Timebase Pty Ltd v. Thomson Corporation, The

Filing 118

MEMORANDUM in Support re 116 MOTION to Compel Responses to Interrogatories 1 and 8 filed by Timebase Pty Ltd. SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 2/12/10. (Gasey, Arthur) Modified on 2/12/2010 (akl).

Timebase Pty Ltd v. Thomson Corporation, The

Doc. 118 Att. 26

Exhibit 35

Dockets.Justia.com

Video Deposition of Aaron Mock May 12,2009
~ _ _ _ _

-

1

1 2 3 4
5
--

UNITED STATES D I S T R I C T COURT D I S T R I C T O F MINNESOTA

-----

-,

-

-

---__

LEMOND CYCLING,

INC.,

Pla'intiff
V.

6

Case No.

08-1010

7
8

TREK B I C Y C L E CORPORATION,

Defendant / T h i r d - p a r t y
V.

Plaintiff

9
10

G R E G LEMOND, Third-party

11 12
/ ,

Defendant,

Defendant.

-\

k

13 14
15

-------------_____-___

-

D e p o s i t i o n 0.f AARON MOCK May 12, 2 0 0 9

16 17
18

9:30 a . m .
at
G a s s Weber & M u l l i n s , LLC

19 20 21 22 23 24 25

309 N o r t h Water S t r e e t
Milwaukee,

Wisconsin

R e p o r t e d b y David J . S i k o r a ,

RPR,

RMR,

CRR

Video Deposition of Aaron Mock May 12,2009

-

80

products during his racing career.

He had a great It was a

legacy of trying new things, to go faster.
3,

great time in cycling, to be honest.

And so that's

4
J c;

the reference, I think, that's being made here.

Q

Sure.

And that's consistent then with the next

6

sentence, that said, Greg was the first to use clipless pedals, cycling eyewear and aero bars, all standard-issue cycling gear now. A Yes. At a time when innovation often finished second to traditions. testimony? A Yes And Greg remains steadfast in his opinion on frame geometry, proper ergo dynamics, and the feel of the bike. A
Do you see that? Is that consistent with your prior

7;
8

9 10 11
12

Q

Q
15
16

17
18

I see that.

Q

Is this notion of frame geometry something that was
specific to Greg LeMond brand in terms of his quality and reputation?

A

I think that the way we positioned it within Trek
bicycles, yes. brand. It was specific to Greg LeMond's

The reality of that is that frame geometry,

as Greg could attest to, probably has been something
%

25 1!

!

that has been developed over the years of Pro

Video Deposition of Aaron Mock May 12,2009
,.->

-

81

1

Peloton riding, and there are other products in the marketplace that reflect similar geometries. We

2
3

basically leveraged tha.t Pro Peloton geometry, and Greg's view of that, in this context.

4
5

Q
A

What do you mean by Pro Peloton geometry? Greg was a pro racer. Greg had ideas about hc i a And in many cases

6
7

rider should be on top of a bike-

8

are very traditional, from the standpoint of a rider looks like this on a bike. They do this to get And we had But they

9
10
11

power, and those types of things.

conversations about some of those things.

\I
,-.

12
13
14

aren't very distant from what another pro would tell you. And so Pro Peloton simply means someone that's It may not be someone But

racing at the highest level. that's a pro.

15
16
17 18 19 20
J

It could be a very high amateur.

it's commonly understood advantages in racing:

Q
A

You made a reference to the idea that this frame

geometry maybe was used elsewhere. Uh-hm. Tell me where and when. I don't know that there's -- frame geometry is very complicated. Frame geometry is made up from

Q
A

21 22

23
24
/

everything of how the rider interfaces with the bike
--

so you literally measured from the seat tube

25

to the head tube.

Video Deposition of Aaron Mock May 12, 2009
/f-xL

-

84

~--____

-;

1

going, what's happening at retail.

In the generic

2
3
4

sense, and also in specific sense, when it comes to models, or a specific model. And there have been

times when those conversations have been less productive based on the discussion of a dealer's time being spent talking to consumers about comments made by Greg rather than the product on the showroom floor. Again, I'm not the sales guy, so I can't But as a

5
6

7
8

9

tell you how that directly affects sales.

10

former bike shop employee, and knowing what those dealers have talked to me about, that's a distraction. Especially on a day when, you know,
Or want to basically be

11 12

they need to move product.

selling the product, and talking about the product.
15

Do you know of any -- I think you answered this, but

16
17

just to be clear - - do you know of any guidance or support that Trek gave dealers in terms of helping them productively deal with that issue? I do not.
MS. RAHNE:

18

19
20 21

Mark this.

