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EXHIBIT 18

UNITED STATES DISTRICT Case 1:04-cv-01258-SLRCOURT Document 457-9

INDEX Filed 07/07/2006
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DISTRICT OF DELAWARE

4 McKESSON INFORMATION SOLUTIONS, LLC, 5 Plaintiff

6 v.
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CANO.04-1258(SLR)

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DEPONENT RANDALL DAVIS, Ph.D. Examination By Mr. Randall Examination By Mr. Segal

5,310
297

EXHIBITS
NO.

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7 THE TRJZETFO GROUP, INC., 8 Defendant

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I Copyof'l64patent
2 Expert Report dated October 24, 2005

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VOLUME I VIDEOTAPED DEPOSiTION OF RANDALL 14 DAVIS, Ph.D., a witness called on behalf of 15 the Plaintiff, pursuant to the Federal Rules 16 of Civil Procedure, before Jessica L. 17 Williamson, Registered Merit Reporter, 18 Certified Realtime Reporter and Notary 19 Public in and for the Commonwealth of 20 Massachusetts, at the Offices of Skadden, 21 Arps, Slate, Meagher & Florn LLP, One Beacon 22 Street, Boston, Massachusetts, on Wednesday, 23 November 30, 2005, commencing at 9:27 a.m. 24 JOB NO. 41297 25
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3 Expert Report dated November 22 14, 2005 4 Article entitled "Enhancing 28 Accuracy and Timeliness is Integral to the Claims Adjudication Process"
5 Document relating to AMS entitled "Setting a New Standard" 6 Document bearing Bates stamp Nos. RD000314 - 324 7 Document entitled AMS June 1986 HDI-Proprietaiy" 8 One-page document bearing Bates stamp No. RD000420
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APPEARANCES
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SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

(By Jeff Randall, Esq.) 525 University Avenue Palo Alto, California 94301

(650) 470-4500

jranda]lskadden.com
Counsel for the Plaintiff
GIBSON, DUNN & CRUTCHER LLP
(By David A. Segal, Esq.) 4 Park Plaza Irvine, California 92614-8557

09:10:46 09:27:22 09:27:33 09:27:35 09:27:38 09:27:42 09:27:46 09:27:46 09:27:50
09:27:51 09:27:55 09:28:00 09:28:04 09:28:06 09:28:11 09:28:15 09:28:17 09:28:18 09:28:19 09:28:21 09:28:22

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PROCEEDINGS
THE VIDEOGRAPHER: Good morning. We are recording and are now on the record. Today's date is November the 30th, 2005, and

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(949) 451-3973

dsegalgibsondunn.com
Counsel for the Defendant

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ALSO PRESENT:
George Dobrentey, Videographer

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the time is 9:27 a.m. My name is George Dobrentey. I'm a legal videographer for G & M Court Reporters, Ltd. Our business address is 42 Chauncy Street, Suite 1A, Boston, Massachusetts 02111. This is the deposition of Randall Davis in the matter of McKesson Information Solutions vs. TriZetto Group in the United States District Court in the District of Delaware, Civil Action No. 04-1258 (SLR). This deposition is being taken at One Beacon Street in Boston, Massachusetts on behalf of the plaintiff. The court reporter is Jessica Williamson. The counsel will state their appearances, and the court reporter will administer the oath. MR. RANDALL: Jeff Randall representing plaintiff, McKesson. MR. SEGAL: David Segal on behalf of the TriZetto Corp.

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Case 1:04-cv-01258-SLR Document 457-9 Page 7 of 20 12:02:21 Filed 07/07/2006 Q. Let me direct your attention to your report this on my own. 12:02:25 2 Q. How did you find it? dated October 24, Exhibit 2, specifically Exhibit C and Page C-i. 12:02:25 3 A. In the manner I just described. I asked a A. Ihaveit. 12:02:29 4 colleague about previous systems that they 12:02:32 5 knew about in the mid-i980s that did any Q. These four AMS documents that you testified
1

about earlier, do you see that?

