was it called "Supporting Zebra 12· ·Printer" and "QuickTicket" at the top? 13· · · · A· · I would have to see it to be sure. 14· · · · Q· · I'll show you in just a few minutes.· We will 15· ·get to that.· Based on your review with Larry Thompson, do 16· ·you have a good understanding of how that source code 17· ·operates? 18· · · · · · · · · MS. CHARLES-COLLINS:· Object to the form. 19· · · · A· · I do. 20· · · · Q· · What, if anything else, did Larry Thompson show 21· ·or provide you during this meeting? 22· · · · A· · Nothing else. 23· · · · Q· · Other than the telephone call on January 13th 24· ·and the meeting on January 15th, have you spoken to or 25· ·exchanged any written communications with Larry Thompson? Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 14 to 17 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 5 of 140 Page 18 ·1· · · · A· · I may have had one more five-minute phone call ·2· ·with Larry Thompson subsequent to this, that meeting, that ·3· ·was personal in nature, just saying "Hello" and catching ·4· ·up.· That was the extent of any further communication I ·5· ·have had with Larry. ·6· · · · Q· · During that phone call was there any discussion ·7· ·of this case at all? ·8· · · · A· · There was not. ·9· · · · Q· · And are you billing the defendant's law firm on 10· ·a monthly basis so there would be a separate invoice for 11· ·the month of February? 12· · · · A· · Yes. 13· · · · · · ·(Plaintiff's Exhibit 3 marked for 14· ·identification. 15· · · · Q· · The court reporter has handed you a document 16· ·marked as Plaintiff's Exhibit 3 and Bates stamped APS- 17· ·015652.· Did you receive this e-mail? 18· · · · A· · I believe so. 19· · · · Q· · And is this an e-mail that you received on or 20· ·about Monday, January 2nd, from the lawyer for the 21· ·defendants, Kelly Charles-Collins? 22· · · · A· · Yes. 23· · · · Q· · Her e-mail states in part, quote, "It would be 24· ·great if Jack could also be available," end quote.· Who 25· ·did you understand Ms. Charles-Collins to be referring to Page 19 ·1· ·in that sentence? ·2· · · · A· · Jack Siney. ·3· · · · Q· · Who is Jack Siney? ·4· · · · A· · S-I-N-E-Y.· Jack was I believe the VP of sales ·5· ·or a similar title at APS during the time of Tillman's ·6· ·employment, Mr. Tillman's employment. ·7· · · · Q· · And what is Mr. Siney's current occupation? ·8· · · · A· · He is the VP of sales at SmartProcure. ·9· · · · Q· · Jack Siney currently works for you at your new 10· ·company, SmartProcure? 11· · · · A· · He does. 12· · · · Q· · Did you ever have any conversations with Jack 13· ·Siney regarding Mr. Tillman's lawsuit or your work as an 14· ·expert witness? 15· · · · A· · Short of notifying him that I was being hired as 16· ·an expert witness, we did not talk about this at all. 17· · · · Q· · Has Jack Siney provided you with any information 18· ·regarding this case? 19· · · · A· · I don't believe so, no. 20· · · · Q· · Have you exchanged any written communications 21· ·with Jack Siney regarding this case? 22· · · · A· · I don't recall.· I think it was verbal, my 23· ·conversation with him. 24· · · · Q· · Is it possible that you exchanged e-mail 25· ·messages or text messages with Jack Siney regarding this Page 20 ·1· ·case? ·2· · · · A· · It's possible, but I don't recall.· I don't ·3· ·think we did. ·4· · · · Q· · Has Jack Siney ever been present during ·5· ·conversations between you and attorneys representing the ·6· ·defendants regarding your work as an expert witness? ·7· · · · A· · No, he has not. ·8· · · · Q· · Other than the telephone conversation with Jim ·9· ·Fenoglio, the telephone conversations and meeting with 10· ·Larry Thompson and the conversation with Jack Siney, have 11· ·you spoken to, met with or exchanged any written 12· ·communications with any current or former APS or Trimble 13· ·employees regarding this lawsuit? 14· · · · A· · There were a bunch of questions there.· Let me 15· ·answer that two-fold.