(Exhibit Number 182 was marked for identification)
MS. RAHNE:

22
23

You can take a look at that, and

24

decide whether 'you want Greg to step out.

25

Do you know roughly the years when these

Video Deposition of Aaron Mock May 12,2009 1

-

85

distractions occurred?

2
3

A
Q

I would be guessing.
Two thousand four one of them? Yes. MR. WEBER: Yeah, I would. Greg, we got an attorneys eyes

4 5
6

A

MS. RAHNE:
only document. MR. LE MOND: MS. RAHNE:

7
8 9 10 11
12

Should I go out? Yeah.

(Short pause) MR. WEBER:

I don't know if we put it on the

record, Mr. LeMond has been attending the deposition today. MS. RAHNE: Thank you, Ralph, I should have

13

14
15
16

done that at the beginning.

Q

I'm going to hand you what's been marked as Exhibit
182.

.17
18 19

If you wouldn't mind spending just a couple of

minutes flipping through it. (Short pause) A Okay. Okay. Mr. Mock, have you ever seen a document like

20 21

Q
A

22
23

Exhibit 182 before? I have. And can you tell us, for the record, what it is? This is the notes of town halls that would have been

24 25

Q
A

Video Deposition o Aaron Mock May 12,2009 f
,/-.
~-

-

86

1

done.

And a town hall would be a meeting in a given They would basically

2
3

city, location, wherever.

bring in customers to review opportunities for the company. And by opportunities, I mean the good, the Usually opportunities come in all

4
5

bad, the ugly. different --

6

7
8

Q
A

Sorts. Sorts. It's life, right? It's life. Everything's going to come in. You got it.
So who would attend these?

9
10
11
/

Q
A

12
A

--.

12
13

j
i

Q
A

I mean customers.

Who

P

14 15
16 17 18 19

else? Customers. There would have generally been a Whether

representative from different departments.

it's sales, forecasting, marketing, product.

Q
A

Well attended? Yes. Generally well attended.

20 21

Q

Now, this appears to be.a collection of them from 2004 time period, would you agree? I'm going to

22 23 24
/

trust your judgment on this, because I think you're probably more familiar with how these were generated.
L o o k s like there's a 2003 one as well.

25

A

Yeah.

I mean it's a -- the time span here is from

Video Deposition of Aaron Mock May 12,2009
/

-

87

1

November of '03 to November of 2004. year's worth of discussion.

So a full

2
3

Q
A

Okay.

Would one of the distractions that you

4
5
6
7

referenced have also been in 2001? Not that I remember. You don't recall there being any concern or distractions in 2001 related to comments by Mr. LeMond? A Not specifically to me. Generally? Yes. Generally.

Q

8

9
10
11

Q
A

12

Q
A

Generally. Yeah. And in 2004, do you recall, generally, when any comments would have been made by Mr. LeMond that caused what you referred to as a distraction?

Q
15
16 17 18
~

A

I don't remember the exact timing of the comments,
but I remember dealers are very cognizant. good at what they do. They're And,

19

They're very informed.

20
21 22

you know, when things come up that aren't directly related to them being successful in their business, it usually becomes an issue. that. And they'll vocalize

23 24

And, you know, that's something that I think

could have taken place at any time after comments were made.

Video Deposition of Aaron Mock - May 12,2009
" 1
-

88

-_

-

_-

1

Q
A

So they follow cycling.
Sure. Most dealers, yeah. Correct?

2
3 4

Q
A

You've had a chance to review Exhibit 182? Most of it, yes.

5
6

Q

And I'll allow you to take as much time as you want, if you want to spend more time. through it in great detail. But I've been

7
8 9 10 11 12
/-*

And you've mentioned

that this is sort of where the good, the bad, and the ugly come out. A Uh-hm. Can you point to one instance in here where there's a reference to concern about comments made by Greg LeMond? A Let's see. I'll focus on the 2004 portion, because

Q

/

b"

13 14 15 16 17 18 19 20

i

the 2003 portion wouldn't - -

Q
A

Sure

e

(Short pause)

I do not.
Take a look at a couple of them. questions about what they mean. I have some

Q
A

21
22

Okay. If you look at Trek 011793.
00179 --

Q
A

23

24
25

Q
A

It's on the third page, Okay..

Video Deposition of Aaron Mock May 12,2009

-

108
I

1
2
3

longer ignore his results and the face of cycling changed forever, do you see that? A

----

I do.
Do you have any experience, based on your work at

4

Q

5
6
7

Trek, related to a claim like this in Trek marketing materials?

