Free Redacted Document - District Court of Delaware - Delaware

Case 1:04-cv-01258-SLR

Document 424-9

Filed 06/22/2006

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EXHIBIT Q

Case 1:04-cv-01258-SLR
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Document 424-9
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PROCEEDINGS

2 VIDEO OPERATOR: This is the deposition of 3 Mr. George A. Goldberg, taken on behalf of Defendant

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4 in the matter of McKesson Information Systems LLC, 5 Plaintiff, versus Trizetto Group, Inc., Defendant, 6 Case Number 04-1258 SLR, for the U.S. District 7 Court, District of Delaware. 8 This deposition is being taken at the THE TRIZETTO GROUP, 9 offices of Gibson Dunn, 1050 Connecticut Avenue, Defendant. 10 Washington, D.C. The time is approximately 9:03 11 a.m. The date is September 13, 2005. 12 The court reporter is Carmen Smith, on 13 behalf of Barkley Court Reporters, 2040 Main Street, VIDEOTAPED DEPOSITION OF GEORGE A. GOLDBERG 14 Suite 250, Irvine, California. I am the video 15 operator, Larry Flowers, also on behalf of Barkley. 16 The reporter may now swear the witness.
x MC KESSON INFORMATION SYSTEMS,: : Case No. Plaintiff, vs. : 04-1258 SLR
Washington, D.C. Tuesday, September 13, 2005

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17 Whereupon,
GEORGE A. GOLDBERG 19 was called as a witness and, having first been duly 20 affirmed, was examined and testified as follows: 21 VIDEO OPERATOR: Will counsel identify 22 themselves and who they represent. 23 MR. SEGAL: David Segal of Gibson, Dunn & 24 Crutcher on behalf of the Trizetto Group, Inc. 25 MR. SHEK: Bernard Shek for Plaintiff,
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24 REPORTED BY:
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CARMEN SMITH
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Deposition of GEORGE A. GOLDBERG, called for Tuesday, September 13, 2005, in Washington, D.C. at Connecticut Avenue Northwest, at 9:03 a.m. before

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2 examination pursuant to notice of deposition, on
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4 the offices of Gibson, Dunn & Crutcher, 1050 6 CARMEN SMITH, a Notary Public within and for the 7 District of Columbia, when were present on behalf of 8 the respective parties: 9
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also representing the witness, Dr. Goldberg, at this deposition. EXAMINATION BY MR. SEGAL: Q Good morning.

A Good morning.

Q Can you please state your full name for
the record?

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BERNARD SHEK, ESQ. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 650-470-4500 On behalf of Plaintiff and Witness DAVID A. SEGAL, ESQ. Gibson, Dunn & Crutcher LLP 4 Park Plaza, Suite 1400 Irvine, California 92614-8557 949-451-3973 On behalf of Defendant

A George Ansbach Goldberg. Q Can you spell the middle name for the
court reporter?

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A A-n-s-b-a-c-h. Q Have you ever had your deposition taken A Which deposition?

14 before, Dr. Goldberg?

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16 Q Any time, have you ever been deposed in a 17 deposition before? 18 A Yes. 19 Q How many times?

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22 before?
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A I believe once. Q And have you ever testified in court

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LARRY FLOWERS, Video Operator
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ANo.
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Q Now, you've had your deposition taken before, and we'll go back and visit about that

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GEORGE A. GOLDBERG

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correct? A Computers became so much more powerful is 2 A That is what my CV shows, and it's 2 the other piece. You can't conceive of how basic 3 correct. 3 they were in the old days. Nobody in this room, 4 4 given their age, can remember that as well as I can Q Why did you leave The RAND Corporation? 5 A The Health Insurance Experiment had ended. 5 fuzzily remember that. 6 MR. SEGAL: We've been going a little over 6 Q Any other reasons? 7 A It was time to move -- I thought it was 7 an hour, so we will take a short break. 8 time to move back to the East Coast to be near my 8 THE WITNESS: I'd appreciate that. 9 aging parents. 9 MR. SEGAL: Thank you.

VIDEO OPERATOR: We're off the record. 11 The time is approximately 10:12 a.m. 12 (Recess.) VIDEO OPERATOR: We are back on the 13 14 record. The time is approximately 10:26 a.m. 15 BY MR. SEGAL: 16 Q You understand you're still under oath? 17 A Yes,Ido. 18 Q In connection with your work on the Health 19 Insurance Experiment, did you have the opportunity 20 to learn what other insurance companies or claims 21 processors -- let me rephrase the question. 22 In connection with your work at The RAND 23 Corporation, did you have the opportunity to learn 24 what health insurance companies -- or how health 25 insurance companies were processing claims?
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Q And you -- from your CV, it looks like you joined a company Health Data Institute in Lexington, 12 Massachusetts; is that correct?
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A That is correct.
Q And it references developmental work on an Advanced MedLogic, M-e-d, cap L-o-g-i-c, System?

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A Yes, it does.
Q Which indicates that it does cost/quality procedure code based claims review.

A That's what it says.
Q Can you provide a more detailed explanation what the Advanced MedLogic System was?

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A The Advanced MedLogic System was a series of computerized tables, lookup tables, that 24 received, processed and paid claims. In other 25 words, it was post-payment claims databases, and
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MR. SHEK: Objection; vague and ambiguous. THE WITNESS: Did you say -- would you repeat the question, please, the rephrased question? BY MR. SEGAL: Q In connection with your work at The RAND Corporation, did you have the opportunity to learn how health insurance companies were processing claims?

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reviewed them to perform single-code edits of various kinds. Post-process, post-payment. Q There's also a notation on your CV about a

4 prospective payment system?
A The prospective payment system is the

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A No, other than Glenn Slaughter &
Associates, which is not -- which was not -- which although it was doing that function, is actually a pension plan -- was a pension plan company, not a health insurance company. Q If I refer to "payors," p-a-y-o-r-s, to refer to individuals that take -- or companies that take care of claims processing, is that a term that you are comfortable with?

6 government's DRG system. 7 Q And does that -- did that system deal with 8 claims processing prior to payment? 9 A The DR -- the answer is yes and no.
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Q In connection with your work at The RAND 20 Corporation, did you have an opportunity to learn 21 what payors other than Glenn Slaughter were doing in 21 22 22 connection with claims processing? 23 23 A No. 24 24 And I believe your CV indicates that in Q 25 about 1985, you left The RAND Corporation; is that 25
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A Yes.

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Q Can you explain? A The DRG system, which is performed -which applies to hospital claims only, or certainly did in those days, the DRG system, diagnosis related groups. Groups diagnoses with some on hospital discharge claims, with attention as well to ICD9 procedure-coded procedures on hospital claims, and assigns every hospital discharged claim to one and only one DRG, a number that at that time went somewhere between 001 and 4XX. There were 400-some-odd DRGs. And it functions for payment purposes because at some point, Medicare and Medicaid and the occasional private insurer paid for a hospital stay on the basis of the DRG to which a hospital discharge claim was assigned.
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GEORGE A. GOLDBERG

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A HPR? No, but I believe there was talk about it. But I don't recall if they ever did.
Q Were you involved -- are you familiar with Bloodhound, a company named as Bloodhound?

consulting to GMIS?

