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)

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
·184 Main Street, Fourth Floor
P.O. Box 3070
Lewiston, Maine, 04243-3070, on behalf of the
Plaintiff, The Direct Marketing Association.

20
21

22

23

Jack Wesoky, Esquire
Senior Assistant Attorney General
1525 Sherman Street, 7th Floor
Denver, Colorado, 80203, on behalf of the Roxy
Huber in her capacity as Executive Director,
Colorado Department of Revenue.

NORTH COUNTRY COURT REPORTERS
40 South Main Street
West Lebanon, New Hampshire
03784
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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

[phone]

South

Lebanon,

tel

Main
New

Street

Hampshire

[phone] fax
[e-mail]

03784

[phone]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone]

South

Lebanon,

tel

Main

New

Street

Hampshire

[phone] fax
[e-mail]

03784
[phone]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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

[phone]

South

Lebanon!

tel

Main
New

Street

Hampshire

[phone] fax
[e-mail]

03784

[phone]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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

[phone]

South Main

Lebanon,

tel

New

Street

Hampshire

[phone] fax
[e-mail]

03784

[phone]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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

[phone]

South

Lebanon,

tel

Main
New

Street

Hampshire

[phone] fax
[e-mail]

03784

[phone]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone]

South

Lebanon,

tel

Main

New

Street

Hampshire

[phone] fax
[e-mail]

03784
[phone]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail] 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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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

[phone]

South

Lebanon,

tel

Main
New

Street

Hampshire

[phone] fax
[e-mail]

03784

[phone]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] t e l
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

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
[phone] tel
[phone] fax
[phone]
[e-mail]

cell