Direct Marketing Association, The v. Huber

Filing 67

DESIGNATION OF DEPOSITION TESTIMONY Excerpts from the Transcript of the Deposition of Kevin Lane Keller and accompanying deposition exhibits by Plaintiff Direct Marketing Association, The. (Attachments: # 1 Exhibit Dep. Ex. 16, # 2 Exhibit Dep. Ex. 17, # 3 Exhibit Dep. Ex. 18, # 4 Exhibit Dep. Ex. 19, # 5 Exhibit Dep. Ex. 20, # 6 Exhibit Dep. Ex. 21, # 7 Exhibit Dep. Ex. 22, # 8 Exhibit Dep. Ex. 23, # 9 Exhibit Dep. Ex. 24, # 10 Exhibit Dep. Ex. 25, # 11 Exhibit Dep. Ex. 26, # 12 Exhibit Dep. Ex. 29, # 13 Exhibit Dep. Ex. 30, # 14 Exhibit Dep. Ex. 31, # 15 Exhibit Dep. Ex. 32, # 16 Exhibit Dep. Ex. 33, # 17 Exhibit Dep. Ex. 34, # 18 Exhibit Dep. Ex. 35, # 19 Exhibit Dep. Ex. 36, # 20 Exhibit Dep. Ex. 37, # 21 Exhibit Dep. Ex. 38)(Schaefer, Matthew)

1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLORADO 3 4 Civil Action No. 10-CV-01546-REB-CBS 5 6 The Direct Marketing Association, 7 Plaintiff, v. 8 9 10 Roxy Huber, Director, in her capacity as Executive Colorado Department of Revenue, Defendant. 11 12 13 14 DEPOSITION OF KEVIN LANE KELLER taken at Norwich, Vermont, on October 21, 2010. 15 16 17 18 19 APPEARANCES: Matthew P. Schaefer, Esquire Brann & Isaacson 184 Main Street, Fourth Floor P.O. Box 3070 Lewiston, Maine, 04243-3070, on behalf of the Plaintiff, The Direct Marketing Association. 20 21 22 23 Jack Wesoky, Esquire Senior Assistant Attorney General 1525 Sherman Street, 7th Floor Denver, Colorado, 80203, on behalf of the Roxy Huber in her capacity as Executive Director, Colorado Department of Revenue. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 8 there's some handwritten notations on it. 1 2 Q And there's a page at the end which says George/Matt with some notes on it? 3 MR. 6 MR. WESOKY: 7 MR. Is that also part of Exhibit SCHAEFER: SCHAEFER: 4 17? 5 8 Q Yes. Okay. Are those the only notes you took in connection with your expert opinion in this case? 9 10 A I believe so. 11 Q In your practice as an expert, is it your normal 12 standard practice to make notes on a piece of 13 paper or yellow stickies or anything else other 14 than you did in this case? 15 A Don't typically use a lot of yellow stickers in That doesn't mean that I don't ever 16 what I do. 17 use yellow stickers, 18 typically don't use a lot of yellow stickers. 19 Q but as a general rule, I'm talking about your general practice. 20 make notes on a pad, 21 I Do you how do you do it? 22 23 A It varies some. on separate pieces of paper, I often mark up documents. often may have separate, I a separate page that I NORTH COUNTRY COURT REPORTERS 40 West (603)298-2987 South Main Lebanon! tel New Street Hampshire (603)218-6633 fax cjfoster71@aol.com 03784 (603)443-1157 cell 9 1 do, 2 with someone, then I might use a yellow sticker, 3 something like that, 4 general approach to doing work is to work off of 5 documents either editing them, 6 some form or having some other separate notes to 7 go with that. 8 Q depending on who, if I have to, if I'm working but as a general rule from my writing on them in So we've established that this Exhibit 17 are the only notes that you had or took with respect to 9 your expert opinion in this case, 10 11 A I believe so. 12 Q Okay. is that correct? And if you look at the top of Exhibit 17, 13 it says Version 9a for Final Review. 14 Questionnaire. 15 any other versions of the DMA/Colorado 16 DMA/Colorado Questionnaire other than Exhibit 17? 17 A I assume then that you didn't see This is the version that I took notes on. There 18 were discussions prior to, 19 might have been relevant to that that I wouldn't 20 have had notes on, 21 document that I had notes on. 22 23 Q I understand that. prior discussions that but I believe this is the But my question is did you see other versions of DMA/Colorado Questionnaire? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 10 MR. 1 Do you mean other than the SCHAEFER: final version? 2 3 Q Other than 9a, 4 A I yes. can't be sure if I If saw earlier versions. 5 there were none in my files and there were none 6 that were marked, 7 files that was marked. 8 Q this was the one that was in my You can set that aside. We will return to it. I don't want to enter it into evidence. 9 10 not important at this point, 11 7/21/10 is your recent CV, 12 It's for this case? 13 A Yes. 14 Q I but your CV dated the one you submitted Correct. assume from your resume vitae and your history 15 that there's nothing adverse in your history, 16 complaints or anything of that nature relating to 17 your practice or your expert practice? MR. 18 SCHAEFER: 19 A Q Okay. Go ahead. That's correct. 20 Objection. any Of your education and training which you 21 referenced in your Declaration, 22 important thing or most relevant thing, 23 say, to which I what is the most I should could look to support your claim NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 11 of being an expert in this case? 1 MR. 2 3 A SCHAEFER: Objection to form. Go ahead. I would say that probably the most pertinent is 4 just the Ph.D. 5 consumer marketing that I 6 '80s. 7 be all of the work that I've done since then that 8 have been involved consumer marketing and research 9 and writing in the last 25 years, 10 Q I in marketing with emphasize on received in the mid And then the second thing I would say would take it from your Declaration that you're an expert in consumer behavior, 11 I guess. is that correct? 12 A That's one of my areas of focus. l3 Q And that's what, this case, 14 one of your areas of expertise in is that correct? 15 A That's correct. 16 Q And what other area of expertise are you bringing 17 in this case? 18 A Branding. 19 Q Okay. technology? 20 21 A Survey methodologies is another area that I've emphasized since 1979, 22 23 How about survey methodology and Q I guess, or 1980. But you didn't design the survey in this case; is NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 12 that correct? 1 2 A I did not design the survey. 3 Q Are you familiar with the methodology used? 4 A I 5 Q So you're familiar with what Knowledge Networks am. did in this case for this survey? 6 7 A Yes. 8 Q And what is that? 9 A Survey involved an online panel that was assembled Could you tell me? 10 and involved an online questionnaire that asked a 11 sample of respondents some questions that were 12 relevant to the matters in this case. 13 Q Do you know about their weighting and calibration? 14 A I believe that is part of the sample composition 15 that involved some weighting in terms of 16 representativeness of the sample population. 17 Q relying on Knowledge Networks? 18 19 Do you know how that was done or are you just A I'm relying on Knowledge Networks and RSG, supplier to the RSG firm. 20 EXHIBIT 18 MARKED FOR IDENTIFICATION 21 22 23 Q MR. SCHAEFER, I've handed you Exhibit 18 which is Knowledge Networks Field Report Colorado Tax NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 13 Simple question. 1 Policy Survey. 2 Did you ever see that before today? 3 A I don't believe so. 4 Q Okay. EXHIBIT 19 MARKED FOR IDENTIFICATION 5 6 You can set that aside. Q I hand you what's been marked as Exhibit 19, and 7 it's called Knowledge Networks Project Statement 8 CO Tax Policy Project number blank. 9 seen that document before? 10 A Have you ever I don't believe so. MR. 11 SCHAEFER: Jack, just to make sure, I 12 think this one has sequential but appended I think 13 is this and I don't know whether it's part of the 14 same document literally or not. 15 specifically, but there's a Knowledge Panel 16 Calibration document that begins at page RSG 17 00316. MR. WESOKY: 18 I don't recall I don't know if it was appended 19 either because it came, 20 time, 21 question. 23 it. one page at a but let's attach them for purposes of this MR. 22 you know, I SCHAEFER: I don't have any problem with just thought I would mention it. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 14 MR. WESOKY: 1 2 Q So MR. SCHAEFER, 3 that appendix, 4 Thanks. I appreciate that. I assume that you've not seen Calibration? 5 A Q So then it's, called Knowledge Panel I have not. 6 if we can, you didn't read that or consider 7 that when you reviewed the survey results and gave 8 your opinion, correct? 9 A Correct. 10 Q Let me ask you, do you think it would be important 11 to review these documents and learn about 12 Knowledge Networks and their calibration function, 13 if that's the correct word, 14 results of the survey? with respect to the 15 A I've known Knowledge Networks 16 Q Simple yes or no question. MR. SCHAEFER: l7 question. 18 MR. WESOKY: 19 20 can answer it. 21 it, No. Q He I can ask the question. If you want him to elaborate on then you can examine him. MR. SCHAEFER: 22 23 He can answer the No. No -- The question is, do you think, I'm sorry. Would NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 15 you read the question back, 1 Cindy? (Requested portion read back by reporter) 2 3 Q Yes or no? 4 A Well, not given the context of the company involved. 5 6 Q What company is that? 7 A Knowledge Networks. 8 Q Knowledge Networks or RSG? 9 A Knowledge Networks. 10 Q And you're familiar with Knowledge Networks? 11 A Very. 12 Q And you've used them in the past, 13 A I 14 Q Okay. I take it? actually worked with them at one point in time. I noticed that a person employed by 15 Knowledge Networks shares your last name. 16 Are they related or just a coincidence? That's a coincidence. 17 A No. 18 Q I thought it probably was but why not ask. 19 A Let me restate that. I think that's a coincidence. 