A. Yes.
Q. Can you describe how and when you collected those documents?

12:02:35 6 12:02:39 7 12:02:43 8 12:02:45 9

11:59:39 10 A. Yes. I talked to a number of colleagues and 11:59:51 11 former colleagues about whether they knew of 11:59:55 12 any systems in roughly the time period of 12:00:00 13 the patent, the relevant time period, that 12:00:07 14 were similar in some fashion to the system 12:00:11 15 described in the patent. One of the 12:00:12 16 pointers that I got was to a system called -- or, sorry, a system built by a 12:00:14 17 12:00:17 18 company called GMIS. 12:00:22 19 So I went searching on the Web for 12:00:24 20 pointers to GMIS, and it turns out that 12:00:28 21 someone who once worked for GMIS also worked 12:00:33 22 at the company that created the AIVIS system. 12:00:41 23 I'm blocking on their name at the moment. 12:00:43 24 HDI, I think. He also had worked -- he had 12:00:46 25 formerly worked at GMIS, I believe, and then
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form of claim review. One of them mentioned GMIS. I started doing Web search on GMIS. I covered a number of references and documents to it, but by the chance of Google also discovered this individual who had something written about himself describing his work at both GMIS and at HDI. And since he was quite nearby, I called him up. Q. So you were doing Web searches regarding GMIS to determine when they had a system that may invalidate the claims of the patent; is that right? A. It was part of a prior art search, and I didn't know very much about them except someone had pointed me to them as possibly relevant. Q. So you were doing a prior art search to determine if GMIS had potential prior art to the '164; is that right?

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came to work at HD1.

12:00:53 2 And I went to talk to him because it 12:00:54 3 turns out he lives about a mile from where I 12:00:58 4 live at home. So I talked to him about 12:01:02 5 GMIS, and then we got to talking about the 12:01:03 6 AMS system, and he had the documents in his 12:01:06 7 possession. 12:01:09 8 Q. And what's his name? 12:01:10 9 A. Dr. Robert Bargar, B-A-R-G-A-R. He -- it's
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his signature that shows up in the letter that's one of the AMS documents. Q. How did you -- did TriZetto's attorneys provide you the information regarding -- any information regarding the AMS system?

12:03:39 1 Q. No? 12:03:40 2 A. No. 12:03:40 3 Q. Why were you doing a Web search regarding
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GMIS?

12:03:48 5 A. But that wasn't the only thing I was doing. 12:03:51 6 I was trying to determine what previous 12:03:52 7 systems, if any, might be relevant. One of 12:03:54 8 the things I was looking for -- your 12:03:56 9 question seemed to constrain it too

12:03:58 10 narrowly. It wasn't that I was looking for 12:04:01 11 GMIS specifically. At that point I was 12:04:03 12 looking at GMIS I was also looking at a 12:04:06 13 number of other systems. 12:04:07 14 Q. And you could have been drinking coffee at A. No. 12:04:10 15 the time, too. I don't know what else you 12:04:11 16 were doing, but I am saying that while -Q. Did they provide you any information regarding the former employee of GMIS that 12:04:13 17 when you decided to sit down at your went to work for the company that 12:04:16 18 computer and search the Internet regarding developed -12:04:19 19 GMIS, you were doing so to determine perhaps A. No. I found him on my own. My recollection 12:04:23 20 whether GMIS was an invalidating system, is that they were surprised when I mentioned 12:04:28 21 right? this. I think they had independently 12:04:28 22 A. Fair enough. For that specific search. I discovered the material -- not the material, 12:04:30 23 misunderstood the question perhaps. That the existence of the system, but I don't 12:04:31 24 specific search was addressed to that issue. recall that detail. I do know that I found 12:04:40 25 Q. And as you were doing that, you came across
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12:04:44 1 Case 1:04-cv-01258-SLR that 12:07:49 1Filed 07/07/2006 Page 8 of 20 work what, something on the Internet Document 457-9 you directly to Robert Bargar and his in the MI -- work on the AMS system? 12:04:46 2 suggested that a former GMIS employee went 12:07:51 2 12:04:48 3 12:07:54 3 A. If we take "directly" to mean within an hour to work subsequently for HDI? 12:04:52 4 A. Plus some reference to HDI, and I'm not 12:07:57 4 or so, yes, that's exactly what happened. 12:08:02 5 Q. But then once you found his name, how long 12:04:59 5 sure, possibly to AMS. 12:05:01 6 Q. And did you print that information out? 12:08:04 6 did it take you searching to determine his 12:05:10 7 A. I don't know if I printed out the very first 12:08:07 7 address and phone number? 12:05:13 8 thing that I found. I don't recall 12:08:08 8 A. It was on the document. It's, as I said, 12:05:14 9 12:08:14 9 one of the wonders of Google. One of the having -- doing so, but I can't swear to it. 12:05:20 10 Q. Well, you came across this Dr. Robert 12:08:16 10 documents that I found was his name, address
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and -- it was essentially a short -- if 12:08:18 11 12:08:22 12 memory serves, it was a short sort of mini A. Bargar. And did you print out any information 12:08:27 13 resume that he had posted on the Web for Q. 12:08:29 14 some reason. regarding him that you discovered during 12:08:30 15 Q. And -- well, how many hours did you spend your search? A. I wrote down his name -- his name, address 12:08:32 16 working on locating him, getting in contact 12:08:36 17 with him and actually retrieving the and phone number. 12:08:40 18 documents that you have identified here in Q. When did you do this Internet search 12:08:43 19 Exhibit C? regarding GMIS? A. I can't narrow it down very much for you 12:08:43 20 A. Locating him, as I said, it was a matter -12:08:49 21 an interval of time measured in minutes, except to say it would have been fairly 12:08:51 22 perhaps 60 minutes, but I doubt it. I'm early on in my involvement in this, clearly before writing the report, but I can't from 12:08:54 23 sorry, the other words that you used were what? memory narrow it down any further than that. 12:08:56 24 clearly it took a significant amount 12:08:56 25 Q. Well, how much time did you then spend Q. Well,
Bargar, right?
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of time, did it not, for you to do this