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A Not that I recall. I think the answer is
MR. SEGAL: Probably a good time to break for lunch. VIDEO OPERATOR: We're off the record. The time is approximately 11:58 a.m. (Whereupon, at 11:58 a.m., the deposition was recessed, to be reconvened at 12:45 p.m. this same day.)

no, but that was enough years ago that I'm saying 4 "not that I recall" instead of "no."
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A Bloodhound, yes.
Q
is?
What is your knowledge of what Bloodhound

A I was contacted a few years ago in the
1990s in the second -- assume in the second half of the 1990s, but I don't recall the exact date, by a company called "Bloodhound." Oh, wait a minute. No, I think originally I was contact -- originally, they were a client of either Value -- I think ProtoCare Sciences, the successor company to Value Health Sciences. You're testing my memory in ways

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I'm not sure about. Bloodhound was a client of one of the companies I worked for. I met them at the time. Later on they approached me privately, and for a while, I was a consultant to them, probably short enough and embarrassing enough that I never put it on my resume.
What was the nature of your consulting

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Q 24 services with Bloodhound?

A They were using a rebundling system, and
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they came to it might have been MiEDecision, Inc.,
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AFTERNOON SESSION

(12:46 p.m.)

affirmed, was examined and testified further as 6 follows: VIDEO OPERATOR: We are back on the 7 7 D in MiEDecision, Inc. 8 record. The time is approximately 12:46 p.m. 8 Whether it was Constella -- don't mean BY MR. SEGAL: 9 Constella. What was the name of the next company? 9 10 10 ProtoCare. If I said Constella before, that was not Q Good afternoon.

2 MiEDecision, Inc., which I have never been an 3 employee of but I've been a -- my company has sold 4 -- that's it. My company has sold my time to 5 MEDecision, Inc. It's M-E-D is capital, and then 6 the rest of the word, decision. So there's only one

2 Whereupon,
GEORGE A. GOLDBERG

4 resumed the stand and, having been previously duly

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relevant. It was either ProtoCare Sciences or 12 MiEDecision that had Bloodhound as a client, and I 13 met them through that. I met them through that -14 the company I was working for.
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A Good afternoon.
Q Are you familiar with the Pew Fellows Conference, P-e-w?

Q And did you ever discuss the '164 patent 16 with Bloodhound?
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A What is the '164 patent?
Q It's the patent on which you are named as an inventor.

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A When I was at the Health Policy Institute, there was something called the Pews Fellow or Fellows Conference, yes. Q Can you tell us what it was?

A My understanding is that it was a
coming-together of various corporate employees whom Richard Egdahl, head of the Health Policy Institute, could attract because of his connections. And they came together, I don't recall the periodicity, to -came together just to talk amongst themselves for a few days and to educate themselves as to what the other corporations were doing all in the area, I
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A I don't recall if I did or not.

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Q Did you ever provide any private 22 consulting to 1-IBOC or HBO and company? 23 A Not that I recall. HBOC, not that I

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Q Did you ever provide any private

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GEORGE A. GOLDBERG

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1 believe, of benefits, corporate benefits. Maybe 2 only in health, but I don't even recall that it was 3 limited to health.

(Witness reviewed the document.)

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A Yes, I recognize this document.
Q Can you tell us what it is? A This is what I would -- this is either -yes, this is in my view part of my resume, even when it's presented separately or -- that's what it is, nh-huh. Q And to the best of your knowledge, was this document which we've marked as Exhibit 2 complete up and to including January 2005?

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Q

Did you ever attend any of the Pew Fellows

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5 Conferences?

AYes.
Q Do you recall which ones?

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A I would have tried to make it complete through that date. I'm looking, of course, at the 13 end, which actually -- the first few pages are 14 called "selected publications," so there's clearly 15 no -- just the opposite of intending to have it be 16 complete. 17 of the conferences you went to of the Pew Fellows? 17 The next one in the old-fashioned type 18 A I think every one I went to was in the 18 that comes from an old text file program I still use 19 Boston area. I believe the one where I had --there 19 was attempting to be complete up to, it appears to 20 was one meeting that we had at a fancy hotel facing 20 be, '05. It's an attempt to be complete. 21 the Boston Public Gardens or Boston Commons, one of 21 Q Did you ever give any presentations at any 22 the two, though I'm not sure that was a Pew Fellows 22 Pew conferences? 23 meeting, but that was an HPI-sponsored meeting at 23 A I would think I did, but I took the 24 that hotel. And I believe there was another hotel 24 opportunity to look here, as I was paging through, 25 where we also met. 25 making sure this was all mine, I took particular -11

A No. The reason I know I did and the 9 reason I'm so sure I did is I remember at one I was 10 having bad back trouble and had to spend most of the 11 time getting up -- standing at the back of the room 12 instead of sitting. And that's why I'm -- and it 13 was a Pew conference, so that's why I'm sure I was 14 at one. And I think I was at more than one, but! 15 don't recall them. 16 Q Do you recall any of the locations for any

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So I think it was typically at hotels in the Boston area. Q At any of the conferences that you
attended, do you recall anyone from HPI or HPR giving any presentations?

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A I don't recall it. I'm sure they did, but
I would not be able to point to it. Q And what period of time, to the best of
taking place?

9 your recollections, were the Pew Fellows Conferences

made a particular look at this page 6 of the old type, 6 on top. And when I see the time period, I don't see -- I don't see anything that particularly -- that specifically names a Pew conference. That's a surprise to me. The answer is I think I did give a presentation, but I don't see it here. Q Do you recall what you gave a presentation
on to the Pew Fellows Conference?

A I think they were underway from the time I 12 came to lIP!, throughout my time there. So 13 roughly '86 to '90. That's -- sorry -- yeah, '86 14 through '89. But I don't remember any precise is dates. They happened.
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A No. I note that the presentations I gave here in that time period all dealt with quality, as
you can see for yourself. Q In doing your work on -A There is one on utilization. Q -- quality and utilization during the
mid-i 980s, did you review electronic claims data? MR. SI-IEK: Objection; vague as to form. Objection as to form; vague and ambiguous. THE WITNESS: I'm not sure what you mean by "review," so please help me. Did you review claims data -- electronic -- would you please -BY MR. SEGAL: Q Why don't you tell me what you mean by "review" and we'll try and use your word, so that we have no confusion and I don't try and impose a
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12 13 14 15 MR. SEGAL: I'm going to ask the court 16 reporter to mark as Exhibit 2 to your deposition a 17 multipage document, Bates numbered GG 0006 through 18 17. 19

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(Deposition Exhibit 2 identified.) THE WITNESS: Here are my publications, 22 thank you. 23 BY MR. SEGAL: 24 Q I'll ask you if you recognize that 25 document.
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GEORGE A. GOLDBERG

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I suddenly, so many of these observations which 2 heretofore had looked contradictory suddenly fit

3 into the system. 4 And we needed to understand what pieces a
5 system and method would require, and we had to find 6 those underlying principles that would suddenly have 7 everything click into place. 8 Q Priorto-9 A I think that's more than what you

Q To any third party, anyone outside HPR. A A third party. Aside from the fact that 3 it was in the late 1980s, I don't recall. 4 Q Do you recall to whom you disclosed the 5 specifics of the small number of rules to which the 6 rebundling statements could be boiled down to?

