Tiffany (NJ) Inc. et al v. eBay Inc.

Filing 44

DECLARATION of JAMES B. SWIRE in Support. Document filed by Tiffany (NJ) Inc.. (Boccanfuso, Anthony)

STATES
SOUTHERN

DISTRICT

COURT
YORK

DISTRICT

OF NEW

TIFFANY (NJ) INC. and TIFFANY AND
COMPANY,

Case No. 04 Civ. 4607 (KMK)
Plaintiffs,

eBAY ING.,
Defendants.

DECLARATION MEMORANDUM MOTION

OF

JAMES OF LAW

B. SWIRE

IN SUPPORT TO THE

OF

PLAINTIFFS'

IN OPPOSITION TO EXCLUDE OF

DEFENDANT'S PROPOSED

IN LIMINE

EXPERT

TESTIMONY

GEORGE

MANTIS

I, James B. Swire, declare as follows:

1.

I am a partner with the firm Amold & Porter LLP, counsel for Plaintiffs in the

above-referenced action. I am admitted to practice before this Court. 2. I submit this Declaration in support of Tiffany's Memorandum of Law in

Opposition to Defendant's Motion in Limine to Exclude the Proposed Expert Testimony of
George Mantis. 3. Annexed hereto as Exhibit 1 is a true and accurate copy of portions of the

deposition transcript of George Mantis, dated February 10, 2006. 4.
Tiffany (NJ) Inc. et al v. eBay Inc.

I declare under penalty of perjury that the foregoing is true and correct.
Doc. 44

Dated: November 20, 2006 New York, New York

Jam~

B/f~vire

Dockets.Justia.com

~

1.

2

UNITED SOUTHERN

STATES DISTRICT

DISTRICT OF

COURT NEW YORK

3 4

-----------------x TIFFANY COMPANY, (NJ) INC~ and TIFFANY AND

5 6 7
8

Plaintiffs, -against04 Civ. 4607(KMK]

eBAY

INC.,
Defendant.
-x

10

11
12 13 Defendant, Manges

DEPOSITION
at LLP, 767 the

of

GEORGE

MANTIS,
of Well, New

taken
Gotshal York,

by
& New York,

offices Fifth Avenue,

~1"

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

pursuant commencing Certified
within and

to at

Notice, 9:36

on a.m.,

February before and
of New

10, Jeffrey Notary
York~

2006, Bent, Public a

Realtime
for the

Reporter
State

EL

SA

REPOF~1NG CORP.

780 Third Avenue

Ne~vYorlr.UewYort 10011Fan212-557·0050
[e-mail]

Telephone: [phone]

GEORGE

MANTIS,

3 4
5

called duly
Public

as sworn
within

a

witness, by Jeffrey
and for

having Bent,
the

been a
State

first

Notary
of New

6
7 8

York,
follows: EXAMINATION

was

examined

and

testified

as

BY

MS.

SINGER:

9
10 name

Q.
and

Mr.
address

Mantis,
for

could
the

you
record.

please

state

your

11
12 13
4 14
15

A.
Kenmore, Q.
Mr. Mantis?
A.

George
Chicago Have you

Mantis,
60614. ever

M-A-N-T-I-S;

2032

North

been

deposed

before,

Yes.

I

16
17

Q.
A.

How many
Tn excess

times
of a

have
hundred.

you

been

deposed?

18 19 20 21 22 23 24
25

Qwith in that you know, question,
understood

Okay. ground All court of

So rules, your reporter

you're but answers can a

probably we'll have take go

very over to them please be

familiar them verbal If me the just so

the case. the don't and

down. let answer you

understand I'11 then
it.

question, But to
okay?

rephrase'it. I'm
Is

if

you that

going
that

assume

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

Mantis
2 AYes.

3
4 can

Q.
take

If
one.

you

need

a

break,

let

me

know

and

we

5 6 7 8 9
10 If

What do to prepare A. developed, as well
Q. A~

did for

you today's the expert

do

today

to

--

what

did

you

deposition? buying report Grasso's protocol that I that I

T reread and as the

prepared,

rereading
Anything I met with

Mary
else? counsel

deposition.

yesterday.

12 13 14
15 course

Q. A. Q.
of

Approximately Approximately Did
that

how an look at

long hour

was and

that? 15 minutes. during the

you

any

documents

meeting?

16
17

A.
specifically,

The

expert
yes.

report,

the

buying

protocol,

18 19 20
21 22 the

Qduring A.
buying Q-

And that

what

did

you

discuss

yesterday

meeting? We basically
protocol. In your prior depositions, were you

went

through

the

report

and

23

deposed

always

as

an

expert,

or

were

any

as

in

a

a

24
25

personal
A.

capacity?
An expert.