searching on the Internet regarding GMIS in order to come up with Dr. Robert Bargar from -- that worked on the AMS system, right? 12:06:54 6 A. No. That's the marvel of Google. It did 12:06:59 7 not take very long. 12:07:00 8 Q. How long did it take? How long did it take, 12:07:03 9 approximately? 12:07:03 10 A. To find this once I started looking? 12:07:05 11 Q. Yes. 12:07:05 12 A. Oh, it was all within the same day. 12:07:07 13 Q. But it took an entire day, eight hours? 12:07:09 14 A. Oh, no. God, no. No, no, no. No. To find this -- to find him once I started looking 12:07:17 15 12:07:19 16 for background on GMS -- GMIS, no, clearly 12:07:25 17 not a day. 12:07:26 18 Q. Four hours? 12:07:27 19 A. I don't believe so. I'm tempted to say it 12:07:32 20 was one of the first things I tripped over, 12:07:34 21 but I can't swear to that. It's, I don't 12:07:36 22 know, maybe an hour or so. 12:07:38 23 Q. So are you suggesting, then, that you 12:07:4 1 24 just -- you were doing some investigation of 12:07:43 25 GMIS to see invalidating art, and that led
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12:08:59 1 actually getting in contact with him and 12:09:02 2 meeting with him to get the documents that you have included in your report in Exhibit 12:09:04 3 C? 12:09:07 4 A. If memory serves, I called him that day, 12:09:07 5 told him what I was interested in. He 12:09:12 6 12:09:15 7 agreed to meet. My recollection was it was either a Friday or on a Saturday morning 12:09:21 8 that I called, and we agreed to meet either 12:09:25 9
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on Sunday or Monday. And as I said, he lives about a mile away, so I drove to his house, and we probably spent -- I might have spent two hours sitting with him going over some of the documents that he had, looking at them. And he made some copies for me at that point. Q. And so when you -- you spent what, you said, a couple hours with him? A. My recollection is, yeah, on the order of a couple hours. Q. So when you left, you had the documents in your hand? A. I had some documents in my hand. After further reading the documents and talking to him again by phone -- let me back up. He
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Case being very nice and photocopying on a Document 457-9 1 Filed 07/07/2006 did you see any20 12:12:17 was 1:04-cv-01258-SLR boxes of documents, Page 9 of other
home photocopy machine a bunch of pieces of paper. I was trying to be nice and not saying, "Take this box and copy it for me," so I got some samples. When it became clear to me that this would be particularly relevant, I then asked him to take the documents that are cited here (indicating) and have them scanned in somewhere methodically to include all the pages. And I think he went to a local Kinko's and got them scanned in, and that's the form of the documents that we have. Q. Did he have any -- to your knowledge, does he have any other documents at all that relate to the AIvIS system, other than the ones -- the four that you've included in your report? A. It's possible, but I can't swear to it one way or the other. I know I was trying to look through -- let me back up. This is one of those circumstances where the first thing he said was "I think I've got some boxes of documents still down in the basement. They might have been
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documents that related to the AMS system? A. Again, I say I don't believe so, but I can't be positive, as I sit here. Q. And you said this was early on in your engagement in this case. That would have been in early September; is that right? A. Mid-September, somewhere around there, yeah. Q. But you concealed both your discovery of Mr. Bargar and the AMS system and your meeting with him from TriZetto's lawyers, right? MR SEGAL: Objection, vague. A. No. In fact, I did just the opposite. What do you mean I concealed it? Q. Did you tell them right away? A. I can't swear that it was the moment I found him, but as soon as I realized that the material was relevant, yes, I told them. Q. Within a matter of days? A. I don't remember, but concealing is certainly an entirely inappropriate term. I would have no motivation or desire to conceal it. Q. Did you receive any authorization whatsoever from TriZetto's attorneys to go meet with
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ruined when my oil tank sprang a leak. I'll

