EXHIBIT 6 

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·1· · · · · · · · · UNITED STATES DISTRICT COURT

· · · · · · · · · NORTHERN DISTRICT OF CALIFORNIA

·2· · · · · · · · · · · ·SAN JOSE DIVISION

·3· ·__________________________________________________________

·4· ·CHRISTINA GRACE and KEN POTTER,

· · ·Individually and on Behalf of

·5· ·All Others Similarly Situated,

·6· · · · · · · Plaintiffs,

·7

· · · · · -vs-· · · · · · · · · · · · ·No. 5:17-cv-00551-LHK-NC

·8

·9· ·APPLE INC,

10· · · · · · · Defendant.

· · ·__________________________________________________________

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12· · · · ** HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY **

13· · · · · · ·VIDEO DEPOSITION OF DR. MARK T. JONES

14· · · · · · · · · · ·8:32 a.m. to 5:32 p.m.

15· · · · · · · · · · · ·September 24, 2018

16· · · · · · · · · · · Blacksburg, Virginia

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24· ·Job No. 37982/307500

25· · · · · · ·REPORTED BY:· Rhonda D. Tuck, RPR, CRR

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·1· ·APPEARANCES OF COUNSEL CONTINUED:

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·3· · · · · · · DURIE TANGRI

·4· · · · · · · · 217 Leidesdorff Street

·5· · · · · · · · San Francisco, California 94111

·6· · · · · · · · (415) 362-6666

·7· · · · · · · · enovikov@durietangri.com

·8· · · · ·BY:· EUGENE NOVIKOV, ESQUIRE

·9· · · · · · · · Counsel for the Defendant

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13· ·ALSO PRESENT:

14· ·J.B. STEPHENS - Videographer

15· ·GABE ZELDIN, ESQ., Apple Inc. (Telephonically)

16· ·AVIEL RUBIN (Telephonically)

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·1· ·architectures for a given set of tasks.

·2· · · ·Q.· · ·Have you ever done that -- have you ever

·3· ·studied that in the context of consumer electronics?

·4· · · ·A.· · ·I just don't see a difference in terms of

·5· ·computer and architecture between studying computer

·6· ·performance for a consumer device and another

·7· ·computer, and the ways of measuring performance and

·8· ·characterizing it are not different.· They're not

·9· ·different in the textbook.· Even when you teach case

10· ·studies on different ones, it's -- on one that's a

11· ·consumer device and one that's not, it's the same

12· ·techniques.

13· · · ·Q.· · ·What about the question of when something

14· ·is perceptible to a user?· What experience do you

15· ·have that makes you an expert on that question?

16· · · ·A.· · ·I have read multiple studies of what

17· ·users can perceive, and in this case I also have

18· ·relied upon statements by Apple engineers, as well,

19· ·about what kind of performance differences are

20· ·meaningful to users.

21· · · ·Q.· · ·But why are you sort of qualified to take

22· ·that material and interpret it?· Like, I could do

23· ·that too.

24· · · ·A.· · ·Because it's a question then of whether a

25· ·particular performance difference was perceptible to

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·1· ·users.

·2· · · ·Q.· · ·Right.

·3· · · ·A.· · ·And then it's simply a question of

·4· ·whether they can perceive a difference, and there's

·5· ·studies showing what differences they can perceive.

·6· · · ·Q.· · ·Yeah, but why are you -- like, what does

·7· ·your expertise add to the jury's consideration of

·8· ·that question?

·9· · · ·A.· · ·The examination of the performance data

10· ·that I received from Apple and putting that into

11· ·context with respect to what is a perceptible

12· ·difference.

13· · · ·Q.· · ·But those are just spreadsheets on the

14· ·one hand and studies that you read on the other

15· ·hand, right?· Like, neither of those seem to me to

16· ·require a computer scientist.· Or am I wrong?

17· · · ·A.· · ·I'm not saying someone else couldn't do

18· ·it, but my -- they aren't just spreadsheets. I

19· ·analyzed the data and relate it to both what Apple

20· ·says is important as well as what is perceptible and

21· ·have examined Apple's documents to see what aspects

22· ·they highlight.· I believe it's definitely going to

23· ·be understandable to someone else, and I'm not

24· ·saying I'm the only one who could have done it.

25· · · ·Q.· · ·Do you agree with me that for purposes of

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·1· ·directly.· No.

·2· · · ·Q.· · ·So how do you conclude that people can

·3· ·perceive changing of 100 milliseconds or more?

·4· · · ·A.· · ·Partly because of the context of

·5· ·discussion, also knowing what the basis for numbers

·6· ·like that is, and other studies.· That's what tells

·7· ·me that.· The goal for -- the other aspect of that

·8· ·is that in terms of responsiveness, the reason that

·9· ·100 milliseconds is the goal is because going below

10· ·something that is perceptible, there's no point, as

11· ·opposed to many computing tasks where the goal is as

12· ·little time as possible.