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A To a third party?

To a third party?

Q To a third party. A I don't remember. My guess is first to

10 described.
Q Priorto October 1993, did you ever 12 disclose to any party the detailed operation and 13 description of rules that were in CodeReview? 14 A Idon'tknowifl--Ithinkonevery 15 sales -- at every sales meeting, those rather few
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Caterpillar, Inc., as separate from Robert Hertenstein, an employee of Caterpillar, Inc., and
potential customers, to I think the

12 probably to

13 modern word is "qualified" customers, customers who
14 have been qualified. Yeah. Potential customers who
15 have been qualified as being serious customers.

16 sales meetings that I was involved in, I personally 17 disclosed these things, which once they had been 18 elucidated seemed very obvious, the way gravity and 19 planetary motion seem obvious to us. 20 Q And what were the principles that you 21 recall elucidating at every sales meeting? 22 A The ones I can recall at this moment, 23 which are only a subset, I would imagine, were -24 was that rebundling of codes which when seen 25 together were -- reflected incorrect coding could
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16 Q Priorto the issuance of the '164 patent, 17 did you hear of any other companies that did not 18 have access to your small number -- specific small 19 number of rules that had developed computer software 20 that would address the problem of code rebundling?

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AYes.
Q Can you tell me who?

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A I remember that

there were two

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many I knew of.
Page 163

others. And one of them I

don't

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be --

rebundling could

be achieved by

an automated

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headed by

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system that would rebundle reliably and

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sense to

It would provide output that made

and providers. It could achieve this because there were not 147 or 9000 different recoding -- excuse me, 7 that was incorrect, rebundling statements, but in 8 fact, that things boiled down to a very small
payors

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I believe that was Dr. Leslie Levy, headquartered in the Hartford -- somewhere in the

and

Hartford, Connecticut
was GMLS.

area. And the other I guess

I don't

know the exact name, but there

was another company, and I believe --

my best

recollection would

be that it was GMIS.

So the barriers of entry I mentioned
seemed to be fairly high, if there were three and

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9 number, which
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meant that a computer application --

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only three companies working on this, of which we

and I'm not even sure the word "application" existed 11 in those days, that a computer application could be 12 developed, and not only that, we had developed it.
Q Did you ever disclose the small number of 14 rules that the rebundling statements could be boiled 15 down to prior to the issuance of the '164 patent? 16 A When was the patent issued? 17 Q October 12, 1993.
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were one.

And so the barriers to entry were, one, 12 the amount of effort to come up with the specific 13 rules for the rules database; is that correct?

Q

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A I call that number seven, but okay, it's
one of
the elements.

A Then I would say the answer is yes.

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Q

Okay.

When do you first recall revealing

20 the specifics of the small number of rules

21 the rebundling statements

to which could be boiled down to?

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A Re-Q I'm trying

have seven elements, I would like to know what they are. A I--yes. 20 Q What are the barriers that you viewed to 21 entry? 22 A I thought I gave you three -- I thought I
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mentioned three barriers. Number one was the stateof computers at the time.

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Q Well, you gave me two elements. So if you

to use your

words so --

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A I understand.
Revealed to whom?

I appreciate that.

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Q

Okay.
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GEORGE A. GOLDBERG

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Peoria that I remember making.
Q And the second paragraph refers to a presentation on Health Bills that Mr. Moore was scheduled to make on Friday morning?

Q Do you recall a great roast beef dinner in
Peoria?

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A I do not, but it really fits, in that 4 Robert Hertenstein would have done that, would have
found us a great roast beef dinner in Peoria, before and after his heart attack. Q Do you know -- does seeing Exhibit 74--

A Uh-huh.
Q Do you recall attending a Pew conference in early June 1986 at which Mr. Moore made a presentation on managing physician fees?

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A Yes.

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A I don't recall attending the Pew
conference you mention. Q Do you have any reason to believe that
Mr. Moore did not use his outline in giving a presentation at the Pew conference in early June 1986?

Q -- help you determine whether or not
discussions regarding using software to check claims for rebundling or unbundling -- let me rephrase the question, sony. Does reviewing Exhibit 74 help you determine whether or not HPI disclosed the concept of using software to check claims for rebundling codes appearing on claims was occurring in 1986?

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A I think it's highly likely that Charlie

gave a presentation at the Pew -- at the -- at a subsequent Pew conference mentioned in his letter, though I have no idea of the date of that conference. You have mentioned June twice, but I 20 don't know that. 21 But I really don't know if he used this 22 outline or not, and I have -- I really don't know if 23 he did or not. 24 Q Do you recall attending a Pew conference
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A I still don't understand the question.
The "was occurring" doesn't seem to fit, so please, maybe I'm just not -- I'm not -- let me not look at this and you'll repeat or rephrase, your option. Q I will do both. A Okay. Q Or a combination of both. A Okay. Q Does reviewing Exhibit 74 lead you to
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at which Mr. Moore discussed bundling and unbundling
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and implementing a model approach to physician fee

believe that in the 1986 time period, HPI was

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review that

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was implemented and tested by Caterpillar?

2 disclosing to third parties the concept of using
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A I don't recall attending that.
Q Do you recall which individuals were general attendees at Pew conferences in the '86 time frame?

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software to deal with the issue of unbundling codes or rather rebundling codes that appeared on medical claims?

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A I think I do.
Q Can you tell me who that would be? A It would be all -- the goal would have been to have all Health Policy Institute employees other than support staff attending the Pew conference, and then the Pew fellows as well. Q Do you recall who the Pew fellows were in the mid-1986 time frame?

7 completed only -- I now see that the outline, I was
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A No. Wait a minute. I see now I have

looking only at Roman L So let me continue. Q And carefully review the document to see.

A Thank you.
(Witness reviewed the document.) In item 5 on what you would call page
638 --

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A They were various corporate employees.
They were employees -- let me rephrase that, though

I'm not trying to change the meaning. I'm just 19 So I don't remember what was disclosed at trying to clarify. 20 They were employees of various 20 this meeting or at any other Pew meeting, unless 21 corporations who were concerned with the health 21 perhaps you can remind -- jog my -- refresh my 22 and/or benefit program of that corporation, and they 22 memory in some way. But it looks to me as if the 23 attended the Pew conferences in their role as Pew 23 words "computer" and "software" are in this outline. 24 fellows, which I believe was a time-limited 24 And of course, we have no idea -- once again, 25 designation. So there was regular turnover. 25 "software" as people would have thought of it in
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Q You're getting good at this. A I'm trying. You see a few examples and 16 then you can do it. I see at the end of number 5 17 the words "and build into software." And on number 18 6 I see "enter into computer."
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from Dr. Hert -- to Dr. Hertenstein from Mr. Moore, and you are indicated as receiving a blind copy?

