Direct Marketing Association, The v. Huber

Filing 68

DESIGNATION OF DEPOSITION TESTIMONY Excerpts From the Transcript of the Deposition of Thomas J. Adler and accompanying deposition exhibits by Plaintiff Direct Marketing Association, The. (Attachments: # 1 Exhibit Dep. Ex. 21, # 2 Exhibit Dep. Ex. 39, # 3 Exhibit Dep. Ex. 42, # 4 Exhibit Dep. Ex. 44, # 5 Exhibit Dep. Ex. 47, # 6 Exhibit Dep. Ex. 48, # 7 Exhibit Dep. Ex. 49, # 8 Exhibit Dep. Ex. 52, # 9 Exhibit Dep. Ex. 53, # 10 Exhibit Dep. Ex. 54, # 11 Exhibit Dep. Ex. 55, # 12 Exhibit Dep. Ex. 56, # 13 Exhibit Dep. Ex. 57, # 14 Exhibit Dep. Ex. 58, # 15 Exhibit Dep. Ex. 60, # 16 Exhibit Dep. Ex. 61, # 17 Exhibit Dep. Ex. 62, # 18 Exhibit Dep. Ex. 63, # 19 Exhibit Dep. Ex. 65, # 20 Exhibit Dep. Ex. 66, # 21 Exhibit Dep. Ex. 67, # 22 Exhibit Dep. Ex. 68, # 23 Exhibit Dep. Ex. 69, # 24 Exhibit Dep. Ex. 70, # 25 Exhibit Dep. Ex. 72, # 26 Exhibit Dep. Ex. 74, # 27 Exhibit Dep. Ex. 76, # 28 Exhibit Dep. Ex. 79, # 29 Exhibit Dep. Ex. 80, # 30 Exhibit Dep. Ex. 82, # 31 Exhibit Dep. Ex. 86, # 32 Exhibit Dep. Ex. 87, # 33 Exhibit Dep. Ex. 88, # 34 Exhibit Dep. Ex. 90, # 35 Exhibit Dep. Ex. 92, # 36 Exhibit Dep. Ex. 93)(Schaefer, Matthew)

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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, in her capacity as Executive Director, Colorado Department of Revenue, Defendant. 11 12 13 14 DEPOSITION OF THOMAS J. ADLER, Ph.D. taken at Norwich, Vermont, on October 22, 2010. 15 16 17 18 19 APPEARANCES: Matthew P. Schaefer, Esquire Brann & Isaacson ยท184 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 l 6 ourselves, 1 2 Q Okay. yes. After you undertook the project, survey questions drafted, 3 there were is that correct? 4 A Yes. 5 Q And who did the initial draft of the survey questions? 6 7 A Well, EXHIBIT 42 MARKED FOR IDENTIFICATION 8 9 I did the draft of our survey questions. Q I show you what's been marked as Exhibit 42, 10 i t ' s an e-mail to you from Mr. 11 11th of May of this year. 12 and that I'm correct with that identification. And just to make sure Yes. 13 A It was May 11th, 14 Q And at the bottom it says RSG 696? 15 A Yes. 16 Q And that e-mail, Whipple, 2010. Schaefer dated the Mr. Schaefer says to you and 17 Mr. I attach two versions of survey 18 questions we offer for your consideration. 19 A Yes. 20 Q Was that the first time you got any survey questions related to this case? 21 22 23 A That was the first time we received anything from Mr. Schaefer with questions suggested. 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 17 l Q of the survey questions from Mr. 2 3 And had you drafted any questions before receipt A Schaefer? I don't recall whether we had begun drafting. 4 Nelson and I, 5 about it, 6 on paper yet. 7 MR. I believe, had talked over the phone but I'm not sure that we'd put anything WESOKY: Again, my apologies, Matt. Some 8 of these didn't get copied as I have asked so I 9 only have one copy. 10 MR. 11 Okay. I ' l l be looking on with the witness. EXHIBIT 43 MARKED FOR IDENTIFICATION 12 13 SCHAEFER: Q Let me show you Exhibit 43 which shows Possible Survey Questions, Version 14 DMA/Colorado: 15 1 for Discussion, 16 of the versions of the draft survey questions you 17 received from Mr. 18 A Is that one Schaefer along with the e-mail? Yes. EXHIBIT 44 MARKED FOR IDENTIFICATION 19 20 document RSG 676. Q I show you what's marked as Exhibit 44 called Possible Survey Questions, 21 DMA/Colorado: 22 2 for Discussion. 23 the questions you received from Mr. Version Is that the second version of Schaefer in 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 18 1 connection with the e-mail we 2 A Yes. 3 Q Now, just discussed? my question is had you, you meaning RSG, not 4 you personally, 5 before receiving documents 43 and 44 related to 6 the Colorado survey that you eventually did? 7 A I drafted any survey questions don't recall whether we had anything on paper at We had certainly discussed over the 8 that time. 9 phone with Mr. Schaefer the form of the 10 questionnaire and the kinds of questions we might 11 ask. 12 Q those conversations? 13 14 Did you provide him any specific questions during A I don't recall whether we provided specific 15 questions during those conversations. 16 certainly did at the later date. 17 Q We Would your notes reflect whether you provided 18 specific questions to Mr. 19 of Exhibits 43 and 44? 20 A Probably not. Schaefer before receipt If you're referring to the phone 21 notes, 22 side of the conversation rather than my side. 23 probably not. That's usually the other EXHIBIT 45 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 23 1 Q Takes surveys of various kinds; users of products, 2 whatever, of consumers, right? 3 A Yes. 4 Q I take it then it's your habit to receive draft 5 questions from your clients to use in your 6 surveys, 7 A is that correct? It's not necessarily our habit. In some cases, we 8 draft with little more than a sentence or two from 9 our client about what their objectives are. In 10 some cases, we have clients who provide what I 11 would consider to be close to a complete draft of 12 a full questionnaire. EXHIBIT 48 MARKED FOR IDENTIFICATION 13 14 Q I show you what's marked as Exhibit 48 for 15 identification. It's an e-mail chain. 16 date is 17th of May, 17 The top bottom. and it's RSG 749 at the 18 A Yes. 19 Q And the middle e-mail there is yours to 20 Mr. Whipple saying that you were going to develop 21 a first questionnaire that you'll send out for 22 review, 23 A is that correct? 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 24 1 Q 2 3 Did you develop a first questionnaire and send i t out for review later that morning? A I couldn't say that I 4 morning, 5 sent it out later that but I definitely developed that first draft. 6 Q And that first draft is not Exhibits 43 or 44? 7 A No. EXHIBIT 49 MARKED FOR IDENTIFICATION 8 9 Q I show you what's marked as Exhibit 49. 10 called DMA/Colorado: 11 3 RSG for 12 starting with page 612 and ending with 616. 13 this document the draft you referred to in the 14 prior exhibit? 15 A DRAFT Questionnaire, It's Version Discussion bearing numbers at the bottom I believe so. The only question, I Is don't recall 16 whether those comments were embedded at the time 17 that I 18 have been. initially transmitted this. I'd have to read more in detail. 19 Q Those comments are TGA. 20 A That is. 21 Q For this Version 3, I assume that is you? Yes. did you use any material from Exhibits 43 and 44 which are the drafts 1 and 2? 22 23 They may well A I'd have to check, but I believe I did copy 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 25 1 paste the descriptions of the law and some other 2 pieces. 3 Q you. 4 5 You can look at 43 and 44 and maybe that will help A So it appears that question 10, the elements of 6 it, the description of the law I believe I 7 out of Version, 8 copied out of the pieces, 9 copied out of these two versions. well, Thank you. it's not exact, copied but it's pieces of the text are Who is Karyn? 10 Q Okay. 11 A Karyn Dossinger is a senior associate in our Chicago office. 12 13 Q Where Mr. Whipple is? 14 A That's correct. 15 Q Did she work on this project at all? 16 A I believe that she was involved in some way. 17 She's under the direction of Mr. 18 not sure what the full extent of her role was. 19 Q Would Mr. Whipple, and I'm Whipple know what the extent of her role was? 20 21 A Yes. 22 Q But whatever role she had, 23 he never shared that with 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 30 1 A Sorry. 2 MR. WESOKY: 3 MR. SCHAEFER: In fact, I intended to take it out as unrelated. 4 EXHIBIT 51 MARKED FOR IDENTIFICATION 5 6 I'm glad. Q I show you Exhibit number 51. It's an e-mail 7 chain dated the 18th of May from you to 8 Mr. 9 designated by numbers RSG 750 and 751. 10 A This is 778, Q Yes. Could be the same document. So at least for the one that's been marked for the record is 778 and 779. 14 15 It's They're actually the same. MR. SCHAEFER: 13 Schaefer to you. 779. MR. SCHAEFER: 11 12 Schaefer and Mr. Q And I have another copy with a different number so 16 that's why. 17 Referring to the middle e-mail in that chain? 18 A Yes. 19 Q It says attached is a first draft of the 20 questionnaire that I built around the core 21 questions that you sent last week? 22 A Yes. 23 Q That refers to the questions in number Exhibits 43 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 and 44? 1 2 A Yes. 3 Q And is that first draft the Version 3 that you had? 4 5 A I believe it would be Version 1. Sorry. It would 6 be, there would be a Version 1. 7 3. And I'm not sure what happened to Version 1, 8 but 9 Q 10 11 This is Version I will represent to you that the Version 1 and Version 2 that I have are Exhibits 43 and 44. A All right. Okay. So this is, I didn't recall that I so Version 3, I 12 guess, started numbering 13 from the version numbers that Matt had provided, 14 but this does appear to be something close to what 15 I would have drafted as the first draft. 16 Q That would be the draft you referred to? 17 A As Version 3. 18 Q As Version 3 which is Exhibit 49. 19 A 49. 20 Q So in Exhibit 51, you refer to Exhibit 49 as the questionnaire that you drafted? 21 22 A Yes. I believe so. 23 Q Also it refers to notes and annotations in the 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 32 e-mail? 1 2 A Yes, 3 Q So does that coincide now with Version 3? 4 A Version 3 does have the notes and annotations, yes. 5 6 Q So we're confident that this e-mail refers to what's been called Version 3 of the survey? 7 8 A I believe it does, but i t ' s also possible that there is another version. 9 10 Certainly there were internal versions before this one. EXHIBIT 52 MARKED FOR IDENTIFICATION 11 12 it does. Q Exhibit 52. Sir, I've handed you what's been 13 marked as Exhibit 52, 14 chain. and i t ' s also an e-mail The top one is from Nelson Whipple to you? 15 A Yes. 16 Q Dated the 18th of May and i t ' s RSG 759-760? 17 A Yes. 18 Q And it talks about phone conversation or trying to set up a phone conversation. 19 20 A Yes. 21 Q Did you have that conversation with Mr. Whipple? 22 A I don't recall for certain. 23 conversation with him, I know I had a but I'm not sure it was at 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 33 the time that was described here. 1 2 Q discussed between you and Mr. 3 4 If you remember the conversation, what was A I don't remember that conversation. EXHIBIT 53 MARKED FOR IDENTIFICATION 5 6 Whipple? Q I show you what's marked as Exhibit 53. 