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

Mantis

2
3 retention?

Q.

What

was

the

nature

of

your

expert

4
5 over

MR.
a

SWIREr

Open-ended?
times.

He

testified

hundred

6

Q.

As

a

--

were

you

--

when

you

have

--

7
8

have
before?

you

ever

been

retained

as

a

statistician

9
10 11
12

A~
a statistical

Every

report
meaning.

has
So

an
in

observation
part, every some

that
report aspect

has

rendered
of statistics.

in

survey

research

involves

13 ; 14
15

Q. a hundred

Have times,
times,

-or
it

when you
was a

you were

said

you deposed
different

testified over a
cases,

over

hundred

hundred

16 17 18

or

more A.

than More and

once than trial

in

a once,

particular when you

case? consider

deposition

testimony.

19
20 21 22 23 matters

Q.

So
have

approximately
you been retained for career? for

how

many
in?

different

A. throughout ` Q.

Specifically my entire

litigation,

or

Specifically

litigation.

24
25 about

A.
300.

This

is

a

rough

estimate.

Approximately

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212]
NY

557-5558
10017

Mantis

2 3 4 5 6 7
8

Q. survey AQ.

And expert, A

were in survey

you all of

retained those -expert. expert. go through

as

a

consumer

research research briefly an

Survey Let's

your degree?

education.

Did

you
A.

receive
Yes.

undergraduate

9

Q.

And

where

was

that

from?

10 11
12

A. Q.
A.

Carroll What
1965~

College. year was that?

13
14

Q.
A.

Did
Yes~

you

do

any

postqraduate

work?

15 16
17

Q. please.
A.

Could

you

describe

that

briefly

for

me,

I

received

an

MBA

from

rndiana

18 19 20 21 22 23
24

University 52. A. ~ Illinois College Q.
A.

in

1967. else? had of received you ever a juris doctorate Chicago degree Kent from

Anything I also

University of Law, Did
No.

Technology, in practice 1974. as

an

attorney?

25

Q.

Are

you

admitted

to

the

bars

of

any

Elisa 780

Dreier Third

Reporting Avenue,

Corp~ New York,

(212) NY

557-5558 10017

Mantis 2 3 state? A. Yes.

4
5

Q.
A.

What
Illinois.

states?

6 7
8

Q. work besides
A.

Have

you your

done J.D.

any and

other your
on

postgraduate MBA?
occasion in the

I've

taken

courses

9
10
11
12

intellectual
School
Q.
A.

property
in Chicago.
When
I don't

program

at

John

Marshall

Law

was

that?
recall the exact dates. It was

13
i: 14

over
1970s.

a

period

of

years.

19

--

the

mid

to

late

15
16 17 courses

Q.
at A.

Have
John No.

you

taken

any

courses

since

those

Marshall?

18 19
20

Q. specifically
A.

Have in
No.

you

ever

taken

any

courses

statistics?

21 22 23 24 25 pretty statistical

Q.

Have

you

ever of by a

taken sampling? university,

any

courses

on

methods A. Offered broad. Q~ Well, let's

or

--

it's

start

with

by

a

university.

Elisa 780

Dreier Third

Reporting Avenue,

CorpNew York,

(212) NY

557-5558 10017

Mantis

2
3

Offered
A~

by

a
No.

university.

4 5 6 7 8 9 10 11 12 13 14
15

Q. any other A. corporate by an

Have

you

ever

taken

courses

offered

by

institution? By institution, where and designs Also,courses by various Those And years
such

that protocols implemented, or ordinary that associations are all recall,

would are in

include developed either

a

setting, organization

experimental designs. offered in

commercial from that available throughout survey research, time are to to time involved survey my 30 are

marketing.

researchers. some
I've

as

I

odd
taken

of

undertaking

courses.

16 17 18 last

Q. more A.

Are than Well,

such a

courses week, would of them

--

do you are

they say? ongoing.

generally

some

In

the

19
20 21 22
23

corporate
Others Q. have you
A.

setting,
are of the

they're
seminarvariety, how

obviously
a many of

ongoing.
day those or two~ courses

Approximately taken?
That I don't

recall.

24 25

Q~ A.

Do

you

think not.

it's

more

than

ten?

Probably

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

1

Mantis

2 3 4 5
6
7

Q. A. back into Q.
any professional
A.

Do I 30

you can't years

think place of Mr.

it's a

more number

than on it.

five? This goes

history~ Mantis, are you a member of

Okay.

societies?
Yes.

8
9

Q.
A.

What
The

societies
International

are

you
Trademark

a member

of?