A That's correct.
Q Do you recall receiving this document?

1 A Thank you. That expression, "knowledge 2 base," I discovered at some point that I was a 3 knowledge engineer. I had never heard of such a 4 phrase before. That was one of the things I was.

A Idonot.

Q Do you have any reason to believe that you 7 did not receive it? 8 A I don't remember if I received it or not. 9 I have no reason to believe that I did not receive 10 it, though I can't -- I don't know if! received it ii or not. 12 MR. SEGAL: I actually need to use the
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Q Before the filing of the original 6 application for the '164 patent -- let me rephrase. 7 Before the filing of the patent 8 application for the -- start this again, it's 9 getting late for everyone, I think.
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restroom, so I apologize. Off the record, sorry. VIDEO OPERATOR: We're off the record. The time is approximately 4:36 p.m. (Recess.) VIDEO OPERATOR: Back on the record. The time is approximately 4:42 p.m. BY MR. SEGAL: Q Do you agree that a rules database of some sort is required to practice the system and method disclosed in the '164 patent?

Before the filing of the application that 11 ultimately matured into the '164 patent, did you 12 learn that other companies were offering software to 13 automate bundling of codes?
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A Oh, yes.

Q When do you first recall learning that 16 there were other companies that were offering 17 software products to deal with bundling of codes?

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A Please repeat the question. (The reporter read the record as requested.)
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A I now have to distinguish, I realize, 19 between offering and developing. As I mentioned 20 earlier today, I do understand that -- did 21 understand that there were two companies that were 22 developing software to handle -- to perform code 23 rebundling on claims that needed it. 24 But as for offering, I'm not sure. I 25 don't remember if either of those two or any other
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1 were offering them before we did, because I don't 2 remember the dates well enough. 3 Q Did you ever determine whether or not

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THE WITNESS: I agree that a rebundling rules database is necessary for a system and method to work on. BY MR. SEGAL: Q And do you believe that a specific system, the one that's disclosed and claimed in the '164 patent, for that system and method, you need to have a rules database about -- that contains information about rebundling rules for CPT codes?

4 those companies were developing a product before you 5 started developing the CodeReview product?

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A I can answer this, but I need to remember
(The reporter read the record as

7 what you -- would you repeat the question, please?

9 requested.)

A I do believe that you have to have a lookup table of-- not of rebundling rules but of

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THE WITNESS: Not only did I not determine 11 that those companies were developing a product code combinations, which when encountered on claims 12 before we developed our product, but also I am under 13 the impression, and was at the time and still am, will require rebundling. Would it be fair to describe these -- this 14 that there was essentially independent development Q iookup table of code combinations as a rules 15 going on at these two companies and our company, database? 16 based on the tenor of the times and the emerge -A I'm willing to call it a rebundling 17 continually, gradually emerging improving power of rules -- yeah, I think I've called it rebundling 18 automation. MR. SEGAL: I'd like to ask madam court rules database earlier today. I don't know if it's 19 fair or not, but I'm willing to call it that. 20 reporter to please mark as Exhibit 9 a multipage 21 document Bates numbered MCK 119819 through 922. Q I was -- I would have called it "knowledge base," but I'm going to use your earlier 22 (Deposition Exhibit 9 identified.) definition -- your earlier terminology so that the BY MR. SEGAL: 23 record is clear and you have an understanding of 24 Q I'll ask you to take a look at that
what we're talking about.
Page 226

25 document.

Page 228

57 (Pages 225 to 228)
GEORGE A. GOLDBERG

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1

Document 424-9

Filed 06/22/2006

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A A little easier to read, thank you.
(Witness reviewed the document.) I've finished my general review of this

2 3 4 5
6

A I'd say the odds are essentially 100 2 percent that I made that statement and want to point
3

out, I'm very happy to say that that word "anybody"
Q What did you mean by putting "anybody" in quotation marks?

letter.
Q This purports to be a letter sent by you to Dr. Howard Bailit of Aetna Life Insurance Company.

4 is in quotation marks.
5
6

7 8 9
10
11

7
8

A Yes.

Q On January 12,1988?

9
10
11

A Okay. Yes, it does purport.
A I do not recognize the document.
Q Do you have any reason to believe that this is not a letter that you sent to Mr. Bailit on January 12, 1988?

Q Do you recall it to be that -- do you 12 recognize the document?
13 14 15 16 17 18 19

12
13

14
15

A No, meaning I have no reason to believe that it is not a letter I wrote and sent to Dr. Bailit on approximately January 12, 1988.
Q And in drafting a letter to Dr. Bailit, would you have been careful to make sure what you were representing or stating in the letter was accurate? MR. SHEK: Objection as to form. THE WITNESS: I always attempt to be
Page 229

16 17
18

A· It's what I explained, I believe, earlier today, and I'm happy to repeat that a large number of people, given some orientation to the way this AMA's CPT code book is organized, would be able to understand certain codes that trump other codes. And I give two examples there, not all that different from the one I gave in a more theoretical form earlier today, when I talked about, I believe, procedure A plus something as opposed to procedure A alone. Q And on the top of page 2, you note that

"there are many such self-evident, logical 19 examples." Do you see that?

20
21

20
21 22 23

A I see that.

22 23 24 25

Q Did you believe that there were many self-evident, logical examples of procedure codes that could be identified by going through the coding 24 book? 25 A As of January 1988, I believe I did.
Page 23 1

careful. What I see here is George Goldberg in 2 sales mode, a situation I had essentially never
1

1

Q And did you believe that on September 30,
1988?

3 experienced before. I didn't need it during 4 college, medical school, residency or my 11-year 5 tenure at The RAND Corporation, nor had Ito my 6 recollection been involved in the one year I was in 7 the private sector at Health Data Institute, nor at 8 the start of my tenure at the Health Policy 9 Institute. But I certainly would have tried to be 10 careful. I always try. 11 BY MR. SEGAL: 12 Q And you wouldn't have intentionally 13 misrepresented anything to Dr. Bailit?

2 3 4 5
6 7

A I have no idea what I believed on September 30, 1988. Is there a reason you're choosing that date? Q It's just the filing date of the patent.

A Oh, thank you.

Q Do you have any reason to believe that your opinion about whether there were many 10 self-evident, logical examples of rules that could 11 be gleaned from the coding book -8 9
12 13 14 15

A I would not have intentionally 15 represented, but I might have engaged in emphasis of 16 certain factors, as opposed to others which at that 17 time was my understanding was one of the things that 18 was necessary for sales. 19 Q Okay. At the bottom of the first page,
14

16 17 18 19

A I believe I would say that it's essentially certain that on -- that for all of the year of 1988, at least from January 12 on, I believed that where there were a number of coding combinations, that anybody, in quotation marks, who understood the organization of the CPT code book could -- could deduce. Q Okay. And you tell Dr. Bailit that the

20 you state, "'anybody' can go through the coding book 21 and identify a large number of decision rules." Do

20
21

22 you see that?
23

A Idoseethat.
Page 230

24 Q Is that a statement that you made to 25 Dr. Bailit on January 12, 1988?

decision rules that would be included in HPR's product go far beyond the self-evident rules; is 22 that correct? 23 A That's what it says. "However, our 24 decision rules go far beyond the self-evident 25 rules."
Page 232

58 (Pages 229 to 232)
GEORGE A. GOLDBERG

Case 1:04-cv-01258-SLR
1

Document 424-9
2 3

Filed 06/22/2006

Page 10 of 105

IN THE UNITED STATES DISTRICT COURT I APEARENCES (continued)
for the District of Delaware

2
3

4
5 7 8 9

x

DAVID A. SEGAL, ESQ.