7 e-mail chain, 8 Mr. 9 2010. you to Mr. Schaefer to you, Schaefer, It's an then the last date being May 21st, It's RSG 846. 10 A Yes. 11 Q Looking at the earlier of the two e-mails, 12 20th from you to Mr. 13 revised draft that responds to your, 14 Mr. 15 addresses some of the remaining issues? Schaefer and Mr. Schaefer, the May you talk about a Isaacson's, meaning comments and 16 A Yes. 17 Q Do you remember what those comments and issues 18 were that, 19 and George raised? 20 A Well, using the terms as in this e-mail Matt let me see. I'm not sure that -- it 21 responds to your comments address some of the 22 remaining issues that we had. 23 responded to marginal comments that I had on So we certainly 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 1 Exhibit 49 that we were posing back to them, 2 don't recall the details of that conversation well 3 enough to recall what George and Matt had raised 4 at that time. 5 Q Would you have made notes of that? 6 A and I Probably. EXHIBIT 54 MARKED FOR IDENTIFICATION 7 8 Q I hand you what's marked as Exhibit 54 called DRAFT Questionnaire, DMA/Colorado: 9 Version 4 RSG for Discussion. 10 11 A Yes. 12 Q Is that Version 4 which I just handed you the 13 draft that is described in the previous Exhibit 14 53? 15 A I believe it is, but since I don't have a file 16 date on this, 17 referring to 4 rather than 5, 18 Q And I I couldn't say for sure that this is for example. think you said you don't remember the comments Matt and George made? 19 20 A No. 21 Q Which led to this version? 22 A No. 23 Q You also say in the e-mail, I don't recall the specific comments. Exhibit 53, that 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 35 1 meaning Matt and George, may have other issues 2 that we will need to address. 3 A Yes. 4 Q Do you remember if they had other issues? 5 A I don't recall. 6 Q Okay. Look at the top of that e-mail. part. And it's from Mr. 7 The first Schaefer to you, correct? 8 A Yes. 9 Q It contains suggestions or comments regarding your latest draft of the survey, 10 11 A Yes. EXHIBIT 55 MARKED FOR IDENTIFICATION 12 13 correct? Q I show you what's marked Exhibit 55. 14 DMA!Colorado: 15 It's DRAFT Questionnaire, version 5 for Discussion. 16 A Yes. 17 Q Does that refer or is that the version that's 18 referenced in the last or next to last sentence of 19 the top half of the e-mail of May 21st? 20 A Again, I couldn't say for sure that this is the 21 version because it doesn't refer to a version 22 number. 23 Q If you look in the marginal notes, for example, on NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cj foster71@aol. com cell 36 page 00625, 1 does that say MS? 2 A Yes. 3 Q Can we assume that's Matt Schaefer? 4 A I believe it is, 5 Q So it's likely then that this Exhibit 55 is the yes. 6 document referred to in e-mail of May 21st which 7 is Exhibit 53? 8 A 10 And I also see just from my own believe that's correct then, Q So I yes. Okay. 12 13 Yes. recollection the attachment is Version 5. 9 11 Exhibit 53. EXHIBIT 56 MARKED FOR IDENTIFICATION Q I show you what's marked as Exhibit 56, 14 is another e-mail chain. 15 of May, 16 sir. It RSG 733 and 734. 2010. The top date is the 24th It's designated with the numbers 17 A Yes. 18 Q In the middle e-mail, it talks about a newly 19 revised draft that I, meaning you, 20 over the weekend. 21 A Yes. EXHIBIT 57 MARKED FOR IDENTIFICATION 22 23 put together Q Does it refer to Exhibit 57 which I just handed 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 37 you, 1 2 A DMA/Colorado: DRAFT Questionnaire, Version 6? It refers to a later draft than 5, and I'm not 3 sure whether, in this e-mail I don't refer to the 4 version number so I'm not certain that it's 6. 5 Likely is. 6 Q And at the top of that e-mail which is 56? 7 A Yes. 8 Q Matt Schaefer writes to you that we, meaning his firm, 9 assuming, had a couple of additional 10 thoughts. 11 next possible version. 12 possible version be number 6 that I handed you or 13 is it a different version? 14 A So I will send you an e-mail with the Now, I couldn't say for certain. would that next It could have been a 15 marked-up version of 6. 16 creating the successive version numbers. EXHIBIT 58 MARKED FOR IDENTIFICATION 17 18 I think that RSG was Q I hand you what's marked as Exhibit 58, and it's 19 DMA/Colorado: DRAFT Questionnaire, Version 8 for 20 Discussion. 21 in the first marginal note. 22 you that I do not have a Version 7. 23 if this Version 8 is what was referred to in the I note that the number 7 is deleted I will represent to Do you know 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 1 After a brief discussion with Counsel off the 2 record, 3 survey is embedded in the e-mail and not produced 4 because it wasn't saved as such as a separate 5 document, 6 Is that a fair statement? 7 it was his belief that Version 7 of the tv1R. but he believes he can obtain a copy. SCHAEFER: Yes, that is a fair statement. 8 It wouldn't have been saved in the drafts folder 9 maintained by RSG but should be something that can 10 be extracted from the e-mail, 11 and I'm happy to do that. 12 Q So with that caveat that you just heard, 13 A Yes. 14 Q Is Version 8, which you have, sir? the version which 15 your firm would have edited or changed after 16 receipt of a version from Mr. 17 referred to in Exhibit 59? 18 A Yes. Schaefer's office as And because it appears that I have made 19 comments that appear after Mr. 20 referring to either changes that were made or not 21 made based on our review of this draft. 22 23 Q Okay. Schaefer's comments So Version 8 then appears to be Version 7 edited by you or your firm? 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 A Yes. 2 Q Okay. Thank you. 3 (Off-the-record discussion) 4 EXHIBIT 60 MARKED FOR IDENTIFICATION 5 Q Exhibit 60, sir, is another e-mail chain. Whipple to you on May 24th, 2010, The top 6 is Mr. 7 bottom is 1'-1r. 8 and 698. 9 Version 8 includes my responses to comments and Schaefer on May 24th, In it Mr. and the 2010. RSG 697 Whipple says the attached corresponding changes. 10 That's actually from me to Matthew. 11 A No. 12 Q Yes. 13 A Right. 14 Q -- e-mail, 15 A Yes. 16 Q Thank you for pointing that out. I am sorry. It's from Mr. Whipple's but it's a copy? I appreciate it. The attached Version 8 includes my responses -- 17 18 A 19 Q Yes. to comments and corresponding changes. So if 20 we look at Version 8, 21 is what you edited from the Version 7 that you 22 received, 23 A Yes. I that confirms that Version 8 correct? believe so. 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 45 1 Q Thank you. 2 A And somehow I but it's clearly an RSG draft at that point. 3 4 5 removed the RSG piece, EXHIBIT 61 MARKED FOR IDENTIFICATION Q Sir, I've handed you what's marked as Exhibit 61. 6 It's another e-mail chain from you to Messrs. 7 Isaacson and Schaefer, 8 from Mr. 9 you e-mail saying attached is a final version of and then a response to you Schaefer May 25th of 2010, And RSG 762. 10 the questionnaire reflecting our discussions over 11 the past week. 12 referring to in that e-mail is survey Version 9 -EXHIBIT 62 MARKED FOR IDENTIFICATION 13 14 Do you know if what you're Q It's which I'm handing to you as Exhibit 62? 15 DMA/Co1orado: Questionnaire Version 9 for 16 Review. 17 A It would appear that this is the next version that's referred to in this e-mail, 18 Final yes. And that final version reflects, as you say, 20 discussions over the past week. Did you make 21 notes of those discussions? 19 22 23 Q A I may have. I our don't recall whether I had them in my notebook or not. 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 46 1 Q But if you had made notes, you would have produced them? 2 3 A Yes. 4 Q And again in Exhibit 62, Mr. Schaefer responds to you with some quick edits? 5 6 A 61? 7 Q So Exhibit 61. I'm sorry. Thank you for pointing that out. Exhibit 61. 8 9 A Yes. 10 Q And did you make changes or was Version 9 the final? 11 12 He does. A The changes were just a matter of lettering of the 13 subitems and so I don't recall whether we made 14 another version of the questionnaire or just went 15 from there. 16 appeared in the final questionnaire anyway. 17 Q I don't understand what you mean. Those wouldn't have been pieces. 18 19 I'm sorry. Those aren't pieces that would have A So it refers to the lettering of subbullets under 20 number 7. The subbullet or, sorry, the response 21 choices began with letter D rather than letter A, 22 and that was just because of the way Microsoft 23 Word handled those items. 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 50 1 A We had conversations with SSI about their 2 address-based sampling product, 3 appear to us to be ready for use. 4 advertised it, but it didn't appear that they were 5 ready to begin using it. 6 with Knowledge Networks over a period of a couple 7 of years 8 the best alternative for this kind of project. They had We had had conversations their product and felt that it was EXHIBIT 65 MARKED FOR IDENTIFICATION 9 10 about and it didn't Q I hand you what's been marked as Exhibit 65, and 11 it's an e-mail addressed to you from Mr. Schaefer 12 of May 27th and it's RSG 880, 13 redline of the questionnaire with a few final 14 proposed edits and comments for your consideration 15 flowing from our discussions with DMA and Kevin 16 Keller. 17 identified that correctly, And I 18 A Q I assume, assume -- first of all, did I I not? Yes. 19 and it attaches a sir, that you didn't have conversations 20 with DMA or Kevin Keller referenced in this 21 e-mail? 22 A I did not have those conversations directly. 23 Q At the top it says survey questions Version 9 B, 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 51 1 and if you look back at the exhibits, 2 version, I think, there is a 9 A? 3 A Exhibit 63. 4 Q But I did not see a Version 9 B. MR. 5 SCHAEFER: Could be consistent with our 6 earlier conversation, 7 as well if and I'm happy to extract 9 B it's embedded. 8 MR. 9 EXHIBIT 66 MARKED FOR IDENTIFICATION 10 EXHIBIT 67 MARKED FOR IDENTIFICATION 11 Q Sir, WESOKY: Thank you. I hand you what's been marked as Exhibit 66, 12 and I'm going to also hand you at the same time 13 Exhibit 67. If we could just take a look at Exhibit 67 14 15 first, 16 and Mr. 17 the final script for the survey; 18 A Q And Mr. Schaefer, and you appear to be sending him is that correct? Yes. 19 that is an e-mail chain between yourself Schaefer responds, this appears to capture all the changes we discussed. 