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: (415) 321-2300
Fax: (415) 618-0743
Reported by:
JANIS JENNINGS, CSR, CRP, CLR
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Christopher Schwerzler
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Q.
4/29/2010
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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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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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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:
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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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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.
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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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this --
THE WITNESS:
Can we take a break after
MR. DELGADO:
Yes.
Westlaw Deposition Services 800.548.3668 Ext. 1
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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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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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