4
5 6 7 8

Gibson,Dunn&CructherLLP
4 Park Plaza, Suite 1400 Irvine, California 92614-8557 Phone 949.451.3973 Fax 949.475.4663 E-mail [email protected] On behalf of Defendant

6 McKESSON INFORMATION SYSTEMS,
:

Plaintiffs,

10 v.
11

: CaseNo. : 04-1258 SLR
:

9
10
11

12 THE TRIZE1TO GROUP,
13

12

14 15 16 17 18 19

Defendant.
:

13 Also present: T.J. O'Toole, CLVS, Videographer

x
Washington, D.C. Volume II September28, 2005

14 15 16 17

CONTENTS
Examination by:

18 Witness:
19

20
21 22

20 Dr. Goldberg
21

Mr. Segal: 261, 389 Mr. Shek: 382, 391

23 REPORTED BY:
24 25
DANIEL W. HAWKIENS
Page 257

22 23 24 25
Page 259

1 Video Deposition of I 2 2 3 GEORGE A. GOLDBERG, M.D. 3 4 4 5 called for examination pursuant to notice of deposition, at 5 6 the law offices of Gibson, Dunn & Crutcher, 1050 Connecticut 6 7 Avenue, Northwest, 2nd Floor, Conference Room 3B, 7 8 Washington, D.C., beginning at 9:21 a.m., before DANIEL W. 8 9 HAWKINS, a Notary Public within and for the District of 9 10 Columbia, when were present on behalf of the respective 10

EXHIBITS

Deposition Exhibit
10
11

Marked

11 parties:
12

11

13 14 15 16 17 18 19

BERNARD SHEK, ESQ. Skadden, Arps, Slate, Meagher & Flom LLP 528 University Avenue, Suite 1100

PaloAlto,California9430l
Phone 650.470.4500 Fax 650.470.4570 E-mail [email protected] On behalf of Plaintiff and Witness
.

12 13 14 15 16 17

12 13 14 15 16 17 18 19

268 270 276
.

276

325 327 330 338 345

20
21

22
23

18 19

348 351 357 367 380

20
21

20
21 22 23

(Exhibits attached.)

22
23

24

.25
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25
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3

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PROCEEDINGS
2
3

Q And under that you list your development work?
A On Advanced MedLogic System. Yes, I see that.
4 5 6 7

4 5 6 7 8 9
10
11

(Announcement by the Videographer.) Thereupon, GEORGE A. GOLDBERG, M.D. a Witness, called for examination by counsel for the Defendant and, after having been first duly sworn, was examined and testified as follows: EXAMINATION BY COUNSEL FOR THE DEFENDANT BY MR. SEGAL:

Q So the Advanced MedLogic System was the name of the system that you worked on?
A It is probable that that was the original name of

the system; that is, that the Health Data Institute, in its marketing wisdom, decided to call it the Advanced MedLogic 8 System. 9 Q And the Advanced MedLogic System was a program
10 that ran on computers?

Q Q
Q

Good morning.
Welcome back.

A Good morning.
A Welcome back to you.
You understand that you are still under oath?

II
12 13 14
15

A Not in the sense that today we consider it a
program. Advanced MedLogic System was a series of lookup tables and reports got produced off a computer. Q And there were instructions that the computer

12
13

14
15

A Yes.

16 Q Just to be safe, because we have a different 17 court reporter, and we had you sworn again this morning. 18 Did you have an opportunity at all to review your 19 transcript from your first deposition?

20
21 23

A No, did not.

Q Have you had the opportunity to prepare any more 22 for your deposition since our last session?

followed to know how to look up information in the tables, 16 and compare claims data with information in the tables? 17 MR. SI-IEK: Object as to form. 18 THE WITNESS: I have actually no idea how it was 19 done. 20 BY MR. SEGAL: 21 Q Do you know if it operated on a computer?

22
23

A I know that computers were used in the Advanced -

A I've had the opportunity, but I did not do any 24 such preparation. 25 Q In thinking about your testimony if youve done
Page 261

- what seems to be called the Advanced MedLogic System. 24 Q And you spoke about the lookup tables that you 25 some input in, of that system. Is that correct?
Page 263

r

I so, have you realized you made any errors in your testimony? 2 A I haven't thought about my testimony, and if
3
5

2
3

parts of it have popped into my head, I haven't noted any
Q

4 errors.
In your last deposition, we were discussing a

4
5

6 system known as Advanced MedLogic? Do you recall that. 7 A Yes, Advanced MedLogic.
8

6 7
8

9
10

Q And that was a system that was used by Health Data Institute, I believe? MDI.

9
10 11

A I'm not sure I would call Advanced MedLogic a 11 system, at least not today. I don't know what I said two 12 weeks ago. I'd call it a review mechanism, and it was 13 developed by HDI, Health Data Institute.
14
15 16

12
13

Q And actually, the system name was Advanced MedLogic System.

14
15

A Yes. I helped, I mostly reviewed those tables that had been developed by a group of nurses. Q And the last time we established that those tables had things such as procedure codes and diagnoses codes, or procedure codes and gender. Is that correct? A They were a series of edits designed to -- edits in the old fashioned sense of the word. Yes, they were looking for mismatches between age and diagnosis, age and procedure, sex and diagnosis, sex and procedure, or just diagnoses that were so unusual you wouldn't expect to see them in the United States; although they might be perfectly common in parts of Africa, for example. Q And the lookup tables were used in conjunction with reviewing claims data, is that correct?

A Please repeat the question.

A I don't recall.
Let me show you what was previously marked as

Q Exhibit 1 to your deposition, which was your c.v. And I would trust that you've made an effort in preparing your 20 c.v. to make sure it's accurate and complete?
18 19 21

17

Q The lookup tables were used in connection with 17 the Advanced MedLogic System, and in reviewing claims data.
16
18

A Those lookup tables were used in the review of 19 batches of already paid claims data.
20
Q
The claims data, you're talking about medical

A Yes, I have. And understandable to a person who 21 claims data. Is that correct? 22 would read it. 22 A Yes, what you would call medical claims data, 23 Ifyou look on the first page under point 3, 23 what I would break down and call facility claims data and Q
24 where it refers to Health Data Institute. 25 A Yes, I see that.
Page 262

24 25

professional claims data. Q How many different of these edits were in the
Page 264

2 (Pages 261 to 264)
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lookup tables in the Advanced MedLogic System?

recollection. In the second paragraph it says coding. Do

2

A Well, of course the real answer is I don't know 3 the number; but think there were somewhere between 10 and 4 20 lookup tables, and I guess that there were anywhere from 5 20 to several hundred elements in each table.

