In Viacom v. Google, Viacom took the deposition of Google then-CEO Eric Schmidt. In sworn testimony, Page explained why he had just 19 emails pertaining to YouTube, then Google’s largest acquisition. (Source: Hohengarten declaration ¶266) Schmidt also repeatedly reported not remembering events and facts relating to YouTube.
Viacom remarked in associated briefing: “This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.”
Schmidt’s testimony (as excerpted by Viacom).
As to document retention: “[Some] people over time either delete or lose some of that e-mail. It has been my practice for 30 years to not retain my e-mails unless asked specifically.” “[I]t has been my practice to not keep my e-mails.” “Q: And is this on some sort of automatic system where they are deleted in the ordinary course over some ordinary period of time? A: Depending on the e-mail system and the company and so forth, the answer would vary.” As to document retention while at Google: “It was my practice to delete or otherwise cause the e-mails that I had read to go away as quickly as possible. Q: Within days? A: Yes.”
Separately, Schmidt claimed he didn’t remember multiple aspects of Google’s strategy in video. A representative example:
“Q: [Y]ou are aware, I assume, that the acquisition agreement contains an indemnification provision relating to copyright lawsuits? … A: Yes. Q: And was that discussed by the board …? A: Yes. Q: And do you remember that discussion, sir? A: No.”
Other subjects Schmidt didn’t remember.
- whether Google executives ever complained that YouTube was competing unfairly in its approach to copyrighted material (“I don’t recall”)
- whether Google documents criticized YouTube about copyright (“I may have … – I don’t recall specifics.”)
- whether he read preparation documents before a Google Product Strategy for video (“I do not recall the e-mail”)
- whether he participated in discussions about Google Video policies about copyright (“I have no specific recollection in that area”)
- whether Google could afford the license fee for Audible Magic technology (“I have no recollection in this area”)
- whether any media companies received access to fingerprint without a licensing deal (“I don’t recall”)
- certain YouTube functionality (“I don’t know what ‘private videos’ means”).