J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
126
DECLARATION of Partha P. Chattoraj in Opposition re: 104 MOTION for Summary Judgment.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104 Part 1, # 105 Exhibit 104 Part 2, # 106 Exhibit 104 Part 3, # 107 Exhibit 104 Part 4, # 108 Exhibit 104 Part 5, # 109 Exhibit 104 Part 6, # 110 Exhibit 104 Part 7, # 111 Exhibit 105, # 112 Exhibit 106, # 113 Exhibit 107, # 114 Exhibit 108, # 115 Exhibit 109, # 116 Exhibit 110, # 117 Exhibit 111, # 118 Exhibit 112, # 119 Exhibit 113, # 120 Exhibit 114, # 121 Exhibit 115, # 122 Exhibit 116, # 123 Exhibit 117, # 124 Exhibit 118, # 125 Exhibit 119)(Chattoraj, Partha)
<![CDATA[
EXIDBIT 12
I
I
i
CONFIDENTIAL
Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------X
J.T. COLBY & COMPANY, INC.
d/b/a BRICK TOWER PRESS, J.
BOYLSTON & COMPANY, PUBLISHERS
LLC and IPICTUREBOOKS, LLC,
Plaintiff,
vs.
APPLE
I
INC .
No. 11-cv-4060
I
Defendant.
-----------------------------x
CONFIDENTIAL
VIDEOTAPED DEPOSITION OF
30(b) (6) JOHN T. COLBY, JR.
New York, New York
Wednesday, July 18, 2012
10:20 a.m.
Reported by:
Jennifer Ocampo-Guzman, CRR, CLR
Ref: 7845
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Confidential-Colby
2
asked in these interrogatories for
3
information regard to the advertising
4
expenditures relating to such books, correct?
5
A.
Yes.
6
Q.
And in response in addition to
7
asserting objections, your -- plaintiffs
8
responded by saying that it produced Excel
9
spreadsheets; isn't that true?
10
MR. CHATTORAJ:
11
A.
Yes.
12
Q.
Okay.
Objection.
And in the verification to
13
the interrogatories it states that -- that
14
you have read the foregoing plaintiffs
15
responses to the second set of
16
interrogatories of defendant Apple, that he
17
knows the contents thereof of the Microsoft
18
Excel spreadsheets provided there with as
19
exhibits A, B and C; and that you furnished
20
the factual information set forth therein.
21
Do you see that?
22
A.
I do, that's what it says.
23
Q.
What factual information did you
24
furnish in order to create the Excel
25
spreadsheets?
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2
MR. CHATTORAJ:
3
A.
Objection.
I provided the sales in dollars and
4
units of each title under iBooks and
5
ipicturebooks imprints that's requested by
6
defendant.
7
Q.
How did you obtain that
8
information?
MR. CHATTORAJ:
9
Objection.
10
A.
What do you mean "How"?
11
Q.
Did you refer to a document that
12
contained the sales information?
13
A.
No.
14
Q.
Well, where did you get the
15
information from?
16
A.
From computer files.
17
Q.
Okay.
18
What computer files did you
look at that contain this information?
19
A.
Information on the spreadsheet?
20
Q.
Yes.
21
A.
There ARE three basic computer
22
files that contain the information.
23
Q.
What are their names?
24
A.
Tr.trans, roitrans, ipicturebooks,
25
T-R-R-0-I,
iBooks, and T-R, dot,
I-M-F, 3
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T-R-I-F.
3
Q.
Are these files on the hard drive?
4
A.
Yes.
5
Q.
If I wanted to find these files on
6
7
the hard drive, where would I look?
A.
You would look in a folder called
8
Trade 3 within an application called Brick
9
Tower Press, MP.
10
Q.
11
that folder?
12
A.
Oh, yes.
13
Q.
Is there anything else in that
14
folder?
15
A.
Oh, yes.
16
Q.
How will I know -- and are these
17
Excel files?
18
A.
Are all three of those documents in
Yes, they are.
MS. CENDALI:
19
And by the way, Lisa
20
21
.
Widup, trademark counsel for Apple has
also joined the deposition remotely.
22
Q.
The information in these files
23
contains numbers and -- numbers of units and
24
sales information, right?
25
A.
Of what?
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1
2
3
Q.
Of books sold under the iBooks and
ipicturebooks marks, correct?
4
A.
Yes.
5
Q.
Where was that information derived?
MR. CHATTORAJ:
6
Objection.
7
A.
All of our distributors.
8
Q.
What are the -- you're talking
9
about you looked at three spreadsheets, Excel
10
spreadsheets that were in your hard drive; is
11
that right?
12
A.
No.
13
Q.
I just asked you where you obtained
14
the factual information used to create
15
exhibits A, B and C?
MR. CHATTORAJ:
16
Objection.
17
A.
Right.
18
Q.
And you referred to three
19
spreadsheets; isn't that right?
20
A.
I did.
21
Q.