Association,

10
11

Q.
A.

Any
No.

others?

12
13
14

Q~
certifications
A.

Do

you
or

have
licenses?

any

other

professional

No.

15 16
17

Qyour
Mantis

If

you

could history

briefly before

describe you formed

for the

me

employment
Group.

18

A~

Including

the

military,

in

from

1967

to

19 20
21
22

1969, officer

I was in

a member the United
1969

of

the

United Army.
r was
National

States

Army,

an

States
to 1978,
Illinois

From
staff of Continental

a

member
Bank

of
and

the

23 24 25

Trust marketing

Company

as

a

marketing

officer,

involved

in

research. From 1978 to 1985, I was a vice

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

1

Mantis

2

president

of

Market

Facts,

Incorporated,

a

large

3
4 5 6 7 8 9
10

publicly

held
In QAnd

marketing
1985, what I is

research
formed your my role own at

firm.
company. the Mantis

Group? A. Q~ employees?
A. No.

I

am

the the

Mantis Mantis

Group. Group have any other

Does

ll 12
13

Q. employees?
A.

Has

the

Mantis

Group

ever

had

any

other

Yes.

14

Q-

And

what

kind

of

employees

did

you

have?

15 16
17

A~ experienced
collection

I

employed in
activities.

an

individual

that specifically

was

highly data

field

operations,

18 19 20 21 22 23 to the

QMantis A. work

And

when

did cease?

this

person's

employment

at

Group Upon anymore, her

retirement, I believe --

and

a

decision six

not or

approximately

seven

years Q. So

ago. am I corr~ct, then, that that person

24
25

would
Tiffany?

have

had

no

role

in

your

assignment

for

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

1 2 A~ Correct.

Hantis

3 4
5

Q. did you

Aside have
You

from

you

personally, in
you were

did -withdrawn.
the vice

any

--

any

assistance

mentioned

president
7
8

at

Market

Facts,
company.

and

that

it

was

a

marketing
A.

research
Yes.

9 10 11 12 13 14 capacities research being surveys

Q. A.

What I

was

your in by were two the

role

at capacities,

Market in to those

Facts? the which segments and also

served defined

marketplace

services the financial provided litigation.
Act

provided, industry

services to organizations For
cases.

that example,

involved Lanham,

.I)

15
16

potentially
L-A-N-H-A-M,

17 18 19 20

Q. president? A. responsibility

What

were

your

duties

as

a

vice

Vice

presidents to respond

had to

as client

their

primary requests or --

21
22 23

and/or
that provided

bring
they

to
possessed,

clients
what a

the

expertise
services could capacity

they
be as

had,

to

them;

consultancy

well

24 25

as

a

sales

capacity. capacity,

And the

as

part

of

the including

consultancy

responsibility

Elisa 780

Dreier Third

Reporting Avenue,

Corp. New York,

(212) NY

557-5558 100L7

1

Mantis

2 3 4 5

the

design of Q~

of

surveys. the -results. how Mantis

And,

of

course,

the

reporting

What of the

would Group?

you

describe

the

core

business A.

Today? Today. Well, research I described that is the Mantis Group as a

7 8 9 survey

QA.

firm

involved

10
11 12
13

predominantly
Q. since
A.

in
Has that

surveys
consistently the

in

support
been Group

of
the in

litigation~
core

you

founded
No.

Mantis

1965?

14 15 16 17 18 19
20 21 as well.

Q. A. research Q. surveys on

How Less than Have users MR.

is

that emphasis

different on

today? commercial was marketing founded, any consumer providers? form.
I'm confused

when you of SWTRE:
would

the ever

company conducted

Internet Objection
have to

service to
restate.

A.

You

22

Q.

Let's

back

up,

then.

How

does

the

23
24

Mantis
surveys?

Group

generally

conduct

its

consumer

25

Depends

on

the

issue,

the

hypothesis

Elisa 780

Dreier Third

Reporting Avenue,

Corp~ New York,

(212) NY

557-5558 10017

1

Mantis

2

that

it's

testing-

3
4

Q.

Can
I'm

you
--

give

me

some

examples.

5
6 7 question,

A,

You're
counsel.

going

to

have

to

limit

your

Q~

I'm

sorry,

let

me

focus

you

on

8
9 10
11

specifically
carried surveys?
What

not
out. Do Do you

-you

specifically
usually do do

how
mall

the

survey

is

intercept surveys?

usually

Internet

12

A.

There's

no

typicality~

There's

no

13

usual~

Everything

is

issue

and

client

sensitive.

14
15
16

You design
to
test.

a survey
the

that

best
that

provides
you're

information
asked to

address

hypothesis

17

Q.