I

2 you see that?
3

A Isuredo.
It says Aetna's claims processors re-code procedures when they determine there isjustification. Do you recall learning in about December 1986 that Aetna's claims processors re-coded procedures when they determined there is justification?

4
5

Q

6 7

8 9
10 11 12 13 14 15 16 17 18 19

Q Do you have any knowledge as to what type of rules were applied in the program that utilized those lookup tables? MR. SHEK: Objection as to form. Vague and ambiguous. Also lacks foundation. BY MR. SEGAL: Q Do you have any understanding as to whether any rules were used by a program in utilizing the lookup tables as part of the Advanced MedLogic System?

6

7
8 9
10
11

A I don't recall learning that in December 1986.

Q Did you know that in 1986 that Aetna had claims processors that re-coded procedures when they determined 12 there was justification?
13 14 15 16 17 18 19

A I don't remember if! knew that in 1986. Q Further in that paragraph it says: They bundled
the surgeon's hospital visits into the overall surgical fee. They use a similar formula as CAT, for combining multiple procedures. Do you see that?

A Well, I'll answer that with the understanding
that the word 'rules' is a loaded word that can mean ten different things. This system was looking for the occurrence of certain codes or code combinations, and whenever it saw one thing, my understanding is, because I was neither responsible-- I was not responsible for -- I was just giving input, consulting input to the nurses. It counted them, it counted -- it was a counter of finding certain combinations of code code, code sex, code age, and basically produced counts.
Page 265

A I do see that.
Q First question is, is it your understanding that c a t CAT refers to Caterpillar?

20
21

20
21 22 23 24 25

22 23 24 25

A Yes. That is my understanding.
Q Do you recall learning that Aetna's claims
processors bundled the surgeon's hospital visits into the overall surgical fee, and that they used a similar formula
Page 267

I'm not sure I call those rules. Period.
2
3

I

as CAT for combining multiple procedures, in 1986?

Q

Were there programmers that worked at HDI on the

Advanced MedLogic System?

4
5 6

A There must have been, but I can't be any more specific than that, because it wasn't part of what I did. Q In December 1986, were you part of the Product

A I do not recall learning that in 1986 or in any other year. I don't doubt for a second that at some point I 4 learned it, but I don't recall learning it, and I don't 5 recall that it was in 1986.
3

2

6

7 Development Group at HP!, the Health Policy Institute? 8 A I don't remember that exact -- I don't recall 9 that exact name, but it's highly likely that I was -- I was 10 in fact a part of a group of people at Health Policy 11 Institute who were trying to develop a product, a commercial 12 product. 13 Q Em going to show you what was previously marked
in a deposition as Exhibit 81. It's a multipage document bearing Bates numbers MCK 119 650 through 654, and ask you 16 to take a look at that, and I'll ask you whether you 17 recognize it. 18 A (Viewing document.). 19 Q The first question is, do you recognize this 20 document as a document you would have received in December 21 1986 while you were at HPI.
14 15

7
8

9
10 11 12 13 14 15 16 17 18 19

MR. SEGAL: Okay, let me ask the court reporter to mark as Exhibit 10 to your deposition a multipage document bearing Bates numbers MCK 11 9935 through 46. (Goldberg Deposition Exhibit No. 10 was marked for identification.)

(Document handed to witness.) BY MR. SEGAL: Q I'll ask you to take a look at what we've had marked as Exhibit 10.

A Okay, I have Exhibit 10. What would you like me to do? Q Is this a document you recognize from your days
at Health Policy Institute?

20 21

A (Viewing document.)

22
23

A I do not recognize this document. I don't

recognize this document; it surely is a matter of memory, 24 but I do not recognize it. 25 Q Let me see if -- I'm tiying to refresh your
Page 266

Well, it's actually easy to answer your direct 22 question. I do not recognize this document. 23 Q Didyou have any involvement in a report given to 24 Caterpillar and Sun Company on the evaluation of negotiated 25 surgeon claims in or about February 1987?
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2 3 4

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MR. SHEK: Object as to form. TE-IE WITNESS: It is a complicated question, all
right?

telling you that it's in fact a real example. That would be 2 the example of a nonmedical instruction regarding the use of

In this document, I, "little old me" in quotation 5 marks, merely an M.D., do not know what authorizing means, 6 and I do not know what nonmedical criteria mean filly. I 7 can guess, but I don't know. 8 BY MR. SEGAL: 9 Q As one of the inventors on this patent, you don't 10 know what authorized or nonmedical criteria mean, as used in II this claim?
12 13

3 codes. 4 Another one is that a physician of any specialty
can use any code in the CPT book no matter what it's location. So that a specialist in internal medicine, if he 7 or she wants to, can use a code in the orthopedic section. 8 That's an example of a coding criterion, and in that sense 9 it's a nonmedical criteria, and it just says anybody can 10 submit a code from the book; a code in one section doesn't 11 belong to the specialty that typically uses the codes in 12 that section. 13 Q What would make a code mutually exclusive due to
5

6

A On September 28, 2005, I am not sure of what
these words meant to us or to me in 198--whatever, when this patent was first -- I see it was approved in -- dated 1993. It says filed 1991, after I had left the company. I can make very good guesses, but this is not my wording; I think it was not my wording, and that many years later I am not

14
15

14 15
16

nonmedical criteria?

16 17 18 certain. 19 Q What is your best understanding of what 20 'nonmedical criteria' refers to? 21 A My best understanding is that nonmedical criteria
22 refers to coding criteria. The rules of coding, as
23

17 18 19

20
21

22 enunciated by the owner of CPT procedure codes, the American 23 24 Medical Association, at any particular time. 24 25 25 codes are included in the non-indented code was publicly Q What do you mean by the coding criteria?
Page 305 Page 307

A The example I gave you is one of those where there's an indentation of one code under another, and one -that indented code clearly says 'with something.' And it's not a medical, in my view, not a medical criterion to understand that the word with means that the indented code includes what was in the non-indented code; it has something else extra. In particular because the CPT manual explains indented codes as including everything up to the semicolon in the non-indented code. Q And the CPT book that explains that the indented