To validate whether it's consistent with

what was believed of Greg in 1996, or inconsistent? A I would say that it's consistent. Just one more item on this page. If you look at the

8

9

Q

10
11

second column, it says, the real genius of Greg was also in what he didn't change. And I think that

12 13
14

references back to your earlier testimony.

A

To my point. Okay.

Yes. You've

Q

So you do know actually back to 1996.

15 16

absorbed a lot.

If it worked, he didn't fix it.

Traditional European road race geometries, reliable European components and classical styling. see that? A Yes. Is that consistent with what you think of as something associated with the LeMond brand?
Do you

17
18

19

20 21 22 23 24 25

Q
A

It is.

It would g o back to our conversation on

geometries.

Q

Right. decade.

Great.

Okay.

I'm going to jump ahead a

Keep us all awake here.

Video Deposition of Aaron Mock May 12, 2009
/\

-

123

1
2
3

A

I do. Did that impact what you did with the LeMond line?

Q
A

No, it didn't.
And why not? Making more carbon product in this context meant making more carbon product in the Waterloo facility.

4 5.
6
7

Q
A

So it was basically a reaction to just capacity
planning.

8

9 10
11 12

Q
A

What's made in the Waterloo facility?
So we make Trek road frames.

Not all road Trek

frames, but many of the carbon frames f o r Trek are made in Waterloo, and I believe that's what number one is pointing to. Trek product side. Capacity issue probably on the

15
16 17 18 19
20

Q

Then item two for the goals, says simplify the Trek road line and complement it with LeMond. that? Do you see

A

I do. Do you recall, from a project manager perspective, this being a goal for the line you managed, that you would be complementing the Trek road line?

Q

21
22 A

It's always something -- this exact g o a l is not - this is actually
--

23 24
.

this goal actually reflects --

this is a future state to when my work would have occurred. In other words, this came out after my

25

Video Deposition of Aaron Mock May 12,2009
work had already been done.

-

124

So any time, you know,

2
3

when you look at your distribution channel, it's part of what a product manager would do, a dealer, you're looking at the dealer, and what that dealer carries, and how they carry it. Well, most dealers

4
5

6
7

want to have two really competent successful road lines on their floor. And so the goal with LeMond,

8
9

since most of our distribution channel carried both, was to make sure that we had a LeMond product that was competitive with the Trek product.
So the

10

11

dealer was offering their customer a choice. that's what I read into number two.

And

12

Q
15

So you don't understand this to be that this LeMond

bike is complementing the Trek road line. didn't feel like
--

You

you don't feel like, reading

16

this, that you were creating a product that was a complement to the Trek line. A
So I don't read this to mean that there were any

17 18

19

compromises made to the LeMond line based on what the Trek product line is.

20
21

I read this to mean that

LeMond is there to make dealers successful alongside of Trek within that business structure.

22
23

Q
A

You can turn a few more pages to - Okay.
- - Trek 004318.

24
25

Q

Video Deposition of Aaron Mock May 12,2009

-

125

A 2
3

Okay.

Q
A

Do you see that?
Yes. There's a Trek and LeMond platform. Yes.

4

Q
A

5
6
7

Q

Is this consistent with what you're talking about in
terms of there being a Trek road bike, and a parallel LeMond road bike for dealers to carry?

8

9

A

Yeah.

When I look at this, and I look at the

10
11
,--,
*

platforms laid out next to each other, it's simp1 showing each level of frame platform, and it's kind of showing its counterpart based on price ranges, is really what it's looking at there. And it's
--

12 13

,

*

ii

'

to

14
15

me, it's simply showing the dealer that, hey, you have, on the Trek side you have a Madone, on the LeMond side you have this ti carbon Tete de Course. You know, you have this really nice other piece to sell that customer coming in the door. this option or that option. You have

16

17
18

19

And the nice thing

20
21

about this is it shows, you know, for basically each Trek platform, there's a complementary LeMond.

22
23

Q
A

And how -- I asked you before, but now we've got actually a nice parallel set in front of us. Sure.

24
/

25

Video Deposition of Aaron Mock May 12,2009
_I -

-

126
__

these two lines?

2
3

A

Yeah.

As a consumer, you know, sitting in this

room, we understand that Trek and LeMond are under one umbrella. As a consumer walking in to a

4
5 6
7
8
9

dealership, and looking at the product line up on the floor, when you look at a LeMond, and when you look at a Trek, especially in this context, they're significantly different visually. If you had no

idea, if there weren't details at least on the high end stuff, you would still know that they were different platforms. You wouldn't have guessed that

10
11 12

they came from one company, because they were very unique. Spine technology is very unique.
As you

get down further, it gets a little more generic as
15
16
17 18

you get down to aluminum platforms.