· The conversation with Jim was in 16· ·person, not via phone, pursuant to your question, and 17· ·Peter Cagnina, C-A-G-N-I-N-A, who was also an employee at 18· ·APS, works at SmartProcure currently and was also notified 19· ·that I am going to be an expert witness.· No other 20· ·conversations transpired besides him being aware that I 21· ·won't be there today because of this testimony, this 22· ·deposition. 23· · · · Q· · So Peter Cagnina hasn't provided you with any 24· ·information regarding Peter Tillman's employment or 25· ·SmartConnect or any of the other issues in this case? Page 21 ·1· · · · A· · He has not. ·2· · · · Q· · Have you spoken to any other current or former ·3· ·APS or Trimble employees regarding this lawsuit other than ·4· ·those we've already discussed? ·5· · · · A· · I don't believe so. ·6· · · · Q· · We'll get into your background as the Founder ·7· ·and President of APS in a moment.· For right now my ·8· ·question is:· When did you stop providing any services for ·9· ·APS or Trimble?· Do you recall what year that is? 10· · · · A· · I believe it was on or around Q-3 of 2011. 11· · · · Q· · At that point in time in what role were you 12· ·serving? 13· · · · A· · I was an advisor. 14· · · · Q· · To what company? 15· · · · A· · To APS. 16· · · · Q· · In approximately the third quarter of 2011 you 17· ·finished your role as an advisor to APS? 18· · · · A· · I believe so. 19· · · · Q· · And is that because you were starting your own 20· ·company, SmartProcure? 21· · · · A· · Yes. 22· · · · Q· · Is all the information regarding APS, Trimble, 23· ·Peter Tillman and the issues in this lawsuit that you're 24· ·relying on to form your expert opinions since Quarter 3 of 25· ·2011 information that you received from the attorneys Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 18 to 21 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 6 of 140 Page 22 ·1· ·representing the defendants? ·2· · · · · · · · · MS. CHARLES-COLLINS:· Object to form. ·3· · · · A· · My opinion was based on information that I have ·4· ·received from the attorneys, my personal knowledge of the ·5· ·case, excuse me, of the business from 2001 when I was the ·6· ·founder, all the way through my tenure in 2011, and any ·7· ·specific documents that I would have included in my expert ·8· ·report. ·9· · · · Q· · What I'm getting at, I think we're agreeing, you 10· ·don't have any personal knowledge regarding APS or Trimble 11· ·or Peter Tillman from when you stopped being an advisor in 12· ·2011; is that correct? 13· · · · A· · That is correct. 14· · · · Q· · All of the information regarding what happened 15· ·at APS or Trimble since 2011 is based upon information 16· ·that you, or documents that you received from counsel for 17· ·APS and Trimble, correct? 18· · · · A· · That is correct. 19· · · · · · · · · MS. CHARLES-COLLINS:· Object to the form. 20· · · · Q· · Did you perform any further investigation to 21· ·independently verify any of the information regarding 22· ·events after your departure in 2011? 23· · · · · · · · · MS. CHARLES-COLLINS:· Object to form. 24· · · · A· · What events are we talking about? 25· · · · Q· · Any information that you received regarding Page 23 ·1· ·things that happened at the company after 2011. ·2· · · · · · · · · MS. CHARLES-COLLINS:· Object to form. ·3· · · · A· · I'm not sure I understand the question. ·4· · · · Q· · Let me rephrase it. ·5· · · · A· · In regards to Peter Tillman's lawsuit? ·6· · · · Q· · Regarding any of the issues in this case.· Let ·7· ·me ask you this way:· In forming your expert opinions in ·8· ·this case are you relying upon information regarding ·9· ·events that took place after you departed the company in 10· ·2011? 11· · · · · · · · · MS. CHARLES-COLLINS:· Object to form. 12· · · · A· · I am not except in reference to any documents 13· ·that have been provided to me that I've commented on in my 14· ·expert report that may be reference to events after 2011, 15· ·such as responding to Mr. Schnell's expert report. 