Have

you

ever

conducted

any

surveys

18
19 20

using
information? A.

the

rnternet

as

a

way

to

gather

the

Yes.

21
22 done

Q.
that?

Approximately

how

many

times

have

you

23
24 two or

A.
three

Very

infrequent,
times.

I

would

think.

Perhaps

25

Q.

Can

you

tell

me

more

about

those

two

or

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

1 2 three times.

Mantis

3 4 5 6 7 8 9 10 11
12 13

A. Q. statistical A. decades, every study

No, Okay.

I

can't~ What is

They're your

work experience

product. in

sampling? Being now, that It's QDo you in an in involved developing I've integral have the -marketing ever over the sampling designed. part have you or of study ever consumer design. published survey course plans of for

any
area?

articles

A.

No.

14 15
16

Q. any
research

Have of
or

you

ever courses

spoken on

at consumer

any

seminars survey

or

kind

other
-or

statistics?

i
1
i

17
18
19

A.
Q.
A.

Yes.
When
Over

was
the

that?
course of the last several

20
21

years,
the

I've
International

spoken

at

the

international
Association.

meeting
I've

of

Trademark

22

spoken

at

least

a

couple

of

times

at

the

Midwest

23 i 24 25

Symposium to members

on of

Intellectual the Chicago Association

Property. Bar Association. And

I've

spoken

Marketing

Research

from

time

to

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

1

Mantis

2

time,

I

lecture

at

John

Marshall

Law School

in

a

3
4

graduate
use of

course
surveys

on trademarks,
in Lanham Act

specifically
cases~

the

5
6 School?

Q_

I'm

sorry,

it

was

John

Marshall

Law

7 8 9 retention

AQ-

Yeah, Were in

John you

Marshall ever -against aside

Law

School. from your have you ever

this

case

eBay,

10
11
12

represented
the past?
A. No~

Tiffany

or

been

retained

by Tiffany

in

i

13
14 retained

Q.

Have you ever
as an expert

provided
witness by

--

have

you been
Dorsey &

either

)
t

15
16
17

Whitney or Arnold ~ Porter?
A.
Q~ A.

Yes~
Was Both. that Dorsey & Whitney?

j

18

19

Q.

Both.

And

how

many

occasions

was

that?

20
21 back

A.
over

Dorsey
the

& Whitney,
of the

I would
first

say,
time, it

going
would

course

22
23
1 24

be

20

years
there's
Q.

ago,

perhaps
been
start

five.
additional
Arnold

For

Arnold
occasion.

&

Porter,

one
with

Let's

~

Porter.

25

What Elisa

--

are Dreier

you

able Reporting
Avenue,

to

give Corp.
New

me the (212)
NY

cases

in

which

557-5558
10017

780

Third

York,

1

Mantis

2 3
4
5

you

were A.
Q.
A.

retained' It's
Which
Jamster

cited
case
and

in
was

my

expert

report.

that?

Jamdat.

6 7
8
9 believe

Q. cited
A.

Are your
I
some

the expert
would
are.

Dorsey report?
have to

~ Whitney

cases

also

in

look,

counsel.

I

10
11 minute.

Q.

Well,

we'll

look

at

your

report

in

a

12
13 14 Jamster A. case?

Did

you

testify

in

the

case,

in

the

Case

settled.

i

ii
16 17
18

Qthe cases Whitney?
A.

Did -- have you ever testified
for which you were retained by

in any of
Dorsey &

Yes~

19 20
21
22

Q. A.
Q~
A.

How By
Yes.
I

many testify,

occasions you mean

was in

that? court?

recall

two

cases.

23 1 24
25 surveys

There Q.
in

may fine.

be

more, Did

but you

I

recall

two. consumer

That's
those

conduct

cases?

Elisa 780

Dreier Third

Reporting Avenue,

Corp. New York,

(212) NY

557-5558 10017

1 2 A~ Yes.

Mantis

3
4

Q.
A.

In
Yes.

both

of

them?

5
6 7 the

Q.
court? A.

Were

those

consumer

surveys

submitted

to

Yes~

8
9 10 court

Q.
in A.

Were
those Yes.

you
cases?

qualified

as

an

expert

by

the

11

Q.

Has

there

ever

been

an

occasion

in

which

12 13
14

you

were

proffered as such by

as the

an

expert court?

and

have

not

been

accepted
A.

No.

)

15
16 17 18 19 20 21 22 surveys basis, the consumer '

a.