13· · · ·Q.· · ·I see.· So at the end of the day, your

14· ·opinion sort of comes down to the fact that any lag

15· ·over 100 milliseconds is perceptible, and therefore

16· ·the performance regression is measured by -- some of

17· ·the tests that you analyzed are perceptible because

18· ·they showed things like app launch times that

19· ·exceeded 100 milliseconds?

20· · · ·A.· · ·It's not just -- it's not that they

21· ·exceed.· It's the differences.· In other words --

22· · · ·Q.· · ·I understand.· They regressed -- some of

23· ·them regressed more than 100 milliseconds?

24· · · ·A.· · ·Yes.· Some of them far more than that,

25· ·but it's -- that and they're also -- I believe I

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·1· ·cite to targets that Apple has set for these, as

·2· ·well.

·3· · · ·Q.· · ·Okay.· By the way, these targets that

·4· ·you're talking about in these talks, they're

·5· ·targeted to app developers, right?

·6· · · ·A.· · ·Yes, but they're also targets that are

·7· ·discussed for operations, for performance in Apple's

·8· ·internal performance documents, as well.

·9· · · ·Q.· · ·But these targets that you cite here in

10· ·the -- where you quote Apple engineers talking about

11· ·performance at various conferences, those are

12· ·targeted at app developers, right?

13· · · ·A.· · ·Yes.

14· · · ·Q.· · ·And is that because the way that apps are

15· ·designed can affect how long, for example, they take

16· ·to load?

17· · · ·A.· · ·Yes.

18· · · ·Q.· · ·And also how long they take to respond to

19· ·a button push or things like that?

20· · · ·A.· · ·Yes.· But the talks also describe the

21· ·details about the operation of iOS with respect to

22· ·apps so that developers can make those decisions.

23· · · ·Q.· · ·Sure.· Is it fair to say that performance

24· ·for a user will -- of the phone will depend in part

25· ·on things like what apps the user is running and

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·1· ·trying to use?

·2· · · ·A.· · ·Well, the performance on those particular

·3· ·apps will depend on those apps, yes.· And there

·4· ·could certainly be instances where -- particularly

·5· ·with respect to memory limitations, it could be the

·6· ·case that the way in which you're making use of

·7· ·particular apps could affect -- could lead to an

·8· ·interplay between the apps.

·9· · · ·Q.· · ·So the environment matters for

10· ·performance, I guess is the point?

11· · · ·A.· · ·In some cases, yes.

12· · · ·Q.· · ·Okay.· You cite -- I'm going to try to

13· ·short-circuit this.· You cite a number of Apple

14· ·internal documents where they are monitoring the

15· ·performance of various builds of iOS 7 both before

16· ·release and after release.· Is that fair?

17· · · ·A.· · ·Yes.

18· · · ·Q.· · ·Is it your sense that the sorts of

19· ·documents that you cite were in the form of regular

20· ·reports that would have existed for other versions

21· ·of iOS in addition to the ones that you're concerned

22· ·about?

23· · · ·A.· · ·At some level, I would expect those -- I

24· ·don't know if they take the same form.· I would

25· ·expect Apple to have a -- to do performance testing

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·1· ·on their devices, and they have an infrastructure

·2· ·that they build for that, so I have no reason to

·3· ·doubt they do.

·4· · · ·Q.· · ·So the fact that those reports exist

·5· ·itself doesn't indicate anything extraordinary about

·6· ·the performance of iOS 7.· Is that fair?

·7· · · ·A.· · ·It may not.· I don't know if they

·8· ·generate that same kind of report in other cases.

·9· ·As I said, I expect them to do testing.· I don't

10· ·know if the same process would be followed.

11· · · ·Q.· · ·Have you seen any reports or documents

12· ·that you think were specific to iOS 7 and indicated

13· ·some sort of extraordinary problem?

14· · · ·A.· · ·I know that they're missing targets for

15· ·performance.· I just don't know whether that's --

16· ·without looking at what they were doing in previous

17· ·versions and whether there were reports for previous

18· ·versions in the same point in the development

19· ·process, I just don't know.

20· · · ·Q.· · ·You say they're missing targets.· What

21· ·are you referring to?

22· · · ·A.· · ·They are setting targets for performance

23· ·that they are not in all cases meeting.

24· · · ·Q.· · ·Is there a specific document that you're

25· ·referencing that's cited in your report when you say

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·1· ·that?

·2· · · ·A.· · ·I think in all of those sort of

·3· ·performance documents, at least the ones I have in

·4· ·mind, they have targets that they want to achieve,

·5· ·and it is frequently the case that they're not

·6· ·achieving those targets.

