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. 3

Dockets.Justia.com

Video Deposition of John Burke - April 07,2009
1
2 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ___-___________--------------------------------------LeMOND CYCLING, INC., Plaintiff,
VS.

1

3

4

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6

Case NO. 08-1010

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8
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TREK BICYCLE CORPORATION, Defendant/Third-Party Plaintiff,
vs *

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GREG LeMOND, Third-party Defendant

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19

Video Deposition of JOHN BURKE Tuesday, April 7, 2009

9:31 a.m.
at GASS WEBER MULLINS, LLC 309 North Water Street, Suite 700 Milwaukee, Wisconsin 53202

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Reported by Julie K. Lyle, RPR/RMR/CRR

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Video Deposition of John Burke April 07,2009

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fact, he was actually -- in certain cases, he was 2 3
4

competing with our dealers.

There's an example

of a sale up in Minneapolis where Greg was competing with our dealers. Those are a couple of examples where Greg has damaged Trek.

5

6
7

Q

I

--

I understand that those are a couple of I want you to give me the exhaustive

8

examples. list.

9
10

Tell me -- tell me how else Greg LeMond

has damaged Trek. A Well, I just gave you a couple of the big ones that -- I can be a little more specific and tell you that in 2001, the LeMond business was about

11
12

14

15 or $16 million.

Everything up until that

15
16 17

point had been going pretty well.
All the sudden we get to 2001, and

Greg starts making disparaging comments about other athletes. We were in a perfect position at that point in time. The sport of cycling was LeMond was in a great

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19

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21

growing significantly. position as a brand.

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,

That business could have

grown to, in my estimation, at least $30 million over the next five years, and it stayed flat at best.

Video Deposition of John Burke April 07, 2009
f
i -

-

14

1

There's an example. Another example is what happened in the P T I lawsuit. Back in the late 199Os, Trek We were

2 3

4

was not doing so well financially. taking a look at making
--

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6
7

we were reviewing our

business to see where we could make some changes. We took a look at the LeMond contract and we said, you know what, we're not doing a good job
of selling LeMond accessories.

8

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10

And we talked to -- I talked to Greg and said, Greg, is there a way that we could restructure this so that we're not going to sell LeMond accessories and you can do it with another company.

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15 16

And we talked about that for a while. And sure enough, we came to an agreement

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18 19

where we gave Greg a couple extra things, large things. We expanded the length of the contract,

we agreed to pay more royalties on international sales, and we got out of the accessory contract.

20 21

I brought up to Greg at that
point, you know, Greg, we really don't want to see LeMond accessories go to the mass merchant. That's a big competitor for independent bicycle retailers. Greg said that's not going to happen.

22
23

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/

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Video Deposition of John Burke April 07,2009

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15

If anything takes place here, I'll let you know. 2
3

If you go back and you take a look at it, unfortunately, once again, there had been negotiations with PTI, there had been a letter of intent signed even before he and I had that conversation. It's just time and time again Greg would make commitments. He would say I'm going

4 5
6

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10

to do one thing, and then he would do something else. You can go back in the history and take a look, in 2001, in 2004, in 2006 when we
--

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'

._

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14

when Greg would comment on specific athletes and we'd get to the end of this and Greg would say, you know what, I'm not going to do that anymore. I'm done with that. I'm not going to do that. I'm going to support

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16

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18

I'm going to support Trek. your retailers.

That's the way it's going to be.

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20 21 22
23

And we'd say, great, and we'd go out there. And, as we always have done, you Despite all the

know, we kept going on and on. problems, we kept moving on. disappointing.

And it was

24

But those are just more examples.

Q

Do you have any other examples?

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Video Deposition of John Burke April 07,2009
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,... . .
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Ralph.

BY MR. MADEL:

Q

How about this:

Can you describe any step that

4
5

you've ever taken in your life to request that Mr. LeMond enter into a contract with Trek that would have prohibited Mr. LeMond or any of his companies from providing bike accessories to the mass market?
A

6
7

8 9 10 11 12
,
__
i

No, I can't recall that.
Okay, The - - you've obviously e-mailed a number

Q
A

of times with Mr. LeMond; is that right?
A number of times, yes. Have you
--

13 14 15
16

Q
A
(2

have you always been truthful with

Mr. LeMond? Yes. Okay. Have you always been truthful to Trek

17 18 19 20 21 22 23 24
i
, _

employees?

A

Yes. And have you always been truthful in communications that were going to be made on behalf of Trek to the public?

Q

A

Yes. When you say that you've been truthful with Mr. LeMond, would that also include that you haven't spoken any half-truths to him?

Q

25

Video Deposition of John Burke April 07,2009

-

23

MR. WEBER: 2 3
4

And if we take just a

second, I think we're at 130 or 131. MS. RAHNE: MR. WEBER: Okay. But I'll be right back and Meanwhile, he can

5

we'll have the right number. take a look at the exhibit. MR. MADEL:

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7

Let's take a break. We're going off the

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VIDEO TECHNICIAN: record at 9 : 5 3 a.m.

9

10 11
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(A recess was taken.)
VIDEO TECHNICIAN: record at 9:55 a.m. BY MR. MADEL: We are back on the

Q
15
16

Mr. Burke, I'm showing you Exhibit 134. recognize this?

Do you

A

I do not.

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18

Q

Okay.

Is the top half of the first page of

Exhibit 134 an e-mail from you to Mr. LeMond with a copy to Dean Gore? A Yes. And the -- at the beginning on the bottom of the first page to the fourth page is an e-mail from Mr. LeMond to Mr. Gore with a copy to you; is that right? A Yes.

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Q

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Video Deposition of John Burke April 07, 2009

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12
2
3

And the e-mail from Mr. LeMond was sent on Sunday, February 25, 2007; is that correct?

A

That is correct. And if you'll look at the second page of Exhibit 134, Mr. LeMond states, in the middle there
--

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Q

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6
7

A
Q

Yeah.
-_

8

"I believe that we have created one of the

9
10 11 12

best bikes on the market, and I have an ambitious goal of having Trek live up to their contract to use their 'best efforts' to promote my bike worldwide. I think this is the year we need to

secure a team in order to do this.

I don't mean I

this letter to have any negative connotations. 15

am extremely excited about what has been done for the LeMond brand the last year and I want it .to continue. But I want the Trek Company to

16

17
18

understand that they have a contractual obligation to do everything necessary to build a brand, which means investing in building the brand in Europe, which I believe could increase sales of LeMond bikes dramatically.

19

20
21 22 23 24
/ ,

I really

want to get moving on this so that another year does not go by without us being present in the Pro Peleton.

25

I also think that it is just

Video Deposition of John Burke April 07, 2009
beginning building the sales in Europe. to look at what can be done in terms of distribution, etc. "

-

25
We need

Do you see that?

A

Yes. And you responded to this e-mail; is that right?

Q
A

I did.
And you responded to it ten days later? Okay.

Q
A
10 1

Q
A

Is that right?
Yes. And can you show me in this was March 7, 2007, right?
--

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1

Q
A

and your response

Yes. Can you show me where in this e-mail you told Mr. LeMond that in 2001 he damaged the Trek brand?

Q

A

I do not see that.
And can you show me where in this e-mail you wrote to Mr. LeMond and said that he damaged the

Q

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!

Trek brand in 2004 regarding his comments regarding Lance Armstrong?

A
I

I don't see that.
And can you show me in this e-mail where you told Mr. LeMond that he had damaged Trek through his

24

Q

Video Deposition of John Burke April 07, 2009

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26

1

employee purchases of Trek bikes?

2
3

A

Don't see that. And can you show me in this e-mail where you told Mr. LeMond that he was making disparaging comments regarding other athletes and that had hurt Trek?

Q

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5

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A

Don't see that. Show me where in this e-mail you said anything about the P T I lawsuit.

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A

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10

Not in here. But you did talk about how, in the fall of 2006, Trek made competitive offers to sponsor several top American teams that include European campaigns and their schedules, right?

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Q

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A

I don't know -- if you take a look in here, it
refers to Toyota United, Slipstream, and Kelly Benefits.

