Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al
Filing
216
REPLY to Response re 189 MOTION for Partial Summary Judgment filed by Weather Underground, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit OO, # 3 Exhibit PP, # 4 Exhibit QQ, # 5 Exhibit RR, # 6 Exhibit SS, # 7 Exhibit UU) (Schaefer, Enrico)
30(b)(6) and Individual Deposition of Jeffrey Ferguson 8/4/2010
Confidential
IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF MICHIGAN
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THE WEATHER UNDERGROUND,
INC., a Michigan
corporation,
vs.
Plaintiff,
Case No. 2:09-CV-10756
NAVIGATION CATALYST SYSTEMS,
Hon. Marianne O. Battani
INC., a Delaware
corporation; BASIC FUSION,
INC., a Delaware
corporation; CONNEXUS CORP.,
a Delaware corporation; and
FIRSTLOOK, INC., a Delaware
corporation,
Defendants.
__________________________________________
The Confidential Deposition of JEFFREY FERGUSON,
Taken at 126 South Main Street,
Ann Arbor, Michigan,
Commencing at 9:26 a.m.,
Wednesday, August 4, 2010,
Before Kathy Adkins, CSR-4697, RMR, RPR, B.A.
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
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BY MR. DELGADO:
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Q.
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Okay.
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8/4/2010
Take a look at that and let me know when you've had a
chance.
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A.
Okay.
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Q.
Now, you recognize this as a Quantcast printout?
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A.
Correct.
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Q.
With data for Weather Underground, correct?
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A.
Correct.
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Q.
This one gives the number of visitors in terms of
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daily people as opposed to monthly, but seems to
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indicate daily for a period of time there, July 14th,
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2009, through January 9, 2010, has approximately
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938,000 for the U.S. and 1.3 million for global, do
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you see that?
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A.
Yes.
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Q.
Is there any reason to believe that these numbers are
inaccurate?
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A.
No.
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Q.
Just look at the top here.
The top right-hand corner
does show that you're quantified, but --
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A.
Doesn't say when, right.
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Q.
Looking at the middle of the page where it gives U.S.
demographic information.
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A.
Okay.
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
8/4/2010
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if they take into account two people using the same
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computer at home.
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account a teacher showing it to a classroom of
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students.
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people.
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We don't know if it takes into
We don't know how they came up with this
What this is trying to do is come up with a
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way of getting from Quantcast pages to Quantcast
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people, but we don't know how they've come up with
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Quantcast people and that's where this ratio comes
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from.
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Our tallies, I'm confident in our tallies.
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Those, I mean, we're pretty good with numbers and
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keeping data and stuff like that.
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Quantcast does statistically with these numbers, it's
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a little bit of a black box.
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Q.
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As far as what
For purposes of today's record, can you tell us what a
tally is?
A.
Every time we serve a web page, we tally it.
It's
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just a simple increment.
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one when a page with that property goes out to the
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general public.
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just tally, just add one to the tally.
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Q.
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We increment the tally by
When we serve a page, there's -- we
Is that every page within the website or is that just
like the main page?
A.
It should be, I think it's every page in the website.
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
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Q.
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8/4/2010
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So let's use the first number there, May 2003 has
121,886,995, do you see that?
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A.
Yes.
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Q.
That means 121 million pages were served up in that
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month?
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A.
Yes, that's my understanding.
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Q.
And that would have been every time any page on the
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website, not just the main page?
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A.
That's my understanding, yes.
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Q.
So going back to your hypothetical, there's two people
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in a house using a single computer, husband checks it
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in the morning, wife checks it in the afternoon,
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just -- that would be two tallies?
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A.
That would be two tallies for a page tally, for a
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tally page.
We keep multiple tallies.
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instance if you were going to look at a radar page,
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that would have a page tally and a radar tally.
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is the page tally sums.
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Q.
A.
I don't know.
This
How many different tallies do you keep?
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So for
I believe there's one for each ZIP code
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plus one for each language and one for each country.
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So I think it's on the order of 10,000, or
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thereabouts.
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Q.
Other than page, radar, language, and ZIP code, are
you aware of any other tallies that you keep?
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
1
A.
8/4/2010
There would be blog pages and photo pages and each
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blog has their own tally file, and so each photo page
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and photo handles and individuals' blogs, and the
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tallies, as it becomes more important, we add tallies
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as we go into the future.
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So it's possible that a page wasn't created
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for a few years, it wouldn't have a tally until that
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page showed up.
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hurricane pages, hurricane tracking pages, there's a
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lot, a lot of tallies, and then ZIP codes too, and I
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mean ZIP codes, there's what, there's 99,000, so
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there's lots of ZIP codes.
Marine pages, tropical pages,
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Q.
What we're seeing here is the total tally number.
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A.
Yes.
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Q.
And but each page has its own individual tally?
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A.
Possibly, if there's something on that page that we
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feel like tallying.
Q.
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been served up?
A.
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So you can tell how many times an individual page has
In aggregate like this, right.
We don't keep them
individually.
Q.
Could you do a search to combine all these different
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elements, for example, you can figure out that your
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photo page had been served up to a particular ZIP code
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in a particular language in a certain month?
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
1
A.
No.
8/4/2010
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Because each tally, it's just, we just increment
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it by one when we count that type of page.