20 You see that? 21 A Yes. 22 Q Do you remember what those changes were? 23 A I don't remember the substance of them. They were 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 52 1 in response to the comments that were received 2 from Mr. 3 Q But again, Mr. 4 Keller and DMA, I believe. you didn't speak directly with Keller or with any member of DMA, 5 A No. 6 Q Take a correct? That's correct. look at Exhibit 66. 7 that we're talking about? 8 Is that the Version 10 one? 9 A 10 This is Version 10. there another I don't know if there's another one. EXHIBIT 68 MARKED FOR IDENTIFICATION 11 12 Or is Q Show you what's marked as Exhibit 68. 13 DMA/Colorado: 14 It's Questionnaire Version 10, Final Script. 15 A Okay. 16 Q Would that be the document you're referring to in 17 18 the e-mail 67? A I don't know which of these two I was referring to 19 for sure. 20 and see where they're different, 21 sure. 22 don't 23 I'd have to compare them word for word but -- I'm not It could be either one of those two. I know which I was referring to in the e-mail. EXHIBIT 69 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 53 1 Q I hand you what's been marked as Exhibit 69, 2 You can take a minute to arrange them. 3 sir. to go fast because of our limited time here. 4 A Sure. 5 Q This is an e-mail from -- the top one, I I'm trying appreciate that. 6 from Mr. 7 June 2nd, and it's marked RSG 862 and 863. Whipple to Mr. Schaefer, a copy to you, 8 A Yes. 9 Q In the bottom part of the e-mail it says the 10 survey has been programmed and tested and we have 11 coordinated with the sample provider. 12 programmed and tested mean? 13 A What does We took the script that is described in Exhibit 14 68, 15 survey. 16 conversion of that so that it would appear as a 17 survey over the internet. and we programmed it as an internet-based So we did the, did the necessary 18 Q What does tested mean? 19 A We have a standard testing protocol that we go 20 through for all of our surveys to ensure that the 21 data that are, 22 of what has been described, 23 respondent puts into the survey are the data that that the questions follow the flow that the data that a 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 54 1 we record at the end. 2 for readability and a number of other factors. And we also do final test 3 Q Is that done in-house? 4 A In-house. 5 Q The top part of the e-mail is from Mr. 6 Mr. 7 Whipple to Schaefer saying we might want to randomize the choices in question 7 and question 8? 8 A Yes. 9 Q Was that done or was that not done? 10 A Yes, 11 Q So that was a change after the program and test? 12 A It was a change after the initial program and it was done. 13 test. 14 we go back and retest the piece of the survey 15 that's been changed. 16 Q We, typically, I understand you ran a pilot survey before the final survey, l7 whenever we make a change, is that correct? 18 A Yes. 19 Q What's the purpose of that? 20 A Purpose of the pilot was to make sure that there 21 weren't any significant issues with respondents 22 interpreting the questionnaire and with the 23 responses that we received from the 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 55 1 Q Did you find any? 2 A No. 3 Q With the pilot? 4 A No. 5 Q Knowledge Networks did the actual survey for you? 6 A No. 7 Q You used Knowledge Networks' 8 A That's correct. 9 Q When was that complete? 10 A I don't recall. It was, panel? I believe, in June, but I 11 don't recall the dates off the top of my head. 12 EXHIBIT 70 MARKED FOR IDENTIFICATION 13 Q 14 Exhibit 70 is an e-mail chain marked RSG 865 and 866. The top date is June 21st of 2010? 15 A Yes. 16 Q I want to call your attention to the e-mail that's 17 on the bottom of page 1, 18 Mr. top of page 2, Schaefer to you and Mr. from Whipple. 19 A Yes. 20 Q Do you recall receiving that e-mail? 21 A Yes. 22 Q And with respect to that he advises that the 23 Department of Revenue in Colorado issued 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 56 1 regulations different from the ones that you had 2 had, 3 A 4 5 There was a change. there was a change, Q MR. A Not completely different but yes. And you talk about doing another survey, 6 7 correct? He SCHAEFER: correct? Objection to the form. suggested that we might want to discuss the 8 potential for doing another, 9 getting additional sample. 10 Q And you did discuss that? 11 A I some changes and don't recall -- there's an indication that we 12 might discuss that later in the day, and I don't 13 recall whether we had that, 14 discussion with him. 15 Nelson who was at that time managing the technical 16 work on the project. whether I had that This was an e-mail chain to 17 Q But no second survey was done, was it? 18 A No second survey was done. 19 Q And why not? 20 A My understanding is that the changes in the law That's correct. 21 were relatively minor with respect to the 22 questions that were asked in the survey. 23 Q Where did you get that understanding from? 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 57 1 A From the nature of the change in the law. 2 Q Did you read it? 3 A Yes, 4 Q You read the Regulation that came out about the time of the e-mail you're referring to? 5 6 I did. A I don't recall when I read the Regulation, 7 yes, 8 involved. 9 Q to what the change You were advised by someone or you read it? I'm trying to -- 10 11 we were advised as but A Well, at one point I read the Regulation, but I 12 think at the time we were advised as to what the 13 change was. 14 Q When I say you, I mean RSG, 15 Brann & Isaacson, 16 in consultation with you not? 17 A Well, 18 Q And you, A 23 Yes. someone looked into the potential cost, We did, yes. We actually put together estimates for it. 21 22 there was discussion about it. did correct? 19 20 considered another survey, Q And you also talked about using a different vendor because of repeat offenders possibly appearing if 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 58 When I say repeat offenders, I mean 1 you used KN. 2 people that had taken the survey the first time? 3 A We wouldn't have gone back to that same knowledge panel. 4 5 That's correct. Q Did anybody ever say to you that the reason they 6 didn't want you to do the survey, 7 Isaacson, 8 A DMA or Brann & was because of the expense? I don't recall that, no. And again, I wasn't involved directly in those conversations as I 9 recall. 10 It was 11 Q Mr. Whipple? 12 A Mr. Whipple who was involved in those conversations. 13 14 Q survey wasn't done, 15 MR. 16 17 A Q Objection to form. Go ahead. He and I discussed it at one point so I understood But you don't know why there wasn't going to be a second survey? 20 21 SCHAEFER: I should talk to Mr. Whipple? that there was not going to be a second survey. 18 19 So if I wanted to find out about why that second A I don't know whether cost was discussed as the I do know that the reason it was 22 reason for it. 23 communicated to me was not based on cost. 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 59 1 Q 2 3 Who communicated to you the reason why the survey was not done? A Nelson, certainly Nelson and I had conversations 4 about it, 5 conversation with Mr. Schaefer. 6 Q and I believe at some point I had a Is one of the reasons the second survey wasn't 7 done because of the sensitivity or the need to 8 have it done in time? 9 A Again, that wasn't part of the discussion that I 10 had. 11 Mr. 12 I understood it wasn't being done. Nelson may have had that discussion with Schaefer, but the, that wasn't the reason that 13 Q And again -- 14 A At least my recollection. 15 Q Those reasons were conveyed to you by Mr. Whipple or Mr. 16 17 A Schaefer or both? I believe both. I certainly had conversations 18 with Mr. Whipple, 19 discussions with Mr. 20 Q 22 23 A Schaefer so -- What were those subsequent discussions with Mr. 21 and I have subsequently had Schaefer? Well, we've had discussions over the time from June to the current about the survey and 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 60 interpretation of the survey results. 1 2 Q second. 3 4 A Oh, it was only with respect to the substance and not with respect to either timing or cost. 5 6 I'm talking about the issue of not doing the Q Okay. So from firsthand knowledge, 7 to 8 as expressed the second survey was not done? you by Mr. MR. 9 10 A Schaefer, SCHAEFER: you do not know the reason Objection to form. I know that with respect to substance that we were 11 in agreement that there was not a need to refield 12 the survey. 13 had entered the discussion at any point with 14 Mr. Whipple. 15 Q I don't know whether cost and time There was a consensus that the second survey would not be done then, 16 correct? 17 A Yes. 18 Q The person with the most knowledge as to why that 19 second survey was not done would be whom, 20 opinion? 21 A Mr. 22 Q What about Mr. Whipple? 23 in your Schaefer. Do you know if he had conversations with Mr. Schaefer about why 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 62 1 A I don't recall receiving it, but I recall in 2 general having some communication about completing 3 the report and affidavit, (Off-the-record discussion) 4 5 yes. Q Why don't we take a short break while I'm doing this. 6 7 RECESS TAKEN 8 EXHIBIT 72 MARKED FOR IDENTIFICATION 9 Q I hand you what's been marked as Exhibit 72. It's 10 another e-mail chain, and it appears to respond to 11 number 71. 12 copy of that one. And I apologize, I don't have an extra But could you identify that? 13 A Exhibit 72? 14 Q Yes. 15 A It's marked as RSG 717, and it appears to be 16 correspondence regarding timing for another 17 conference with Matt. 18 Q And it also talks about signing an affidavit, does it not? 19 20 A It's the same as 71. 21 Q I might lean over -- 22 A Oh, 23 Q Talks about your availability for signing an yes. Okay. I believe. That's correct. 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 63 affidavit? 1 2 A Yes. 3 Q And I take it you didn't draft that affidavit; was drafted by Mr. 4 it Schaefer? 5 A That's correct. 6 Q And he sent it to you? Yes, 7 8 Q he did. And would I be correct in saying that that affidavit is what ultimately became Exhibit 39, 9 the Declaration? 