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)

Christopher Schwerzler
Confidential

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4/29/2010

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

1

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation
Plaintiff,
vs.

No. 2:09-CV-10756

NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; BASIC FUSION
INC., a Delaware corporation;
CONNEXUS CORP., a Delaware
corporation; and FIRSTLOOK INC., a
Delaware corporation,
Defendants.

CONFIDENTIAL
DEPOSITION OF CHRISTOPHER SCHWERZLER
Thursday, April 29, 2010
SHEILA CHASE & ASSOCIATES
REPORTING FOR:
West Court Reporting Services
221 Main Street, Suite 1250
San Francisco, California 94105
Phone: [phone]
Fax: [phone]
Reported by:
JANIS JENNINGS, CSR, CRP, CLR

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Christopher Schwerzler
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Q.

4/29/2010
44

Okay.

A.

I have just seen the estimate of where I

thought I was recalling the 20-percent search fed -Q.

Okay.

A.

-- number at one point.

I don't like the tool

because I find it confusing, compared to Quantcast.
Q.

Okay.

A.

Yes.

A.

I go to their site to look at our daily

Quantcast?
Q.

Would you say you deal primarily with

Do you personally use Quantcast?

metrics.
Q.

Okay.

Can you tell how many people visit your

A.

We can tell the uniques presented by

Q.

Other than by looking at what Quantcast is

website on a daily basis?
Quantcast.

telling you in terms of unique visitors, is there any
other way to tell?
A.

there.

There's other services, such as comScore, out

We aren't currently a comScore customer so I

have limited access to ever seeing the numbers that they
claim we have, but, you know...
Q.

How many unique visitors does Quantcast say

you have today on a daily basis?

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4/29/2010
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A.

It's usually grouped on a monthly basis.

A.

I'm more familiar with the monthlies than I am

Q.

Okay.

the dailies.
Q.
A.

That's fine.

It's just in the Internet how much people

think of audiences.

And this month it's around, I

believe, maybe 10 to 11 million uniques in the United
States, and I believe our overall arching Weather

Underground domain -- that includes Weather Underground
and Wunderground -- globally would be more in the scale
of 18 million uniques.

Wunderground, W-u-n-d-e-r-g-r-o-u-n-d.

sure you get that right.
Q.

Make

If I were to ask you to go back in time on

kind of a yearly basis, could you tell me -- you know,

give me estimates as to how that number has changed over
time?

A.

With Quantcast I could probably get you pretty

Q.

Okay.

accurate ideas going back two years -A.

-- when we first started using their tagging

mechanisms.
Q.
A.

Okay.

Prior to that, probably in '95, it was close

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4/29/2010
46

to zero and now it's all the way up 'til I think we hit
about 14 million in the United States in January, being
a high water mark.

It can change from month to month.

Q.

Do you have any estimate between 2004 and

A.

I could probably make an educated guess.

A.

2004 to 2006 would probably in the ballpark of

2006?

Q.

What would that guess be?

6 to 7 million uniques in the United States.

It's been

fairly linear in growth in the company's history.
Q.

Okay.

And that would be -- since it's been

linear, would you say like 6 million in 2004 growing up
to 7 million in 2006?
A.

I would have to actually do the math on a

piece of paper, which I don't have in front of me, to
try to make a good estimate.
Q.
A.

weather.
Q.
A.

Okay.

And it can be greatly affected also by the
Sure.

An example would be 2005.

We had three major

hurricanes hit the United States, in which case we saw

very large spikes in the user base as people became very
interested in Katrina, Rita, and Wilma.
Q.

So any time there's a weather phenomenon --

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A.
Q.

Snowpocalypse.
No.

4/29/2010

Sorry to interrupt.

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Like I said, sometimes that happens.

So any time there is a weather phenomenon, the

number of hits in your page go up; right?
A.
Q.

Number of hits and the unique audience.
Okay.

But in terms of kind of average

numbers, we're talking about 6 to 7 million between 2004
and 2006 -A.