20 21 Q Keller is not like WESOKY where we're all related. 22 A No. 23 Q Okay. There's actually a lot of Kellers out there. I take it this was not your first expert NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 2 4 1 A yes, mental time where you're actually, yes. 2 3 The time, Q And again, just to be sure I understand, in longer 4 cases you might make notes of some time, 5 the shorter cases you don't other than in your 6 diary for phone calls? 7 A If it's a case that spans multiple years, but in then at 8 some point I will stop and keep track of what I've 9 done, if I haven't invoiced especially, before too much time elapses. 10 11 Q Have you done that in this case? 12 A I have not done that in this case as of yet. 13 Q Just to make sure I understand. You've not 14 submitted an an invoice yet for your work in this 15 case? 16 A I have not submitted an invoice yet. 17 Q To the best of your ability, could you tell me 18 before preparing for this deposition and obviously 19 our time in this deposition, 20 you spent in this matter? 21 A 23 Before the preparation of the deposition and the deposition, 22 Q how much time have it would be approximately one day. Eight hours? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 25 1 A Eight hours. 2 Q In preparation for this deposition, did you make any notes of any kind? 3 4 A I don't believe so. 5 Q In this case, to the best of your recollection, 6 could you tell me what documents you reviewed to 7 prepare your expert opinion? 8 A Well, they, I think, would be in the Declaration, I believe. 9 10 Q Okay. 11 A Because I was asked that question and then went 12 back to my files and then reported those so the l3 ones associated with my Declaration would be the 14 ones that I've reviewed. 15 Q Okay. You've not reviewed any, 16 literature, 17 before giving your expert opinion? 18 A treatises, I ' l l use the term anything of that nature I'm actually finishing a IS-month project revising 19 my marketing management textbook so over the last 20 15 months I've reviewed a lot of material on 21 consumers and on marketing dealing with lots of 22 different topics. 23 background in general to sort of use as part of So I actually had a fairly rich NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 26 what I 1 2 Q did. Again, just so I understand what you're saying, 3 because of this ongoing project revising your 4 textbook, 5 any specific treatises or literature but just your 6 general knowledge from revising that textbook you 7 used in connection with formulating your expert 8 opinions, 9 A you didn't find it necessary to refer to is that correct? What I did was in the process of revising this 10 textbook there were lots of different topics that 11 would be relevant to the case that I 12 a chance to read about and think about and write 13 about as part of the revision of the textbook. 14 Q But as I understand it, certainly had you didn't go to the 15 revisions of that textbook, 16 connection with your expert opinion, 17 just the knowledge that you accumulated in doing 18 that that you transferred to this expert opinion, 19 is that right? 20 A specifically, in but it was There was enough before the revision of the 21 textbook general knowledge that I already had, 22 then the updating that occurred with the actual 23 revision of the textbook, and that gave me a good NORTH COUNTRY COURT REPORTERS 40 West (603)298-2987 South Lebanon, tel Main New Street Hampshire (603)218-6633 fax cjfoster71@aol.com 03784 (603)443-1157 cell 27 foundation going into the preparation of the case. 1 2 Q But again, just so I can understand. You didn't 3 in preparation for your expert opinion say oh, 4 need to refer to my notes on the textbook or the 5 material on the textbook. 6 knowledge gained from doing that that helped you 7 with your expert opinion? 8 A It was just your It was the knowledge gained but there was, you talk about general knowledge, 9 I when general 10 knowledge is the accumulation of a lot of specific 11 articles and readings that you do so even though 12 i t ' s general knowledge i t ' s based on a lot of 13 specific articles and material that you read and 14 review which then, 15 relevant to this particular case. 16 Q which in some cases would be As you sit here today, could you give me just a 17 few of those articles that you think would, 18 you've accumulated over the last years that would 19 be relevant to this expert opinion? 20 A that They would be ones that would be referenced in the 21 textbook or included in my files associated with 22 the different chapters in the textbook. 23 Q Would you tell me today what some of those are? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 28 1 A Couldn't give you the specific names and authors, 2 if you will, 3 there are literally thousands that I 4 maybe even reference. 5 the hundreds that I of those articles because I've got, review and I don't know. Certainly reference. 6 Q In your textbook, 7 A In my textbook and then or included in my files, 8 too. 9 you mean? you will. 10 Q So i t ' s all part of that set of material, And again, just so I 11 those files 12 understand, if you didn't go to expert opinion? 13 A Well, for particular reference for this and again, it's one of those where I've gone 14 through those files as part of the textbook so 15 it's not as if I didn't have access to that 16 because I'd already reviewed and worked through a 17 lot of that as part of the textbook. 18 Q But again, you didn't say oh, I could look at 19 Jones & Brown, 20 help support my opinion. 21 There was no thinking along that line? 22 23 A to name a fake article, that will I think that's relevant. The thinking would be more along the lines that there's a set of material that I've used that NORTH COUNTRY COURT REPORTERS 40 West (603)298-2987 South Lebanon, tel Main New Street Hampshire (603)218-6633 fax cjfoster71@aol.com 03784 (603)443-1157 cell 29 1 inform my decision or my judgments as I kind of go 2 through this, 3 whether I could remember the specific titles, 4 not sure. 5 were about because that's what I would have 6 reviewed and be included into the textbook. and the time that this was done, I'm I certainly could remember what those 7 Q What were some of those, 8 A They talked a lot about consumers and consumer behavior, 9 to use your words, about? talked about issues on privacy and 10 consumers' 11 with retailers, 12 purchase decision factors. 13 Relationships range of topics. 14 Q opinions about privacy. relationships with brands, So it's kind of a But you can't think of any specifically today, correct? 15 16 A Specific articles? 17 Q Yes. 18 A I can think of the body of work that I used that I can't remember the specific 19 related to that. 20 authors and titles of those papers. 21 remember having consulted those and included and 22 incorporated some of that material into the 23 textbook. I can NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 30 1 Q Let's take a look at your Declaration for a moment if we could. 2 3 Exhibit 16. Correct me if I'm wrong, okay? It seems to 4 me that from reading your Declaration you had the, 5 I don't know if the word is opinion or feeling or 6 idea that the survey confirmed. MR. 7 Objection to the form but go ahead. 8 9 SCHAEFER: Is that correct? A I would say that I, based on my analysis of the 10 case and the facts as I 11 conclusions that I would draw from that that the 12 survey results were consistent with that. 13 consistent with that. 14 Q So again, understood them and the before you had the survey, Largely you harbored 15 the belief, 16 large majority of people would think the Colorado l7 law was an invasion of their privacy? 18 A I if that's the correct word, that a wouldn't use the word harbored the belief. What I would sort of characterize 19 20 Q Tell me what you would -- 21 A The way I would characterize it is based on the 22 analysis of the facts of the case that I felt that 23 privacy would be a big issue and potentially a NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 31 major problem, 1 2 Q the extent of which I wasn't sure. By the same token, you again, using my words, 3 harbored the belief that the law would change 4 consumer behavior such that consumers would not 5 purchase from the retailer who had to turn over 6 the information pursuant to the law? 7 A My belief was that changing the law in the way 8 that it would have changed would have resulted in 9 consumers changing their behavior such that they would not buy as much from those retailers. 10 11 Q What about buying, consumers buying at all from those retailers? 12 13 A In some cases, 14 Q What was your thought before the survey on that issue? 15 16 it would be not at all. A Well, the thought before the survey was it was, 17 that this would be a major problem and concern for 18 some consumers and potentially an inhibitor in 19 terms of their purchase behavior. 20 that might involve them not buying at all or even 21 maybe buying, certainly shopping around more and 22 not buying at all, 23 Q In some cases, I guess is the way I'd put it. Would you look at paragraph number, let's start NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603}298-2987 tel (603}218-6633 fax (603}443-1157 cjfoster71@aol.com cell 34 EXHIBIT 20 MARKED FOR IDENTIFICATION 1 Let me hand you what's marked Exhibit 20. It's 3 called Expert Report of Kevin Lane Keller, and in 4 that document, 5 that and make sure that is indeed your -- 2 Q first, let me ask you to identify 6 A It seems to be the document. 