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

1

FOR THE EASTERN DISTRICT OF MICHIGAN

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

1

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

1

BY MR. DELGADO:

3

Q.

22

Okay.

2

8/4/2010

Take a look at that and let me know when you've had a
chance.

4
5

A.

Okay.

6

Q.

Now, you recognize this as a Quantcast printout?

7

A.

Correct.

8

Q.

With data for Weather Underground, correct?

9

A.

Correct.

10

Q.

This one gives the number of visitors in terms of

11

daily people as opposed to monthly, but seems to

12

indicate daily for a period of time there, July 14th,

13

2009, through January 9, 2010, has approximately

14

938,000 for the U.S. and 1.3 million for global, do

15

you see that?

16

A.

Yes.

17

Q.

Is there any reason to believe that these numbers are
inaccurate?

18
19

A.

No.

20

Q.

Just look at the top here.

The top right-hand corner

does show that you're quantified, but --

21
22

A.

Doesn't say when, right.

23

Q.

Looking at the middle of the page where it gives U.S.
demographic information.

24
25

A.

Okay.

Westlaw Deposition Services 800.548.3668 Ext. 1

30(b)(6) and Individual Deposition of Jeffrey Ferguson

Confidential

8/4/2010

1

if they take into account two people using the same

2

computer at home.

3

account a teacher showing it to a classroom of

4

students.

5

33

people.

6

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

7

way of getting from Quantcast pages to Quantcast

8

people, but we don't know how they've come up with

9

Quantcast people and that's where this ratio comes

10

from.

11

Our tallies, I'm confident in our tallies.

12

Those, I mean, we're pretty good with numbers and

13

keeping data and stuff like that.

14

Quantcast does statistically with these numbers, it's

15

a little bit of a black box.

16

Q.

17
18

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

19

just a simple increment.

20

one when a page with that property goes out to the

21

general public.

22

just tally, just add one to the tally.

23

Q.

24
25

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

1

Q.

2

8/4/2010

34

So let's use the first number there, May 2003 has
121,886,995, do you see that?

3

A.

Yes.

4

Q.

That means 121 million pages were served up in that

5

month?

6

A.

Yes, that's my understanding.

7

Q.

And that would have been every time any page on the

8

website, not just the main page?

9

A.

That's my understanding, yes.

10

Q.

So going back to your hypothetical, there's two people

11

in a house using a single computer, husband checks it

12

in the morning, wife checks it in the afternoon,

13

just -- that would be two tallies?

14

A.

That would be two tallies for a page tally, for a

15

tally page.

We keep multiple tallies.

16

instance if you were going to look at a radar page,

17

that would have a page tally and a radar tally.

18

is the page tally sums.

19

Q.
A.

I don't know.

This

How many different tallies do you keep?

20

So for

I believe there's one for each ZIP code

21

plus one for each language and one for each country.

22

So I think it's on the order of 10,000, or

23

thereabouts.

24
25

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

35

2

blog has their own tally file, and so each photo page

3

and photo handles and individuals' blogs, and the

4

tallies, as it becomes more important, we add tallies

5

as we go into the future.

6

So it's possible that a page wasn't created

7

for a few years, it wouldn't have a tally until that

8

page showed up.

9

hurricane pages, hurricane tracking pages, there's a

10

lot, a lot of tallies, and then ZIP codes too, and I

11

mean ZIP codes, there's what, there's 99,000, so

12

there's lots of ZIP codes.

Marine pages, tropical pages,

13

Q.

What we're seeing here is the total tally number.

14

A.

Yes.

15

Q.

And but each page has its own individual tally?

16

A.

Possibly, if there's something on that page that we

17
18

feel like tallying.
Q.

19
20

been served up?
A.

21
22

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

23

elements, for example, you can figure out that your

24

photo page had been served up to a particular ZIP code

25

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

36

Because each tally, it's just, we just increment

2

it by one when we count that type of page.

3

interaction between the pages, between ZIP codes.

4

Q.

This was previously marked as 44.

There's no

I had asked

5

Mr. Steremburg about this.

The ad that appears on

6

this piece of paper says 22 million unique monthly

7

users and it gives a source credit of Quantcast of

8

January 2010.

9

Quantcast data for January of 2010 was just shy of

When I look back at Exhibit 43, the

10

over 17 million.

11

where the 22 million comes from?

12

A.

No.