I can't really --

A.

Yes.

Q.
Q.

-- best estimate?

It's an estimate only.

I could be off.

Are there any documents you can look at to

kind of refresh your memory or that would have
quantified it for that time period?
A.

I can probably take the tallies that we

presented to you, I believe -- is that correct,

Brian? -- to come up with an estimate as to the number

of pages that we're serving to the uniques for that time
frame because I believe our tallies go back more years
than our accounts with Quantcast.
Q.
A.

Do you remember the first date of the tallies?
No.

It's probably going back into the early

2000s, 2002 or 2003.
Q.

I have no idea what document you are talking

about so --

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A.

Okay.

A.

It's in a format referred to as HDF,

Q.

-- what does this tallies document look like?

Hierarchical Data Format.
Q.
A.

Okay.

And it would have things such as city page

with a number next to it for a given day.

It would

represent the total number of pages that match that
category on that date.

That would not be a

representation of uniques, but there may be a

correlation of number of pages to uniques that would

allow you to come up with a guesstimate, at best, of the
time frame you're looking at.
MR. DELGADO:

Counsel, do you know what

document or what Bates number that document is?
MR. HALL:

in batch 2.

I do not.

I know it was produced

It was one of the ones that you referenced

in a recent letter asking what this was.
MR. DELGADO:

Oh, okay.

MR. DELGADO:

Okay.

MR. HALL:

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4/29/2010

produced.
Exhibit 3.

And new formatting has since been
Let's mark this as

(Whereupon, Defendants' Exhibit 3 was
marked for identification.)

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4/29/2010

quick blurb on Weather Underground in there.
THE WITNESS:

56

Okay.

BY MR. DELGADO:
Q.

You see this is an article from the Wall

A.

Correct.

Street Journal from February 2001; correct?
Q.

Okay.

On the second page there's a blurb in

here about Weather Underground.
column.
A.
Q.

That's in the second

Do you see that?
I see that.
Okay.

The article states -- they are talking

about your servers -- "The servers labeled with

meteorological names such as 'tornado' dish up about 2.5
million page views a day to web surfers."
A.
Q.

Do you see that, as well?
Uh-huh.

Do you know if that 2.5 million page views a

day back in 2001 is an accurate number?
A.

I was not quoted in this so I would have to

Q.

All right.

A.

No, I do not.

actually research it further.

It's believable.

Sitting here today, do you have

any reason to believe that that number is inaccurate?
Okay.

I will rephrase that.

I

will say that I would be a little bit skeptical, in that

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it's coming from our chief meteorologist and not someone
who is actually day-to-day hands on with the technical
implementation of the site.
MR. DELGADO:

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Okay.

Mark this as Exhibit 5.

(Whereupon, Defendants' Exhibit 5 was
marked for identification.)

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But 2.5 million would not

be out of line for about 2001.

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4/29/2010

BY MR. DELGADO:
Q.

Take a moment to look at that document and

A.

Okay.

A.

It appears to be an Alexa traffic report page.

familiarize yourself with it.
Q.
Q.

1995?

A.
Q.
A.
Q.

Do you recognize this document?
Okay.

And the date for this is March 30th of

I'm looking at the top.

I'm having trouble reading it.
Do you see that?

Okay.

Yes.

Yes, I see that.

Had Weather Underground launched a website by

March 30th, 1995?
A.

I can't be certain as to whether it's the

first days of our company's existence, as to when in
1995 we launched the domain wunderground.com.

It's

probably in the record if you would like a more accurate
representation.

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A.
Q.

4/29/2010

I have no reason to believe that.
Okay.

73

Let's look at the next page, which

gives us some more graphics about addicts, regulars, and
passerbys, and a little bit more clarity in terms of it
being easier to read.

It shows here -- and I'm looking at the middle

of the page -- monthly people, global, of 10.3 million;
is that correct?
A.

That is what the page says.

A.

That is correct.

Q.
Q.
A.

January.
Q.

Okay.

U.S. has 7.6 million; right?