10 11 A Yes. 12 Q It went through a couple of drafts but it ultimately became Exhibit 39, 13 correct? Yes. 14 A That's correct. 15 Q And it was initially drafted by Mr. sent to you, 16 17 A correct? Yes. EXHIBIT 72 MARKED FOR IDENTIFICATION 18 19 Schaefer and Q I hand you what's marked as Exhibit 72. 20 e-mail from Mr. 21 about sending something directly to Matt. 22 it's marked RSG 00699. 23 A Whipple to you, It's an and he's talking And 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 64 1 Q What is this? 2 A This was the transmittal of the report describing the results of the survey that we conducted. 3 4 Q When you say the report, it was not the report 5 that was ultimately generated which was attached 6 to your Declaration, was it? 7 A It was an earlier, there were portions of this 8 that presumably made it into that report, 9 was essentially the Dec describing the results of the study. 10 11 but that Q It wasn't in the report form that we see as an 12 exhibit to your Declaration; is that what you're 13 saying? 14 A It was a Power Point Dec and I don't think, the 15 Dec was later expanded to include the full set of 16 materials as indicated in that exhibit. 17 Q What's the date of that e-mail that you just -- 18 A July 22nd. 19 Q Okay. EXHIBIT 74 MARKED FOR IDENTIFICATION 20 21 Thank you. Q I hand you what's marked as Exhibit 74. 22 e-mail transmittal from Mr. Whipple to 23 Mr. It's an Schaefer, copy to you, which essentially says 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 65 here is our report. 1 Is that correct? 2 A Yes. 3 Q And it's RSG 00869 for identification? 4 A Yes. 5 Q Is the report he refers to the one which I have just handed to you -- 6 EXHIBIT 75 MARKED FOR IDENTIFICATION 7 8 Final Results, 9 July 23rd, 2010, RSG, Inc., designated on the first page was RSG 00575. 10 11 marked Exhibit 75, Colorado Consumer Survey, Q A I believe that that's the one. I wouldn't know 12 for certain, l3 and appears to be the content that I had a chance 14 to look at, 15 Q but it appears to be dated correctly yes. Let me represent to you I received several copies 16 of Colorado Consumer Survey Final Results with 17 different dates, and this is the one. 18 A Yes. 19 Q The pages that follow are those that came with the one marked July 23rd, 20 2010. 21 A Okay. 22 Q And you have no reason to think otherwise, 23 A No. do you? 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 66 1 Q Now, how did that report differ, 2 the final 3 Declaration dated August 9th? 4 copy of that August 9th one, 5 if at all, from provide i t to you. 6 report, the one you attached to your And if you'd like a I can certainly (Off-the-record discussion) 7 Q Exhibit 8 A Would you like me to try to enumerate all the differences or just say that i t is different in 9 10 some respects? 11 Q Yes, 12 A Enumerate the differences? 13 Q Yes, 14 A Okay. 15 just go through the -- that would be helpful. Exhibit 21 includes an additional page 4 that describes the survey sample itself. 16 Q On what page is that? 17 A That's page 4, 18 That's a RSG 328 on Exhibit 21. new page. So then the Exhibit 75, 19 20 583, 21 Exhibit 21. 22 MR. 585, 586, 587, marked RSG 4 at 328. 23 584, page 9, Instead, SCHAEFER: 588 are not included in they are summarized on page Page 4 of Exhibit 21. 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 67 1 A Right. And on page 13 marked as RSG 337, Exhibit 2 21, 3 qualification essentially for participating in the 4 questionnaire. 5 RSG 338 of Exhibit 21, 6 indicating qualification. 7 Q And then similarly, on page 14, there's another annotation Why the Let me interrupt here for a moment. change from Exhibit 75 to Exhibit 2l? 8 9 there is an annotation indicating the A To make some of the procedures and assumptions 10 that were made as part of the survey more 11 explicit, and I believe there were, 12 exchange, and I l3 it, know I 14 the additional edits that might be made to make it 15 clearer, and 16 with Mr. Schaefer. 17 Q but I I Let me see if I there was an don't recall whether I was part of discussed it with Nelson about believe that was a conversation understand. The changes from 18 Exhibit 75 to Exhibit 21 were discussed among 19 Mr. Whipple, 20 result of that discussion, 21 from 75 to 2l. 22 A Q Okay. Schaefer, and as a the changes were made Yes. 23 yourself and Mr. And I assume I can just look and see what 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 68 those changes are? 1 2 MR. A but go Yes. EXHIBIT 76 MARKED FOR IDENTIFICATION 5 6 Objection to form, ahead. 3 4 SCHAEFER: Q Let me hand you what is marked, sir, as Exhibit It's an e-mail chain identified RSG 00842, 7 76 . 8 and it's between Mr. 9 where Mr. Whipple submits the report to Matt 10 Schaefer, and Mr. 11 make revisions to tailor and streamline the 12 document. 13 A 16 MR. Correct? SCHAEFER: from there, Q Schaefer responds he wants to Yes. 14 15 Schaefer and Mr. Whipple For the record, it goes on but it speaks for itself. When you do your survey work for other clients, do 17 they tailor and streamline the reports that you 18 send them? 19 A Yes, 20 Q So you let the client change your report to tailor and streamline it? 21 22 23 typically with our review and approval. A We work with the clients to tailor and streamline a report and typically accept comments and 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 suggestions from our clients to do it to meet 2 their purposes, yes. 3 Q Do you ever reject comments? 4 A Yes. 5 Q Did you reject any in this case? 6 A I don't recall. EXHIBIT 77 MARKED FOR IDENTIFICATION 7 8 Q Exhibit 77 is an e-mail. Mr. 9 Whipple, I believe. The top one is from Would you identify it with the RSG number at the bottom, 10 11 A RSG 722. 12 Q And in that e-mail, please? Mr. Whipple's responding to 13 Mr. Schaefer's comment about tailoring and 14 streamlining the documents, correct? 15 A Yes. 16 Q And he's saying that the information is there; that what he's saying? 17 18 is A Yes. The information is in the report, yes. 19 also indicating that it may not be clear. 20 And EXHIBIT 78 MARKED FOR IDENTIFICATION 21 Q I show you what's marked as Exhibit 78. It's an And 22 e-mail chain identified with RSG 704 and 705. 23 it also looks like it's a response to the e-mail 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 regarding tailoring and streamlining the report? 1 2 A Yes. 3 Q With regard to the e-mail that appears in the middle of the first page? 4 5 A Yes. 6 Q Is that Mr. needs to be put in the report? 7 MR. 8 9 A Q It's actually an instruction for what would be Okay. A Then Mr. Whipple at the top of the e-mail correct? Yes. EXHIBIT 79 MARKED FOR IDENTIFICATION 14 15 Objection to form. comments on Matt Schaefer's e-mail, 12 l3 SCHAEFER: included in the Declaration. 10 11 Schaefer instructing you as to what Q I hand you, sir, what's been marked as Exhibit 79. 16 It's an e-mail chain identified with RSG 769 17 through 717. 18 talks about a revised deck. 19 revised report similar to the July 23rd that we 20 saw earlier? 21 A Is that another If you're referring to the reference to the bottom of 770? 22 23 Yes. And the first e-mail in that chain Q Yes. Appears to be the first e-mail in 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 7 1 chain? 1 2 A Yes. EXHIBIT SO MARKED FOR IDENTIFICATION 3 4 Q And that was dated July the 2Sth so would that 5 have been the final results that are reflected in 6 Exhibit SO called Colorado Consumer Survey Final 7 Results July 26, S as Exhibit SO? 9 A 2010 which I'm handing you marked It's dated July 26th. I'd say probably. 10 e-mails are dated July 2Sth. 11 The But it may well be the same Dec. 12 Q And then Mr. Schaefer responds in the next e-mail in the chain acknowledging receipt? 13 14 A Yes. 15 Q Saying it looks good, but Mr. Isaacson, he refers 16 to him as George, 17 it and make changes that he thinks should be made? IS A Or suggest changes. Proposed changes which is the way changes were discussed. 19 20 has not had a chance to review Q Also in that e-mail chain, Mr. Schaefer talks 21 about in the next one in the chain to see if you 22 had any revisions to the draft of the Declaration. 23 Do you see that? It's at the top of page 770? 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 A Yes. 2 Q Did you have any changes? 3 A It appears that I did find some typos. EXHIBIT 81 MARKED FOR IDENTIFICATION 4 5 Q And there's also another Final Colorado Consumer 6 Survey Final Results dated July 29th which appears 7 in Exhibit 81 which I've just handed you. 8 another revision to your report of survey results? 9 A Yes. 10 Q That's still not the final one. That's dated August 9th, 11 The final one was correct? 12 A Yes. 13 Q And that was Exhibit 21, 14 A Yes. 15 Q So July 29th was not the final? 16 A That's correct. 17 Q August 9th, 18 A Exhibit 21 is the final version. 19 Q Right. Exhibit 21, Okay. I believe. was -- what was the final? And the other versions that we've 20 looked at, 21 all changed as they went along based on 22 suggestions of Brann & Isaacson? 23 MR. the 23rd, SCHAEFER: the 26th and the 29th were Objection. 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 73 1 A They were modifications made that were reviewed 2 with, 3 made a number of, 4 minor changes. 5 Q A But they were the suggestion of Brann & Isaacson, Most of them, yes. Some of them typos and so forth that were my suggestions. 8 EXHIBIT 82 MARKED FOR IDENTIFICATION 9 10 I would consider them to be yes or no? 6 7 both Nelson and I reviewed those changes and Q Sir, I'll hand you what's Exhibit 82, e-mail chain designated with RSG 775 through 777. 11 12 A Yes. 13 Q Referring to the last two e-mails in the chain, 14 you are sending documents to Mr. 15 includes the revised copy of the Declaration, 16 correct? 17 A You mean the top two? 18 Q Yes. 19 A So the ones on page 20 Q The most recent? 21 A 77 5. 22 Q The latest in that chain? 23 A Schaefer which Yes. 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 74 l Q Do you remember the revisions that you made? 2 A I don't remember them offhand, 3 Q Do you remember if they were large revisions, major revisions or just kind of tweaking words? 4 MR. 5 SCHAEFER: I'm going to object to form just because he's not looking at a copy of it. 6 7 no. A I Yes. don't recall, but certainly they were, the 8 Declaration was based on the results that we had 9 presented to Brann & Isaacson and that we had 10 discussed with Mr. 11 believe, 12 the opinions that we had discussed over the phone 13 in the Declaration. 