So my question was, do you know

These are all 29.

Quantcast does the

13

Wunderground network and also wunderground.com.

14

See

how those numbers are different?

15

Q.

Yes.

16

A.

I suspect the 22 is the network number and we could

17

easily pull up Quantcast and see if that's what the

18

number is.

19

Q.

And network number is the what?

20

A.

That would be weatherunderground.com.

If we possibly

21

have a misspelled domain that gets rerouted to

22

wunderground.com, that would be part of the network.

23

wun.com.

24

Photos, we could have put that one in there, we don't

25

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,

2

37

wunderground.com.

3

Q.

So when Quantcast puts out the network number, is it
just aggregating all of those?

4
5

A.

I don't know what Quantcast does.

6

Q.

So you don't know where that -- those two different

7

numbers are coming from, the network number and then

8

the individual website number?

9

A.

On this -- on which sheet of paper?

10

Q.

The one you showed me, 48.

11

A.

Yeah, the network number comes from all the different

12

websites that we've hooked up into Quantcast that say

13

it's the Weather Underground network.

14

four sites?

15

site.

See it says

And then wunderground.com is just one
So as we get more URLs, we put them in

16
17

there, if we have any pages on them.

18

it internally and just turn it all into Wunderground

19

pages, but Weather Underground is going to have a

20

different count than Wunderground.

21

Q.

We could bounce

My question was, for those four sites, all Quantcast

22

is doing is just adding number of visitors and coming

23

up with the total number for the network?

24
25

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

51

And again, other than these categories that we've just

2

discussed, is there any other category of damages that

3

you're seeking as part of this lawsuit?

4

A.

Not that I can think of now.

5

Q.

Why don't you put this aside.

6

I'm going to come back

and ask you some more questions about those later.

7

A.

Okay.

8

Q.

Well, let's just do it now.

9

Go to paragraph 23 of that.

Actually, I

10

should ask, before the Complaint was filed, did you

11

have a chance to review it?

12

A.

Yes.

13

Q.

Did you in fact review it?

14

A.

Yes.

15

Q.

Did anybody else at Weather Underground review it

16

before it was filed?

17

A.

I don't know.

18

Q.

Paragraph 23 alleges:

19

"Wunderground also advertises on over 15

20

million third-party websites by providing an

21

application that displays Wunderground's logo and name

22

along with local temperature."

23

Do you see that?

24

A.

Yes.

25

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.

2
3

We know how many stickers we send out each day and

52

that's where that 15 million would have come from.
Q.

4
5

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

6

websites, and we know that people are looking at these

7

stickers because we've served them to them.

8

where that number comes from.

9

Q.

That's

Do you keep track of just the number of stickers that

10

are served or the number of places you're serving them

11

to or both?

12

A.

In some instances we'll keep track of the places, not

13

the places we're serving them to, but the websites

14

from which they're being clicked on, if in fact that's

15

a client that pays us typically, otherwise we don't

16

keep track of where those websites are.

17

Q.

So I guess my confusion is that say your system is

18

telling you we have served 10 million stickers today,

19

how do you know that was to 10 million websites versus

20

just 10 million stickers to one website?

21

A.

That would be difficult to figure out, yes.

22

Q.

So the 15 million third-party websites that's

23

referenced here is basically an estimate?

24

A.

It is an estimate, yes.

25

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
2

what, a monthly or daily basis?
A.

That would be daily.

it's the overall total.

4

what we serve.
Q.

6
7

53

Well, 15 million here looks like

3
5

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.

8

I haven't looked in a while.

Last time I looked it

was about 18 or 19 million a day.

9

Q.

And when was the last time you looked?

10

A.

I suspect when I produced discovery to you, so that

11
12

was six months ago.
Q.

13

Just so we're clear, these third-party websites are
not necessarily clients?

14

A.

Correct.

15

Q.

But they can be clients?

16

A.

They can be, yes.

17

Q.

Look now at paragraph 35.

This paragraphs alleges

18

that Wunderground is also the owner of all rights,

19

common law or otherwise, in and to the mark WUND, do

20

you see that?

21

A.

Yes.

22

Q.

So that I am clear, when you're referring to WUND,

23

that is the mark just WUND standing alone?

24

A.

Yes.

25

Q.

So if I were to combine W-U-N-D with some other set of

Westlaw Deposition Services 800.548.3668 Ext. 1