7 Q If you look at paragraph II it says data and 8 information considered in forming opinions and it 9 says copy of the Act and a copy of the Regulation 10 and then the survey. 11 document that the only documents that you looked 12 at in reaching your conclusion as stated in the 13 first sentence of paragraph 8 was a copy of the 14 Act and a copy of the Regulation. 15 correct? 16 A Well, take it from this Is that as the facts of the case that's certainly where I 17 So I started for sure. 18 Q What other documents did you look at? 19 A Like I Q had some of the had. Did you use any data information in those in forming your opinions? 22 23 I believe I complaints and replies I believe also that I 20 21 said, A I think general background, I think the Act and NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 35 1 the Regulation was, 2 what I focused on. 3 Q When you say facts of the case, you mean the facts as alleged in the Complaint? 4 5 the facts of the case were A Facts in terms of what exactly was the Act and 6 what was going to be, 7 involved and what, 8 happen with consumers as a result of the Act and 9 the change, 10 Q what was going to be and how consumers, what would changes in the law. Just so I'm sure, when you had the Act and Okay. 11 the Regulation, 12 complaint that Messrs. 13 on behalf of the DMA? 14 A you also had a copy of the Isaacson and Schaefer filed I believe I had the legal documents from both 15 sides, 16 in the earlier part of the case. 17 Q Now, I think, as I recall at some point in time you recall being asked to produce all the documents that you had in this case, 18 don't you? 19 A I do. 20 Q I ' l l represent to you that I did not get a copy of 21 the Complaint or any of the pleadings filed by the 22 State in this case. 23 what? Did you destroy those or NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 36 MR. 1 SCHAEFER: I am certain that a copy of 2 the complaint was produced. 3 you know, 4 papers filed by the State were provided to MR. 5 SCHAEFER Keller. MR. 6 Q 10 Okay. I ' l l take that as your Thank you. So based on what Mr. Schaefer just told us, State in this case? A 12 l3 WESOKY: you did not have copies of anything filed by the 9 11 don't believe that any of the motion representation. 7 8 I And to the extent, It's hard for me to remember exactly what I had, but I Q 14 know I had some of the legal documents. According to Mr. Schaefer, you certainly had the Complaint that DMA filed? 15 A Yes. 16 Q And you reviewed that before you reached your opinion? l7 18 RECESS TAKEN 19 (Requested portion read back by reporter) 20 A It's hard to remember exactly. I know where I 21 started and that was what I'm considering the 22 facts of the case or the Act and those documents 23 associated with that. I don't remember exactly NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 41 1 A I have to see that article. 2 Q I'm sorry. I didn't bring it with me. But let's 3 see if you agree with me. 4 about consumers and they give their information 5 that they'll be cheated? MR. 6 SCHAEFER: Is one of the concerns Objection to the question. 7 Q Okay. 8 A I think consumers are worried about a range of different kinds of outcomes that might occur and 9 cheating potentially could be one of those. 10 11 Q And how about identity theft; is that another one? 12 A I think privacy again has a lot of ramifications, 13 and I think one of them can be seen as identify 14 theft by consumer. 15 Q Another one is their fear of being overwhelmed 16 with solicitations, 17 nature, 18 A offers and things of that correct? I think again, there's a concern about disclosing 19 information that would result in unwanted 20 marketing material. 21 Q And is there a fear that their children will be 22 targeted for something or other if they gave their 23 personal information out? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 42 MR. 1 2 A SCHAEFER: Objection to the form. There's a whole host of concerns that consumers 3 have with privacy and certainly one would be how, 4 what, 5 family members or other personal relationships 6 that might result in unwanted outcomes. 7 Q Now, how information could be used, whether it's did you see a copy of any Colorado statute 8 that deals with the confidentiality and privacy of 9 information given to the Colorado Department of Revenue? 10 11 A Could you be more specific? 12 Q Sure. Did you see any Colorado statute other than 13 the law in question in this case concerning the 14 reporting by retailers to the Department of 15 Revenue and to their customers? 16 A I'm not sure. 17 Q Do you remember seeing any Colorado law which 18 dealt with the obligation of the Department of 19 Revenue to keep material and information that they 20 received confidential and not to disperse it to 21 anybody? 22 A I'm not, again, 23 Q I'm correct, I'm not sure. am I not, in stating that consumer NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 43 behavior is driven by many factors? 1 2 A Correct. 3 Q Price is one certainly? 4 A Correct. 5 Q Product is another? 6 A Correct. 7 Q A brand is certainly another? 8 A Correct. 9 Q Quality of the product is certainly another? 10 A Correct. 11 Q Convenience is certainly another? 12 A Correct. l3 Q Past experience with a merchant, or a catalog, 14 be it a web site is another? 15 A Correct. 16 Q And certainly Internet shopping is influenced by its ability to save time for a consumer? 17 18 A is saving time. 19 20 Q 23 And you certainly you have an ability to research and compare products and prices? 21 22 Certainly one of the benefits of internet shopping A Internet, that's one of the advantages of the internet is you can compare prices more easily. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 44 1 Q Do you think in your opinion that with all those 2 advantages that the behavior change attributed to 3 the loss of privacy by the survey is overstated 4 based on these other advantages to consumers that 5 the internet has? MR. 6 SCHAEFER: Objection to the form. Go ahead. 7 I don't. 8 A No. I don't think it's overstated. 9 Q So you think the concern of loss of privacy will 10 drive a large number of consumers away from using 11 the internet to make purchases? 12 13 MR. A Well, SCHAEFER: Objection to the form. there are many ways to purchase over the 14 internet and so I think that the loss of privacy 15 will affect those retailers who are associated 16 with that. 17 Q Associated with the Colorado 18 A The loss of privacy. 19 Q With the Colorado law, 20 A Colorado law. 21 Q Let's take a look at the survey for a minute. 22 23 you mean? Okay? EXHIBIT 21 MARKED FOR IDENTIFICATION NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 4 5 1 Q I'm going to ask you to please take a look at 2 page, I think it's page 19. 3 record. 4 Colorado Consumer Survey from RSG, 5 is that correct? I Let me make the just handed you Exhibit 21. That's the Final Results; 6 A That's correct. 7 Q And this is the survey that you reference in your Declaration? 8 9 A That's correct. 10 Q Okay. I'm going to ask you to look at page 19. 11 There's a question that says if you were to make a 12 similar purchase in the future but with this new 13 disclosure requirement in place, 14 most likely do. 15 followed that on 18, 16 consumers could be thinking that the disclosure 17 requirement was really a tax, 18 talking about a tax, 19 similar purchase in the future but with this new 20 tax in place, 21 MR. 22 23 A Now, given that the question is it possible that the that they were that if you were to make a what would you most likely do? SCHAEFER: You know, what would you Objection to the form. it's pretty clear. It says disclosure requirement in the context of the survey. I would NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 ( 6 0 3 ) 2 9 8 - 29 8 7 tel ( 6 0 3 ) 2 1 8 - 6 6 3 3 fax (6 0 3 ) 4 4 3- 11 5 7 cjfoster71@aol.com cell 46 think that respondents would interpret it as such. 1 2 Q disclosures to the Colorado Department of Revenue? 3 4 Even though the preceding question talked about A It's the disclosure requirement. It would seem 5 that it follows fairly directly from the previous 6 page. 7 Q So there's no confusing possibility with the 8 consumer that they would be thinking of a tax 9 because of the reference to the disclosure to the Department of Revenue? 10 11 MR. 12 Talking about a reference on page 18? 13 Q Yes. MR. 15 A Yes. 19, 17 I A SCHAEFER: Yes. think it says disclosure requirement on and this is page 18, MR. 18 19 assume that's the preceding page of the survey. 14 16 I SCHAEFER: SCHAEFER: That i t ' s referring, right? Right. that that's going to be 20 followed from what they've got, what they've read 21 on page 18 that talked about the disclosure. 22 Q If you look at the second question on page 18? 23 A Yes. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 47 1 Q It says I do not mind the state of Colorado 2 knowing the kinds of products I 3 buy them and so forth? 4 A Q Now, from whom I Urn-hum. 5 buy, i t ' s true, is it not, that the reporting 6 requirement does not require a disclosure of the 7 products that a consumer buys, MR. 8 9 A SCHAEFER: correct? You mean specific products? So in terms of the Act, I don't think requires 10 identification of specific products and prices, 11 believe. 