14 significant changes in substance. 15 Q Schaefer and Mr. Schaefer, I for the most part accurately reflected Fair enough. Okay. So I don't recall any Then the top e-mail in that 16 chain or the latest in that chain, 17 Mr. looks like Schaefer further revises the Declaration? 18 A Yes. 19 Q And it appears he's revising it, tell me if this 20 is your impression as well, 21 to comport to what Professor Keller said in his 22 Declaration? 23 A Well, that he's revising it I think the intent was to revise it so 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@ao1.com cell 75 1 it was consistent with the facts which was that 2 Professor Keller did review the survey. 3 Q A So that my Declaration would be consistent with the facts. 6 EXHIBIT 83 MARKED FOR IDENTIFICATION 7 8 your Declaration would be consistent with his? 4 5 So it would be consistent, Q Let me hand you what's been marked as Exhibit 83, and it's an e-mail from Mr. 9 10 Schaefer to you dated September 10th, bearing RSG 00936 and 937. 11 A Yes. 12 Q Do you recall receiving this? 13 A I don't recall receiving this specific e-mail, but I do recall the request, 14 15 Q yes. Was that the first time you had been told about 16 the requirements that are set forth in this 17 e-mail? 18 A It was the first time that they were listed out. 19 We may have had a prior phone conversation. 20 don't recall. 21 Q Would you look at the second page of that? 22 A Yes. 23 Q And I I think to capsulize it, Mr. Schaefer'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 85 Adler, 1 RSG 939 through 941. 2 A Yes. 3 Q In that e-mail, Mr. Schaefer's attaching a draft of an Expert Report. 4 Correct? 5 A Yes. 6 Q You didn't draft the Expert Report; he did, correct? 7 8 A Yes. 9 Q And is the attachment, RSG 939 through 941, that draft which is referenced? 10 11 A Yes. 12 Q If I didn't identify for the record, exhibit was Exhibit 86. 13 I apologize. EXHIBIT 87 MARKED FOR IDENTIFICATION 14 15 the last Q Let me hand you what's marked as Exhibit 87. It 16 is an e-mail chain designated with RSG 948, 949 17 and 950. 18 Monday, 19 appears to be a change in addition to the previous 20 exhibit, 21 bottom of the first page and continues at the top 22 of the second, 23 your Expert Report that Mr. The most current of the e-mails is September 20th, 86. 2010 at 1: 51 p.m. And in the e-mail, second page 949, This the date is the where you state Schaefer drafted looks 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 86 fine to you. 1 Correct? 2 A Yes. 3 Q And you give him your hourly rate? 4 A Yes. 5 Q This is a silly question. Why not 340 an hour? 6 7 344.44 an hour. A Because we actually are government-audited rates 8 and so we have to include the appropriate 9 multipliers that are set by standard audit procedures and so forth. 10 11 Q Just struck me as funny, 12 A Well, 13 Q Then Mr. that 44 cents in there. that's the rate. Schaefer responds that he thinks 14 additional documents should be added to your 15 Expert Report as documents that you referenced in 16 reaching the results in your report? l7 A They're actually documents -- yes, he references 18 those documents, 19 documents that I had reviewed prior to this 20 engagement. 21 Q But it is he who suggests they should be incorporated in your Expert Report, 22 23 and those documents are actually A correct? 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 90 1 description of their sampling method including 2 address-based sampling. 3 Q So the Mantiquila deposition was not something 4 that you relied on or utilized for coming up with 5 your opinions in this case? 6 A Not specifically. And as I said, 7 document that I 8 it was a engaged in this case. EXHIBIT 90 MARKED FOR IDENTIFICATION 9 10 had reviewed prior to being Q Just to complete the record, Exhibit 90 is your 11 final of your Expert Report in this case, 12 correct? 13 A Yes, 14 Q And I want to make sure that, is that it is. 15 include any attachments to it, 16 I'm not intending to itself. 17 A Just the yes. four pages of the report. 18 19 It's right now just the report, just the report Q First I want to establish that your opinion in 20 this case is related to the survey, not to any 21 consumer behavior like Professor Keller did but 22 just, 23 that correct? your expertise is in the survey area, 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 91 1 A I have expertise in the survey area, but it's not 2 limited to my expertise in constructing and 3 conducting a survey. 4 Q But as I read your Declaration and Expert Report 5 in this case, 6 the appropriateness of the survey and the 7 appropriate methodology was used and the 8 appropriate sample was used to get appropriate 9 results? 10 A Q What other opinions -- well, tell me what opinions you're offering in this case. 13 14 That's the majority of what's contained in there, but i t ' s not limited to that. 11 12 I think your opinions are related to A It's the opinions that are contained in the Declaration. 15 16 Q Tell me what those opinions are. 17 A You want me to go through all of the opinions in the Declaration or 18 19 Q Not word for word, but tell me what your opinions 20 are in this case, 21 offer an opinion on and what that opinion is; MR. 22 23 A what you're being put forth to SCHAEFER: Objection to the form. You'd like me to paraphrase the opinions expressed 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 92 in the Declaration? 1 2 Q Sure. 3 A So the opinions, obviously, as you suggested, 4 relate to the appropriateness of the method, 5 opinions include the description of the consumers' 6 response to the law. 7 Q you're just reporting the results of the survey? 8 9 And when you're saying that, the A The specific pieces that are included here are the results of the survey. 11 description of the methodology and the 12 appropriateness of the methodology and description 13 of the reliability of the survey methods that are 14 used. 15 Q Yes. There's a 10 So your opinions are related to the survey and 16 that it was conducted in an appropriate manner l7 with appropriate methodology, 18 principles were applied, 19 appropriate result? appropriate survey which should lead to an 20 A Yes. 21 Q I just want to make sure that you're not going to 22 offer opinions on any other area, just on the 23 methodologies of the survey and its result? 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 93 1 A I guess the opinions, I'm not sure what you mean 2 by the Declaration includes those opinions that 3 you just described. 4 Q Okay. 5 A And what I'm asked for other opinions by you or others is not something that I could speculate on. 6 7 Q Now, you state in your Declaration at page 3, 8 paragraph 4, 9 correct? 10 A Q Now, is that Yes. 11 that RSG designed the survey, I know from our prior discussion that at 12 least some of the design was provided by Brann & 13 Isaacson when they sent you some versions of the 14 questionnaire, MR. 15 isn't that correct? SCHAEFER: Objection to the form. So first of all, 16 A No. 17 Q Yes. 18 A First of all, if you'd like me to explain? survey isn't the same, is not 19 synonymous with questionnaire. 20 process of designing, 21 then reporting results that come from a 22 questionnaire. 23 Q Survey is the administering, sampling and Is designing the questionnaire a part of designing 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 94 the survey? 1 2 A It's part of it. 3 Q You also state that you took appropriate steps to One part. Yes. ensure its objectivity? 4 5 A Yes. 6 Q Would you tell me what those steps are? 7 A Yes. Most important from our perspective was to 8 frame the questions in the context, in a very 9 specific context in the context of a purchase that 10 was made by a consumer, 11 was to ask questions in a way that allowed us to 12 confirm validity, 13 things like the randomizing order so that we 14 didn't bias by order responses to a question. 15 number one. and number 3 was, Number two included (Requested portion read back by reporter) 16 Q What do you mean by confirming validity? 17 A Well, we want to make sure that consumers 18 understand response choices. 19 with respect to the privacy question, 20 the privacy question in both an affirmative and a 21 negative form, 22 different wording to make sure that consumers 23 responded consistently independent of the wording. if you will, So, for example, we worded both with slightly 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@ao1.com cell 95 1 Q You oversaw its administration. I assume that's 2 because Knowledge Networks did the panel, but you 3 oversaw the administration of the survey, is that 4 what you mean in the next phrase there, 5 oversaw its administration? you 6 A Yes. 7 Q How did you ensure that the data were accurately gathered? 8 9 A By checking the data as they came in to make sure 10 that they were consistent with the specifications 11 that we gave to Knowledge Networks. 12 Q And then you say they were processed and analyzed, 13 that is the data, 14 statistical principles. 15 statistical principles? 16 A in accordance with accepted What are those The tabulations were -- first of all, there was a 17 weighting process applied to make sure that the 18 data that we collected appropriately represented 19 the population of the state of Colorado. 20 Q What do you mean by weighting? 21 A Weighting is a process of applying a factor to 22 each response to ensure that in aggregate the 23 responses are representative of the key 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 96 1 2 characteristics of the Colorado population. Q I'm sorry. I didn't mean to jump on your answer. 3 4 Who determines the weighting? A In this case, who determines the weighting, 5 weighting criterion, 6 weighted to the average Colorado consumers, 7 specified by us. 8 the were done by Knowledge Networks. 9 Q was The calculations of the weights Tell me a little bit about your weighing. What did you give weight to and how much weight? 10 11 that is that it should be A So we wanted to make sure that the key 12 demographics of the population of the state of 13 Colorado were represented in our survey and if 14 you'd like, 15 to illustrate how it works. I can give you just a simple example 16 Q That would be great. 17 A Let's say we know that on average there are 50 18 percent males, 50 percent females in Colorado 19 which is approximately correct. 