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I don't know if any of those are

European teams.

Q

And you did write in this e-mail, "In general, selling bikes in Europe has been a difficult nut to crack, not just for LeMond," right?

20 21 22 23 24
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A

I did.
Was there a reason that you didn't take this opportunity to tell Mr. LeMond -- well, strike that.

Q

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Video Deposition of John Burke April 07,2009

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27

2004, Trek had noticed a breach of
LeMond Cycling with the Trek contract, right?
3

A

1 would defer to the lawyers on that.

4

Q
A

All right.
right?

It was sometime before 2007, though,

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6

I'd defer to the lawyers on that. On what? On the date? Yeah, I don't want to

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8

Q
A

On the specifics of that. make a mistake.

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10

Q

Well -- well -- and that's fine. Did you ever consider LeMond Cycling in breach of its contract with Trek prior to 2007?

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12

A
15 16

I ' d defer, once again, to the lawyers.

Q
A

Okay.

You -- you can't answer that as you sit

here today?
I can't, from a -- I would say yes, based on

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20

Section 13 of the agreement, that he was in breach of the contract. One of the things we always try and do is we always try and work things out. One

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of the things that our company is built upon is relationships. And one of the things we always

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1
f

tried to do with Greg, if you look at the history of the relationship, is we always tried to work

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Video Deposition of John Burke April 07,2009
1
r d

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Q

How h a v e LeMond b i k e s a l e s d o n e i n I t a l y s i n c e

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3
A

2001?
I d o n o t know s p e c i f i c a l l y .

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Q
A

D o you know g e n e r a l l y ?
I would g u e s s t h a t n o t v e r y w e l l .

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8

Q
A

Okay.

Why would you g u e s s t h a t ?

Because I t h i n k i t ' s followed a c o n s i s t e n t p a t t e r n o f LeMond s a l e s i n E u r o p e .
W e had h i g h

9
10

h o p e s when w e i n t r o d u c e d LeMond i n Europe, had p o o r r e s u l t s ,
W e put our b e s t e f f o r t s ,

and w e

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12
, '

as they

a r e defined i n the contract,

of 3 p e r c e n t of

13

s a l e s on m a r k e t i n g ; w e showed b i k e s a t t r a d e
shows; w e h a d o u r s a l e s p e o p l e o u t t h e r e ; b u t i n
t h e e n d , Europe p r o v e d t o b e a v e r y d i f f i c u l t

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I

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m a r k e t f o r a c o u p l e of r e a s o n s .

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F i r s t of a l l , a t the U.S.

i f you t a k e a l o o k

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19

m a r k e t where w e w e r e v e r y s u c c e s s f u l

w i t h LeMond, o u r o v e r a l l company s h a r e , all t h e b r a n d s t h a t T r e k owns, o u r o v e r a l l s h a r e i s somewhere a r o u n d 30 p e r c e n t . I f you t a k e a

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l o o k -- and I m e n t i o n e d i t h e r e on t h i s n o t e i n

2007 - - o u r m a r k e t s h a r e i n Europe i s somewhere
b e t w e e n 2 and 4 p e r c e n t . The r e a s o n t h a t we r e a l l y , in

Video Deposition of John Burke April 07,2009

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Q
A
3

Is the

---

You must

you must

--

it - - you must

understand, in the context, we were served with a lawsuit ten days
--

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somewhere around ten days All right? We were -All

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6

after my father's death.

same type of lawsuit we were given in 2004. right?

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It was a lawsuit that we found to

be threatening, and we wanted to make sure that we were organized in how we put our message out.

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Q
A

What did Trek do to Mr. LeMond within seven days of his mother's death?

I don't know.

I -- to be honest with you, I

didn't even know that his mother had died.
15 16
Q.

And did Mr. LeMond send you a note of condolence after your father passed away?

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A

I believe that he did.
(Exhibit 135 was marked for identification.)

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f'

BY MR, MADEL:

Q

Exhibit 135 is a letter from Loren Brown, on behalf of Trek, to Mr. LeMond dated August 10, 2004, right?

A

It is. And the first two paragraphs say, "My firm

25

Q

Video Deposition of John Burke April 07, 2009
represents Trek Bicycle Corporation. This is

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73

formal notice that your recent actions are in

3

breach of LeMond Cycling, Inc.'s sublicensing agreement with Trek Bicycle Corporation," right?
A

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It is, And this letter came before Mr. LeMond ever served any lawsuit on Trek; is that right?

Q
A

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8
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A

I would have to ask counsel that. Did you see any need to tell your employees that Trek was the first one to notice a breach with Mr. LeMond in its relationship?
No.

Q

Q
A

Why not? Because that's a decision I made. With respect to Public Strategies meetings that occurred here in Wisconsin -- well, strike that. How much did you pay Public Strategies for their work?

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Q

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A

I do not know. Do you have any ballpark estimate of it? Oh.

Q
A

MR. WEBER:
THE WITNESS:
BY MR. MADEL:

Don't guess.

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No.

Q

Who would know?

Video Deposition o John Burke April 07,2009 f

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Q
3

So you don't know that for certain?

What your

knowledge is regarding LeMond turning off his website came from Mr. Burns? A That's correct. In addition to Trek employees and the media, was anybody else invited to your April 8, 2008, presentation? A Not to my knowledge. Were dealers invited? Not to my knowledge. Did any dealers attend? Not to my knowledge. If there would have been a

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5

Q

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Q
A

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Q
A

dealer meeting there, perhaps some dealers might
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i
_c

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have been in the audience, but I'm not aware that there was. information. I'm sure we could get you that

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Q
A

Does a video of your presentation still exist on YouTube today?

I do not know.
All right.

20
21

Q
A

I haven't checked.
Did you ever discuss the fact that your presentation was going to be videotaped and posted on YouTube?

22

Q

23

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A

We did.

Video Deposition o John Burke April 07, 2009 f

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Q
2
3

Okay.

When was that discussed?

A

Probably at one of the meetings. With Public Strategies? Yes. And you approved that decision? I did. And does it surprise you to know that it's still on there today?

Q
A

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Q
A

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Q
A

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9

No.

Things on YouTube, I think, stay -- I mean, They stay on

10

that's not something we control. there for however long.

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/

Q
A

And you know that the Trek website links to YouTube in order to show that presentation today? I'm not aware of that, Is -- is that something that you approve of? I approve of the presentation, so yes. surprised that it's still on there. think it's a current topic.
I'm

-

-?

i
L

i ?

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15 16

Q
A

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I don't

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Q

And you know that the Trek - - Trek website links to LeMond's complaint as well as Trek's complaint in this lawsuit?

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/

A

Yes.

I think - - I think one of the important

things is we kept, time and time again, trying to solve this
--

fix this relationship.
As I said before, I'm an

25

Video Deposition of John Burke April 07, 2009
1
A

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-

E

W e know M r .

LeMond.

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Q

Okay.

D o you know Emma O ' R e i l l y ?

a
Q
A

I do n o t know Emma O ' R e i l l y .

Have you e v e r r e a d a b o u t h e r ?
I have n o t . I h a v e a v a g u e -- I t h i n k s h e
--

was

6
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8

she a swaniere [phonetic]?

Q
A

I believe so.

Okay.
A r e you a w a r e of h e r a l l e g a t i o n s r e g a r d i n g
Mr.

9
10 11

Q

Armstrong?

A

I am n o t .

,-.
'

12

Q
A

Have you e v e r i n v e s t i g a t e d t h o s e a l l e g a t i o n s ?
I have n o t .
A r e you aware of

13
14

Q

F r a n k i e - - d o you know who

15
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A

F r a n k i e Andreu i s ?
I do.

Q
A

Who's F r a n k i e Andreu?
H e u s e d t o r i d e f o r t h e P o s t a l team.
A r e you a w a r e of

19 20

Q

Frankie Andreu's a l l e g a t i o n s

regarding M r .
A

Armstrong?
--

21 22 23 24 25

I am not.

I ' m not i n the

I ' m not i n the

doping b u s i n e s s ;

I ' m i n the b i k e business.

Q

Understood.