12 Q And with using Mr. Schaefer's word of specific, I do 13 you think this question is misleading at all that 14 it states I 15 of products I buy? 16 A don't mind the state knowing the kinds In the sense that you -- the kinds of products are 17 going to be a function of retailers and where you 18 buy from. 19 is disclosed, 20 disclosed. 21 misleading. 22 23 Q The extent to which retail information kinds of products information is In that sense, I don't see it as So if I buy something from Victoria's Secret, let's say, how do you know if i t ' s body lotion or NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 48 revealing lingerie? 1 2 A You don't know specific products, but you know the 3 general range of products. 4 minds may feel that certain retailers are 5 associated with certain kinds of products. 6 Q So if I buy from L.L. Or consumers in their Bean, 7 buying socks or a backpack, 8 you don't know if I'm Do you? 9 A 10 do you? You don't know specific products, but you would know the kinds of products that L.L. 11 Q Yes, a backpack or socks, 12 A Q You didn't draft question 18, Bean sells. Could be seen as outdoor products. l3 Yes or no? which are very similar? did you? I'm sorry, the questions appearing on page 18? 14 15 A I did not. 16 Q Knowing that the Colorado law doesn't require 17 disclosure of the products that an individual 18 buys, 19 included the word kinds of products I buy? 20 it have been better to eliminate that? 21 A I do you think the question should have Would think given the nature of the disclosure of the 22 retailer that the kinds of products I buy is 23 consistent with that. So in that sense, I think NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon! New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 49 the language is appropriate. 1 2 Q If you look at the preceding question, 3 my name, 4 amount of my purchase to the State is an invasion 5 of my privacy. 6 set forth all that has to be reported by a 7 retailer; 8 address and amount of purchase? 9 A billing address, reporting shipping address and the Isn't and doesn't that question the purchaser's name, address, I mean that sets forth what they will, shipping what the lQ retailer will report about that particular person, 11 I believe that's correct. 12 Q So why then have in the second question on that 13 page the addition, 14 when all the information that is required is set 15 forth in the first part of that question? MR. 16 17 A Well, the kinds of products I buy, SCHAEFER: Objection to the form. my sense is that the second one is dealing 18 with what the State would learn based on the 19 reporting of that information from the first part 20 from a specific retailer. 21 Q Okay. Now, if you had designed this survey, would 22 you have included that second question after the 23 first in the form it appears? NORTH COUNTRY COURT REPORTERS 40 West (603)298-2987 South Lebanon, tel Main New Street Hampshire (603)218-6633 fax cjfoster71@aol.com 03784 (603)443-1157 cell 50 MR. 1 SCHAEFER: Objection to form. 2 A The intent of the survey 3 Q That's not my question. Would you, SCHAEFER 4 Keller, 5 question on page 18 the way i t i s drafted after 6 the first question appears on page 18 or would you 7 have done it differently? MR. 8 9 have drafted the question, MR. A SCHAEFER: the second Same objection. Let me answer my question. Let me answer the 10 question. 11 certainly try to get both sides. 12 practice to try to have it kind of, 13 approach if you will, 14 whether I would have these specific words, 15 intent would be what I would characterize as 16 largely the same. 17 look back and say if I started from scratch would 18 I have gotten exactly to this point. 19 Q Well, So what I would say is that I would It's common a balanced in terms of agreement, and the It's really hard to sort of certainly the second question could have 20 said I do not mind the state of Colorado knowing 21 my name, 22 the amount of my purchases. 23 A billing address, shipping address, and It could have said that. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 51 1 Q Fact is, it's true, is it not, that it would have 2 been better to have said that because this second 3 question is misleading, 4 belief that there is more that will be reported 5 than what actually has to be reported, 6 correct? 7 A No. giving the consumer the isn't that What I would say is that often what you try 8 to do is try to find alternative wording that gets 9 across the same intent, same objective. So that 10 otherwise, 11 the question, 12 first, 13 response. 14 think again and give you another chance to get a 15 good valid answer. consumers, if they have to think again and if it's too much a mirror of the then you're just going to get the same So the hope is to try to get people to 16 Q Do you know what the term reactivity bias means? 17 A I believe so. 18 Q What? 19 A I 20 Q Could you tell me what it means to you? 21 A Yes. believe so. I'm trying to recall how I would define it. 22 It's a sort of a questionnaire sensitivity issue, 23 and I'm not sure exactly how I would phrase it. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 64 1 A You could look at it that way. You could look at 2 what would be the way, 3 characterize the survey is it's trying to 4 understand the consumer impact of this law and 5 this change, 6 couple different factors. 7 Q I guess I would and it's looking at it in terms of a Is it a correlational survey trying to measure 8 degree of association between two variables, 9 intention and behavior? 10 A It is certainly, it's not an experimental survey 11 in that different consumers are given different 12 scenarios so in that record i t ' s more of a 13 correlational survey. 14 Q Okay. Is there a factor that when you premeasure 15 someone's intentions that that increases the 16 subsequent behavior to match the intention? 17 A So by premeasure or measure? 18 before the event? 19 You mean measure premeasure? 20 Q Yes. 21 A That's okay. Is that what you mean by Perhaps I'm redundant in my question. 22 concept, 23 MR. I think you're bettering your and that's okay. SCHAEFER: Measure twice, cut once. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 67 1 Q Well 2 A That I This is the only one I could remember having seen. 3 4 couldn't remember. Q Let's take a look at Exhibit 17, okay? If you 5 turn to the second page of that exhibit, 6 226 at the bottom. 7 it has that page? You have a couple markings on 8 A Right. 9 Q Could you tell me what those mean? 10 A They don't mean a lot, to be honest. 11 habit I read documents I mark them 12 up in part just to, l3 process things so it's just to delineate or just 14 something like that. 15 and put things on the side and in this case I did 16 all three. 17 Q A 20 21 I ' l l circle, do just to I ' l l underline Did you have any issues or problems with those Not at all. way I Q So I A This was just, literally, just the read things. take it you had no problems with question 1, question 2, 22 23 i t ' s just a way I questions 2 and 3 that you kind of drew around? 18 19 have of when I It's just a question 3, or question 4? That is correct. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 68 1 Q No problem with question 5? 2 A That's correct. 3 Q Okay. question 6 you make some notes. Perhaps you could tell me what they are. 4 5 Now, A Question 6, I believe there's only one note there, and I think -- my guess is you can't read this. 6 7 Q You guessed correctly. 8 A And I actually am surprised that I can read this, but I'm pretty sure what it says is I would 9 10 consider is those three words so I would consider 11 reporting my name, billing address, 12 address and the amount of purchase so those are 13 the three words I wrote there. 14 Q shipping Do you know if that was adopted into the final version of the survey? 15 16 A I'd have to check to see. 17 Q Why don't we do that if we can. 18 A It was not. 19 Q And then you have some notes also with regard to So it remained as reporting my name. question 7. 20 21 A That's correct. 22 Q Perhaps again you can interpret those for us? 23 A Oh, boy. I can get some of this. I'll tell you NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 69 1 what I can get, and I ' l l tell you what I'm having 2 trouble, 3 my handwriting, 4 it's just wording, 5 as substantive, 6 of purchase again under similar circumstances but 7 assuming this new disclosure requirement were in 8 place, 9 then what I can't read is what's on that bubble what -- I actually have trouble reading but what I can guess it says and it's nothing I would consider is if you were to make this type what would you most likely try to do? 10 above the 7 on the right there. 11 I added there, 12 can't infer it either. 13 can't read that. 14 And There's something easier if I had the original but maybe not. and I can't tell what it is, I just don't know. It would be easier, 15 Q A I don't think I could, I it might be I don't have the original. 16 and I I really, I'm pretty good 17 about reading what I write and that one's just, 18 but I can't, 19 having a hard time. 20 like ask but I doubt I would write ask there so I 21 think it's got to be maybe assess, 22 make sense so I don't know what that is. 23 Q I'm not perfect, and that's one I'm I can get the word to. Looks but it doesn't What about the bubble at the bottom? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 70 1 A Bubble at the bottom basically just says try to, 2 attempt to, 3 in that try that I mentioned before in the 4 question. so it was just a restatement of that 5 Q And the next page, 6 A Yes. I think, part C? again, I just put physical, 7 physical store located in Colorado. 