·7· · · ·Q.· · ·Okay.· Is there a particular -- I'm just

·8· ·trying to understand what targets you're

·9· ·referencing.· Is there a place in your report where

10· ·you talk about those that comes to mind?

11· · · ·A.· · ·I don't -- I don't know.· There's not, at

12· ·least -- there's not a part of the report that comes

13· ·to mind.· Let me see.· No.· Just the citing and

14· ·recollection of what's in the documents, but I don't

15· ·recall a particular place in the report.

16· · · ·Q.· · ·Okay.

17· · · ·A.· · ·I don't know if I noted that in the

18· ·report or not.

19· · · ·Q.· · ·Are you talking about the documents that

20· ·you excerpted on Pages 67 and 68?· Is that one thing

21· ·that you're talking about, at least?

22· · · ·A.· · ·I think that's the type of document.

23· ·Yes.

24· · · ·Q.· · ·Okay.· Are you referring to the goals

25· ·listed here as the -- when you say "targets"?

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·1· · · ·A.· · ·Yes.

·2· · · ·Q.· · ·Do you know whether the -- like where it

·3· ·says "current," do you know whether that's referring

·4· ·to a released build of the system or an internal,

·5· ·kind of incremental build to the next release?

·6· · · ·A.· · ·I don't know in every case, but I know

·7· ·some of these are internal builds, just based on

·8· ·what I know about the numbers of released builds.

·9· · · ·Q.· · ·Okay.· And do you know for a fact that

10· ·these goals were never met, after these documents

11· ·that you cite were created?

12· · · ·A.· · ·I don't know about never.· There were

13· ·certain cases where a goal wasn't met in the

14· ·performance numbers that I got in the spreadsheet

15· ·from Apple, but I don't have a specific recollection

16· ·of which ones.

17· · · ·Q.· · ·Did those spreadsheets have goals in

18· ·them?

19· · · ·A.· · ·No.· What I'm saying is a goal -- in some

20· ·cases it was possible, not in most, but in some it

21· ·was possible to map a goal set in these documents to

22· ·a particular measurement in those spreadsheets.· And

23· ·my recollection is in some cases the goal wasn't met

24· ·by the number in that spreadsheet.

25· · · ·Q.· · ·Did you do that mapping?

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·1· · · ·A.· · ·I examined it.· It wasn't something I

·2· ·could consistently do, but I do recall looking at

·3· ·it.

·4· · · ·Q.· · ·When you say "looking at it," what do you

·5· ·mean?

·6· · · ·A.· · ·There were some cases where I could

·7· ·relate what was in the document, in these documents

·8· ·to what was in the spreadsheet.

·9· · · ·Q.· · ·Okay.· Is any -- is there any outcome of

10· ·that mapping reflected in this report at all,

11· ·anywhere?

12· · · ·A.· · ·What I was primarily doing it for, which

13· ·I believe I indicated, was that these are

14· ·indications of tests that were -- performance

15· ·elements that were important to Apple and the

16· ·magnitude of differences that mattered and the type

17· ·of tests they did.· So I believe that is something I

18· ·noted in the report.

19· · · ·Q.· · ·Okay.· But you just said that one of the

20· ·things you did was perform a mapping from the

21· ·Apple-produced spreadsheets that you analyzed and

22· ·some of the goals of the sort that you saw on Pages

23· ·67 and 68; is that correct?

24· · · ·A.· · ·If that's the way I said it, it's wrong.

25· · · ·Q.· · ·Okay.

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·1· · · ·A.· · ·What I meant was I did a mapping of

·2· ·descriptions of tasks here that I believed I could

·3· ·map to tests in that spreadsheet, and that was the

·4· ·mapping I did, and it's my recollection also that in

·5· ·some cases the goal set here wasn't met in the

·6· ·spreadsheet, in the performance results there,

·7· ·but --

·8· · · ·Q.· · ·Do you offer -- I'm sorry.· Go ahead.

·9· · · ·A.· · ·I doubt that I -- I don't recall noting

10· ·that in the report, because my purpose was to

11· ·indicate that I could identify tests and

12· ·measurements that were important to Apple or at

13· ·least appeared to be based on these documents and

14· ·relate those to tests and measurements in the

15· ·spreadsheet.

16· · · ·Q.· · ·Okay.· But you never really do that, do

17· ·you, not in any numerical way?

18· · · ·A.· · ·That's not what I -- I'm not saying I did

19· ·it in a numerical way.· I'm saying that where I

20· ·could identify a test, that -- well, let me back up

21· ·for a second.

22· · · · · · · In that spreadsheet, there were many,

23· ·many, many tests, some of which the name wasn't

24· ·descriptive enough for me to guess what it was.· And

25· ·in other cases, it's very difficult in isolation to

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·1· ·know even whether that test -- did they just run it

·2· ·by accident, did it matter to them at all.· Some

·3· ·tests just produce statistics and it doesn't -- not

·4· ·all the statistics are relevant.