available prior to 1987? A The American Medical Association's CPT procedure 2 book describes, in introductory sections; not only at the A It's that the non-indented code is included in 3 3 the indented code. beginning of the book but at the beginning of many 4 subsections, not only in many subsections, but also before 4 Q I'm sorry? 5 individual codes, how coding is supposed to be carried out, 5 A That book, so far as I know, has been available; 6 how codes are supposed to be used; the comments are most 6 it's updated annually since sometime in the 1970s. 7 often general and especially in the 1980s, rarely specific. 7 Q And it would include the information about the 8 8 non-indented codes being -And over the years, there have been, there has been an 9 evolution in that area. 9 A Well, about the relationship between non10 10 indented codes and indented codes? It might have. The book But there are rules of coding that are printed in 11 AMA procedure books going back to the early years. 11 developed over time, and additional language of this nature. 12 12 In other words, coding rules. I'm sorry, you're right, I'm Q Now are those rules of coding based on any 13 medical criteria? 13 now the one who's using 'rule' as opposed -- I chided you 14 MR. SHEK: Object as to form. 14 the first day for using 'rules' in a different way. 15 15 THE WITNESS: The rules of coding are not based These coding criteria, nonmedical criteria, I 16 on medical criteria; some of the rules about when to use -16 call these coding guidelines, directives, nonmedical 17 period. 17 criteria. If I'm having trouble answering this, all I can 18 BY MR. SEGAL: 18 say is that I started by saying that I wrote, myself, only a 19 I'm going back to your explanation. These 19 certain -- very key, but relatively limited portion of this Q 20 explanations, would they be based on things about medical 20 patent. 21 treatment? Or would they be based on what's nonmedical 21 Q Back to Claim 2. Talks about rejecting the 22 criteria, is my question. 22 medical service codes that were mutually exclusive due to 23 23 the nonmedical criteria. Do you see that? A That if you -- one example is that if you have a 24 code that is indented under another code, you should not be 24 A I see that. 25 using both those codes. That is an example, but I am not 25 Q Do you have an understanding of whether the
2
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individuals at Caterpillar prior to 1987 rejected medical

4
5

processing at Caterpillar?

A I do believe they rejected medical service codes 6 which are mutually exclusive, in a method that bore a 7 relationship to the method we built. 8 Q You indicated that you didn't know what

9
10
11

authorizing meant? That you might have some general concept of what it might mean? Is that right.

2 3 4 5 6 7 8 9
10 11

A I don't like the word authorizing, and had
anybody asked me, I would have said it even I believe at that time because the word 'authorizing' in the world of claims has so many different meanings, including the very common phrase, 'prior authorization' where authorizing means that an insurance company says in advance that if this procedure is done on this patient, the insurance company will pay for the procedure; and that's called prior authorization. That's not the sense in which authorizing is used here. So I would have preferred another word. But here, authorizing medical service codes, I think I can say with insurance means letting them pass -- no, I'm not going to say letting them pass -- means presenting medical service codes as being recommended for payment.
Page 309

12 13 14 15 16 17

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14
15 16

17
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18
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20 21

22
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24 25

22 23 A It doesn't specify, except to say that they are 24 the ones considered mutually exclusive. 25 Q Looking at Claim 3.
Page 311

MR. SEGAL: In your best understanding? TI-IE WITNESS: Yes, that is. And I note that in the authorizing, you've got a clause, paragraph -- in the authorizing portion, that the words 'in the at least one claim' those words do occur in the second half, but not in the first half. It does not say: authorizing medical service codes in the at least one claim, which are not mutually exclusive to the nonmedical criteria with any other medical service codes contained in the at least one claim. So I'm not saying that my position is proved, but it is not disproved. BY MR. SEGAL: Q And the rejecting also doesn't include reference so it can reject all other codes? Is that how you read the rejecting step? MR. SHEK: Object as to form. THE WITNESS: I'm not sure I understand the question. Can you repeat it, please. BY MR. SEGAL: Q And what medical service codes get rejected, in the language, by looking at the language of the rejecting step of Claim 2?

2 3 4 5 6 7 8 9
10
11

So that an initially-submitted code either passes through unchanged, and that is why I used the word passed initially, but there's another example where a code which did not exist originally is substituted for one or more codes that were submitted originally; and that substituted code is also "authorized" -- in quotation marks. So yes, I think I do understand what authorizing means, I just would have preferred a different word.
Q In connection with your reading of these steps in Claim 2, do you read them to include the replacement of a code that was not on the original claim? MR. SHEK: Object as to form. TI-IE WITNESS: It says authorizing medical service codes. It doesn't make any comment, at least not right there, as to whether that was an original code or not. By original code, I mean a code originally submitted on a claim. BY MR. SEGAL: Q The determining step refers to the medical service codes in the claim being mutually exclusive with any other medical service code in the claim.

A Okay.
2 3 4 5 6 7 8 9
Q And reading through that, do you have an understanding of what it means for a medical service code to be valid or invalid?

12
13

A I believe so, but give me a chance to read it. I'm going to have to read some more, because I see that the word 'and valid' appears at the end, as well as 'valid' at the beginning. So I'm going to have to read the whole thing and not just the first piece. 10 I have now looked at the use of the word valid 11 and invalid in Claim 3. So what's your question. 12 Q What is your understanding that valid or invalid
13

means?

14
15

16 17
18
19

A It means if they bear a medically-plausible 15 relationship to other codes, or not. 16 Q And if they bear a medically plausible
14 17 18

relationship, they are valid?

A That's my interpretation in 2005 of these words,

20 21 22 A Yes. 23 Q And so that step is limited to just looking at 24 the codes on the claim? 25 MR. SI-IEK: Object as to form.
Page 3 10

19 yes. 20 Q And if it doesn't have a medically plausible 21 relationship, it would be invalid? 22 A Yes, that's the way it appears to me in 2005. 23 Q Can you think of anything other than a medically 24 plausible relationship that would make a code valid or 25 invalid as it's used in Claim 3?
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iN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

MCKESSON iNFORMATION SOLUTIONS, ) LLC, ) ) Plaintiff, ) ) v. )
THE TRIZETTO GROUP, INC.,

C.A. Na. 04-125 8 (SLR

) )
) )

Defendant..

DEFENDANT THE TRIZETTO GROUP, INC.'S RESPONSE TO MCKESSON INFORMATION SOLUTIONS, LLC'S FIRST SET OF INTERROGATORIES
MORRIS, NICHOLS, ARSHT & TUNNEL Jack B. Blumenfeld (#10 14) Rodger D. Smith, II (#3778) 1201 N. Market Street P.O.Box 1347 Wilmington, DE 19899 (302) 658-9200 Attorneys for Defendant The TriZetto Group, Inc.
OF COUNSEL:

John M. Benassi Jessica R. Wolff Paul, Hastings, Janofsky & Walker LLP 3579 Valley Centre Drive San Diego, CA 92130 (858) 720-2500
Matthew C. Lapple Paul, Hastings, Janofsky & Walker LLP 695 Town Center Drive., 17th Floor. Costa Mesa, CA 92626 (714) 668-6200

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limitation: identify each prior art reference you contend anticipates any claim of the '164
patent under 35 U.S.C. § 102 and each prior art reference or combination of references you

contend renders any claim of the '164 patent obvious under 35 U.S.C. § 103; state in complete detail, by means of a claim chart, where TriZetto contends each limitation of any allegedly invalid claim of the '164 patent is disclosed by each reference or combination of references; and state in complete detail the basis for TriZetto's assertion that one of ordinary

skill in the art at the time of the '164 patent's invention would have been motivated to
combine or modify any prior art reference or combination of references TriZetto contends is
invalidating under 35 U.S.C. § 103.