8 from a store. 9 I think think that's what that refers to. 10 Q I think in a physical store. I Do you know if those recommendations were or changes were adopted? 11 12 Instead of A I mean, I think there was some editing that went 13 on. 14 specific wording was adopted. 15 was some editing that happened there. 16 Q I don't know whether the, some of the I think the, there But if you compare that to the final survey, can you tell if your edits were adopted? l7 18 A Not those specific edits, 19 Q Okay. I don't believe so. Let's look at moving down to question 8. 20 The circle is just for your, 21 eye? 22 23 A Just, to catch your own and the check mark is also just the way I read things. . NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 ( 6 0 3 ) 2 9 8 - 2 9 8 7 tel ( 6 0 3 )2 1 8 - 6 6 3 3 fax (603 ) 443- 1157 cjfoster71@aol.com cell 71 1 Q result of this law. 2 3 And then on the bottom of the page it says a A Says here, What are those notes? so the question is that statement there 4 is as a result of this law, how would your 5 internet and catalog purchases from out of state 6 retailers who must report your name, 7 amount to the Department of Revenue likely be 8 affected over the coming year. 9 things. address and There's several One is theese and that's just wording. I 10 put question mark there because.as these other 11 comments were all line editing kind of comments, 12 they're just wording suggestions. 13 question I had here was on the right, 14 sorry, 15 seems as if there are some that do not have to 16 report versus given that all of retailers under 17 the law -- and I can't read the rest. 18 just stops there kind of. 19 of. query or note, 20 the word who. And then the the bottom, the bottom left of the page says makes it So it's more of a kind if you will, 21 Q A Yes. about the use of Was that change adopted? 22 I think it 23 Yes. retailers. The those retailers. Yes. Out of state That change was adopted. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 72 1 Q The reason you wanted that change was because it 2 would be inclusive for all out of state retailers 3 because that's who the law affected? 4 state retailers? MR. 5 SCHAEFER: All out of I'm confused by the question. 6 The word they suggested was these and the word I 7 think that he was saying was inserted was those. 8 Not all. 9 A Actually, MR. 10 11 A I think I suggested those. SCHAEFER: Okay. I don't think that's a these, but I'm not positive. 12 13 Q And you do note that -- 14 A I might have said these. 15 Q -- that the question made it seem like some don't 16 have to report or the law requires that all have 17 to report. 18 interpretation of your note at the bottom of the 19 page? 20 A Is that an interpretation, I believe so, but, again, a fair i t ' s hard to remember 21 the context, but it was to add the word those I 22 thought was, at the time I thought would be more 23 accurate or clearer, .. I guess is maybe the way to NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 73 put it. 1 2 Q And then let's go to the last page on that exhibit 3 which is your page of noteS. 4 what they say? 5 A They're going to be hard. Would you tell me Okay. The top part has 6 DMA and NYC for New York City and it looks like it 7 has the name of a Senior Vice President perhaps. 8 Q Did you speak with that individual? 9 A No. And then it says Colorado legislation, 10 revenue department, 11 state and looks like remote sales and March 1. 12 Q Do you know why you wrote those down? 13 A I think there was some description of the case, 14 and I was just writing down words, 15 that description. 16 Q Mr. 18 notes are undated. A from Would that have been on your initial contact with l7 19 I think, Isaacson and Mr. They are undated, Schaefer? Because these That's why I'm asking. and that would be my guess, but 20 I can't say for sure when and I also unfortunately 21 can't say that this was all from one phone 22 conversation. 23 phone conversations because it was in the file. This could have been from multiple NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 7 4 1 Q Taking notes, Colorado legislation, 2 department, 3 nexus and something below that and I can't make 4 that out. 5 A so forth. state revenue Then you have the word Could you tell me what that is? I got nexus, too. 6 to tell. 7 it could be high, 8 but I'm not sure. 9 something. But below it it's really hard So I'm sorry about that. but, you know, It looks like the first word, It could be ruling or You know, R, even though it doesn't 10 look like it, 11 it could be R U Y because a lot of times when 12 you're on a phone conversation you just don't have 13 time to get full words. 14 as many of the letters as you can. 15 Q You're just trying to get Then I see over to the right there it's a little arrow, 16 that second word underneath there, physical presence, employees/facility? 17 A Facilities, 18 Q And below that agents and then an arrow pointing down, 19 I think probably. economic pressure? 20 A Presence. 21 Q Okay. 22 A Tried. 23 Q State tried. Economic presence. State? What does that mean? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 75 1 A I think these are just notes about the background 2 to the case and just talking about different, 3 development of the case through, 4 giving me as general background and I 5 taking notes that related to that. 6 Q They meaning, the that they were I ' l l use your words, just was George and Matt? 7 8 A George and Matt. 9 Q Giving you background about the case and what it 10 Correct. was about? 11 A Descriptive background, 12 Q Could it be that they were describing their theory of the case to you? 13 MR. 14 SCHAEFER: Objection to the form. Go ahead. 15 16 correct. A No. I think this was very much sort of an 17 historical account of what had happened in the 18 development in the case. 19 historical and like a reporter kind of descriptive 20 account. 21 Q recall it was very Over on the right it says Tom Adler, RSG, something below that? 22 23 As I A Unbiased sample from and what I can't read is, it NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 76 1 may, 2 Colorado. 3 right. 4 was going to be a survey that was going to be 5 conducted, 6 Q from Colorado. That's CO, Probably should be of I think, in the bottom So unbiased sample from Colorado. That I guess. So you were told by George and Matt that Tom Adler 7 from RSG was going to conduct an unbiased survey 8 from Colorado? 9 A All I know is, I don't know when I was told this 10 because I don't know when I wrote this, but it is 11 just the fact that Tom Adler RSG and I've got 12 something about an unbiased sample from Colorado. 13 Q And you knew Mr. Adler before this? 14 A I don't think we actually ever met in person, but I 15 16 Q know of him. Then you have a line, it appears, and below that are more notes? 17 Right. 18 A Right. 19 Q Can you tell me what those notes are? 20 A Looks like it says talks about noncollecting retailer. 21 22 23 Q And the one next to that looks like, is it collecting retailer? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 77 That's correct. In parentheses, 1 A Yes. 2 Q yes. And over on the right the preliminary injunction/damages, what does that mean? 3 4 A Again, that's part of the chronicle I believe I 5 got about the, 6 time about the nature of the case. 7 Q whether initially or subsequent And the terms noncollecting retailer and 8 collecting retailer were given to you by George 9 and Matt? 10 A Yes. 11 Q There's, it looks like a little chain on the 12 right-hand side. 13 I'm sorry. On the left-hand side. 14 A A list or -- 15 Q Looks like there's, MR. 16 SCHAEFER: on the far left, a chain? Do you want to indicate it to him? l7 18 Q With an arrow? 19 A Oh, yes. There's a name, there are two names 20 circled that go down, and one, there's an arrow 21 that goes down that says the word survey. 22 Q What are those names? 23 A Those were names of two other academics who also NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 78 1 serve as experts so I 2 in the context of thinking about other experts 3 that they may want to use. 4 Q Who are they? 5 A Eric Joachimsthaler. suspect I wrote those down Can you give me their names? It's a German name so it's a 6 little hard. 7 o A CHI M S T HAL E R. Actually was with him yesterday. 8 Q And the other one below that? 9 A That's actually hard, J too. Dhruv, 10 I believe the last name is Grewal. 11 name. 12 Q D H R U V, and It's an Indian G R E W A L. And you 8uggested them as experts to George and 13 Matt or you just wrote them down as possible 14 people to talk to? 15 A I think, I'm not sure exactly the context. 16 are ones who have, 17 and retailing and certainly the facts of the case. 18 Q 19 I They know are experts on consumers You didn't consult with them regarding your expert opinion, did you? 20 A I did not. 21 Q And you didn't refer them any work on this case, take it? 22 23 I A I don't believe so. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 79 1 Q Next is much of consumer privacy or something like that? 2 3 A It looks like invasion of consumer privacy. 4 Q And whose words are those? Yours or George and Matt's? 5 6 A Could be mine. 7 Q Could be. 8 A Well, Could be George and Matt's then? I don't know at that point in time where we are in terms of these notes. 9 That's part of the 10 problem. As we go farther down, they may be, 11 it's harder to say exactly where they come from. 12 Q Okay. And then there's a list of three things. 