What's
survey? MR.

your usual

rate

for conducting

a

SW~RE: it

Objection depends to are on clients predicated the

to

form. survey. on a on project the scope of The

A. are so survey. Q~

Well,

presented the costs

What

is

the

average

range

of

fees,

23
24

ballpark
a client?

fees,
I

that
understand

the

Mantis
it's

Group
project

would
specific.

charge

25

MR.

SWIREr

Object

to

form.

Elisa 780

Dreier Third

Reporting Avenue,

Corp. New York,

(212) NY

557-5558 10017

1

Mantis

2
3

reasonable
A-

sample
Yes.

size?

4

Q.

What

if

only

10Q

items

had

been

5
6
7

purchased?
a reasonable
A~ Yes.

Do you
sample

think
size?

100

items

would

have

been

8
9 been

Q.
a

What
reasonable

about

80
sample

items?
size?

Would

that

have

10

A.

Well,

you

would

have

to

compute

sampling

11
12
13

error
given.
relatively

for
If

each
the
the

one

of

the

examples

that

you were

observed
same, or

proportion
even -was

remained
even lower,

14
15
16

let's

say

a 50/50

split

of
error

the
is

data,
not

100
going

would
to

be

reasonable.
increase

Sampling
substantially.

17 18 19 20 21 22 23 had a see like you're Qsample A. what to

So level look measuring.

you of at

would precision

compute

sampling reliability to the

error you

to would that

with

regard

proportion

Would size I could

you of

have 150

designed in yes. this I

a case? could

protocol

that

have,

have

i

24
25

suggested
Q.

that
But

as
would

well
you

as

200.

have?

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp_
New York,

(212)
NY

557-5558
10017

1

Mantis

2

A.

I

didn't.

Would

I?

I

don't

know.

Is

3 4 5 6

it

sufficient? is Q. yes. Now, me

That's

the

salient

question.

The

answer

you that

said, you

I

think

you relied

before on

the

break

told

completely

7
8
9 10 11

Tiffany's
counterfeit
A.

evaluation
or
Correct. MS, Mantis 2. SINGER:

to
correct?

determine

what

was

not,

Please

mark

that

as

12
13 14 marked as of

(First
Mantis this

buying
Exhibit date.)

program
2 for

spreadsheet
identification,

was

15 16
17

Q. been
this

The as

court Mantis

reporter Exhibit

has 2.

handed Do you

you

what's

marked
document?

recognize

18 19 20
21

And A. recognize
Q.

I

know almost

that

it's

very but

hard yes,

to I

read.

It's it.
What

impossible,

is

Mantis

Exhibit

2?

22

A.

This

appears

to

be

the

spreadsheet

based

23
24

on

t'he

evaluation

resulting

from

the

first

buying

program.

25

Q.

Do

you

see

in

the

top

right-hand

corner

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)
NY

557-5558
10017

3 4 5 STATE COUNTY OF OF

ACKNOWLEDGMENT NEW NEW YORK
Ss.:

YORK

f

7 8 9 10 the

I,

GEORGE MANTIS, of of is

hereby

certify, taken 2006; and

I have under that correct the oath

read in

transcript

my testimony February 10,

my deposition transcript

a true,

complete

record

11
i 12 13
14

of

what

was asked,
and me are that true

answered
the and

and

said
on

during
the record

this
as

deposition, given by

answers correct.

j ')

15

16 17

GECjRGE Subscribed

~ANT~-S and sworn to

18
19 20 21

before me on this

~t)t

day
2006.

,r ---~d·-----·

~e~i~i
NOTARY PUBL~
SEAL" "OFFICIAC

22
23

24
25

URSZULA MALINOWSKI

Notary P~biic. of Illinois State

MyCommission Expires April30. 2008

Elisa
780

Dreier
Third

Reporting
Avenue,

Corp.
New York,

(212)

557-5558

NY 10017

OF

SERVICE

I, Erik C. Walsh, the undersigned attorney at law duly admitted to practice in the State of New York, respectfully show that on the 20th day ofNovember,
annexed PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION

2006, I caused the
TO

DEFENDANT'S

MOTION

IN LIMINE

TO

EXCLUDE

THE

PROPOSED

EXPERT

TESTIMONY
SUPPORT OF

OF GEORGE
PLAINTIFFS'

MANTIS

and DECLARATION
OF LAW

OF JAMES
IN OPPOSITION

B. SWIRE
TO

IN

MEMORANDUM

DEFENDANT'S

MOTION

IN LIMINE

TO

EXCLUDE

THE

PROPOSED

EXPERT

TESTIMONY

OF GEORGE

MANTIS

to be served

via electronic

mail and Federal

Express upon:

Randi Singer, Esq.
WEIL, GOTSHAL
767 Fifth Avenue

& MANGES

LLP

NewYork,NY [phone]

10153