16· · · · Q· · So for information after 2011 you're relying on 17· ·the documents provided, correct? 18· · · · A· · I am. 19· · · · Q· · Did you perform any independent investigation to 20· ·verify the information referenced in those documents that 21· ·you relied upon? 22· · · · · · · · · MS. CHARLES-COLLINS:· Object to form. 23· · · · A· · I spoke to Jim Fenoglio and Larry Thompson, as 24· ·we previously discussed.· Except for that, I have not. 25· · · · Q· · Jim Fenoglio only provided information regarding Page 24 ·1· ·revenue recognition, but that information did not ·2· ·influence your opinions one way or another, correct? ·3· · · · A· · Correct, it only confirmed what I already knew. ·4· · · · · · ·(Plaintiff's Exhibit 4 marked for ·5· ·identification). ·6· · · · Q· · The court reporter has handed you a document ·7· ·that we've marked as Plaintiff's Exhibit 4.· Is this a ·8· ·copy of your expert report? ·9· · · · A· · Yes. 10· · · · · · · · · MS. CHARLES-COLLINS:· For the documents 11· · · · that you don't have a copy for me, just tell me 12· · · · what it is. 13· · · · · · · · · MR. FEICHT:· Like I said, it's all 14· · · · documents I think that either are cited to or 15· · · · attached to his expert report. 16· · · · · · · · · MS. CHARLES-COLLINS:· No worries, I have 17· · · · the folder of them.· If you just tell me the name, 18· · · · I can look at it on my computer. 19· · · · · · · · · MR. FEICHT:· Will do. 20· · · · · · · · · THE WITNESS:· (Looking through document). 21· · · · Q· · On page 3 of your report there is a section 22· ·called "Compensation."· It states, quote, "I am being 23· ·compensated at the rate of $500 per hour, plus costs, for 24· ·my work on this case.· These rates are my usual and 25· ·customary rates."· In what other context have you charged Page 25 ·1· ·$500 per hour? ·2· · · · A· · When I was an attorney working directly as legal ·3· ·counsel, I would charge $500 per hour. ·4· · · · Q· · When was the last time you charged $500 an hour ·5· ·as an attorney? ·6· · · · A· · When I was working back directly as an attorney ·7· ·outside of my companies in the mid '90's.· Any other ·8· ·compensation would have been part of my work as a business ·9· ·executive since then in the various companies that I've 10· ·worked for. 11· · · · Q· · Other than working as an attorney in the mid 12· ·1990's, have you charged $500 an hour in any other 13· ·circumstances? 14· · · · A· · I don't believe so. 15· · · · Q· · When you worked as an attorney in the mid 16· ·1990's, did you work for a law firm or a business?· What 17· ·was your last role that you held? 18· · · · A· · The last role was as general, last legal role, 19· ·legal position was general counsel of CyberGate, Internet 20· ·provider.· C-Y-B-E-R-G-A-T-E, one word, capital G. 21· · · · Q· · Were you an employee of CyberGate? 22· · · · A· · I was. 23· · · · Q· · Who would be charged $500 an hour for your work 24· ·at that time? 25· · · · A· · That was basically the rate that I was charging Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 22 to 25 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 7 of 140 Page 26 ·1· ·prior to being hired as general counsel.· That was my last ·2· ·legal role that I was giving you.· The last role besides ·3· ·being an employee was with a law firm.· I think it was the ·4· ·Law Firm of Richard Rosenbaum or some similar name to ·5· ·that. ·6· · · · Q· · That would have been the last time you charged ·7· ·customers or clients $500 an hour, correct? ·8· · · · A· · Directly on a bill, except for being an ·9· ·employee, that's correct. 10· · · · Q· · Appendix C to your report is, "Witness testimony 11· ·as an expert during the prior four years," and that page 12· ·is blank.· Have you served as an expert witness in any 13· ·cases over the last four years? 14· · · · A· · I have not. 15· · · · Q· · Have you served as a consulting expert witness 16· ·in any cases over the last four years? 