13 A Correct. 14 Q And are those notes you got from the statute or 15 are those notes that you got from your 16 conversation with George and Matt? 17 A My guess is the conversation with George and Matt. 18 But whether I had the statute or read the statute 19 and I don't know where that fits into the picture. 20 Q 23 under preliminary injunction/damages, 21 22 Over on the right, A threatened irreparable harm? Threat of or threat of irreparable harm or something like that. Yes. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon! New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 80 1 Q And the reason that's down there, is it because 2 that's what Matt and George wanted you to focus 3 on, 4 retailers? 5 A that there would be irreparable harm to I don't know the exact context of that. My belief 6 it would be there's discussions about different 7 legal aspects and the implications and, 8 background context to the case. 9 Q With regard to that exhibit, again, the survey 10 questionnaire, did you provide a copy of that to 11 anybody with your notes on it? 12 A Not, I don't believe so. 13 Q Did you discuss your editorial comments with anybody? 14 15 A I did. 16 Q And who would that be? 17 A I believe it would be someone from RSG and could 18 have also included, but I don't remember if it 19 did, 20 George from Brann & Isaacson. I'm not sure it did, anyone from, 21 Q Was that a telephone conference? 22 A Yes. 23 Q Matt or Do you remember the person at RSG? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (6 0 3 ) 2 98 - 2 9 8 7 tel ( 60 3 ) 2 1 8 - 6 63 3 fax (6 0 3 ) 4 4 3 - 11 5 7 cjfoster71@aol.com cell 81 1 A I believe it might have been someone from Chicago, from their Chicago office. 2 3 Q Does the name Nelson Whipple ring a bell? 4 A It's an unusual name. sure, 5 So I mean I would, I'm not sure if that's the person. sure. I'm not I'm not Sorry. 7 (Off-the-record discussion) 8 EXHIBIT 23 MARKED FOR IDENTIFICATION 9 Q I give you what's been marked as Exhibit 23 and it 10 looks like i t ' s a copy of an e-mail chain dated 11 the 30th of June of this year, 12 a copy of the Complaint that was filed by Messrs. 13 Isaacson and Schaefer in Federal Court in Denver. 14 So would that be the date, 15 you received a copy of the Complaint that you've 16 already testified about that you received? and i t ' s attaching the 30th of June, 17 A That would be consistent with that, 18 Q Okay. that yes. It says there's a three-page summary of the 19 Complaint that was distributed to the DMA Steering 20 Committee and the DMA Press Release. 21 those? 22 A I believe so. 23 Q Did you keep I believe they would be in my file. Those were not NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 82 ยท1 MR. .. SCHAEFER: 2 the press release. 3 MR. WESOKY: 4 MR. SCHAEFER: For the record, I I we produced know that's -- think I've seen that. The summary of complaint, 5 unlike material that might have been otherwise 6 work product which we have not withheld, 7 withheld nothing on work product grounds, 8 an attorney/client communication. 9 being because frankly I we that is So for the time don't think i t ' s a summary 10 of a complaint that he received, 11 i t ' s withheld on the grounds that i t ' s an 12 attorney/client communication. MR. 13 We'll cross that bridge when we get to it. 14 15 WESOKY: so for the moment Q But if you retained it, I 16 it would be in your files, assume? 17 A That's correct. 18 Q Did you read it or just read the Complaint? 19 A I believe I read everything that was probably sent to me. 20 21 Q Do you remember what it said? 22 A I 23 Q This is to test your memory. don't remember specifically what it said. How much time if you NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 83 1 can recall did you spend reading the Complaint 2 that was sent to you? 3 A How many times did I -- 4 Q How much time did you spend reading it? 5 A I think the copy of the complaint, 6 about it, 7 30, 8 Q but my guess is that's on the order of 40 minutes maybe. Did you read it once, twice, three times? (Off-the-record discussion) 9 10 I have to think A I believe it would be, it certainly would have 11 been mUltiple times since that first time. 12 Correct. 13 Q all the times that you read the Complaint? 14 15 So the 30 to 40 minutes would be the first time or A The 30 or 40 minutes would probably be the initial 16 time. 17 nearly as long to go through. 18 Q I think subsequent times would not take And from your earlier testimony, I take it you 19 made no notes on your copy of the Complaint or no 20 separate notes about the Complaint? 21 22 23 A I'm almost certain that's the case but I'm not, you know, I'm almost certain that's the case. EXHIBIT 24 MARKED FOR IDENTIFICATION NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 84 I hand you, MR. 2 Exhibi t 24, and it's an e-mail from Mr. 3 to you, and it states that we, meaning his firm, 4 anticipates having a draft for your review of the 5 Affidavit in support of preliminary injunction. 6 Do you remember receiving this e-mail, 1 Q SCHAEFER, what's been marked Exhibit 24? 7 A I mean, 8 Q So I take it from the content of this e-mail that yes. you didn't draft the Affidavit. 9 It was drafted for you by Brann & Isaacson? 10 11 generally so, Isaacson A The first draft was drafted based on our 12 conversations and my input that I then got a l3 chance to review. 14 Q And you say your input. I assume that was in phone conversations? 15 16 A Correct. 17 Q How long would you guess or guess is a bad word. 18 Would you estimate that you spent on phone 19 conversations with either Mr. 20 Mr. 21 your Affidavit or Declaration? 22 23 Isaacson or Schaefer or both in discussing the contents of MR. SCHAEFER: Objection to the form but go ahead. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 85 1 A It's hard to say. My guess is we easily would 2 have spent an hour or two, 3 through this material. 4 Q And again, I think, having gone from your earlier testimony, you made 5 no notes as to what you wanted in your Declaration 6 or Affidavit and you made no notes as to what 7 either Mr. 8 what would be in that Declaration or Affidavit, 9 correct? 10 A Schaefer said regarding That's correct. EXHIBIT 25 MARKED FOR IDENTIFICATION 11 12 Isaacson or Mr. Q Let me hand you what's marked as Exhibit 25, and 13 that is an e-mail to you from Mr. Schaefer dated 14 July 30 in which he references attaching a draft 15 of a Declaration for use in this case, 16 attaches a draft of Mr. Adler's Declaration and 17 the RSG's report of the survey. 18 was the first time then, 19 Did I state that correctly what Exhibit 25 states? first, and it also I take it this let me ask you. Yes. 20 A I believe so in terms of that e-mail. 21 Q Then I take it this was the first time you saw a draft of your Declaration to be used in this case? 22 23 A I believe that's true. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanun, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 8 6 1 Q From your memory, differed from your final 2 3 Okay. A I can you tell me how that Declaration, if at all? know there were comments that were made and 4 discussion that occurred, 5 state exactly how the two versions differed. can't specifically EXHIBIT 26 MARKED FOR IDENTIFICATION 6 7 but I Q I hand you what's been marked Exhibit 26. And I 8 will represent to you that it is a document I 9 received from Mr. Schaefer from your file, I can 10 tell because i t ' s marked KLK at the bottom and 11 this is a draft of the Declaration because on page 12 6 there's in bold, Kevin, let's discuss. 13 A Yes. 14 Q So this Exhibit 26 is a draft of your Declaration. 15 A Correct. 16 Q Do you know if this was the draft that came with Exhibit 25 or if that was a different draft? 17 18 A I can't say for sure. 19 to 20 was or not. 21 Q mean I know what an attachment was, can't, i t ' s hard whether or not it I'm sorry. Let me call your attention to page 3. There is a blank in paragraph 4? 22 23 I A Yes. I see that. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 94 Brann & Isaacson. 1 2 Q But purchasing information is not exactly correct. 3 It's name, 4 address, correct? 5 A Well, 6 Q In paragraph 7, and amount of purchases, that's another way to state that. you state in the second sentence 7 about the amount of lost sales. 8 Depends on a number of factors. 9 A Right. 10 Q What are those number of factors? 11 A Well, I think it would depend on the consumer, 12 it's going to depend on the company, 13 depend on the marketing and, 14 should say, 15 depend on the marketing environment. 16 to depend on the, 17 consumer, 18 different factors. 19 Q 21 A It's going the it's just going to depend on a number of need for a won't it? It will depend on consumer choices and, needs and choices. 22 23 It's going to the loyalty, It will depend on the consumers' product, 20 or the retailer I to be more specific. you know, it's going to Q It will also depend on the, I suppose, on the NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 95 1 navigability of the web site, 2 likes the web site and finds it consumer friendly? 3 A if the consumer It will depend on a lot of the relationship 4 between the consumer and the retailer as a 5 function of all those kinds of those factors. 6 Q But today you can't tell me which, I mean let me It's my understanding that you 7 back up a step. 8 didn't draft up things you wanted included in the 9 Declaration and send it to Messrs. Isaacson? 