Video Professor, Inc. v. Amazon.com, Inc.

Filing 79

MOTION for Attorney Fees and to Declare Case Exceptional Pursuant to 15 U.S.C. § 1117 by Defendant Amazon.com, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Briant, Jared)

EXHIBIT B

30(b)(6) Deposition of David Laughlin Highly Confidential - Attorneys' Eyes Only

3/1/2010

Pag e 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

**HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY** I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO C a s e No. 1:09-CV-00636-REB-KLM ____________________________________________________ 3 0 ( b ) ( 6 ) DEPOSITION OF DAVID LAUGHLIN March 1, 2010 ____________________________________________________ V I D E O PROFESSOR, INC., Plaintiff, vs. A M A Z O N . C O M , INC., Defendant. ____________________________________________________ APPEARANCES: A p p e a r i n g on behalf of Plaintiff: Gregory C. Smith, Esq. E-mail: [e-mail] FAIRFIELD & WOODS, PC 1700 Lincoln Street, Suite 2400 Denver, Colorado 80203 Phone: [phone] Fax: [phone] - and Jean Robertson, Esq. VIDEO PROFESSOR, INC. 12055 West 2nd Place Lakewood, Colorado 80228 Phone: [phone] Fax: [phone] A p p e a r i n g on behalf of Defendant: Marc C. Levy, Esq. E-mail: [e-mail] Jared B. Briant, Esq. E-mail: [e-mail] FAEGRE & BENSON LLP 1700 Lincoln Street, Suite 3200 Denver, Colorado 80203 Phone: [phone] Fax: [phone]
800.548.3668 Ext. 1

Westlaw Deposition Services

30(b)(6) Deposition of David Laughlin Highly Confidential - Attorneys' Eyes Only

3/1/2010

Pag e 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

P r o c e d u r e 30(b)(6). MR. SMITH: Let me suggest something. We a l r e a d y have an Exhibit 1 in this case. MR. LEVY: Do you want

t o mark consecutively, or what are you doing? I intend to mark consecutively w i t h respect to Amazon exhibits, and so I'm going to s t a r t with my Exhibit 1, and then we'll continue from t h e r e , and I presume that you will do the same with y o u r exhibits. MR. SMITH: MR. LEVY: MR. SMITH: Q A Q s e e n Exhibit 1 before? I have. Is your understanding that you are the Is that okay? But we're not going to That's not my plan. Okay. So, Mr. Laughlin, have you c o l l e c t i v e l y number consecutively?

(By Mr. Levy)

d e s i g n e e of Video Professor, Inc., or VPI -- I'll r e f e r to Video Professor as VPI. A Q That's fine. All right. Is it your understanding that

y o u are here as VPI's designee to testify as to c e r t a i n topics listed in Exhibit 1? A Q That's my understanding. Okay. Can you identify which topics you

Westlaw Deposition Services

800.548.3668 Ext. 1

30(b)(6) Deposition of David Laughlin Highly Confidential - Attorneys' Eyes Only

3/1/2010

Page 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that?

A Q

And those are unauthorized, right. I understand that. From Video Professor's

v i e w , those are unauthorized, and they are violating t h e s e terms of usage, right? A Q Exactly. Okay. Are you aware of any other Web

s i t e s or retail stores, brick and mortar stores for t h a t matter, where a consumer could find Video P r o f e s s o r products, other than your 800 number, your W e b site, eBay and Amazon? A You know, there are probably sites like a C r a i g s l i s t or something like that where you might run i n t o that, but again, I think for our part, we a t t e m p t to go after those third parties and take them down. Q A Q A Yeah. Why do you do that? We don't like our product being resold by I understand that, but why don't you like As a CD ROM product, it can be duplicated.

a n y o n e other than Video Professor.

I t can be -- you know, there's piracy issues related t o it, and so we -- by virtue of your having p u r c h a s e d and bought the product and using it, we d o n ' t allow you to then take that and resell it.

Westlaw Deposition Services

800.548.3668 Ext. 1

30(b)(6) Deposition of David Laughlin Highly Confidential - Attorneys' Eyes Only

3/1/2010

Page 108

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

o f f e r e d the Video Professor product, right? A Q A Q a keyword. A Q A Not to my knowledge. That would -- yeah. Better not, right? That would be interesting. I guess also Video Professor has been You are aware of that? We had an agreement. What do you mean by that? The vendor manual, vendor agreement, I

a w a r e that Amazon was bidding on "video professor" as

b e l i e v e , specifically allowed them to utilize the " v i d e o professor" keyword in order to sell Video p r o f e s s o r product. Q And if I understand this right, I mean, t h a t was Video Professor's understanding so long as t h e vendor agreement remained in effect; is that right? A Correct. MR. LEVY: I see that it's 12:30, and I

p r o b a b l y should have mentioned this earlier, but w o u l d this be a good time to take our lunch break? MR. SMITH: That's fine with me. (The deposition recessed at 12:30 p.m., to be reconvened at 1:30 p.m.

Westlaw Deposition Services

800.548.3668 Ext. 1

30(b)(6) Deposition of David Laughlin Highly Confidential - Attorneys' Eyes Only

3/1/2010

Page 152

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2 0 0 8 , and this invoice is referencing an order -- and I ' m assuming that's an order from Amazon dated F e b r u a r y 3, 2009. A Q Yes. And it appears that these products were What's going on Do you make the same conclusion?

s h i p p e d and Amazon was invoiced. h e r e ; do you know? A

It looks like even after the termination

o f the agreement on another level, Amazon was still s u b m i t t i n g purchase orders, and Video Professor was f u l f i l l i n g those purchase orders. Q A Q Do you know why that was being done at I don't know why. Was it Video Professor's intent in V i d e o Professor?

t e r m i n a t i n g the vendor manual that it would not be a c c e p t i n g any more orders from Amazon? A Q A Q That would be my intent, yes. But that's not what happened? That's not what happened here. And if we look through these invoices, if

y o u go to the very next page, it looks like there was a n order -- this is the page marked VPI 105. A Q Yeah. There was an order for 20 units of Office

Westlaw Deposition Services

800.548.3668 Ext. 1

30(b)(6) Deposition of David Laughlin Highly Confidential - Attorneys' Eyes Only

3/1/2010

Page 153

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Essentials. A Q

Do you recognize that as a VPI product? Sure. Yes, I do. And that apparently was ordered by Amazon So this indicates that VPI was still

o n March 10, 2009, and it was shipped to Amazon on M a r c h 11, 2009. t h a t right? A Q I agree. All right. That's what it's showing. Do you recall ever any I thought we ended that s h i p p i n g product to Amazon as late as March 2009; is

d i s c o v e r y after the fact, oh, my goodness, what are w e doing shipping to Amazon? relationship? that? A I wasn't involved specifically in any I came to understand a d i s c u s s i o n s about discovery of this after the t e r m i n a t i o n of the agreement. Q Okay. s h o r t while ago that this had actually happened. So at least as late as March 2009, A m a z o n had both received and paid for product from V P I to sell on its Web site, right? A Q right? A Correct. Received -- it had its purchase orders And Amazon's business is selling products, f u l f i l l e d , yes. Was there any discussion at VPI about

Westlaw Deposition Services

800.548.3668 Ext. 1