17· · · · A· · I have not. 18· · · · Q· · Have you ever served as a consulting or 19· ·testifying expert in any litigation case? 20· · · · A· · Not that I can recall, although I was doing a 21· ·lot of this work both as an attorney and doing some 22· ·consulting years back, prior to these last few businesses 23· ·that I've started.· So, none that I can recall, with the 24· ·caveat that if I did it was back in the '90's. 25· · · · Q· · In any of your prior work, have you testified in Page 27 ·1· ·a deposition or in court as an expert witness? ·2· · · · A· · No. ·3· · · · Q· · Have you ever testified at a trial, arbitration ·4· ·or other legal proceeding in any role, fact witness or as ·5· ·an expert witness? ·6· · · · · · · · · MS. CHARLES-COLLINS:· Object to the form. ·7· · · · A· · I don't believe so. ·8· · · · Q· · Going back to page 3 on your report, there is a ·9· ·section entitled "Sources of Information."· Do you see 10· ·that? 11· · · · A· · I do. 12· · · · Q· · Other than the documents expressly listed on 13· ·Exhibit B, page 31, did you review any other documents 14· ·related to this case? 15· · · · A· · (No response.) 16· · · · Q· · For the benefit of the record, the Sources of 17· ·Information section reads in part, "I obtained documents 18· ·and used resources from; one, the law firm of Smoak, 19· ·Chistolini & Barnett, as more fully detailed in Exhibit B 20· ·and elsewhere in this report."· If you turn to Exhibit B, 21· ·there is a list of documents and the last one is, "All 22· ·exhibits attached hereto."· Other than the documents 23· ·listed here on Exhibit B and the exhibits that were cited 24· ·to and attached to your report, have you reviewed any 25· ·other documents related to this case? Page 28 ·1· · · · A· · The only other documents I may have reviewed ·2· ·would have been any other documents that are already part ·3· ·of the record of this lawsuit that may have been forwarded ·4· ·to me by counsel that I did not specifically rely on for ·5· ·this report. ·6· · · · Q· · So there are documents that were sent to you by ·7· ·the lawyers representing the defendants that you reviewed ·8· ·but that ultimately you did not rely upon in forming your ·9· ·expert opinions; is that correct? 10· · · · A· · I'm not sure I would go as far as saying I even 11· ·reviewed it.· I believe there are some other documents 12· ·they may have sent me that I've deemed -- that I deemed 13· ·irrelevant and did not review.· So, short of that caveat 14· ·that perhaps there are some other documents that are part 15· ·of the record that were sent to me that I did not review, 16· ·short of seeing what they were, this encompasses all of 17· ·them. 18· · · · Q· · Which documents did you review and deem 19· ·irrelevant to your opinions in this case? 20· · · · · · · · · MS. CHARLES-COLLINS:· Object to the form. 21· · · · A· · I would have to look.· It would be any other 22· ·documents that counsel would have provided me, which were 23· ·solely documents that had Bates stamps on them, that I 24· ·deemed irrelevant. 25· · · · Q· · But you can't name any of those documents? Page 29 ·1· · · · A· · I can try to look to see what documents were ·2· ·provided to me by counsel and then just read off some of ·3· ·those, if I could find those for you.· An example -- well, ·4· ·I wrote "Exhibits" here "From Peter Tillman," but I would ·5· ·have to look and see if there is anything else that they ·6· ·sent me. ·7· · · · Q· · How would you go about looking for that ·8· ·information? ·9· · · · A· · I can go on my computer which I have here -- 10· · · · · · · · · MS. CHARLES-COLLINS:· I will not let you 11· · · · go on your computer.· You have all the e-mails. 12· · · · You can give him the e-mails. 13· · · · Q· · Going back to sources of information on page 3 14· ·of your report, it states that one source of information 15· ·was industry sources, "including my own business and 16· ·technical library."