B u t you d i d s a y d u r i n g y o u r

p r e s e n t a t i o n t h a t you w o u l d n ' t d o b u s i n e s s w i t h anybody t h a t doped, right?

Video Deposition of John Burke April 07,2009
A 2
3

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94

That's true. And you wouldn't ever turn a blind eye to that, would you?

Q
A
(1

4

No, I wouldn't,

5

I mean, if you had facts in front of you that
convinced you that this person was actually a doper, you're going to drop them from the Trek family, right?

6
7
8

9

A

If somebody provided me with evidence -- in this country, you're innocent until proven guilty, right?
So if somebody was convicted of doping,

10 11 12

then they would be dropped from the Trek family.

Q
15
16 17 18 19 A

I've got a trial on May 5, and I hope that you're on it.
T h a t was a joke.

It's just a joke.

It's like, I'm like where am I going to be on May 5 ? MR. WEBER: lawyer. THE WITNESS: MR. MADEL: agree with you more. Okay. He's a criminal defense

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I

I couldn't -- I couldn't

BY MR. MADEL: With respect to the evidence against Mr. Armstrong with respect to doping -A Yep.

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Video Deposition of John Burke April 07,2009

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96

know of any cyclists that have participated in the Tour de France that passed a doping test but

3

were later to have found to have performance-enhancing drugs?

4
5

A

I'm sure that just about anybody who has been busted for doping would fit into that category.

6
7
8

Q

I mean, just about anybody that's been busted for doping at one time or another has been tested for performance-enhancing drugs, right?

9 10 11
12

A
Q

I'm guessing at one time or another. And you're aware that there's various masking agents that athletes can take in order to conceal performance-enhancing drugs?

A
15
16 Q

I am not.

I'm not a doping expert.

Well, what have you done on behalf of Trek to investigate any of the allegations of Mr. Armstrong with respect to Mr. Armstrong taking performance-enhancing drugs?

17 18 19 20

A

Nothing.

There's -- that's not our He is the most tested athlete in

responsibility.

21

the history of sports, and I'll leave it at that.

22
23
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/

Q

Well, do you think it's consistent with what you said at the presentation that you won't do business with people that cheat, that take performance-enhancing drugs, and that you failed

25

Video Deposition of John Burke April 07, 2009
,--

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1 2
3

to investigate when there are allegations of somebody doing just that?

A

We're not investigators.

There's -- there's a

4
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7
8

UCI.

They have a

--

I'm sure they have rules and And it's obviously

they have doping protocol. worked.

I mean, they've found -- as you

mentioned earlier, they found a number of people here in the last few years.

9
10
11

Q
A

Well, have there been tests where Lance Armstrong proved positive for use - - taking EPO in 1999?

I do not know.
Okay. The -- when you said that Trek won't do

12

Q

business with somebody that dopes, at what point
do you believe it has been established that

15
16 17
18

somebody has doped?

A

Well, I really don't -- I would say once the governing body came to that conclusion.

Q

All right.

So if we take Mr. Landis, for

19

example, you would have done business with Mr. Landis up to the time that the arbitration panel came out and said he's -- he's guilty?

20

21
22

A

Isn't that a

--

23
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I

MR. WEBER:

Just let me object to the
\$

form of the question as hypothetical. THE WITNESS:

Right, hypothetical.

Video Deposition of John Burke - April 07, 2009
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111

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2
3

that accessories through mass merchants damaged the LeMond brand?

A

As soon as I found out that he was going to sell his accessory brand through the mass merchants, I let him know that.

4
5

6
7
8

Q
A

And that was an oral communication?
I'm not sure whether that was oral or written.

Q
A

Okay.

9 10 11 12
'/ 9

I do not know.
Do you know of any writing, as you sit here
today, beyond what you've put in this lawsuit where you informed LeMond or any of his representatives that his launching an accessories brand through mass merchants has damaged the LeMond brand?

Q

'

13
14

15
16

A

I would have to ask legal counsel on that, but 1 am very sure that we had quite a number of communications regarding that topic.

17
18

19

Q
A

What

--

where are those cornmunications? I mean, those are phone calls.

20

I do not know.

21
22
23

There were probably - - and I guess those phone calls don't exist.

Q

The

--

have you ever made any effort in order to

24

quantify the damage to the LeMond brand that you contend that has occurred as a result of these

I
\

'

25

Video Deposition of John Burke - April 07, 2009 accessories branding through mass merchants?
2

112

A

You know, we haven't.

One of the things that is

3

really key in the bike business is what level of support you get from retailers. bicycle dealers are the key. My dad came from the appliance business, and he understood that the retailer -the recommendation of the retailer made a huge difference of what goes out the door. Now, you've got a lot of these retailers who helped build up the LeMond brand. They put a lot of time, effort, inventory dollars. They -- they built that brand up And all the sudden there's a Independent

4
5

6
7
8

9 10 11
12
rk

13

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through 2000.

Target across the street that's all the sudden selling LeMond accessories. And those retailers

17
18 19

view that as a major problem to their business. And whether that's reality or perception, that's how they view it, and they act accordingly.

20
21

Q

I'm assuming, like my law firm, from -- Trek has probably experienced this from time to time where you've l o s t a major customer or major dealer from time to time.

22 23
24

Is that right?

25

A

Very, very seldom.

Video Deposition of John Burke April 07, 2009
1

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113

Q
A

Okay.

When -Not one that I

2
3

Not one -- in the last ten years? can remember.

4
5

Q

And I'm -- I'm just saying at any time. you -- when something significant --

But have

6
7

significantly negative has happened to Trek's bottom line, have you asked your C F O or the CFO's team to quantify it for you?

8
9

A

You know, at times in the past we would do

10 11 12 13 14 15 16 17 18 19
20

something like that.

On something like this that It

is more of a gut-feel type of thing, no.

just -- you know, you do it based on the feedback you're getting from the marketplace.

Q

So when you wrote here that "Despite Trek's

guidance not to do so, Greg launches an accessories brand through mass merchants, damaged LeMond brand," you can't point me to any specific statistic as to how much it has damaged the LeMond brand today?

A

No, I can't.

What I can recall from that

21
22 23

situation is that we got out of the accessories contract and, in exchange, we gave Greg a longer-term contract on bicycles. We also agreed And

24
25

to increase the minimum royalty in Europe.

Greg had, in reflection, a signed document with

Video Deposition of John Burke - April 07, 2009
_ _ _ ~ _ _ _ ~

123
--_
--

1
2 3

A

It is. And he writes, "The complaint filed makes a lot of sense. What is Trek's position regarding all

Q

4
5

of your former riders who have tested positive, including Armstrong?" Do you see that? A I do. Did you answer Mr. Pugh's question? This was sent to the Trek consumer site. I'm

6

7
8 9 10
11 12

Q
A

sure we got hundreds of e-mails a day and I did not respond.

Q

With respect to just so far with Exhibits 138, 139, and 140, do you have any objection to Mr. LeMond posting these on the Internet as you have done with respect to your presentation?

13
14

15
16 A

I think it's a free country and Mr. LeMond can do whatever he wishes.

17
18

Q

Okay. (Exhibit 141 was marked for identification. )
I

19 20 21 22 23 24 25

BY MR. MADEL:

Q
A

What is Exhibit 141? 141 is a note from Greg McQuaid. April 9th, 2008. It is dated

Q

And again, that's the day after your

Video Deposition of John Burke - April 07, 2009
,
/

124

1
2 A

presentation, right? It is. And he writes, "Attention: Yes .. And then he says, "Attention John Burke: How John Burke
-

3
4

Q
A

LeMond

action is a disgrace," right, at 'the top in bold?