20 that in our data set we for some reason have, 21 let's say there are only three responses in our 22 data set to make it easy, 23 female. And let's say two males and one In order for that sample to be 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 representative of the population of Colorado, 2 have to apply weights to the individual records. 3 We downweight the two male responses, 4 for right now, 5 weight each of those at 6 weight of 1. 7 we get 50 percent males, 8 that's the process of weighting. 9 Q we let's say this isn't correctly right, but we .5 and the female gets a When we now average those together, 50 percent females so So if you're heavy on one gender as opposed to the other? 10 11 A Exactly. 12 Q Or heavy on an age category, you reduce or increase the other categories by weighting? 13 14 A That's exactly right, 15 Q And that's something that's generally accepting 16 yes. among the statistical world? 17 A Yes. 18 Q Where could I subject? 19 20 find some literature on that A Any elementary survey sampling textbook would have that information. 21 22 Q Can you give me one? 23 A Any names? Any name? I'm not good at specific names, but I 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 1 could find them for you and provide them if you'd 2 like. 3 Q Not at this time. But did you review any of that 4 material in connection with this survey in doing 5 your weighting? 6 A No. I've taught graduate level Probability and 7 Statistics so it's kind of engaged in my mind. 8 I didn't have to review it for this case. 9 Q So And what do you mean by statistically valid 10 results as it appears in the last sentence of 11 paragraph 4? 12 A That the results themselves have, the sample size 13 was large enough that the results themselves have 14 small error or confidence intervals compared to 15 the conclusions that were reached. 16 Q I assume, Dr. Adler, that in connection with your 17 work in this case you did not review or look at 18 any Colorado statutes requiring that information 19 received by the state Department of Revenue be 20 kept confidential? 21 A I didn't review any specific Colorado laws, 22 Q If you would look at paragraph 7, 23 state, please. in light of the target population, no. You subject 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 101 would have otherwise really wanted to look at. 1 2 Q Okay. Is there anything you would like to have 3 done in connection with the survey which you 4 didn't do? MR. 5 SCHAEFER: Same objection. 6 A Not that I can think of. 7 Q So if you had to do this assignment allover again, 8 9 A Well, you would do it the same way? we couldn't do it the same way. 10 already interviewed these people. 11 We've But if we were starting from scratch again? 12 Q Yes. 13 A I would recommend doing it the way that we did it. 14 Q The exact same way with no changes, no modifications? 15 16 no tweaks, A No. Given the criteria that we had and the 17 objectives of the survey, 18 appropriate method. 19 Q Nothing you would have done differently, I take it? 20 21 I think it was an A Nothing substantive. You know, I think obviously 22 we went through ten drafts of the questionnaire. 23 I probably would have started closer to number 10 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 than number 1, 1 2 Q but And in paragraph 9, you state that you drafted and revised the survey questionnaire? 3 4 A Yes. 5 Q Working with others at RSG. Mr. 6 That would be Whipple? 7 A Yes. 8 Q Anybody else? 9 A Ms. 10 Q Of the questionnaire? 11 A Of the questionnaire. 12 Q Do you know what her input Yes. was to the questionnaire? 13 14 Dossinger was involved in some review. A I don't know. 15 Dossinger, 16 Nelson works closely with Ms. privy to those. 17 Q and they had discussions, We talked about the drafting and revising that Brann & Isaacson did, 18 but I'm not didn't we? 19 A Yes. 20 Q And I think you said you never talked to Professor Keller? 21 22 23 A I never talked to him directly with respect to this case, no. 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 Q Anything that he may have said would have been passed on to you through Brann & Isaacson? 2 3 A Yes. 4 Q Okay. Let's turn if we could, please, to Exhibit The final final. Here it is. 5 21. 6 to you. 7 to ask if you'd look, please, S Let me give it Okay? I'm going I shouldn't have taken that. at, it's page lS. 9 A Yes. 10 Q Is this one of the questions that you said you framed in the, 11 to give alternatives? 12 A Yes. 13 Q I think we talked about that a little bit. To check and see consistency? 14 15 A Yes. 16 Q In the second part of that question, are called focal questions, 17 I think these is that correct? lS A I don't call them that, but maybe others do. 19 Q What do you call them as opposed to qualifying questions? 20 21 A I don't call these qualifying. 22 Q Like qualifying question, 23 I'm not sure -- are you over the age of lS? 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.co m cell 104 1 A Oh, 2 Q No. but that's not page 18. I said a qualifying question is like are you 3 over the age of 18. 4 in the last six months. 5 questions? Did you buy on the internet Those are qualifying 6 A We call them screener questions. 7 Q Okay. And what do you call the meat and potatoes 8 questions? 9 appearing on page 18, what term of art do you use? Like question 8, 10 A This is an opinion question. 11 Q Okay. like the question 12 Now, this opinion question, if you look at the second part of that? 13 A Yes. 14 Q The second, it says I do not mind the state of 15 Colorado knowing the kinds of products I 16 whom I buy them, 17 much I spend. 18 A Q Now you know, Did I from have them shipped and how read that correctly? Yes. 19 where I buy, do you not, that the Colorado law 20 doesn't require a reporting to the Department of 21 Revenue of the kinds of products that an 22 individual buys, 23 A I correct? know that it's not the specific item that was 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 105 purchased. 1 2 Q It's the amount and so forth. Yes. And then if you look at the first question, billing address, it 3 says reporting my name, shipping 4 address and amount of my purchases is an invasion 5 of my privacy? 6 A Yes. 7 Q So that correctly states what the requirements of the reporting law are, 8 doesn't it? 9 A Yes. 10 Q The second one doesn't correctly state the 11 requirements of the reporting law, 12 Because it says kinds of products. 13 reporting requirement for the kinds of products, 14 is there? 15 A Not directly, does it? And there's no but the reporting does include the 16 entity from which the product is purchased from 17 which a kind of product can be inferred. 18 Q So if I buy from Lands End, are you familiar with that company? 19 20 A Yes, I am. 21 Q Lands End, 22 A Yes. 23 Q Or I could buy a pair of socks? I could buy a briefcase? 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 6 1 A That's correct. 2 Q Are they similar kinds of products? 3 A They're hard goods. 4 Q So a briefcase is like an article of clothing? 5 A I didn't say it was an article of clothing. Yes. I said it was a hard good. 6 7 Q A good as opposed to a service? 8 A As opposed to a service, that's correct, or as opposed to food or other kinds of consumables. 9 10 Q Do you know if I 11 A I don't know. 12 Q So you don't think this question adds a piece, quote, 13 could buy food from Lands End? kinds of products, Because that is unnecessary? 14 A No. no. 15 Q That's fine. 16 A If you'd like me to explain? l7 Q No. I don't need you to explain. Why did you add 18 that in there, 19 not in the first half of that question? 20 A kinds of products I buy, when it's It's to rephrase the question in an affirmative 21 form so that we can check consistency between the 22 two questions. 23 Q So you could not have said I do not mind the state 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 107 1 of Colorado knowing from whom I make purchases, 2 name, 3 couldn't have said that? billing address and shipping address? my You 4 A You could say that. 5 Q Would that be more in line with what the law is? 6 A It's a phrasing that is more consistent with the literal phrasing of the law. 7 8 I don't understand. Q Do you think, sir, that the inclusion of the words "kinds of products" in that question had any 9 10 residual effect on the survey respondents for the 11 following questions? 12 MR. Objection to the form. SCHAEFER: 13 A No. 14 Q You don't think that it was possible that a survey 15 respondent would have that in mind that they have 16 to report the kinds of products when answering the 17 following questions? 18 A No. First of all, the heading is very clear as to 19 what's being collected and reported; and second of 20 all, 21 literal reporting of what the law looks like. 22 23 Q as described on page 20, there's a more With respect to that question on page 18 that we talked about, the question at the top of the page, 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 1 the assumptions, talk about reporting to the 2 Colorado Department of Revenue. 3 A Yes. 4 Q Do you think that the mention of the Colorado 5 Department of Revenue caused any of the 6 respondents to think in terms of an increase in a 7 product price because the 8 the tax man? 9 MR. 10 A Q Okay. is Objection to form. No. 11 SCHAEFER: Department of Revenue Fair enough. And you don't think there are 12 people that responded knowing that the reporting 13 was to Colorado Department of Revenue because many 14 people are just tax averse? MR. 15 16 A Objection to the form. I don't think that would be the reason for the responses that were given, 17 18 No. SCHAEFER: Q no. Do you think that could have influenced any responses? 19 20 A It's conceivable. 21 Q But you don't think it did? 22 A I don't think it was a material effect, 23 Q Are you familiar with the term reactivity bias? no. 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 109 1 A Reactivity bias, no. 2 Q Maybe I'm using the wrong term, but it's where a 3 question puts a response in the head of the 4 respondent. 5 surveyed about buying a car and they ask me how 6 important is the location of outside turn -- is an 7 outside turn signal 8 And I would never have thought of that. 9 of a sudden, For example, I go to buy a car or I'm indicator important to you. I think, well, And all it's a little 10 important. In other words, the question suggests 11 an answer. Do you think any of that occurred in 12 your questionnaire? 