10 11 Schaefer and A No. The first draft was based on my input based on our discussions on my analysis of the case. 12 13 Q Including your analysis of the survey results? 14 A Including my analysis of the survey results. EXHIBIT 29 MARKED FOR IDENTIFICATION 15 16 Q Let me show you what's been Let me move on. 17 marked an Exhibit 29, 18 left off the back page where it was copied. 19 apologize, 20 copied. 21 Matt. and it's KLK page 274 and I I The last pages did not get This is an e-mail chain between yourself and 22 the Brann & Isaacson firm regarding your 23 Declaration. It's dated August 6th. Is that NORTH COUNTRY COURT REPORTERS 40 West (603)298-2987 South Lebanon, tel Main New Street Hampshire (603)218-6633 fax cjfoster71@aol.com 03784 (603)443-1157 cell 96 correct? 1 2 A Yes. 3 Q For August 6th it's the final in the chain? 4 A Yes. 5 Q And you responded to the August 3rd e-mail which That's what I was trying to -- okay. we looked at a moment ago, 6 MR. 7 SCHAEFER: 8 3rd? 9 think, I believe 28? is it dated August the survey link. 10 Q Okay. I'm sorry. MR. 11 12 13 It's not 28. 28 I exhibit, SCHAEFER: Because 28 was the one about 27? Might be as far back as 25 because 27 was also about the link. Q In any event, let's move on. Thank you. The 14 first in that chain was an e-mail of August 3rd to 15 you attaching the draft of the Declaration. 16 you responded with some suggested revisions. 17 A Urn-hum. 18 Q Is that correct? 19 A And That's correct. 20 MR. SCHAEFER: Jack, for purposes of clarity 21 this thing is set up a little funny. 22 3rd e-mail you see was from Kevin so he's 23 capturing some language from another e-mail. The August He's NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 97 1 writing from August 3rd. 2 Do you see that in the middle of the page? 3 Q Right. And he is responding to the e-mail. 4 A We don't know the original date of the, although maybe we do actually. 5 6 Q Thank you very much. 7 A Exactly. It's July 30th. And then I'm August 3rd. And then Matt's August 6th. 8 9 Q And August 6 is the response. 10 A It's the weird -- Dartmouth e-mail system is 11 really goofy that way because it goes to the 12 bottom and it just throws people off. 13 Q Thank you. 14 A Yes. 15 Q But you're responding to the e-mail where the 16 draft of your Declaration was attached. 17 responded with some suggestions. You Is that correct? 18 A That's correct. 19 Q And then you got a reply which talked about your suggestions to the draft; 20 is that correct? 21 A That's correct. 22 Q And you state in your response to the July 30 23 e-mail, be sure Adler report aligns. What do you NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 98 . mean by that? 1 2 A Well, there was a passage that talked about the 3 survey questionnaire and its development, 4 Adler talked about the input that he got and it 5 was my recollection that that was something that 6 I'd also provided input on and I clear that that was the case. just wanted to be That that had 8 happened, 9 consistent about that if that was in fact what had 10 11 one, and and that the two reports were happened. Q And then the reply to that was to reject that 12 because you were reviewer of the survey whereas 13 Tom Adler was the draftsman? MR. 14 15 A SCHAEFER: Objection. I think the way I'd characterize it was they 16 wanted, 17 how they wanted to handle that issue in terms of 18 draftsmen and reviewers. 19 language and how to best kind of present that. 20 EXHIBIT 30 MARKED FOR IDENTIFICATION 21 Q So it was more of the Let me hand you what's been marked an Exhibit 30 and at the top it's dated August 9th. 22 23 the response basically just pointed out A Hope your weekend went well. Okay. Sorry. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 99 1 Q In appears to be your res'ponse to the e'-mail we 2 just talked about where they sent you a revised 3 Declaration? 4 A Yes. 5 Q And you talk about followup conversation? Did that occur? 6 7 A I believe so. 8 Q Do you remember when that occurred? 9 A I don't know specifically. 10 Q Do you remember what was discussed? 11 A I suspect, think this was all as part of the 12 review and just making sure that in terms of the 13 report that it had been, EXHIBIT 31 MARKED FOR IDENTIFICATION 14 15 was finalized. Q Exhibit 31 is an e-mail to you dated August 10 16 from Mr. Schaefer attaching the final version of 17 your Declaration with the minor edits we 18 discussed. 19 were? Do you remember what those minor edits 20 A I don't right now. 21 Q And I I'm sorry. attach the final version of the RSG final 22 documents and Tom Adler's Declaration referenced 23 in your report. So I take it that's when you NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 100 received the August 9th version of the survey? 1 2 A It would seem if this e-mail was August 10th that 3 he, 4 received that. 5 Q I would think that's when I would have And do you also receive Mr. Adler's Declaration at that time? 6 7 A I believe that the e-mail seems to indicate that. 8 Q From my recollection, of his Declaration before this time? 9 10 11 you had not received a copy MR. A Again, SCHAEFER: Objection. the time line is hard to remember as to 12 when I got something. 13 versions and so I can't be specific about that in 14 particular. EXHIBIT 32 MARKED FOR IDENTIFICATION 15 16 It refers to the final Q I hand you what's been marked as Exhibit 32. 17 an e-mail from Mr. 18 It's Schaefer to you dated September 10th. 19 A Correct. 20 Q And it discusses certain requirements for this lawsuit. 21 22 A That seems to be correct. 23 Q Is that the first time that you became aware of NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 101 1 what the requirements were with respect to your 2 expert opinion in this case? 3 A I can't say exactly what I learned when. I'm sure 4 there were conversations early on about my role in 5 the case as an expert witness and what would be 6 expected and required from me. 7 Q Let me amend that by saying the requirements which 8 are mandated by the rules as opposed to what they 9 expected in your opinion. Isaacson. 10 MR. 11 SCHAEFER: And the question with regard to those? 12 13 MR. WESOKY: 14 MR. qu~stion MR. WESOCKY: 16 one. 17 Q I don't think that was s6 I just wanted to make sure. Well, I was modifying the last I will start again. MR. 18 Pardon me? SCHAEFER: actually a 15 19 They meaning Brann SCHAEFER: Okay. Is the e-mail of September 10th, Exhibit 32, the 20 first time that you received information from 21 Brann & Isaacson regarding what the legal 22 requirements were for your expert opinion? 23 say legal requirements, When I those required by the NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 102 rules? l 2 A It may be the first time I got e-mail and that I 3 can't be sure of, 4 discussions that would have reviewed this early on 5 or any point in that process. 6 sure right now. 7 Q but there may have been phone I can't say for Do you remember what you did when you read this? 8 When I 9 I don't mean you went and had lunch. 10 11 say did, I mean with respect to this case? I mean what you did with respect to your opinion in this case? A I don't know. I would have thought I would have 12 replied back to this e-mail one way or another at 13 some point in time. 14 e-mail, 15 the week, 16 into the weekend. l7 exactly when I Friday afternoon Matt Schaefer working late into so actually I don't know. To be honest, It was going I'm not sure read and replied back to this. EXHIBIT 33 MARKED FOR IDENTIFICATION 18 19 4 p.m., This is a Q I hand you what's been marked as Exhibit 33. It's 20 identified at KLK 294 and ask if that is an e-mail 21 chain reflecting a setting up of a telephone call 22 to discuss Exhibit 32. 23 A I believe so. I mean the timing is, it's the NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 103 1 2 So my guess is that's Tuesday after that weekend. what that was referring to. Did you have that phone conversation? 3 Q Okay. 4 A I believe so. It's only like a month ago. Seems like a long time ago. 5 6 Q Do you remember anything about it? 7 A I remember, I just remember again going, 8 the process and what was involved in the 9 Declaration, reviewing I believe, and it was going through So I think pretty much went through the 10 it. 11 e-mail as I 12 specifics. 13 Q but I don't remember all the Okay. EXHIBIT 34 MARKED FOR IDENTIFICATION 14 15 recall, Q Let me hand you what's been marked as Exhibit 34. 16 This is an e-mail from Mr. 17 the 15th of September of this year. 18 receiving this? Yes, Schaefer to you dated Do you recall I believe so. 19 A I think. 20 Q And you remember discussing it with Mr. Schaefer at a subsequent phone conversation? 21 22 A I believe so. 23 Q Do you remember what you discussed? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 104 1 A I believe this was just talking about the, in 2 terms of principles and methods it was just sort 3 of the, 4 will, 5 approach that were involved in coming, 6 at my Expert Report, 7 I think we discussed those. 8 Q if you that I would use in analysis kind of written report, in arriving and that was What did you tell him about the principles, methods and so forth that you just referenced in 9 that e-mail? 10 11 what was the sort of methodology, A I can't remember specifically the whole, that whole conversation on that. 12 13 Q And do you remember generally? 