5
6

Q

7
8

petty and childish you are for discontinuing your business relationship with Greg LeMond. Once

9
10 11 12
I ,
i

again, Lance Armstrong's lies have damaged the reputation and livelihood of an honest cyclist because they dared to speak the truth. Cheats

ride on all brands of bicycles, but Trek will forever be associated with the greatest fraud of all, and I for one would never dream of buying one of your bikes. California." Do you see that? A I do. Did you respond to Mr. McQuaid? I did not -- I believe I did not respond to Mr. McQuaid. line. But, once again, we're putting e-mails out here. You're finding the positive This came in through the consumer Greg McQuaid, San Francisco,

13 14 15 16

17
18 19

Q
A

20
21

22 23 24

25

ones and the negative -- the ones that agreed

Video Deposition of John Burke - April 07,2009
I____

125

-~

1 2 3 4 5 6

with Trek ran 10 to 20 to 1. been higher.

Might have even

And with any issue, you're going to

have people who favor one side or another. Greg is a rider who won the Tour de France three times. He's got a number of

people who are ardent supporters of his position, and so you're going to come up with people from time to time, and these are few and far between. Who -- I'm sorry. And
--

7
8

9
10 11 12 13 14 15 16 17 18 19 20 21

Go ahead,

and we can go through and we can bring out

Trek dealers and we can, you know, go through consumer e-mails on the positive side that support Trek's position. And I think the one thing is what you're getting at here is you're getting at the integrity of Trek and of the company. And that I

would challenge you to go out and talk to consumers, talk to retailers, talk to people who know Trek, There's a lot of people in here who

bring up the issue and they say, How long will Trek last as a company? Well, Trek's lasted about 30 years. If we go through the list of companies

22
23 24

that existed in the bicycle industry even 20 years ago and who is left here today, there

25

Video Deposition of John Burke April 07,2009
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/--

-

126
_ _ ~ -

-

-

1
2
3
4 5 6
7

aren't a whole lot. family.

This company is part of our

We've got a family-run company with

great employees, great retailers, and we really put the integrity at the top of the list. very important thing to us. It's a

Q
A

Okay.

Are you done answering?

I am.
The -- when you say that the e-mails that were coming that were 10 to 20 to 1, are you talking about after your presentation that the e-mails that were coming in to Trek were 10 to 20 to 1 in favor of Trek's position?

8 9 10
11

Q

12 13 14

A

I am. And who counted those e-mails? You know, I'm making a general statement there, and I would defer to -- I would defer to counsel
on that.

Q
A

15
16
17

18 19
20 21 22 23 24
/

Q
A

Where did you get the 10 to 20 to 1 statistic?

I am basing that based on conversations I've had
in the past with counsel.

Q
A

Because we've looked at these e-mails, and it's not even close to that. What -- what is it? Well, based upon -- I'll represent to you, it looks 60/40 in favor of LeMond.

Q

25

Video Deposition o John Burke - April 07,2009 f 1
2 A It's not 60/40 in favor of LeMond. Well, then, I'm going to ask, if there's m o r e

127

Q

3
4

e-mails, that we're getting them and we're going to have to come back and redepose you. as
--

Because

5
6

as we have right now, that's your

statistic.

7
8

A

Okay. And if it's wrong, it's wrong. You know, the -- first of all, I would challenge your 60 to 40 on the notes coming in. notes coming in. You get

Q
A

9 10 11 12
13 14

You also talk to consumers, you I can just tell you that our

talk to retailers.

decision was strongly supported by retailers.

Q

Do you think the people talking to Greg LeMond

15 16

that came up to him on the street were going to say, hey, listen, by the way, I strongly support Trek?

17

18 19
2'0

A

Yeah, I do. You do? There are a number of those people. Why don't

Q
A

21

you take a look at one of the phone calls in the past that Greg taped from Dan Thorton, a dealer in Atlanta.

22
23 24

Q

Okay.

Well, if you - - do you honestly believe

25

that the people that are doing business with Trek

Video Deposition of John Burke April 07,2009 1 are going to come up and say, you know, John

-

128

2
3

Burke, I thought that that was the most shameful, stupid presentation I've ever seen in my life? A

4
5

No, I don't think they are because I think they
looked at that presentation -- and those dealers had been living this program. They've had

6

7
8 9 10 11 12 13

customers over the last eight years coming into the stores saying I wouldn't even look at a LeMond. And there they had these small business people who have invested in the inventory, it's sitting there, and all the sudden they're taking a look and there's ESPN, Greg LeMond, "Lance Armstrong threatened my wife, my life, and my livelihood." And there's a bicycle We went

14
15 16

dealer and he's going, "Not again. through in this in 2001. this in 2004.

17
18 19

Now we're going through

It just keeps going on and on."

Q

And these independent bike dealers, they do business with you, right?

20
21

A

They do. And they send you money for bikes, you provide them with bikes, right?

22
23

Q
A

24
25

They do. So they have a business relationship with you,

Q

Video Deposition of John Burke - April 07,2009
right? 2 3

129

A

Absolutely.

Q
A

Do they have any cont,racts that you know of with
LeMond or LeMond Cycling? Not that I'm aware of.
So when you are in a business relationship with

4
5

6

Q

7
8
9

somebody, I mean, do you normally find that that's a contentious relationship with one another?
A

10
11

No, I don't.

But one of the things we do as a

company is we're very close to our customers, and

12
i
\+.
i

we really seek out what the problems with Trek
are.

13

14 15
16

I spend time -- we do things like
town halls where I go out into the marketplace. We'll sit around with all the dealers in a room, usually 20 at a time, and we'll go through all the things they don't like about Trek. It's a

17
18 19 20 21

very open relationship, and when customers have problems, they let us know. That's one of the reasons why we've been successful as a business, is we get the input, we take a l o o k at it, and we're always trying to improve our business.

22
23 24

So we're very

openminded to information and people's feelings

Video Deposition of John Burke - April 07,2009
~

130

1
2 3 4 5

in the marketplace.

Q

Based on these three communications that I've shown you, what did you take from their input with respect to your future business?

A

I took from

--

I took from these three people,

6

they were people -- there were some people who disagreed with the position that we took.

7
8 9 10
11 A

Q

Did you take any of their input and change any of your behavior going forward? Well, I took the input, and no, I did not make any change. (Exhibit 144 was marked for identification.)

12
i

13

14 15

BY MR. MADEL:

Q
A

What is Exhibit 142? Exhibit 1 -- I have 144.
I'm sorry.

16
17
18

Q
A

144.

Sorry.

144 is an e-mail from Peter D. Beckman.

19

Q
A

To Trek? Trek consumer. And it's, again, dated the day after the presentation, right?

20 21
22 23 24 25

Q
A

It is.

Q

He said, "I just finished reading the article in
the Minneapolis Star
&

Tribune.

Well, count me

Video Deposition of John Burke April 07,2009
,r--

-

136

1

A

Well, yeah.
-- you've moved away from what your dad did?

2
3

Q
A

No, that's not the case.

Because my dad was
5

4
5

intimately involved in the LeMond shenanigans over the years. And, in fact, shortly before he

6

went into the hospital, he and I had a conversation where we decided that we were going to put an end to the LeMond agreement and we were not going to renew the contract in 2010. One of the reasons was is my dad was just very disappointed with Greg's behavior and how at time and time again Greg would say he was going to do one thing, give us his word, and then he would do something completely different. All right? He and I had that conversation in October of 2007. thing. And then we did the honorable

7
8

9

10
11 12
1 \i
,

,-,

13
14

;

15
16

17
18 19

I met with Greg and I said, listen, Greg,

we obviously have two different views here. We're going to go a different way. want
--

20
21

We hope - - we

we wish you the best of luck, but I want

22
23

to let you know now we're not going to renew the contract after 2010. We're going to honor the

24
I

contract, but this will allow you some time to go out there and put together another deal or do

25

Video Deposition of John Burke April 07, 2009
whatever you want to do.

-

137

Q
3

Was your dad in favor of noticing the breach of contract in 2004?

4
5
6
7

A

I'm sure that he was. Okay. You don't remember, though, for certain? But just like I said, he He would have He hated

Q
A

I do not remember.

loved negotiating and contracts. been aware of litigation there. litigation.

8

9

We did everything we could before

10

we'd get into litigation.

11
12

Q
A

He was obviously a wise man? He was. The -- do you recall he had communications with different board members in 2004 that were trying

Q
15 16
A

to dissuade you from noticing a breach in 2004? I'm not aware of that.