But then,

again, when you look at the products sitting next to each other on the floor, whether it's speciications, in other words, the parts that are on there, the handlebars, the drive train, or paint and graphics, you know, all of those things play a role in differentiating a product for the consumer and for the dealer.

19
20

21 22 23
24
/ ,

Q
A

If you turn a few more pages to Trek 004319.
Okay. Got it.

25

Q

And it looks like these are some talking points for

Video Deposition of Aaron Mock May 12, 2009

-

127
Am

__~________

people when you're trying to sell a Madone. saying that right?
3

I

Madone?

A

Yeah. Things to say every time you sell a Madone, do you see that?

4

Q
A

5

6
7

I do. I'm interested in number one, the first bullet point, the Madone was designed for -- with and for Lance Armstrong, do you see that?

Q

8

9

10
11

A

I do.

Q
A

Is that one of the selling points, to your
knowledge, for Trek for the Madone bike? You know, the marketing guys could answer that for you. But I'm sure that they used that, yeah.

12

15

Q

If you can skip down to the last bullet point, I'm interested in that. There is no better road bike
Do you see that?

16
17
18

available from anyone. A Yeah.

19
20 21 22
23

Q
A

Is that a statement that you agree with, as a product manager'? No. Why do you disagree with that? I think that we had extremely competitive product in the LeMond line. And if you were to evaluate it

Q
A

24
/

25

against LeMond literature, you would see similar

Video Deposition ofAaron Mock May 12,2009
f-;
I

-

128

statements going the other way.

You know, we

------

were - - you're fighting for the brand.
3
4 5

You know.

Simply because this is a Trek piece, I would never expect the Trek guys not to say that they have the best bike in the world. Just like I would expect

6

them never to ask me to not say that I thought that

7
8

I had the best LeMond piece out there.

Q
A

Why don't you flip to what -- the description of the LeMond spine at Trek 004324. Okay. Trek U book is more than I can handle. page relates to the LeMond spine linethat? And this

9
10

11 12
* j

Q

Do you see

14
15

A

I do.
And it says, things to remember when selling a LeMond spine bike.

Q
A

16 17.
18

Yeah. See that? Yeah.

Q
A

19 20 21
22

Q

Do you see any claims here comparable to the claims
Trek makes for the Madone, about there being no better road bike available from anybody?
Is there a

23

comparable statement in support of the LeMond spine bike?

24
/
7

25

A

Not on this page.

Video Deposition of Aaron Mock May 12,2009
,

-

129

. .

:

;

,,I
;

1
2
3

Q

Okay.

If you want to flip through it, and if you

can see it on any other page, 1 would love to know where it is. want. And you can take all the time you

4
5

A

That's okay.

I think that if you looked through the

6
7

catalogs, we presented the catalogs, that we could find equally significant representations of the LeMond line.

8

9 10
11

Q
A

But this is the booklet that's used with dealers, correct? In 2005-2006. year. Yeah. And a new one's done every

12

Q
A
15

Jump to the Fisher road bike. Okay. My memory of your testimony is that the Fisher road bike was developed in approximately five months.

Q
A

16

17
18 19 20 21

Yes. Did you sleep? Yeah, I got a little sleep. We've requested, but we haven't received any of the development docs yet. them. And nobody's withholding

Q
A

Q

22
23

They're just not due to us yet.

A

Okay.

24
/

Q

So I'm working from a very basic level.
know very much of anything.

I don't

25

Video Deposition o Aaron Mock - May 12,2009 f

149

/f--.
1 2

-

over something.

A

Okay. You're reading my mind. Sorry. Was the conversation you had with Greg about some concern he had that his product line had not been discussed in John Burke's presentation?

3

Q
A
Q

4 5
6

7
8
9
10

A

It was that his brand hadn't been mentioned, understanding of it.

Is my

Q
A

Did you do any follow-up with that to confirm or disconfirm whether that was true? Yes. And what did you find out? That was accurate. Yes.

11 12
/-I

i,i

13

Q
A
(1

14 15
16

Was there any -- did youI either from M r - LeMond, or any other discussions, was there any -- let me back up. Did you have a discussion with Mr. LeMond about

17 18 19 20 21 22 23 24 25 A

anything in Mr. Burke's presentation about the life span of product lines? Not that I recollect. Take a look at
--

Q

MS. RAHNE:

Mark that one.

(Exhibit Number 189 was marked for identification) MS. RAHNE: