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