17
18 19

Q
A

Do you recall any e-mails to that effect with
you? Not to the best of my knowledge.

20 21 22 23

Q

Do you recall any communications that he had with
you in 2004 where he said, you know, son, I think you're going to have to listen to the board with respecf. to what you want to do with LeMond, or words to that effect?

24
25

A

I'm not sure.

I'm sure there might be a

Video Deposition of John Burke - April 07,2009
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159

--1

1 2
3

Q
A

All right.
Sounds like a big word, though.

Q

All right.

You've got to show that your damage

4
5
6

was caused by antitrust contact as opposed to something else.

A

Uhm-uhm. Have you ever tried to quantify the damage to Trek caused by LeMond's statements versus articles that just came out about Lance Armstrong's alleged doping that LeMond had nothing to do with?

7
8
9

Q

10 11

12
*
t

A

No Would you agree with me that the articles that have come out about Lance Armstrong's alleged doping have not helped Trek's sales?

13
14 15 16 17

Q

A

They have not helped Trek's sales on the whole? Yes. Lance Armstrong has been very positive for Trek. What -- when L'Equipe comes out with an investigation on Lance Armstrong and says that he tested positive, you know, six times in 1999, and

Q
A

ia
19
20

Q

21

22
23

I think those articles came out in 2006, would
that have had a positive or a negative impact on Trek sales?

24
25

A

I think in -- it does not have a positive impact.

Video Deposition of John Burke April 07,2009
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160
---_

1
2 3 4 5

Q
A

Would it have a negative impact?

I suppose it could.
really heard about.

It's not something that I It's not something that we

saw either through dealer reaction or in the numbers.

6
7

Q

Okay.

When -- when people like Frankie Andreu

came out and said I know for a fact that Lance Armstrong has taken performance-enhancing drugs while he won the Tour de France, would that have had a positive or a negative impact on Trek sales?
A

8
9 10 11 12

I don't think it had any impact.

13
14 15 16 17
18

Q

Okay.

Do you think that any of these

articles/investigations of Lance Armstrong that Mr, LeMond had nothing to do with had a positive or a negative impact on Trek sales?

A
(1

They would probably have a negative impact. Have you ever tried to quantify between those sorts of articles that Mr. LeMond had nothing to
do with and these statements that Mr, LeMond has

19 20 21

made in 2001 or 2004?

22
23 24 25

A

No, we haven't, but I think
MR. WEBER: hold on. Can I

---

let me just --

Just let me interject, make sure we're

talking about the same thing.

Video Deposition o John Burke April 07,2009 f
_ .
I _

-

161

, F A -

1

You had a series of questions that were talking about impact on Trek sales. MR. MADEL: MR. WEBER: Uhm-uhm. Now you're jumping over to

-

2
3

4
5

LeMond's comments and impact on LeMond sales. MR. MADEL: MR. WEBER: MR. MADEL: MR. WEBER: looking for? MR. MADEL: I was going to ask both, Right. Are you mixing the two No.
-- or what is your question
--

6

7
8

9 10
11 12
/-

but, I see -- you know, I see what you're driving for.

4

13 14

BY MR. MADEL:

15

Q
A

The - - you know, Trek sells LeMond bikes, right? Right.

16

17
18

Q
A

So when you do your aggregate number at the very
end of your total sales -Yeah.
-- that includes LeMond bike sales?

19
20

Q
A

21 22
23 24
/

It does. All right.
So have you ever tried to say, hey,

Q

here is the slice of negative impact to Trek sales caused by LeMond's statements and here is the negative impact caused by general
___I I

25

~-

-

Video Deposition o John Burke April 07, 2009 f

-

162
-~

1

___

-

investigations into Lance Armstrong's alleged doping? A You know, Lance is the most tested athlete in history and that
--

2
3

4
5

doping allegations, I think, And in the

were litigated in the SCA trial.

6
7

general marketplace, the allegations against Lance Armstrong have not had a measurable impact.

8

Q
A

But have you ever -And the positive of Lance Armstrong has been significant.

9

10
11 12

Q

I'll just move to strike as nonresponsive,
Have you ever tried to quantify between the -- on the one hand
--

i

\

$

13

14 15
16

A

No.

Q

Let me finish. Have you ever tried to quantify on the one hand t l impact caused to Trek sales e caused by Greg LeMond's statements and on the other hand the impact caused to Trek sales due to investigations into Lance Armstrong's alleged doping?

17
18

19

20 21 22
23

MR. WEBER:

Let me just interject again When you say

an objection as to vagueness.

24 25

impact on Trek sales from LeMond's statements, are you talking about the Trek brand, the LeMond

Video Deposition of John Burke April 07, 2009
..a
~

-

163

-

7

1
2 3 MR. MADEL: MR. WEBER:

Go ahead and answer.
If you understand the If you don't

4
5 6

question, you can answer.

understand it, you can ask him to rephrase it. THE WITNESS: MR. MADEL: Exhibit 145 or 146. (Exhibit 146 was marked for identification.) We didn't do either. The -- let's just go to

7
8

9
10 11 12
i '
\

BY MR. MADEL:

Q
A

What is Exhibit 146? It is a note entitled "John Burke's Tirade on Greg LeMond" sent to TrekBi kes .com.

\.
i

13 14 .15 16 17 18 19 20 21 22 23 24 25

Q

And it's from an LA, but I'm assuming that it's not Lance Armstrong. And it says

[e-mail] [sic], right? A Uhm-uhm.

Q
A

Is that a yes?
Yes. And it's dated April 10, 2008? It is. And it says, "John Burke may be a good businessman, but his speech is full of lies. use of the word family over and over was
~

Q
A

Q

His

I __________

1

Video Deposition of John Burke April 07,2009
I

-

198

I li

1

21
31
I
I

i

VIDEO TECHNICIAN: record at 3:13 p.m.

We're going off the

(A recess was taken.) VIDEO TECHNICIAN: at 3:33 p.m. (Exhibit 152 was marked for identification.) BY MR. MADEL: Back on the record.

4
5
6

7
8 9

Q

Mr. Burke, I'm showing you what's been marked as Exhibit 152. You're not involved in any of the e-mail strings here, but 1 was going to ask you if you recognize the handwriting on this page?

10
11 12 ! 13
14

A
Q

I do.

15 j
16

Whose is it? That would be mine. Okay. I'm assuming, then, that if you recall,

A

17
18 19
*

Q

that Mr. Burns printed out this e-mail string and provided it to you at some time?

20, A
!

I -- I guess that would be the case.
And at the top there, it l o o k s like there's a number of numbers.

21 22 23 24
i

Q
A

Yeah. And then it says "Lance call." Okay.

~

Q
A

25 I

Video Deposition ofJohn Burke April 07, 2009

-

199

Q
2
3

Do you know what that -- does this -- do these
notes reflect a conversation that you had with Lance Armstrong?

4

A

I think it does.
And was this
--

5 6
7

Q
A

I'm going with yes. Okay. Was
--

Q
A

was that conversation with

8
9

Mr, Armstrong around June 2004? I do not know when that conversation took place. I'm guessing it -- since the date from Sidney to Bob is June 15th, 2004, and I wrote on top of this, I would assume it was sometime around that date. I cannot be sure of that.
--

10

11 12

Q
15
16

Point 1, you said am going."

you wrote, "Exactly where I

Do you know what that refers to?

A

I do not.
Point 2, it says, "Make a statement like last time." What does that refer to?

17
18

Q
A

19

I can only guess that it might refer to the

'2 0
21 22 23

statement that Greg made in 2001.

Q

Do you recall that in 2004 Mr. Armstrong was
asking you to get Mr. LeMond to retract his 2004 statement in a manner similar to the 2001 statement?

24 25
A

I think that statement was that Greg said that

Video Deposition of John Burke April 07,2009 1 2 3 4 5
6

-

200
-

-

*

Lance threatened his life, his wife, and his livelihood, and so I think that would be correct.

Q
A

Point 3 says, "Create a space for them to live together. Yep. Was Mr. Armstrong asking you to, again, be the kind of secretary of state and create a space for Mr. LeMond and Mr. Armstrong to live together?