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check for you." So he came a couple days later, and he found the box -- a box or two of documents, but it was a jumbled collection of things having to do with a variety of different things that he would be involved in. Some of them were GMIS. Some of them where AMS. And I was at that point focusing mostly on AMS, though I believe I looked at some GMIS documents because at that point I didn't know the timing of GMIS and put it aside for later. It's a longwinded question (sic), but I'm trying to give you the context for the answer that says I can't be sure of whether he had other AMS documents. I know the ones that I have. Q. Well, did you ever ask him? Did you ever say, "Robert, do you have any more documents than the four you've given me?" A. He didn't give me the documents. We were looking through some boxes together, and these are the ones that I picked out as we looked through the two boxes of documents. Q. Well, when you were looking through the two
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12:13:39 1 Mr. Bargar? 12:13:40 2 A. It never occurred to me I would need an 12:13:43 3 authorization. I was doing background 12:13:44 4 research. 12:13:45 5 Q. Did you ask for authorization? 12:13:46 6 A. It did not occur to me, and I did not ask 12:13:49 7 for authorization. 12:13:51 8 Q. Did you at least let them know that you were 12:13:53 9 going over to meet with this potential prior
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art witness? A. No, because I had no idea whether it was relevant. Q. Within a matter of days after meeting with him you did let them know about this and sent them the documents, correct?

A. No, within -Q. And when I say "them," it's the TriZetto
attorneys. A. I remembered mentioning it to them reasonably soon after I discovered it. I don't recall sending the documents at that point. Q. They never asked for them? A. If they had asked, I would have sent them, so I don't recall them asking.
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Case 1:04-cv-01258-SLRwithDocument 457-9 1Filed 07/07/2006 Page 10 of 20 12:17:35 A. No, that's not possible. Robert Q. Didn't you tell them "1 met
2 Q. You're positive? 12:17:37 3 A. It was not Labor Day, yes, I'm positive. 12:17:39 4 Q. And you're now positive it was in October 12:17:42 5 and not September? 12:17:43 6 A. No, I'm positive it was not Labor Day. I 12:17:47 7 hadn't done any work as of Labor Day. 12:17:49 8 Q. So you don't know -- at this point are you 12:17:52 9 telling me that you don't know whether it 12:17:54 10 was in mid-September or in -- sometime in I had discovered this system. I don't 12:17:58 11 October? remember if I mentioned Dr. Bargar -- no, I 12:17:58 12 A. Early October, that's correct. As I sit must have, because that's where I got the here, I can't tell you exactly when I met documents from. Now, your question was, did 12:18:00 13 him. 12:18:03 14 I offer to send them the documents, yes? 12:18:03 15 Q. And I'm not asking for exactly. I'm asking Did you offer? Did they ask? Q. 12:18:06 16 for-- it was only a few weeks ago if it's A. I don't recall offering. I don't recall 12:18:08 17 October, right? them asking. 12:18:09 18 A. To the best of my recollection, it was Q. But you did tell them that you had the 12:18:10 19 somewhere between mid-September and Columbus documents? 12:18:14 20 Day in October. That's as narrowly as I can A. I don't remember what I said in that 12:18:18 21 define it right now. conversation. It was a couple of months

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Bargar, who had some information regarding

12:17:36

12:14:36 3 this potential prior art system, AMS, and 12:14:40 4 I've got some documents. How about if I 12:14:43 5 send them to you?" Did that happen? 12:14:45 6 MR. SEGAL: Objection, 12:14:46 7 argumentative. 12:14:46 8 A. I called to tell them I spoke with Mr. -- I 12:14:53 9 forget, I think it was Dan Muino, told them
12:14:57 10 12:15:05 11 12:15:07 12 12:15:08 13 12:15:15 14 12:15:17 15 12:15:20 16 12:15:22 17 12:15:22 18 12:15:24 19 12:15:24 20 12:15:30 21 12:15:31 22 ago. I don't remember to that level of 12:15:33 23 detail. I know I told them that I had 12:15:35 24 discovered this system. 12:15:36 25 Q. And I still -- I've got some additional