RESPONSE TO INTERROGATORY NO.6:
TriZetto objects to this interrogatory as vague, ambiguous and compound. TriZetto objects to this interrogatory as overbroad, unduly burdensome and not calculated to lead to the discovery of admissible evidence. The interrogatory purports to require TriZetto to provide a claim construction for every term of every claim in the '164

patent in the context of providing TriZetto's invalidity contentions. To date, McKesson has
not identified which claims of the '164 patent it is asserting, thus requiring TriZetto to state its claim construction and invalidity contentions for every claim of the '164 patent is
unreasonable.

TriZetto objects to this interrogatory on the grounds that it calls for the disclosure of information protected by the attorney client communications privilege andlor the attorney work product doctrine. To the extent that TriZetto claims privilege for any
information responsive to this interrogatory and withholds on the basis of privilege, TriZetto will prepare and provide a privilege log in accordance with the Federal Rules of Civil Procedure at a future date.

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TriZetto objects to this interrogatory on the grounds that it contains multiple sub-parts and purports to require TriZetto to respond to several different interrogatories through the use of sub-parts.

TriZetto objects on the basis that discovery and investigation are on-going and it continues to gather evidence which may affect its answer to this interrogatory. Thus,
TriZetto reserves the right to amend, modify or add to its respons to this interrogatory during the course of this lawsuit.

Subject to these objections, and TriZetto's General Objections, which are
incorporated herein, TriZetto will produce copies of all invalidating prior art of which it is currently aware, or becomes aware, and that it will provide a claim construction chart setting

forth its invalidity contentions at the appropriate time required by the Court's Scheduling
Order.

INTERROGATORY NO.7:
State in complete detail each and every basis for your assertion that the claims

of the '164 patent are invalid because they do not particularly point out and distinctly claim
the subject matter of the invention.

RESPONSE TO INTERROGATORY NO.7:
TriZetto objects to this interrogatory as vague, ambiguous and compound. TriZetto objects to this interrogatory as overbroad, unduly burdensome and

not calculated to lead to the discovery of admissible evidence. The interrogatory purports to require TriZetto to provide a claim construction for every term àf every claim in the '164

patent in the context of providing TriZetto's invalidity contentions. To date, McKesson has
not identified which claims of the '164 patent it is asserting, thus requiring TriZetto to state

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TriZetto further objects to this interrogatory as overbroad and unduly burdensome given the fact that McKesson has failed to identify any TriZetto product or system that allegedly infringes any claim of its '164 patent or make any effort to set forth a prima facie case that any TriZetto product or system infringes. Accordingly, TriZetto is

under no obligation to disclose such confidential business information. However, TriZetto
reserves the right to do so in the future and,to the extent it understands this interrogatory, will produce documents evidencing McKesson's communications to TriZetto.

Dated: January 20, 2005

By: ________________________________________

Matthe-CLapp1e /'

PAJH HASTD,MNOFSKY & WALKER
Jack B. Blumenfeld MORRIS, NICHOLS, ARSHT & TUNNEL
Attorneys for Defendant THE TRIZETTO GROUP, INC., a Delaware corporation,

OFCOTJNSEL: John M. Benassi Jessica R. Wolff Matthew C. Lapple PAUL, HASTINGS, JANOFSKY & WALKER LLP

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1

PROOF OF SERVICE
STATE OF CALIFORNIA
) )

2
3

CITY AND COUNTY OF ORANGE

) ss:

4
5

I am employed in the City and County of Orange, State of California. I am over the age of 18, and not a party to the within action. My busitiess address is 695 Town Center Drive, Seventeenth Floor, Costa Mesa, California 92626-1924.
On January 20, 2005, I served the foregoing document(s) described as: DEFENDANT THE TRIZETTO GROUP, INC.'S RESPONSE TO MCKESSON INFORMATION SOLUTIONS, LLC'S FIRST SET OF INTERROGATORIES on the interested parties by placing thereof in a sealed envelope(s) addressed as follows:
Jeffrey G. Randall David W. Hansen Michael Hendershot Skadden, Arps, Slate, Meagher & Flom LLP 525 University Ave., Suite 1100 Palo Alto, CA 94301

6 7
811

9
10
11

12
13

Thomas J. Allingham II Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square P.O. Box 636 Wilmington, DE 19899

14 15 16 17
18

Allan Soobert Skadden, Arps, Slate, Meagher & Flom LLP 1440 New York Ave., N.W. Washington, D.C. 20005
VIA U.S. MAIL:
I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice such sealed envelope(s) would be deposited with the U.S. postal service on January 20, 2005 with postage thereon fully prepaid, at Costa Mesa, California.

19

20
21

22
23 24 25

I declare under penalty of perjury under the laws of the United States that the above is true and correct. Executed on January 20, 2005, at Costa Mesa, California.

26 27
28
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EXHIBIT T

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
MCKESSON INFORMATION SOLUTIONS, LLC,
Plaintiff,
Civil Action No. 04-125 8 SLR
v.

THE TRIZETTO GROUP, INC.,
Defendant.

THE TRIZETTO GROUP, INC.'S FOURTH SUPPLEMENTAL RESPONSE TO PLAINTIFF'S INTERROGATORY NO. 6 AND FIRST SUPPLEMENTAL RESPONSE TO PLAINTIFF'S INTERROGATORY NO.21
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, defendant The TriZetto Group, Inc. ("TriZetto") hereby provides the following fourth supplemental response and objections to plaintiff McKesson Information Solutions, LLC's ("McKesson") Interrogatory No.

6 ("Interrogatory No. 6") and first supplemental response and objections to McKesson's Interrogatory No. 21 ("Interrogatory No. 21"). Interrogatory No. 6 was propounded in McKesson's First Set of Intenogatories ("First Set") and Interrogatory No. 21 was propounded in
McKesson's Second Set of Interrogatories ("Second Set") (collectively, the "Interrogatories").

GENERAL OBJECTIONS
1.

TriZetto has not concluded its investigation of the facts relating to this case,

formal discovery, or preparation for trial. For that reason, TriZetto's responses to the

Intenogatories may be incomplete. Moreover, there is a possibility that upon further
investigation, certain details set forth in the responses may be altered or amended. These
responses represent TriZetto's reasonable efforts to provide the information requested based upon

documents or information in its possession, custody, or control, and based upon its current

knowledge. TriZetto reserves its right to produce evidence of any subsequently discovered facts

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and documents, and to alter or amend its factual and legal contentions as additional facts are ascertained, analyses are made, and legal research is completed.
2.

TriZetto objects to McKesson's definition of the term "TriZetto" on the grounds

that such definition is overbroad, unduly burdensome, vague, ambiguous, and causes the

Interrogatories to seek information that is not relevant to the claims, defenses or subject matter of this litigation. As such, TriZetto will interpret "TriZetto" to include The TriZetto Group, Inc.
and its present or former officers, directors and employees.
3.

TriZetto further objects to McKesson's "Definitions" to the extent that they

attempt to place burdens upon TriZefto beyond those required by Rule 33 of the Federal Rules of Civil Procedure. TriZetto will not comply with any "Definitions" that attempt to impose
obligations upon TriZetto not required by Rule 33. 4.

TriZetto objects to the Interrogatories to the extent that they request infor