Q

7
8
9

A

Indeed he was.

On numerous occasions, especially

10 11

from 2004 on, Lance became more, "I j u s t wish we
could all get along here."

12
I-

Q
A

And point 4 says, "I can't tell you what to do with LeMond. That's correct. And that was sentiment provided by Mr. Armstrong
to you?

13 14

y-

15 16

Q
A

17
18 19 20

Yes. And point 5 is "Emma O'Reilly." Yep. What was that regarding?

Q
A

Q
A

21 22 23 24
/

I do not know.
Do you know that Emma O'Reilly is one of the

Q

people that has stated that Lance Armstrong has used performance-enhancing drugs? A

25

You mentioned that earlier.

Video Deposition of John Burke April 07,2009

-

201

Q
3 4 A

Okay.

You don't recall that yourself, though,

other than me telling you?

I - - I was kind of familiar with a

--

probably

from conversations with Greg that there was some swaniere [phonetic], and you informed me that it was Emma O'Reilly, so that's where I am on that.

5
6
7

Q
A

Do you recall what you discussed regarding Emma
O'Reilly with Mr. Armstrong? No, I don't remember that conversation. And point 6, you just wrote, "Greg LeMond."
you recall what that was regarding?

8

9 10 11
12

Q
A

Do

I do not.
And 7, "Craig Nichols will make a statement. Not," exclamation point.
Do you know what that

Q
15
16

refers to? A
You know, I don't.

That kind of seems odd, but

17
18

it

--

I just don't know what that means.

Q
A

Then 8, it says, "Kathy on tape," right? It does. And Mr. LeMond's wife's name is Kathy, right? That is correct. And it's spelled the exact same way as you have right there?

19 20 21 22 23 24
f

Q
A

9
A

Right.

25

Q

Do you know what you were referring to when you

Video Deposition o John Burke April 07, 2009 f
wrote "Kathy on tape'' in Exhibit 152?

-

202

A
3

I don't.
And you know -- do you recall if Mr. Armstrong was alleging that Kathy LeMond was on tape saying something?

Q

4
5 6 7
8

A

No.
Do you recall anybody ever telling you that Kathy
LeMond was on tape saying something?

Q
A

9

I don't recall anyone telling me of any taping in
this regard except for the phone conversations that Greg LeMond taped.

10

11
12
/~

Q
A

And then 9, "Critical piece is Emma O'Reilly." Uhm-uhm.

I

j

13

Q
15 16 17

Do you see that?
I do,

A

Q
A

Do you know what that refers to?
I'm guessing that refers to something about Emma O'Reilly and comments that she made.

18
19 20 21

Q

Is there a reason in 2004 that Mr. Armstrong
would be calling you in order to discuss these people that were making allegations regarding doping to you? MR. WEBER: Object as to foundation as

22
23

24
i '

to Mr. Armstrong's state of mind unless he explained to you why he was calling you.

25

Video Deposition o John Burke April 07, 2009 f

-

203

THE WITNESS: BY MR. MADEL:
3

Yeah, I don't know.

Q

Did you discern any reason from your conversation with Mr. Armstrong why he was bringing up Emma O'Reilly with you during this conversation?

4
5

6
7

A

No.

I'm guessing it's - - I mean, Greg would go

on and on for quite some time about doping and Lance Armstrong, and so I'm guessing that somehow it referred to that.

8 9 10 11
12

Q

Do you recall if Mr. Armstrong had ever asked you

to find out from Mr. LeMond exactly what his evidence was with respect to Mr. Armstrong taking performance-enhancing drugs? A Absolutely not. Unfortunately, I had many

15 16 17 18
19

conversations with Greg listening to what Greg thought was -- what he was thinking, but not from Lance.

Q

This "Critical piece is Emma O'Reilly," did Mr. Armstrong ever ask you to reach out to Emma O'Reilly for anything?

20

21

A

Absolutely not. And point 10, it says, "Kathy LeMond will be sued. France, et cetera. She will be sued."

22
23

Q
A
Q

24
/

Uhm-uhm.

25

Do you see that?

Video Deposition of John Burke April 07,2009

-

204

A

I do.
Do you recall what Mr. Armstrong told you about

Q
3

Kathy LeMond being sued? A I do not. And do you know if Mr. Armstrong has ever sued Kathy LeMond? A From what I know, he has not. Has Mr. Armstrong or anybody on behalf of Mr. Armstrong threatened Mr. LeMond with lawsuits over the years? A I cannot remember the specifics. I mean, there's

4
5

Q

6
7
8

Q

9
10
11

12

a point here, a point 10, at certain times Lance can get amped up and say things under the heat of the moment, but I don't think it was ever

15

anything serious.

16 17
18 19

Q
A

Back in 2001, do you recall telling Mr. LeMond that Armstrong's going to sue you? Yeah. And -Well, let me -- let me take that back.

Q
A

20 21 22

No, I

don't remember it, but I could assume that -- I could believe that that happened.

23 24
/'

Q
A

And you had such conversations with Mr. Stapleton
as well, right?

25

Possibly.

I don't recall.

Video Deposition of John Burke April 07, 2009

-

205

Q
3

I mean, did you ever get the impression from
Mr. Armstrong that any time one of these statements came out, he said he was going to sue Mr. LeMond?

4
5

A

Well, in the 2001 situation, I think there was some talk of that. But Lance, you know, he's -And in the But, you

6
7

he is -- he can get pretty excited.

8

heat of the moment, he can say things.

9

know, especially as time went on, as my notes indicated up here, what he really wanted was peace with G r e g LeMond.

10

11
12

Q

Well, in point 10, though, he said "Kathy LeMond will be sued," and you wrote it again, "She will

-

t

14
15 16

be sued."

A

Uhm-uhm

I

Q
A

Is that a yes?
Yes, that's what I wrote. And that was not your belief on behalf of you or Trek, right?

17 18
19

Q
A

20

No, that was not my belief.
you from the point up here
--

I'm just adding to

21

22
23

Q
A

Yep.
-- to create a space for them to live together,

24

and I'm also taking from my recollections of other conversations with Lance that what he

25

Video Deposition o John Burke April 07,2009 f

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206

1

1
2

sought was he really wanted to coexist with Greg LeMond.

Q

And I'm assuming that you wrote these notes in chronologic order according to the conversation as it occurred with Mr. Armstrong?

A

I would guess that I did.

7
8

Q

And so in point 3, he's talking about creating a space to live together, and point 10 he's saying "Kathy LeMond will be sued. right? She will be sued,"

9
10
11

I
1

I

A

That's what it says. And you were writing down what Mr. Armstrong was saying with respect to these points 1 through 12 in Exhibit 152, right?

12
,
I

l3

I

Q

--

14

15
16 17 18

A

Yes, I was. And point 11 there, now you're writing "Affidavit" with a line to the name "Bill and lawsuit. "

Q

19
20 21 22 .23 24
/

A

Uhm-uhm. Right? Yep.
So, again, points 10 and 11 are both talking

Q
A

Q
A

about litigation? Yes. And what were you referring to there when you did

251 Q

I _

Video Deposition of John Burke April 07,2009
/--

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211

1

A

By his racing accomplishments, by his endorsements of Trek products, and by being an overall excellent ambassador for the brand, by keeping his word on his commitments. very good job with that. He's done a

2 3

4
5

6

Q

And all of those have contributed to Trek's bottom line; is that fair?

7
8 9
10 11 12
?
/-

A

They have -- y e s , With respect to Stapleton in particular, has he said a number of derogatory things regarding Armstrong to you privately -- regarding LeMond to you privately?

Q

1
i

13
14

A

No, not to my knowledge.

-_

(Exhibit 153 was marked for identification.) BY MR. MADEL:

15
16

17
18

Q
A

Can you tell me what Exhibit 153 is, please. Looks like it's an e-mail chain between Bart Knaggs and I regarding Greg LeMond's lawsuit at the Yellowstone Club.

19
20 21 22 23 24
, /

Q

And there's a big portion on the second page that has a big black box. Do you see that?