Q. Have you spoken with any other potential prior art witnesses other than perhaps the experts that were disclosed by TriZetto's 12:18:32 25 counsel and Mr. Bargar?
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questions on this subject, but we have to change the videotapes. Why don't we change it, and then wel continue on. 12:15:45 4 A. Sure. 12:15:46 5 THE VIDEOGRAPHER: The time is 12:15:50 6 12:15. This is the end of Tape 2, and we 12:15:52 7 are off the record. 12:15:54 8 (Discussion off the record.) 12:16:57 9 THE VIDEOGRAPHER: Stand by. The 12:16:58 10 time is 12:16. This is the beginning of 12:17:01 11 Tape 3, and we are back on the record. 12:17:02 12 A. May I augment an earlier answer? 12:17:05 13 Q. Sure. 12:17:05 14 A. I'm trying to remember the timing, and I 12:17:08 15 have the sense that I visited him on a 12:17:11 16 Monday that was a holiday, which means it 12:17:13 17 might actually have been in October. It 12:17:15 18 might have been Columbus Day holiday. I'm 12:17:19 19 not positive. I might be able to figure it 12:17:21 20 out from records somewhere, but it's 12:17:24 21 possible it was as late as the October 12:17:27 22 Columbus Day holiday. 12:17:29 23 Q. Or Labor Day? 12:17:30 24 A. Labor Day? Early September? 12:17:33 25 Q. Yeah.
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A. No.
Q. After your meeting with Mr. Bargar, did you ever have any additional discussions with

him?

A. Yes. Q. How many?
A. Two, one conceming logistics and one concerning some details of the system. Q. And the one concerning logistics, was that all that was discussed, no substance? A. It was about getting the electronic copy of the document. So just to be clear -Q. By getting the electronic copy of the document, what do you mean by that? A. I'm sorry, let me start again. It's what I meant a few moments ago when I said I asked him to get the documents scanned in so that I could have a complete copy of a document that I had taken only a couple of pages copied of at his house. As I said, I was trying to be nice and not ask him to copy a document extensively on his home copier. And then when I realized it was important, asked him to in some fashion get a copy of the document to me, the complete copies of
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12:23:10 12:19:54 1 Case 1:04-cv-01258-SLR report. here. There was a amount of of 20 the documents you have in my Document 457-9 1Filed 07/07/2006 fairPage 11 material 12:23:12 2 12:19:55 2 that I have been given over the course of Arid it turns out the easiest way for 12:23:13 3 12:19:57 3 this case. him to do that was to go to a Kinko's, have 12:23:15 4 Q. Other than the few references relating to 12:20:00 4 it scarmed in and e-mail me the resulting 12:20:04 5 the work by other TriZetto-designated file. That was his decision about how to do 12:23:19 5 12:23:21 6 12:20:04 6 it. And that's what 1 mean by "electronic," experts, you did review the materials that 12:20:06 7 simply that it was scanned in and sent to me 12:23:24 7 were provided to you by TriZetto's 12:20:08 8 12:23:26 8 attorneys, right? electronically. 12:23:26 9 A. Yes. 12:20:09 9 Q. So as of today's date, neither you nor, to 12:20:15 10 your knowledge, TriZetto's counsel has ever 12:23:27 10 Q. And you recall reviewing McKesson production

12:20:16 11 asked Mr. Bargar whether he has additional 12:20:18 12 documents relating to this system; is that 12:20:20 13 right? 12:20:20 14 A. I don't -- well, I know that I didn't ask 12:20:27 15 the question because I think I had the sense 12:20:30 16 that I had what he had. Having gone through 12:20:32 17 the boxes, I had the impression that I had 12:20:36 18 whatever documents he had that I had seen 12:20:40 19 them, but I did not subsequently say, "Do 12:20:43 20 you have anything else?" 12:20:57 21 Q. Do you have a record of the documents that 12:20:59 22 TriZetto gave you -- TriZetto's counsel gave 12:21:02 23 you to review in connection with this case? 12:21:05 24 A. I made a hard copy binder of them, so in 12:21:09 25 that sense I have a record of them.
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12:23:30 11 documents relating to the AIMS system, 12:23:32 12 correct? 12:23:32 13 A. No. Actually, for some reason I'm drawmg a 12:23:40 14 blank sitting here thinking about AMS 12:23:44 15 documents from the McKesson production. 12:23:45 16 It's possible I did, but I don't remember. 12:23:52 17 Q. Well, didn't you -- when you came across the 12:23:54 18 AMS system with Mr. Bargar, didn't you say -- didn't it spark a recollection in 12:23:56 19 12:24:00 20 your mind that, in fact, TriZetto's 12:24:03 21 attomeys had given you McKesson production 12:24:06 22 documents related to AMS? 12:24:07 23 A. At that point I don't think so. I don't 12:24:09 24 think I had looked at the McKesson 12:24:10 25 production documents yet, so it wouldn't
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12:21:13

1 Q.

So

every time they send you something you've 12:24:13 1

have sparked a memory.