13 A No. 14 Q Why not? 15 A It's the kind of questions that we've used 16 previously in quantitative surveys. l7 personally have done many focus groups dealing 18 with issues of privacy, 19 individuals who have concerns about privacy bring 20 those up of their own. 21 suggested to them from outside. 22 others who simply don't react to the issue of 23 pri vacy, for example. and I We've also, I find that It's not something that's And there are So I've done a significant 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 110 1 amount of both qualitative and quantitative 2 research, 3 Q 5 Did you consider the use of an open-ended question with a 4 A and I don't find that to be the case. "don't know" response? We do have some other, 6 questions. 7 we have some open-ended open end there. 8 Q For example, But on 20, on page 19 there is an you don't have a "don't know" answer, do you? 9 We do not have a "don't know" but i t ' s the same as 11 remain the same so they don't know presumably 12 would remain the same. 10 13 A Q So you're equating don't know with remain the same? 14 Because it's -- 15 A Yes. 16 Q On page 20? 17 A Yes. Because it's, as a result of this law, if 18 they don't have an opinion about the result of 19 this law, 20 wouldn't affect them. 21 Q 23 I'm certainly not a survey expert, that 22 A presumably they remain the same. It but the surveys I've seen or heard have a margin of error? 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@ao1.com cell 111 1 Q The political, X is ahead of Y by 3 points. Margin of error is one. 2 3 A Yes. 4 Q There's no margin of error here that I saw, is that correct? 5 6 A There's clearly a margin of error in this sample. 7 Q I 8 A That's because it's trivial. didn't see it reported. calculated. 9 It's trivially For a sample size of a thousand, it's 10 widely know it's plus or minus 3 percent at the 11 mid point. 12 Q So three percent, here for one result, 13 14 A Yes. 15 Q A I'm not a survey expert. Was that a It's a probability sample. Not a probability survey. 18 Q What's the difference between a probability sample and nonprobability? 20 21 maybe 70? probability or nonprobability survey? 16 19 that 64, That's correct. Again, 17 you have a 67 percent figure in A It's not the Recall that the survey is a process. 22 questionnaire, 23 process. it's not the sample. It's a whole The sample was constructed as a 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 118 1 question is to what extent will consumers be 2 willing to purchase or acquire electronic tolling 3 devices given a number of issues. 4 cost and the, 5 with using toll facilities, 6 as the issues of potential issue of privacy around 7 the fact that the electronic transponder is 8 recording travel, 9 movements. 10 Q you know, One being the all of the issues dealing for example, as well essentially details of travel Any surveys with regard to the, 11 one where it's product based, 12 similar to this product? 13 A 14 15 in that case that is a product. It's the intention to buy that Q Let's leave that one aside and see if there are any others. 16 17 Well, intention to buy a A We've done a tremendous amount of product work. 18 We've done work on cell phone purchases for 19 Motorola. 20 similar techniques to what we've done here, 21 behavioral intentions to understand purchase 22 patterns, 23 products. A large number of surveys where we use potential purchase patterns of new 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 1 19 1 Q And you found before and after that the consumers 2 intend to buy a Motorola product and the same 3 number do? 4 A Q When you say reasonable, what do you mean by reasonable? 7 8 but the behavioral intention is a reasonable predictor of actual behavior. 5 6 Not the same number, A Meaning if 67 percent said that they were going to buy a phone, 9 we wouldn't expect that only 10 percent would. 10 11 Q You'd expect 30 percent would? 12 A No. 13 Q I assume you've not found a phone where people I would expect something over 50 percent. 14 would buy, 15 buy a phone? 16 A Q If that were the case, it Any other consumer surveys come to your mind where the intentioned behavior was -- 19 20 Unfortunately not. would be quite favorable to the product. 17 18 No. over 50 percent of the population would A Oh, virtually every survey that we do is intentioned behavior survey. 21 22 Q Talking about consumer. 23 A Yes. Consumer. And we do a tremendous amount 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 120 work with consumer products companies. 1 2 Q Like who? 3 A You want me to list all of our clients? 4 Q Give me a few. 5 A Heinz, Samsung. I'm trying to think of ones that 6 are specifically consumers. 7 American Airlines. 8 Q And it's -- American Airlines, A Don't put that on the record. MR. 11 12 they don't exist anymore. 9 10 Ford Motor Company, Q Oh, SCHAEFER: I'm sorry. One of the largest ones left. American Airlines. I was thinking of Eastern Airlines. 13 14 A Oh, Eastern Airlines. 15 Q No. 16 A Anyway, They're long gone. yes. Large number of consumer product companies of different types. l7 18 Q And they're all intentioned behaviors? 19 A Yes. 20 Q And you found across those surveys that Absolutely. intentions -- 21 22 A Are good predictors of behavior. 23 Q Of subsequent behavior? 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 Yes. 2 Q And isn't that effect best seen when the product or service you're measuring becomes more specific? 3 4 A As I mentioned previously, it is very important 5 that people have a specific context in mind and 6 the more vague the context, 7 is to predict the behavior. 8 radical new technologies where people really don't 9 understand the context in which those technologies the more difficult it So, for for 10 might be placed, 11 predict behavior. 12 and circumstances which can be described and 13 understood by a consumer, 14 that behavioral intentions are good predictors of 15 actual behavior. 16 Q Okay. i t ' s much more difficult to But for products and services our experience has been Let me turn my attention for a minute to 17 the pilot survey that you took. 18 next exhibit in line there. EXHIBIT 91 MARKED FOR IDENTIFICATION 19 20 Mark that as the Q Just briefly, I hand you what's marked as Exhibit This is the Colorado Survey pilot Phase 21 91. 22 Results, 23 MR. October the 15th. SCHAEFER: As a matter of clarification 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 123 1 MR. WESOKY: 2 MR. 3 want to make, 4 Q Right. Just for the record, SCHAEFER: I don't get confusing With that explanation, that the pilot Survey was 5 conducted at some point in June, 6 these results to Brann & Isaacson? ~'Jell, to be clear, I did you provide personally didn't. 7 A 8 Q RSG did? 9 A I understand they were provided, 10 Q The pilot survey is 250 people? 11 A 252 people. 12 Q What I wanted to do was look at, yes. again, your final survey which is I think Exhibit 21? 13 14 A That's correct. 15 Q And I wanted to look at your Declaration. We have 45 minutes left. 16 going great here. 17 should be done on time. 18 I'm We two in front of you? If you could get those 19 A Yes, I have them. 20 Q And if you look at your Declaration? 21 A Yes. 22 Q Paragraph, 23 A Okay. I believe it's 2? 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 12 4 1 Q Talks about the objectives of the survey? 2 A No. 3 Q Thank you. 4 A All right. 5 Q If you look at, That's not paragraph 2. survey. 6 It's paragraph 3. it says the objectives of the Do you see that? 7 A Objectives, yes. 8 Q And would you look at Exhibit 21 and see what the objectives of the survey are? 9 10 same, 11 the 12 A are they? Exhibit 21, They aren't the the objectives, and The objective as stated on page 3 is the same as 13 objective 2 which is or equivalent to objective 2 14 which is stated on -- 15 Q Exhibit 21, 16 A Well, 17 Q I'm sorry. paragraph 3, actually, right? I have Exhibit 39, paragraph 3. I was confusing the survey with the Declaration. 18 Right. Right. 39 is the Declaration. 19 A Right. 20 Q For clarity of the record, the objective number 2 21 in 39 is the same as objective stated in the 22 survey, 23 A Exhibit 21, is that correct? 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 125 1 Q Why not make the two the same objective? 2 A Yes. 3 Q You don't know? 4 A I'm not sure. I think they're both objectives as 5 stated on page 3 and the report only included one 6 of them. 7 of Exhibit 21, 8 that we are also dealing with the invasion of 9 privacy issue. 10 Q Well, in the project approach on page 3 there is a description of the fact That's not in the objectives, the project approach? 11 12 A No. It's not stated. 13 Q And that doesn't say the project approach, it says the objective in Exhibit 39? 14 15 A Yes. 16 Q Now, That's correct. you and your team drafted Exhibit 21, correct? 17 18 A Yes. 19 Q And Mr. 20 A Yes. 21 Q Give me a few minutes. 22 23 Schaefer drafted Exhibit 39, I correct? want to wrap some things up. (Off-the-record discussion) 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 133 1 there's a correlation between those two, 2 result if you use a probability based sample, 3 correlation is substantially reduced, 4 probability based sample is, 5 for adjustment of the responses to those other -- 6 Q A Q and so the can serve as the base To the opt-in. 8 that To the opt-in group? 7 and as a In this case for the Colorado survey that was done but not to the degree as shown in the graph? 9 10 A That's correct in general, 11 Q Is there some document or documents which shows the weighting? 12 13 yes. A Yes. In fact one of the, at least one of the 14 files that we gave you has the actual weighting 15 included. 16 Q I see i t ' s starting to snow. questions. 17 (Off-the-record discussion) 18 EXHIBIT 92 MARKED FOR IDENTIFICATION 19 20 Just a few more Q Let's go through the pages at the top so we can all have a correct copy. 21 22 A Yes. 23 Q First one is 4/9/10? What's your second page? 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 134 1 MR. 2 They have Bates numbers, by SCHAEFER: the way. I copied them poorly. 3 Q Yours doesn't. 4 A 5/2 is the next one. 5 Q Okay. 6 A Next one is 5/7 . 7 Q Okay. 8 A And the next one is 5/19. 9 Q Okay. 10 A Next one is 7/19. And then the last one that I have in this package is 9/15. 11 12 Next one is 7/26. Q Okay. That should be a complete package. Exhibit 92. 