A
-

I do.
Do you know what's beneath that?

25

Q

Video Deposition of John Burke April 07, 2009
A 2
3

-

212

I do not.
Do you know if it's any communication relating to
counsel ?

I

Q
A

4

Not a clue.

I do not.

5
6

Q

Bart Knaggs here, he works for Lance Armstrong;

is that right?

7
8
9

A
(1 1

He does. And he's never been a Trek, has he?
--

an attorney on behalf of

I

10

A

He has not. When -- it l o o k s like the first e-mail here says,

12

"Re:

Hello Bart," with a bunch of exclamation

points, right? A
15

Uhm-uhm. Did you send that e-mail to
--

Q
A

to Bart?

16 17
18

Which would be the first e-mail? Well, it l o o k s like --

Q
A

I'm not quite --- at the very bottom of this it says - -

19
20 21

Q
A

I'm not good on these chains. Yeah, if you go
--

Q

you've got to read from the

22
23

bottom going up,

And it looks as if the first

one is the Wednesday, November 22, 2006, at
3:48 p - m .

24

And --

Video Deposition of John Burke - April 07,2009
1
2

213

Q

And he says, "John:

I'll get it done, but I'm in

NYC and Lance is in L.A. on me Monday, will you? Thanksgiving, B, " right?

Just to help, recheck Yellowstone Club? Happy

3

4
5
6
7

A

Yep.
So it looks like the first e-mail was from you to

Q
A

Bart. Okay.

8

9
10
11 12

Q
A

Is that fair?
I don't know.

MR. MADEL: there's -THE WITNESS:

I mean, and, Ralph,

Is the first e-mail the

one up on the t o p here?
15 16

BY MR. MADEL:

Q
A

No, if you -- l o o k at the times, follow the times
down.

17
18

Okay.

Okay. MR. MADEL: Ralph, I want you to

19

20
21 22

re-review this.

I don't see any reason that this The first e-mail is

shouldn't be produced.

clearly from Burke to Knaggs, "Hello Bart," and there's a big blackout of it. want that produced. MR. WEBER: Well, you're assuming,
So we're -- we

23
24 25

Video Deposition of John Burke April 07, 2009
/-

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214

aren't you, that's what's been blocked out is an
1

e-mail from John to Bart, right? MR. MADEL:
L

I know e-mail and subject

re inserted usually means a reply to the original e-mail. MR. WEBER:
So you're assuming "tat

c

I

t

what's blocked out is the e-mail from Bart -from John to Bart? MR. MADEL: MR. WEBER: Yes. Okay.

E

s
1c

So I'll go back and

11 12
/-

see what it actually is. BY MR. MADEL:

i
ot

13
14

Q

And there it says, "What about the Yellowstone Club? " And then you said, you know, " 1 1 1 1 get it done, but I'm in NYC, Lance is in L.A. Just to help, recheck on me Monday, will you?" And he said, "Serious? with founder. LeMond in big lawsuit Right?

;
I

I

15
16

17
18

19
20 21

Very, very ugly."

A

Uhm-uhm.

Yeah.

Q
A

And you responded, "Should discuss next time on the phone." Uhm-uhm.

22
23

24

Q
A

Is that a yes?
Yes.

f

25

Video Deposition of John Burke April 07,2009
Q

-

215

And he said, "You should research up on it online and beware with your boy, he may have picked the

3

wrong fight

'I

4
5

And then you again told him, "Give me a call," right? A Yep.
Was there an effort on your part when dealing

6
7

Q

8

with the Armstrong camp that you did not want to have written records regarding your communications with them? A
No.

9
10 11

12

Q

Why were you telling him twice then to discuss this on the phone as opposed to putting it in

i

14 15
16

writing? A I think we talked about it earlier in regards to something e l s e where 1 made a phone call to a board member. e-mail guy.
Q

17
18

I'm more of a phone guy than an

19 20 21 22 23

And do you know the result of the Yellowstone Club fight?

A

I do know the result of that. Okay. What was that result?

Q
A

The -- I'm not an expert on this, but the result to the Yellowstone lawsuit is that Greg won a lawsuit against the owner of the Yellowstone

24
25

Video Deposition of John Burke - April 07, 2009 1

216

Club.

Greg told me a l l about that in detail a

2
3

number of times.

Q

Did -- do you have any reason to know why anybody

4
5

from Armstrong's camp would be interested in
knowing of LeMond's lawsuit minority shareholder dispute with a club in Montana? A No. VIDEO TECHNICIAN: Excuse me, Counsel.

6
7
8

9

May we pause to do that tape change? MR. MADEL: Yep. Great. Thank you.

10

11
12
13

VIDEO TECHNICIAN:

This is the end of Videotape No. 4. We're going off the record at 3:55 p.m. (A recess w a s taken.) (Exhibit 154 was marked for identification.) VIDEO TECHNICIAN:
This is the

14
15

16
17

18
19
20

beginning of Videotape No. 5 in the continuing deposition of John Burke. record at 3:58 p.m. BY MR. MADEL: We are back on the

21

22
23

Q

What was Exhibit 157? writing.

No, 154, sorry.

My bad

24
I

What is Exhibit 154?
MR.
~

,

25

WEBER:

We haven't marked 157 yet

/--\

1
i

MR. MADEL: Exhibit 154.

I was wrong.

It's

-

i

2

I think it's marked.

i

II

A

Okay. Yes.

So you're asking me' what it is?

Q
A

It seems to be an e-mail from Bill Stapleton to me.

Q
A

At the very top? At the top.
So it starts with a note from Lance

Armstrong to me, copied to Bill Stapleton and Bart Knaggs. Subject: "Our boy is at it again."

Q

And it looks like Mr. Armstrong sends you a link to some story that said Landis/LeMond, right? Had Landis/LeMond in that address?

A
Q

Yes. And this would have been right around the time of Mr. Landis's arbitration at the time in California, right?

A

I do not know.
And after Mr. Stapleton replies to all and says "Unbelievable," you then replied to him and say, "You might want to give me a call sometime this weekend." And then you give him your home

Q

Video Deposition of John Burke April 07,2009
,' , .i _

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218

1

numbers again, right? A Right.
.

.I

2

3

Q

Is there a time where you sent, you know, any
written communications to anybody in the Armstrong camp explaining why LeMond was saying anything?

4
5

6

7
8

A

Not to my knowledge.
. Was there a reason that you didn't want that in

Q
A

9 10
11

writing? You know, I -- I mentioned a number of times I'm more of a phone guy than an e-mail guy. leave it at that.

I'll

12
<, ,

I hate long e-mails.

- -.

13
14

(Exhibit 155 was marked f o r identification.)
BY MR. MADEL:

--

15
16

Q

Showing you what's been marked as Exhibit 155. First thing, I'm going to direct your attention to the e-mail on Trek 010385.

17
18

19 20

Do you see that?

A

I do.
And that's an -- the first e-mail is a memo or an e-mail from Lawrence Temple to Bob Burns regarding the LeMond deposition, right?

21
22

Q

23 24
if

A

Yes. And who's -- was Lawrence Temple a lawyer?

25

Q

Video Deposition o John Burke April 07,2009 f

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219

A

Yes, he is. And is he an in-house lawyer for Lance Armstrong's company?

Q
3

4
5

A

I do not know.
Okay.

I've never met him.

Q

And he writes there "Bob, in Lance's

6
7

lawsuit against SCA regarding payment of the bonus insurance, SCA has noticed Greg LeMond's deposition which is scheduled for this Thursday. The lawyers representing Lance, Tim Herman and Shawn Breen, would like to talk to you.

8 9 10
11

I'm

giving them your number, but I wanted you to give" -- "but I wanted to give you a heads-up
' first. I

"I'm in a meeting now and I'm about to catch a plane pretty soon, b u t I'll give 16 you a call soon to discuss this and other things.

17
18

As always, thanks for all your help, Lawrence."

A
Q

Uhrn-uhm. The -- it looks as if, then, that e-mail to Burns got to you; is that right?