12:21:16 2 kept it? You've got a record of what 12:21:18 3 they've given you to review, right? 12:21:20 4 A. I believe that to be true. 12:21:27 5 Q. And there are no -- there's no substantive 12:21:29 6 analysis or commentary by TriZetto's 12:21:33 7 attorneys with respect to prior art or 12:21:36 8 infringement issues in any of the materials 12:21:38 9 they gave you?
12:21:39 10 12:21:44 11 12:21:47 12 12:22:03 13 12:22:12 14 12:22:20 15 12:22:24 16 12:22:27 17 12:22:28 18 12:22:41 19 12:22:53 20 12:22:54 21 12:22:56 22 12:22:58 23 12:23:05 24 12:23:07 25 A. I'm going to have to think back. I think the answer to that is no, but let me think back and make sure. Sitting here, I don't recall any. Q. You were given in connection with your work in this case documents relating to the AMS system that were produced by McKesson in this case, correct? A. It's possible. 1 don't remember, sitting here. Ah, the McKesson production, yes. I can't -- I don't have a mental picture of the specific document, but I know I got some -- some amount of McKesson production in electronic form also, in PDF files. Q. Relating to the AMS system, correct? A. I believe so, but I'm not positive as I sit
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12:24:21 2 Q. But you do, sitting here today, recall -- at 12:24:25 3 least your best recollection is that you 12:24:28 4 have received from TriZetto's attorneys 12:24:32 5 McKesson production documents relating to 12:24:34 6 the AMS system, right? 12:24:35 7 A. As I've said, and I will say it carefully, I 12:24:40 8 believe that to be the case, but I cannot 12:24:42 9 recall specific documents as I sit here. I
12:24:45 10 can't conjure up a specific picture of the 12:24:48 11 documents. I would have to go back and check. 12:24:49 12 12:24:54 13 Q. And how would you check to determine either 12:24:59 14 when you received those documents or when 12:25:00 15 you reviewed them? 12:25:01 16 A. I don't think I can determine when I 12:25:03 17 reviewed them. Probably the file date on my 12:25:09 18 computer will tell me when I put them on the 12:25:11 19 machine, and then I'll rereview them. 12:25:14 20 Q. After getting these AIvIS documents from Mr. 12:25:19 21 Bargar, didn't you go back and look at and 12:25:28 22 review the McKesson production documents 12:25:30 23 relating to the same system? 12:25:33 24 MR. SEGAL: Objection, lacks 12:25:34 25 foundation, vague.
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Case 1:04-cv-01258-SLR Document 1 A. Now, I had a great deal of material to go 2 through and time was starting to get short, 3 so I did not specifically say I'm going to 4
6 7

go looking for this.

5 Q. Did you assist TnZetto's attorneys in any
way in preparing discovery responses regarding prior art or infringement issues? 8 A. Only -- I'm not sure I understand the 9 question, but only in the sense that I cited 10 certain things in my report. I don't think 11 1 was part of the formal discovery response 12 mechanism. They asked me when I put 13 together this report to supply documents, 14 which I supplied to them. The copies of, 15 for instance, any of the articles that I had 16 found that they hadn't supplied to me I made 17 sure to send them a copy of. Is that the 18 kind of thing that you're talking about? 19 Q. Fair enough. Have you -- to your knowledge, 20 have TriZetto's lawyers talked with Mr. 21 Bargar about the AMS system? 22 A. To my knowledge, I guess I don't know one 23 way or the other. I don't know that they 24 have, and I don't know that they haven't. 25 Q. You mentioned that you met with him for
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457-9 Filedthe GMIS system. I don't recall in20 07/07/2006 Page 12 of detail, 12:28:42 1 12:28:45 2 but I'm sure I must have asked some basic 12:28:47 3 questions about what they were and how they 12:28:50 4 worked. 12:28:50 5 Q. Do you recall what he said? Well, let me 12:29:01 6 back up for a minute. Do you recall what 12:29:03 7 you asked him? 12:29:03 8 A. Not in any finer level of detail than I've 12:29:06 9 just characterized for you.
12:29:07 10 12:29:14 11 12:29:17 12 12:29:18 13 12:29:19 14 12:29:21 15 12:29:23 16 12:29:25 17 12:29:28 18 12:29:30 19 12:29:35 20 12:29:38 21 12:29:40 22 12:29:42 23 12:29:44 24 12:29:47 25
Q. Do you recall what he said?

12:26:34 12:26:39 12:26:41 12:26:45 12:26:49 12:26:50 12:26:53 12:26:55 12:26:57 12:27:01 12:27:03 12:27:05 12:27:10 12:27:15 12:27:16

A. No, I don't recall specifically what I said. What I'm -Q. What he said. A. I'm sorry, that's what I meant. I don't recall specifically what he said. I remember that what I was listening for was a sense of is this stuff going to be relevant, as best I can tell sitting here talking about this. So the sense I came -- I know I came away with was, yes, this is potentially relevant material, because there were documents he put on the table that seemed to me not relevant, and so, you know, those were set aside. They had to do with other companies, other systems.
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12:27:19 about two hours, correct? 12:27:20 2 A. Correct. 12:27:2 1 3 Q. Then you had a telephone conference with him 12:27:23 4 about it, the system; is that right?

Q. How long did that telephone conference last? A. That was relatively brief. I would say it was on the order of about a half hour. Q. And other than those two communications and 12:27:38 10 the one logistical, strictly logistical 12:27:42 11 communication that you had with him, were 12:27:43 12 there any other communications between you 12:27:44 13 and Mr. Bargar regarding the potential prior 12:28:04 14 art? 12:28:04 15 A. I don't recall any others, as I sit here. 12:28:06 16 Q. Did you -- what did you and Mr. Bargar 12:28:08 17 discuss during this -- during the meeting 12:28:14 18 you had with him? 12:28:14 19 A. When I was at his house? 12:28:16 20 Q. Yes. 12:28:22 21 A. It was primarily focused around going 12:28:24 22 through the box of documents with me trying 12:28:27 23 to decide which ones I felt were conceivably 12:28:31 24 relevant to the task, and I probably asked 12:28:37 25 him some basic questions about both AMS and
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12:27:27 5 12:27:28 6 12:27:30 7 12:27:33 8 12:27:35 9

A. Correct.

12:29:48 1 So I was being selective about what we 12:29:52 2 picked out and trying to get a sense from 12:29:54 3 him as to whether the system seemed 12:29:57 4 relevant. That's the level at which I was 12:29:59 5 listening, and that's what I recall. 12:30:00 6 Q. Did you tell him that you were working for 12:30:03 7 TriZetto and were specifically looking at 12:30:06 8 whether or not you could invalidate 12:30:09 9 McKesson's patent? 12:30:10 10 A. I don't recall if I mentioned TriZetto. I
12:30:11 11 12:30:14 12 12:30:17 13 12:30:18 14 12:30:21 15

12:30:24 16 12:30:33 17 12:30:35 18 12:30:39 19 12:30:43 20
12:30:46 21 12:30:47 22 12:30:55 23 12:30:57 24 12:30:59 25

did in the very first phone call tell him that I was working as an expert witness in a lawsuit. I don't recall whether I identified the parties. I might have, but I told him at the very beginning the rationale for the inquiry. Q. And in your subsequent discussions with Mr. Bargar did you make him aware of the fact that you were working to attempt to invalidate McKesson's patent, '164 patent? MR. SEGAL: Objection, vague and misstates his testimony. A. I told him that the material he had was potentially relevant prior art. I don't know if I mentioned the '164 patent. I did
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Case 1:04-cv-01258-SLR from the Document 457-9 1 07/07/2006 Page 13 of 20 make it clear to him, as I said, 12:33:22 Filedlawyers. What discussion transpired after very -- excuse me. I did make it clear to 12:33:26 2 that I wasn't privy to.
12:33:29 3 12:33:31 4 12:33:33 5 12:33:36 6 12:33:38 7 12:33:41 8 12:33:44 9 12:33:44 10
12:33:48 11 12:33:51 12 12:33:53 13 12:33:55 14 12:33:55 15 12:33:57 16 12:33:59 17 12:34:01 18 12:34:03 19 12:34:06 20 12:34:09 21 12:34:10 22 12:34:13 23 12:34:14 24 12:34:16 25
Q. What did he inquire about?

him, as I said, from the very beginning that 1 was working in a case that involved depending against -- defending against a charge of patent infringement. 12:31: 17 7 Q. Did he mention to you that GMIS attempted to 12:31:25 8 invalidate but couldn't the McKesson '164 12:3 1:28 9 patent?
12:3 1:29 12:31:31 12:31:33 12:31: 37 12:3 1:40 12:31:41 12:3 1:44 12:3 1:46 12:3 1:47 12:31:47 12:3 1:48 12:31:49 12:31: 52 12:3 1:55