·5· · · · · · · So what I did was look and find -- in

·6· ·cases where I could map something as being an

·7· ·important test, like app launch times, was a metric

·8· ·that mattered obviously to Apple that they

·9· ·monitored, and so that's something that would be

10· ·reasonable to look at the differences in.

11· · · ·Q.· · ·Okay.· But you never mapped those

12· ·differences or those absolute numbers for iOS 7.1 to

13· ·any numerical threshold or goal that you found

14· ·reflected in other Apple documents, or did you?

15· · · ·A.· · ·I don't believe I mapped it to the goals

16· ·here, that are stated here, no.

17· · · ·Q.· · ·Okay.· Or any other numerical threshold?

18· · · ·A.· · ·I believe in every case I indicated that

19· ·they were perceptible based on the differences that

20· ·I saw.

21· · · ·Q.· · ·Okay.· But you didn't like show your work

22· ·in any mathematical sense to reach that conclusion,

23· ·right?· Like, you didn't say, "Oh, these fall above

24· ·or below the threshold of X, and therefore they're

25· ·presentable."· You didn't do that sort of analysis?

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·1· · · ·A.· · ·I don't recall if I stated it that way or

·2· ·not.

·3· · · ·Q.· · ·Okay.· Did you do that sort of analysis?

·4· · · ·A.· · ·I think in every case, I gave the values

·5· ·that resulted from it and indicated they were

·6· ·perceptible and gave you my --

·7· · · ·Q.· · ·Right.· But you never indicated that they

·8· ·were perceptible because they fell below a threshold

·9· ·of perceptibility that could be stated in numbers.

10· ·You never did that, did you?

11· · · ·A.· · ·I don't know if I summarized it that way

12· ·or not.

13· · · ·Q.· · ·Do you think that the number of online

14· ·discussions and articles relating to iOS 7

15· ·performance in the iPhone 4 was unusual when it

16· ·comes to an operating system release that is

17· ·supported by older hardware?

18· · · ·A.· · ·I think within the context of the iPhone

19· ·and previous releases, yes, I do believe it was

20· ·unusual and that the tenor of the discussion in

21· ·articles was different, and it -- I don't recall

22· ·that significant an issue with performance before

23· ·that.

24· · · ·Q.· · ·Okay.· What about ones that came after?

25· · · ·A.· · ·I don't recall the same level of issues.

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·1· ·download of secure software radio.

·2· · · · · · · On Page 13, there's a

·3· ·Lockheed-Martin/Sanders one that is addressing

·4· ·computer security.

·5· · · · · · · There's a National Security Agency one.

·6· · · ·Q.· · ·Yep.

·7· · · ·A.· · ·Those are the ones where the primary

·8· ·focus of the work was computer security, not just

·9· ·that the work involved computer security but the

10· ·primary focus of the work was computer security.

11· · · ·Q.· · ·Got it.· Were any of those relating to

12· ·consumer mobile devices?

13· · · ·A.· · ·I think for most of them, it was

14· ·architectures in general.· It was not -- at the

15· ·level we were doing the work, it wasn't a specific

16· ·military platform.

17· · · ·Q.· · ·But it was for, generally speaking,

18· ·military applications?

19· · · ·A.· · ·No.

20· · · ·Q.· · ·What were they for?

21· · · ·A.· · ·So the work we were doing at the level we

22· ·were doing it were to be more fundamental work.

23· · · ·Q.· · ·I see.

24· · · ·A.· · ·And applications of that were things that

25· ·I didn't do and my students didn't do, unless they

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·1· ·COMMONWEALTH OF VIRGINIA AT LARGE, to wit:

·2· · · · · ·I, Rhonda D. Tuck, RPR, CRR, Notary Public in and

·3· ·for the Commonwealth of Virginia at Large, and whose

·4· ·commission expires on May 31, 2020, do certify that the

·5· ·aforementioned appeared before me, was sworn by me, and

·6· ·was thereupon examined by counsel; and that the foregoing

·7· ·is a true, correct, and full transcript of the testimony

·8· ·adduced.

·9· · · · · ·I further certify that I am neither related to nor

10· ·associated with any counsel or party to this proceeding,

11· ·nor otherwise interested in the event thereof.

12· · · · · ·Given under my hand and notarial seal at

13· ·Charlottesville, Virginia, this 27th day of September,

14· ·2018.

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18· · · · · · · · __________________________________

19· · · · · · · · · · Rhonda D. Tuck, RPR, CRR

20· · · · · · ·Notary Public Registration No. 224847

21· · · · · · · ·Commonwealth of Virginia at Large

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25· ·Job No. 37982/307500

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