19
20

21

A

I don't know.
Well, do you see it says forward, "FW: LeMond

22
23

Q

deposition" and that matches identically the subject of the line - - of the subject line --

24
I

25

A

Oh.

Video Deposition of John Burke April 07,2009
/-

-

220

'
3
L

Q
A

- - from Lawrence Temple?

Okay. Do you see that?

.
4
L

Q
A

I do.
But there's no e-mail in between from Burns to you, right?

C

Q
A

c
7
8

Okay.

Q
A

Do you know if there was an e-mail in between
there?

9
10 11

No idea.
And do you know why anybody from the Armstrong camp would be approaching somebody within Trek regarding a deposition of Greg LeMond and the SCA arbitration?

Q

12
/-

. .

kI

13
14

AY

-9

15 16

A

I do not.

Q
A

The next e-mail is from you to your dad, right? It is. And you're not a lawyer, right?

17
18

Q
A

19

I am not a lawyer.
And your dad's not a lawyer? Definitely not. Was not a lawyer. Pardon me.

20
21

Q
A

22

Q

23
24
/

Yet there's a big black box there in that e-mail, right?

25

A

There appears to be.

Video Deposition of John Burke April 07,2009
-_
if

-

221

T

1
2
3

Q

And as you sit here today, you don't know what's beneath that black box?

A

I do not.
The e-mail before that begins with an e-mail from Mark Higgins to you, Armstrong, and Stapleton, the subject line llArticle,f' and it's dated

Q

7

Sunday, June 25, 2006, at 12:19 p - m .

8

Do you see that?

9
10 11
12

A
Q

I do. And he's saying, "John, Lance was about to take off for the Bahamas but asked me to send this along to you. three hours. He will be back on cell in about Thanks. "

A

Yeah.

15 16 17

Q
A

Do you recall this?
I do.

Q
A

And this was the Lance threatened me, threatened my wife, my business, my life, right? Yep. That article was in 2006, right? Yeah. And next e-mail is from you to Mark Higgins. Incidentally, what did Mark Higgins do for Armstrong?

18
19

20 21

Q
A

22
23 24 25

Q

A

He was like a personal assistant, kind of travels

Video Deposition of John Burke April 07,2009
with him.

-

222

Q
3

And you said, "Mark, thanks for the article. this the entire article or just an English summary translation? If you have the entire

Is

4
5

article, even if it is French, please send it, Thanks, JB. I' A Yep. Why did you want the entire article? I think always in these situations between Lance and Greg, I was always the peacemaker, and

6
7
8

Q
A

9
10

11
12

I always find that before you do anything, you
'cry to get all of the facts. And sometimes, you know, when you see a headline like Lance threatened my wife, my

15
16

business, and my life, I just want to make sure that it's not being taken out of context and there isn't more along to it.

17
18 19

Q
A

Did Lance Armstrong threaten to sue Kathy LeMond? Not that I'm aware of. Okay. What - - what about in Exhibit 152?

20 21 22

Q
A

I know.

I answered the same there.

I wrote

something down, but I can't recall that he said "I'm going to sue Kathy LeMond."

23
24
i

Q

Other than what you wrote down, "Kathy LeMond will be sued. France, et cetera. She will be

25

Video Deposition of John Burke April 07,2009

-

223

{

1
2 3

sued " ?

A

That's what I wrote down, but I can't equate it. Why is he going to sue Kathy LeMond when Greg's the one who made the comments?

4

5
6

Q
A
Q

I have no idea.
That's what I'm telling you; I don't know. And I'm assuming also on the first page of Exhibit 155 you don't know what's beneath that black box there as well?

7
8
9

10
11

A

No idea.
(Exhibit 156 was marked for identification.)

12 13 14
15

BY MR. MADEL:
Q

Exhibit 156, just so I'm clear there, Mr. Burke, can you tell me what the Bates label is of the last page.that you're looking at there on this exhibit?

16 17 18 19 20

A

It's 156. Yeah. Thank you. Or, I mean - - no, that's the I'm sorry, these numbers right

Q

exhibit number.

21
22 23 24

here on the very last.

A
Q

Oh, it's 01 - On the very last page, what's that? last two digits is all I need. Just the

25

A

-53.

Video Deposition of John Burke April 07,2009

-

224

Q
3
4
5

-53, thanks. The first page of Exhibit 156 is an e-mail from Lance Armstrong to you, Bill Stapleton, Bart Knaggs, Mark Higgins, and Tim Herman dated J u l y 17th, 2008; is that right?

6
7

A

Yes. And Armstrong writes, "The part 2 is on Velonews.com now. litigation. Talks about Trek and The guy's a

Q

8

9 10

Worth watching.
If

mumbling, bumbling idiot A Yep.

11 12

Q
A

And did you take that to mean that he was referring to Greg LeMond? I -- well, I don't exactly remember what this is, but I'm guessing that would probably be the case.

15
16
Q

The next e-mail on

--

1 think it begins on Trek
--

17
18

010349 is the one from you to

to - - I'm sorry,

that Lance Armstrong originally wrote to you?

19 20 21 22 23 24
I

A

Yeah. And he writes, "Go to velonews.com and scroll down a bit to the video clips/interviews on the left side. There's a plus or minus 7-minute He is

Q

interview with LeMond that is unreal. either crazy or drunk.

By the way, he actually
He even says

25

seems like he's slurring his words.

Video Deposition of John Burke April 07, 2009
his V02 hasn't really changed to date.

-

225
What,"

question mark, exclamation point, question mark.
3

"It's nearly seven minutes and his first response to a question is close to three to four minutes. for sure. A Yeah
. )

4

5
6

Amazing.

Hermie, good depo stuff

This fucker is a wingnut.

L," right?

7
8 9 10 11
12

Q

Did Mr. Armstrong spend a lot of time looking for interviews that Mr. LeMond made on the Internet, to your knowledge?

A

Mr. Armstrong loves to s u r f the Internet.

He is

very knowledgeable about everything going on in cycling, from Greg LeMond to the racing scene to

I

-

B

14

bike snob New York City to single speeds. knows what's going on.

He

15
16

Q

Do you know -- have you ever talked to him about
the amount of time that he spends searching for stories about him on the Internet?

17
18

19 20

A

The amount of time -That Lance Armstrong spends searching for stories about Lance Armstrong.

Q
A

21
22 23

I have not. Does it seem to be an unusual amount of e-mail
here where Lance Armstrong is sending you, you know, somebody that's - - he's got a contract of

Q

24

25

Video Deposition of John Burke April 07,2009
/-\

-

226

1

endorsement where he's sending you stories about himself and Greg LeMond to you? unusua 1? Did that seem

2
3

4

A

I mean, this

--

this guy had been through a lot.

5
6

I mean, this g u y had been through the 2001,

you're the greatest h e r o or the greatest fraud. He had been through the you threatened my wife, my life, and my livelihood. much Greg LeMond stuff. Here's a guy who's out there, who's won the tour seven times. He's done He'd been through so

7

8
9

10
11 12
d '

possibly more than any person in the last decade
to fight cancer worldwide, and he's got Greg

t

*\

,I

1

13

14
15

LeMond shooting at him left and right. know, it
--

And, you

it bothered him.
I

16
17 18 19
20

Q
A

And you wrote back, "Give me a call today. have a story that beats this, JB." Uhm-uhm.

Q
A

Is that right?
I did.

21 22 23

Q
A

What was the story that beat his?

I can't remember.
And then it -- he writes back, "BOSS, tried you. Give me a buzz on my cell. right? Thanks, L"; is that

Q

24
/

25

Video Deposition o John Burke April 07, 2009 f

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227

A

Yeah. Was that -- did Lance Armstrong have a nickname for you where he called you boss?

Q
3

4
5

A

No.

He usually referred to -- well, sometimes he

referred to me as boss or team manager.

6

Q
A

Did you ever manage his team? No, I didn't. But it stems from a situation in In his contract it

7
8

1999 after he won the tour.

9

stated that he needed to ride two mountain bike races, and we let him know you don't need to do that. He goes, no, 1 always live up to my And so he went to Vermont to race

10
11 12

commitments. in this race.

It was the first