· What industry sources, including your 17· ·own business and technical library, if any, did you review 18· ·in forming your expert opinions in this case? 19· · · · A· · If I relied on any of those, they would have 20· ·been cited in the report, so if they were not cited, then 21· ·I did not rely on any of them. 22· · · · Q· · The only citation to any industry sources that I 23· ·saw would be listed on Exhibit D, which is the citation, 24· ·looks like to an article, entitled "Beyond Transparency, 25· ·Open Data And The Future Of Civic Innovation (Chapter VII, Jeffrey Rubenstein Vol 1 February 21, 2017 U.S. LEGAL SUPPORT (561) 835-0220 Jeffrey Rubenstein Vol 1 February 21, 2017 26 to 29 U.S. LEGAL SUPPORT (561) 835-0220 YVer1f Case 9:15-cv-81782-KAM Document 148-4 Entered on FLSD Docket 04/21/2017 Page 8 of 140 Page 30 ·1· ·Hacking FOIA)," F-O-I-A, (Using FOIA Requests To Drive ·2· ·Government Innovation), October 2013."· Is that the only ·3· ·industry source, including your own business and technical ·4· ·library, that you reviewed in forming your expert opinions ·5· ·in this case? ·6· · · · A· · Exhibit D is in reference to Rule 26 ·7· ·disclosures.· It was not a document that I relied on for ·8· ·forming my opinion here in this report. ·9· · · · Q· · Okay.· And why did you disclose the article 10· ·listed there on Appendix D? 11· · · · A· · Pursuant to Rule 26 of the Federal Code. 12· · · · Q· · And under which subsection did you think this 13· ·was obligated to be disclosed? 14· · · · A· · Any publications that I participated in during 15· ·the last four years. 16· · · · Q· · So this is an article that you wrote within the 17· ·last four years -- 18· · · · A· · That is correct. 19· · · · Q· · -- and so that's why you listed it on Appendix 20· ·D? 21· · · · A· · That is correct. 22· · · · Q· · But it did not influence your opinions one way 23· ·or another with regard to this case? 24· · · · A· · It did not. 25· · · · Q· · Are there any industry sources that you reviewed Page 31 ·1· ·in forming your expert opinions in this case? ·2· · · · A· · Only ones that I would have cited in the report. ·3· ·If I did not cite any, I don't recall, I would have to ·4· ·look through it again, but if I did not cite any, then I ·5· ·did not. ·6· · · · Q· · The next subsection in the Sources of ·7· ·Information section of your report is, quote, "Standard ·8· ·business and technical reference materials."· What ·9· ·standard business and technical reference materials, if 10· ·any, did you review in forming your expert opinions in 11· ·this case? 12· · · · A· · They would be whatever is specifically cited in 13· ·my expert report, an example of which would be what was 14· ·already in the record, the Zebra CPCL Programming Manual, 15· ·although that was already Bates stamped and provided to me 16· ·by counsel, but that would have been an example of one. 17· · · · Q· · Are there any other standard business and 18· ·technical reference materials that you reviewed in forming 19· ·your expert opinions in this case? 20· · · · A· · Only what's cited in my report. 21· · · · Q· · The next section of Sources of Information is, 22· ·quote, "E-mails from your personal archives."· What 23· ·e-mails from personal archives, if any, did you rely on in 24· ·performing your expert opinions in this case? 25· · · · A· · Any e-mails that I relied on were referenced in Page 32 ·1· ·this report. ·2· · · · Q· · Finally, you list, quote, "Personal knowledge of ·3· ·the facts of this case," end quote.· What personal ·4· ·knowledge of the facts of the case, if any, did you rely ·5· ·on in forming your expert opinions in the case? ·6· · · · A· · Ten years of history as an APS employee, but ·7· ·most of that as the Founder and President, so I have an ·8· ·almost an infinite amount of facts about both APS ·9· ·operations, Trimble operations, revenue recognition, Peter 10· ·Tillman's employment agreements and most o