And that's their average number that they -It appears to be a monthly average from
And now their bar graph suggests that

2 percent of addicts account for 38 percent of the
visits.
A.
Q.

Do you see that?

Yes, I see that.

38 percent of regulars account for 46 percent

of the visitors -- visits?
A.
Q.

Uh-huh.

And 60 percent of passerbys account for

16 percent of visits.
A.

Do you see that?
That's correct.

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Do you have any reason to believe that these

A.

No, I do not.

numbers are inaccurate?
Q.

So roughly about 40 percent, in terms of

addicts and regulars, account for 84 percent of the
traffic to your website; right?
A.
Q.

Can you repeat the statement?
Yeah.

40 percent of visitors, the sum of

38 and 2, account for 84 percent of the traffic to your
website?
A.
Q.

Yes, your math is correct.
Okay.

Look down at business activity, where

it divides the U.S. into business and home.

Do you know what this means, in terms of

36 percent business, 64 percent home?
A.

It's probably their best guess as to whether

you're coming from a business IP address or a home IP

address, such as something like a home DSL versus your
office.

MR. DELGADO:

Mark this next exhibit as 11.

(Whereupon, Defendants' Exhibit 11 was
marked for identification.)

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Q.

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4/29/2010

this --

THE WITNESS:

Can we take a break after

MR. DELGADO:

Yes.

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THE WITNESS:

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now.

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-- or right now?
Absolutely.

We can take a break

(Off the record.)

BY MR. DELGADO:
Q.
A.

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4/29/2010

Do you recognize Exhibit 11?

It appears to be a Quantcast top 100.

I can't

tell the exact date because the exhibit sticker has
covered up the --

DEPOSITION REPORTER:

up.

THE WITNESS:

second page.

No, it didn't cover it

It's 1/19/2009.

It's on the

It appears to be from 1/19/2009.

BY MR. DELGADO:
Q.

Okay.

Q.

Number 91 is wunderground.com.

A.

A.
Q.
A.
Q.

Okay.

Look at the last page.

Do you see that?
I see that.

It has 9.5 million plus U.S. monthly people.
Do you see that, as well?
Yes, I see that.

Any reason to believe that that number is

inaccurate?
A.

No, I do not have any reason to believe that.

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Q.

A.
Q.

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Correct.

Any reason to believe that any of that is

inaccurate?
A.

I believe that's a view gleaned from their

Q.

You don't have any internal demographic

demographics.

information that would contradict what that says;
correct?
A.

No, I do not.
MR. DELGADO:

Okay.

Mark this as 12.

(Whereupon, Defendants' Exhibit 12 was
marked for identification.)
MR. DELGADO:

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And then it states, "The site attracts a more

affluent audience."

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educated, slightly male slanted, mostly Caucasian, more

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Brian, as he's looking at that,

just so that you know, the surveys he's testified about,
I think those should have been produced and I would want
to see them, to the extent that he's retained them.
BY MR. DELGADO:
Q.

Are you ready?

Q.

Do you recognize this document?

A.
A.

Yes.

I'm not particularly familiar with the format

of it, but I assume it's another Quantcast Audience

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Profile is what it says, generated apparently on
Q.

Look at the bottom of the first page and then

it continues on to the second page, where it has a list
of businesses.
A.

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Do you see those?

I see where it's staggered and there's a small

business of note, medium business of note, and large
business of note.
Q.

Okay.

A.

Keep going.

Okay.

then it's got a -Q.

It says "business" and

It's a chart that says "business, uniques,

unique percentage, unique index, visitor percentage,
visitor index."
A.

Do you see that?

Q.

Yes.

A.

Do you know what this chart means?
No, I do not.
MR. DELGADO:

Let's mark this as 13.

(Whereupon, Defendants' Exhibit 13 was
marked for identification.)

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December 17th, 2009.

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BY MR. DELGADO:
Q.

Is there somebody at your company -- before

you get to Exhibit 13 -- that is more familiar with
Quantcast?

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