13 This is 4/9 is the first one? 14 A Yes. 15 Q 5/2 is the second one. 16 A Yes. 17 Q Okay. 18 A 5/7. 19 Q 5/19? 20 A 5/19. 21 Q Okay. 22 23 Then I'm sorry. 7/19. 7/26. MR. WESOKY: Correct? Again? And 9/15. Matt, please make sure you have the full set. 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 135 MR. 1 SCHAEFER: I do. 2 Q Okay. 3 A Yes. 4 Q Let's take a look at 4/9. 5 A Yes. 6 Q What is the, this note says and you can paraphrase for me, 7 8 These are your notes? A 9 I This, believe, I just want to make sure -- was an initial call from Matt describing the context of a study that he was 10 requesting us to provide a 11 that it was a survey of Colorado residents and 12 basically the context of the law. scope for and the fact 13 Q Okay. The next page? 14 A Next page. 15 Q And the note is 5/2? 16 A Yes. 17 Q And you're talking about the timing? 18 A Yes. And this was a discussion basically that we 19 told him that it was going to take four weeks 20 minimum for the project, 21 minimum of a thousand sample and then a response 22 that he had to move quickly to get funding 23 arranged for this study. that we would want a 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 136 1 Q Was the thousand sample yours? 2 A That was ours. 3 Q And the 18 plus is yours? 4 A It might have been a discussion that we had about what the appropriate age group would be. 5 6 Q 7 The next note is May 5th and that was just talking about a calIon Friday? 8 A Yes. 9 Q The next day is the 7th of May? 10 A Yes. 11 Q What was that conversation about? 12 A This was a more detailed discussion about the Call coming up on the 7th. 13 context of the project and a description of their 14 theory of the case and the fact that, 15 some of the mechanics that Kevin Keller and others 16 would be, 17 Q and then would also be involved in the project. So that second part there where it says theory, 18 that was the theory of the case as described to 19 you by Mr. Schaefer? 20 A Yes. 21 Q And the second, Isaacson. and below that kind of a logistical discussion? 22 23 And Mr. A Yes. 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 137 1 Q About Professor Keller commenting on the survey? 2 A Yes. 3 Q And that Mr. Schaefer will file the Keller affidavit and the survey report? 4 5 MR. 6 the document. 7 A Q Well, Objection. Mischaracterizes Yes. 8 SCHAEFER: you were not going to file a Keller affidavit, were you? 9 10 A No. 11 Q I didn't think so. does that mean? 12 13 A Q 16 17 A My recollection was that the law was in effect on Okay. Next is May 19th. Can you tell me what So this looks like kind of a repeat of the specific objectives, what we wanted to find out. Q So you wanted to find out whether turning over the information will cause people to not purchase? 20 21 May 1 in effect. that note is? 18 19 What May 1. 14 15 It says May 2 in effect. A Right, versus not paying taxes. We wanted to 22 avoid getting into the issue of people not liking 23 to pay taxes because we know nobody does. 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 138 1 Q 2 3 And it says don't care about summary collateral, what does that mean? A I was looking at that. I don't recall what that 4 means. 5 providing a, 6 the project they didn't care about us putting in 7 company qualifications and all that 8 they only knew about our company. 9 Q 10 Oh, I know what that -- I think in probably in providing the scope of stuff because And then the last part is those that have to make the report? 11 A That was my understanding. 12 Q That was conveyed to you by Mr. 13 Schaefer, I take it? 14 A Yes. 15 Q What does the thing on the right mean, purchase? 16 17 private A No. That was my own note. It's put purchase into 18 future context meaning we wanted to make sure it 19 was in the context of an actual purchase. 20 Q Next is 7/19? 21 A Yes. 22 Q And these notes reflect a conversation? 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@ao1.com cell 139 1 Q That talks about the amended regulation, Mr. 2 Schaefer informed you of that? 3 A Yes. 4 Q And we talked about that earlier. 5 A That's right. 6 Q What about the remainder of this note? 7 A Well, this is the mechanical pieces of having to 8 put together an affidavit or some sort of a report 9 and the fact that it had to be on file at that time by July 30th. 10 (Off-the-record discussion) 11 12 Q Thank you for pointing that out. As I say, these were copied in a haphazard fashion. 13 The next one I have is 7/26. 14 Is that correct? 15 16 A Yes. 17 Q That's a call with Mr. the note reflects? 18 19 Schaefer and tell me what A Well, it was that he wanted a results report that 20 contained the survey results, the content of the 21 survey; 22 should include in that report a very detailed 23 discussion of the sampling methodology and the that we had a discussion of whether we 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 140 1 Knowledge Networks panel, 2 we didn't need to do it there. 3 documents that Knowledge Networks had provided us, 4 that we needed to specify who had been screened 5 out of the survey and make that specific. 6 these were just the edits that were described in 7 the, 8 report. from the draft of the 9 Q A Fifth bullet. final That we'd use And version of the Eliminate? 10 and I think agreed that It was a bullet that, and I'm not 11 sure which -- this was from the draft to the final 12 so there was apparently some item that was l3 eliminated. 14 Q And that would track from the different -- 15 A Yes, 16 Q -- from the different dates of the final report, it should track. 7/23, 17 26 and so forth? 18 A Yes. 19 Q And 9/15 is the last one that I have. 20 A Right. 21 Q And tell me the content of this note. 22 A This was just the remaining items that we had to 23 do. We wanted to provide an updated copy of my 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 1 1 resume. 2 provided, provide billing info, 3 notes, 4 process that we discussed. 5 Q Now, In addition to material that we'd already this was the, time records, essentially, the discovery I noticed in the documents that you billed, 6 I ' l l call it "by the piece" for this project. 7 didn't bill an hourly rate? 8 A Yes. 9 Q You billed a project rate? 10 A Yes. 11 Q And that was $39,900? 12 A Yes. 13 Q And you didn't do an itemized bill. You That's correct. It's our standard. I believe so. one bill for the project, 14 You just did is that correct? 15 A That's correct. 16 Q And then your time is billed at the 344.44 an hour after completion of the project? 17 18 A Yes. 19 Q Other than the two hours you met with 20 Mr. 21 deposition? 22 23 A Schaefer, Well, what did you do to prepare for this prior to meeting with Mr. Schaefer, I reviewed the substantive pieces of our report, the 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 14 9 1 Q For travel that's been long scheduled. Just 2 housekeeping matters for starters. 3 an updated CV in connection with your Expert 4 Report? 5 A Yes. 6 Q I'm going to show you, You submitted 7 8 EXHIBIT Q 10 93 MARKED FOR IDENTIFICATION I'm going to show you what been marked as Exhibit 93. 9 let's mark it if we can. Does that appear to be the updated version of your CV? 11 A Yes. 12 Q Now, 13 A Yes. 14 Q And I your Expert Report is marked as Exhibit 90. believe your Declaration is marked as Exhibit 39. 15 16 A Yes. 17 Q And I believe the final Survey Results document is 18 marked as Exhibit 2l? 19 A Yes. 20 Q And we've just marked Exhibit 93 as your current cv. 21 22 A Yes. 23 Q Okay. Feel free if you need to to consult Exhibit 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 150 1 90, but do those documents together comprise the 2 packet that is your Expert Report in this case? 3 A Yes. 4 Q And I'm not going to ask you to do it because we time is short. You were shown 5 don't have, 6 different drafts of what ultimately became Exhibit 7 21? 8 A Yes. 9 Q We didn't look at them in great detail. But am I 10 correct that one could by looking at what's been 11 marked as Exhibit 80, 12 Exhibit 81, 13 the August 9th version, 14 whether or not there were revisions made between 15 those versions? the July 26th version, the July 29 version, and and Exhibit 21, one could determine 16 A Yes. 17 Q You just were handed some notes that indicated 18 that your first discussion with Brann & Isaacson 19 in this matter was on or about the 9th of April? 20 A Yes. 21 Q And your Expert Report, your Declaration was filed dated August 10th? 22 23 well, 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 151 1 Q Do I have that date right? 2 A 10th. 3 Q You had a number of conversations over the Exhibit 39? 4 intervening months between April 9 and August 10 5 with Brann & Isaacson regarding this? 6 A Yes. 7 Q And you did all the work on the survey, both 8 develop the questionnaire, 9 create the report of the results during that same 10 administer the survey, time frame? 11 A Yes. 12 Q And you're comfortable that your Declaration as 13 submitted in this case which you signed under oath 14 accurately reflects your opinions in this matter? 15 A Yes. 16 Q And your Expert Report which is marked as, well, 17 first of all, your Declaration marked as 39, 18 looked at certain drafts, 19 you opportunity to review those drafts? you had every 20 A Yes. 21 Q And you were comfortable upon review that changes were made as necessary? 22 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 152 1 Q Exhibit 90, your Expert Report, you're comfortable 2 that Exhibit 90 that you signed under oath 3 accurately reflects your opinions and the other 4 substance contained in the Expert Report? 5 A Yes. 6 Q And we looked at certain drafts and I believe you 7 had an opportunity to review those drafts? 8 A Yes. 9 Q To suggest changes? 10 A Yes. 11 Q And you did that to the extent you felt it was necessary? 12 l3 A Yes. 14 Q We looked at a number of questionnaires, draft In your experience, 15 questionnaires today as well. 16 is it typical and consistent with your ordinary 17 practice in the field to work on a questionnaire 18 with the client interested in fielding a survey? 19 A Absolutely. 20 Q Is it something that's commonplace? 21 A Yes. Virtually every survey that we do has some degree of back and forth with clients. 22 23 Yes. Q Thank you, Doctor. I don't have anything further. NORTH COUNTRY COURT REPORTERS 40 South Main Street West Lebanon, New Hampshire 03784 (603)298-2987 tel (603)218-6633 fax (603)443-1157 cjfoster7l@aol.com cell