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interaction between the pages, between ZIP codes.
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Q.
This was previously marked as 44.
There's no
I had asked
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Mr. Steremburg about this.
The ad that appears on
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this piece of paper says 22 million unique monthly
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users and it gives a source credit of Quantcast of
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January 2010.
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Quantcast data for January of 2010 was just shy of
When I look back at Exhibit 43, the
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over 17 million.
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where the 22 million comes from?
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A.
No.
So my question was, do you know
These are all 29.
Quantcast does the
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Wunderground network and also wunderground.com.
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See
how those numbers are different?
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Q.
Yes.
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A.
I suspect the 22 is the network number and we could
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easily pull up Quantcast and see if that's what the
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number is.
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Q.
And network number is the what?
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A.
That would be weatherunderground.com.
If we possibly
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have a misspelled domain that gets rerouted to
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wunderground.com, that would be part of the network.
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wun.com.
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Photos, we could have put that one in there, we don't
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have that one.
What else do we have?
If we had Wunder
But the network is all of our stuff
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
8/4/2010
1
and the wunderground.com is just the specific site,
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wunderground.com.
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Q.
So when Quantcast puts out the network number, is it
just aggregating all of those?
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A.
I don't know what Quantcast does.
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Q.
So you don't know where that -- those two different
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numbers are coming from, the network number and then
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the individual website number?
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A.
On this -- on which sheet of paper?
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Q.
The one you showed me, 48.
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A.
Yeah, the network number comes from all the different
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websites that we've hooked up into Quantcast that say
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it's the Weather Underground network.
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four sites?
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site.
See it says
And then wunderground.com is just one
So as we get more URLs, we put them in
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there, if we have any pages on them.
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it internally and just turn it all into Wunderground
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pages, but Weather Underground is going to have a
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different count than Wunderground.
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Q.
We could bounce
My question was, for those four sites, all Quantcast
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is doing is just adding number of visitors and coming
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up with the total number for the network?
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A.
That's my understanding.
There's a question mark
there if we want to see their methodology.
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
1
Q.
8/4/2010
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And again, other than these categories that we've just
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discussed, is there any other category of damages that
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you're seeking as part of this lawsuit?
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A.
Not that I can think of now.
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Q.
Why don't you put this aside.
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I'm going to come back
and ask you some more questions about those later.
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A.
Okay.
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Q.
Well, let's just do it now.
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Go to paragraph 23 of that.
Actually, I
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should ask, before the Complaint was filed, did you
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have a chance to review it?
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A.
Yes.
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Q.
Did you in fact review it?
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A.
Yes.
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Q.
Did anybody else at Weather Underground review it
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before it was filed?
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A.
I don't know.
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Q.
Paragraph 23 alleges:
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"Wunderground also advertises on over 15
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million third-party websites by providing an
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application that displays Wunderground's logo and name
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along with local temperature."
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Do you see that?
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A.
Yes.
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Q.
How was the 15 million number determined?
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
1
A.
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We know how many stickers we send out each day and
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that's where that 15 million would have come from.
Q.
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8/4/2010
When you say you know how many stickers were sent out
each day, what's that mean?
A.
Each day we serve out stickers to third-party
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websites, and we know that people are looking at these
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stickers because we've served them to them.
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where that number comes from.
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Q.
That's
Do you keep track of just the number of stickers that
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are served or the number of places you're serving them
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to or both?
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A.
In some instances we'll keep track of the places, not
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the places we're serving them to, but the websites
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from which they're being clicked on, if in fact that's
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a client that pays us typically, otherwise we don't
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keep track of where those websites are.
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Q.
So I guess my confusion is that say your system is
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telling you we have served 10 million stickers today,
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how do you know that was to 10 million websites versus
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just 10 million stickers to one website?
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A.
That would be difficult to figure out, yes.
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Q.
So the 15 million third-party websites that's
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referenced here is basically an estimate?
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A.
It is an estimate, yes.
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Q.
Based on the number of stickers that went out on,
Westlaw Deposition Services 800.548.3668 Ext. 1
30(b)(6) and Individual Deposition of Jeffrey Ferguson
Confidential
1
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what, a monthly or daily basis?
A.
That would be daily.
it's the overall total.
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what we serve.
Q.
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Well, 15 million here looks like
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8/4/2010
That's what that number is,
We serve an awful lot each day.
Do you know approximately how many are served each
day?
A.
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I haven't looked in a while.
Last time I looked it
was about 18 or 19 million a day.
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Q.
And when was the last time you looked?
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A.
I suspect when I produced discovery to you, so that
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was six months ago.
Q.
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Just so we're clear, these third-party websites are
not necessarily clients?
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A.
Correct.
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Q.
But they can be clients?
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A.
They can be, yes.
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Q.
Look now at paragraph 35.
This paragraphs alleges
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that Wunderground is also the owner of all rights,
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common law or otherwise, in and to the mark WUND, do
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you see that?
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A.
Yes.
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Q.
So that I am clear, when you're referring to WUND,
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that is the mark just WUND standing alone?
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A.
Yes.
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Q.
So if I were to combine W-U-N-D with some other set of
Westlaw Deposition Services 800.548.3668 Ext. 1
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