10 A. I think that's where I heard it. I can't 11 recall. I know either in my discussion with
him or soon thereafter I discovered that fact, and I can't separate it out as I sit 14 here when I discovered that. 15 Q. You discovered that GMIS failed to 16 invalidate in litigation the McKesson 17 patent, right?
12 13

18 A. Yes, correct.
19

MR. SEGAL: Objection. THE WITNESS: I'm sony. And did you learn that from Mr. Bargar? 21 Q. 22 A. As I say, I don't recall, because I know I -- I do believe I learned that fact close 23 12: 32:0 1 24 to the time at which I was discussing the 12:32:04 25 AIVIS documents with him, but I don't recall

20

A. Whether he could be paid for the time he was putting in, copying documents and so forth. Q. He knew you were being paid for your time? A. He did. That's another thing I disclosed in the initial conversation. I wanted to be fair with him. Q. Did he know you were getting paid $650 an hour or maybe $700 an hour for -A. I do not routinely disclose that, no. Q. Did he say he would like to be paid for his time? A. I never got around to discussing it. I didn't see it as my responsibility or concern. He seemed -Q. But he asked you about it, right? A. Yes. It seemed to me to be a perfectly reasonable request. In fact, I was not at all surprised when he asked about that. I also knew it was not up to me to negotiate with him on that issue. Q. No, I understand that. But nonetheless he expressed an interest you in being paid for
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12:32:06 1 whether he told me or whether I found that 12:32:08 2 out separately in part of the Web search, 12:32:12 3 perhaps. 12:32:12 4 Q. Did you take any notes during or following 12:32:14 5 any of your communications with Mr. Bargar? 12:32:16 6 A. Meeting at his house I just collected the 12:32:24 7 documents. The answer is no there. In the 12:32:28 8 subsequent telephone conversation that I 12:32:29 9 mentioned, the non-logistical one, I believe
12:32:31 10 12:32:34 11 12:32:35 12 12:32:39 13 12:32:41 14 12:32:44 15 12:32:50 16 12:32:53 17 12:32:53 18 12:33:02 19 12:33:02 20 12:33:05 21 12:33:14 22 12:33:17 23 12:33:17 24 12:33:21 25
I took a few notes on a single sheet of paper. Q. Did you -- do you still have those notes? A. I do still have that. Q. And did you summarize either in an e-mail or any other writing to TriZetto's lawyers your communications with Mr. Bargar?

12:34:20 1 helping, right? 12:34:21 2 A. For the time he was putting in, he expressed 12:34:23 3 that interest, yes. 12:34:25 4 Q. And you said -- you put him in touch with 12:34:29 5 who, Mr. Segal? 12:34:30 6 A. I believe I put him in touch with Mr. Muino. 12:34:39 7 MR. RANDALL: Mr. Segal, has 12:34:41 8 TriZetto retained Mr. Bargar? 12:34:43 9 MR. SEGAL: I don't know.
MR. RANDALL: Do you have any agreement with him to pay any money? MR. SEGAL: I don't know. I honestly do not know. MR. RANDALL: So you don't mind if we go ahead and contact him? MR. SEGAL: I can check before the end of the day with Mr. Muino and find out if he's been retained or not. MR. RANDALL: Well, why don't you -- at the lunch break why don't you fmd out. I think that would be something you'd know. MR. SEGAL: Well, I don't know offhand because I wasn't the one dealing with him, but I can check with Mr. Muino
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12:34:43 10 12:34:44 Il 12:34:45 12 12:34:46 13 12:34:48 14 12:34:50 15 12:34:51 16 A. No. 12:34:53 17 12:34:55 18 Q. What city does Mr. Bargar live in? A. Newton. 12:34:56 19 Do you know his address? 12:34:58 20 Q. A. Not by heart. He's in the phone book. 12:34:59 21 Have you reimbursed him for any of his time 12:35:00 22 Q. 12:35:00 23 or expenses? A. No. He did ask whether -- he did raise that 12:35:02 24 issue, and I referred him to TriZetto's 12:35:04 25
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I,

RANDALL DAVIS, Ph.D., do hereby declare under

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penalty of perjury that I have read the foregoing

transcript;
noted,

that I have made any corrections as appear

in ink, initialed by me, or attached hereto; that

my testimony as contained herein, as corrected, is true
and correct.
\

14 15

EXECUTED

this 3

day of .._

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17

20

0

,

at ______________________, ________________ (State) (City)

RANDALL DAVIS, Ph.D.
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