14 A I think, generally, I think would have talked 15 about, 16 experiences and knowledge that I've gained on 17 consumer behavior and consumer privacy and 18 retailing and loyalty relationships in my academic 19 work and consulting work, 20 that, but I don't remember all the specifics. And I take it from your past testimony and your 21 Q I think we talked some about sort of 22 habit, 23 and we talked about you didn't make any notes of this conversation? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 107 1 deposition and every second of your preparation 2 time. 3 you? 4 A You're not going to give me a gift, are Well 5 MR. SCHAEFER: If you had a phone call, you 6 might get one. 7 There will be a transcript that tells us when we 8 started and when we finished. This one is too easy to know. 9 A Very well defined. 10 Q Okay. EXHIBIT 35 MARKED FOR IDENTIFICATION 11 12 Let me hand you the next exhibit in order. Q MR. SCHAEFER Keller, I handed you what's been 13 marked Exhibit 35. It's an e-mail, 14 is September the 19th, 15 an e-mail from Mr. 16 response. 17 response is at the bottom? 2010. the top date And it appears, Schaefer to you and then a Using the Dartmouth e-mail system, 18 A Q NOW, the That's correct. 19 it's this e-mail attaches a draft of your Expert Is that the first time you saw a draft of 20 Report. 21 your Expert Report, 22 Declaration? 23 A I believe so. differentiating it from your But again, I can't be certain of NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 108 all the different correspondence. 1 2 Q Okay. EXHIBIT 36 MARKED FOR IDENTIFICATION 3 4 Q Let me hand you what's marked as Exhibit 36, 5 that's a draft of your Expert Report in this 6 matter, and is it not? 7 A Yes, it is. 8 Q And if you'd look at the last page there's a blank, 9 to date my fees in this matter are blank. 10 A Correct. 11 Q And the final version didn't have that in it. Did it? 12 13 A I'd have to check the final version. 14 Q Assume with me it didn't. Would that be because you hadn't totaled up fees as of that date? 15 16 A Haven't invoiced yet. 17 Q So you don't know as you sit here today what your fees to date are? 18 19 A I know -- 20 MR. 21 earlier, SCHAEFER: Well, asked and answered but go ahead. 22 A I know roughly what those are. 23 Q But as of September 19th, 20th, you didn't know NORTH COUNTRY COURT REPORTERS 40 West (603)298-2987 South Lebanon, tel Main New Street Hampshire (603)218-6633 fax cjfoster71@aol.com 03784 (603)443-1157 cell 109 what they were? 1 2 A hadn't invoiced it so I hadn't done any calculations. 3 4 I Q EXHIBIT 37 MARKED FOR IDENTIFICATION 5 6 That's fair enough. Okay. Q I think i t ' s the final version of your Expert I want you to read that Is that correct? 7 Report. 8 and be sure that it is. 9 A I 10 Q Now, Looks like the final report. believe so. again, those words were provided to you by 11 Messrs. Schaefer and Isaacson after talking to you 12 on the phone, is that the way that worked? 13 A That's correct. 14 Q And again, you didn't draft anything up to send to They provided you with the document after 15 them? 16 discussion? Based on my input. 17 A Yes. 18 Q Correct. Let's take a short break. RECESS TAKEN 19 20 Q In your Declaration, Exhibit 16, take a look at paragraph 2, 21 22 A Q You say in the first Let's please. Yes. 23 I believe? sentence that much of your NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@ao1.com cell 118 drafted Dr. Adler's Declaration? 1 2 A I don't know anything about the Adler report. 3 Q You state on paragraph 5, the bottom of page 3, 4 top of page 4, 5 well designed and well executed. 6 the well designed first. 7 opinion? 8 A that you believe the survey was Let's talk about On what do you base that Based it on my experience designing and evaluating and interpreting surveys for 30 years now, 9 10 guess, 11 I survey based on that experience. 12 Q in particular, if I could find out, what makes it well designed? 13 14 What, since 1980 and then my analysis of this A There's some things that go into a survey in terms 15 of questions and wording and orders and order of 16 questions and so it really is something, 17 said, 18 survey, 19 and how they were phrased and how they were 20 ordered and everything I 21 Q As I like I've I've done for 30 years so in looking at the I in my belief in terms of the questions felt was well designed. understand it from the survey, 22 really four, 23 there are call them focal questions, is that right? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 119 1 A I think that's fair to say. 2 Q Look at page 18, 3 A That's correct. 4 Q There are two questions on 18, 20 and, 19, yes. 18, 19 and 20. one each on 19 and 20? 5 6 A That's correct. 7 Q And that's really the meat and potatoes of the 8 9 That's where the rubber meets the road, survey? right? That's right. 10 A Right. 11 Q And those focal questions, designed? 12 13 why are they well A I thought they were appropriate in terms of 14 providing clear and balanced set of questions to 15 get at this issue of how consumers would respond 16 to this law so I 17 collectively provided insight into that. 18 Q thought all four of them But were they fair and balanced? MR. 19 SCHAEFER: Fox news reference. 20 A Was that a Fox news reference? 21 Q I'm adding a little levity to our discussion here. 22 A I 23 don't watch much Fox news. I only watch sports on TV. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 120 (Off-the-record discussion) 1 2 Q Describe for me why you say it was well executed. 3 A Well, the execution came on my understanding based 4 on the report as to the procedures and the methods 5 and the approach that they took, 6 knowledge of, 7 Networks and my experiences with them through the 8 years. 9 Q of Knowledge When did you learn that Knowledge Networks was involved in the execution or taking of the survey? 10 11 as it turns out, and then also my A I'm not sure when. RSG chose them and so it would 12 have been after the fact. 13 some point in that process when we were told, 14 I was told that here's who's actually conducting 15 the survey. 16 Q It's just it was at when Was that before or after you signed your 17 Declaration? 18 MR. 19 A SCHAEFER: I would have, Objection. my understanding would be that or my 20 belief would be that I would have learned that 21 before that along the way as part of the process. 22 The methodological process. 23 Q Did you learn that in discussion with Dr. Adler? NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 121 1 A No. I'm not sure who I would have learned it 2 from, 3 it was from RSG. 4 because I think, 5 else from RSG potentially, 6 sure. 7 Q whether it was from the law firm or whether And again, I don't believe it was Adler again, I think I spoke to someone but I don't know for you have no notes that would reflect that? 8 9 A Not on that. No. 10 Q If you were conducting the survey for the purpose 11 of seeing the influence of this Colorado law on 12 consumers, 13 differently? would you have done anything 14 A I don't think so. 15 Q So as far as you're concerned, survey? 16 17 this is a perfect A It's hard to call it a perfect survey because you 18 always, there's, I think it's hard for any survey 19 to be perfect. 20 think about having done differently and hard to 21 know whether or not they would have been better or 22 not, 23 was a balanced and fair survey. There's always things you can but based on what I did know I felt like it NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@ao1.com cell 12 9 1 B, the final results so i t ' s a complete copy of 2 that original Declaration. 3 marked. I don't have another copy. EXHIBIT 38 MARKED FOR IDENTIFICATION 4 5 Unfortunately, If you can have it Q I'm showing you what has been marked as Exhibit 38 6 which I just described which I ' l l represent is a 7 copy of your final 8 together with the two documents that were attached 9 as Exhibits A and B respectively. Declaration dated August 10th, Exhibit A is a 10 copy of your CV dated July 21st, 11 B is a copy of the Final Results document dated 12 August 9th, 13 just confirm that's what Exhibit 38 is? 2010. 2010, Can you take a and Exhibit look at that and 14 A That seems to be what it is. 15 Q And then just for the sake of the record so that Exhibit 37, the 16 we can tie these together. 17 immediately proceeding exhibit, 18 final Expert Report dated September 20th. 19 see that? is a copy of your Do you do. 20 A I 21 Q And on page 2 of your Expert Report, Exhibit 37, 22 it indicates that your Declaration dated August 23 10, 2010 is attached to and expressly incorporated NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 t e l (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell 130 in the report. 1 Do you see that? 2 A I do. 3 Q So Exhibits 37 and 38 together comprise your Expert Report in this matter? 4 5 A I think so. 6 Q Can you with reference to Exhibit A to the Yes. 7 Declaration if you like or otherwise, 8 us a brief summary of your professional 9 background? 10 A Been in marketing for 31 years or so, I guess, 30 11 years, 12 and have worked at Bank of America in marketing 13 research for two years and have been an academic 14 since graduating with my Ph.D. 15 have published and written and taught on consumer 16 marketing those last 25 years. 17 Q 19 A Q for 25 years. I didn't hear a word in there. And In Is that what you said? I'm not sure. Where have you been employed since leaving the private sector? 22 23 in marketing (Requested portion read back by reporter) 20 21 I'm sorry. part. 18 and have an MBA and a Ph.D. can you give A So my, the institutions where I've been on the NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster71@aol.com cell