Okay.
So where did the
22
spreadsheets get the information about the
23
sales?
Where are the underlying documents?
24
25
MR. CHATTORAJ:
A.
Objection.
There are additional computer
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2
3
Confidential-Colby
files.
Q.
Please tell me all computer files
4
that you used and relied on in order to
5
provide the information reflected on exhibits
6
A, B and C to your Interrogatory Responses?
MR. CHATTORAJ:
7
8
9
10
A.
Objection.
Well, we start out with the
we•re going backwards.
I'm not sure whether
to go backwards or to go forwards.
11
When we acquired the assets, we
12
contacted, as you indicated earlier,
13
different distributors, and we asked them to
14
transfer the -- our -- substitute our
15
information for the older entities.
16
sent us sales information, each distributor
17
and there were maybe 15 different
18
distributors that sent sales information in a
19
computer filed format, usually either a comma
20
separated value format, an Excel spreadsheet
21
format or a tab separated file.
22
are probably hundreds of them.
23
Q.
They
And there
So dealing with the era where Byron
24
Preiss and -- well, dealing with the sales of
25
products bearing the mark iBooks, those have
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1
2
been made prior to your purchase of the asset
3
of the company iBooks, Inc., correct?
MR. CHATTORAJ:
4
Objection.
5
A.
No.
6
Q.
What company made the sales?
7
A.
Initially Simon & Schuster, then
9
Q.
Those were the distributors though.
10
A.
They're the ones who made the
8
11
12
PGW.
sales.
Q.
Did your -- did Byron Preiss sell
13
the books to Simon & Schuster and the
14
distributors?
15
A.
No.
16
Q.
What documents exist that show what
17
the sales were that were made by Simon &
18
Schuster?
19
A.
A spreadsheet called i-wks05.xls.
20
Q.
And what period of time does that
21
cover?
22
A.
1999 through 2005.
23
Q.
And was this spreadsheet provided
24
25
directly by Simon & Schuster?
A.
Directly to whom?
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MR. CHATTORAJ:
Objection.
3
Q.
To your companies?
4
A.
No.
5
Q.
What information did Simon &
6
Schuster provide?
MR. CHATTORAJ:
7
Objection.
8
A.
Zero.
9
Q.
So it didn't provide you with any
10
documents?
11
A.
Not Simon & Schuster.
12
Q.
Okay.
You have a spreadsheet that
13
you're using to respond to plaintiffs'
14
interrogatories.
15
witness.
16
know the contents of the spreadsheets and you
17
furnished the factual information set forth
18
therein.
You're the 30(b) (6)
You testified under oath that you
Right?
19
A.
That's true.
20
Q.
Okay.
Where did you get the
21
information with regard to sales of books
22
during the time before your acquisition of
23
the assets?
24
25
MR. CHATTORAJ:
A.
Objection.
From which distributor?
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1
2
Q.
From anyone.
3
A.
It varies, the bankruptcy trustee
4
5
provided me with the information.
Q.
Okay.
Could you tell me the Bates
6
numbers of all the information that you
7
relied on to create the spreadsheets in
8
exhibits A, B and C?
MR. CHATTORAJ:
9
Objection.
10
A.
I can't do that, no.
11
Q.
Can you tell me the names of the
12
documents of -- that you relied on to create
13
the spreadsheets A, B and C?
14
A.
Most of them, yes.
15
Q.
Please do.
16
A.
There was the ones I previously
17
mentioned.
The underlying documents for
18
those were from a file called raw eBook
19
trans, and the other file was I think raw PGW
20
trans, but it's got the name PGW in it.
21
You've got all the stuff on the hard drive.
22
And the third document I previously mentioned
23
through Simon & Schuster, the i-wks05.xls
24
document and that too was provided on the
25
hard drive, as well as the flash drive.
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1
Where -- if I wanted to find these
Q.
2
3
three files on the hard drive, where would I
4
look?
MR. CHATTORAJ:
5
6
Where is --
Q.
MS. CENDALI:
7
8
9
Objection.
Objection.
The easiest way to do a search is
A.
"wks" and it pops up.
10
Q.
Are they in a folder?
11
A.
If they're provided on a flash
12
drive, no.
I didn't provide the flash drive
13
to you.
14
believe I put it in a folder on the flash
15
drive.
16
be in a folder, probably Simon & Schuster
17
sales data.
18
Q.
My attorneys provided it.
I don't
The wks file on the hard drive should
Okay.
What I'm trying to find out
19
is you mentioned these computer files.
20
these computer files documents that were
21
obtained from the distributors of the books?
22
A.
Yes.
23
Q.
Are
And does that include files
24
obtained from Simon & Schuster reflecting
25
sales made by them?
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1
2
A.
Yes.
3
Q.
And what document reflects the
4
Simon & Schuster sales?
5
A.
I-wks05.xls.
6
Q.
So -- and you claim that these
7
documents were obtained after you acquired
8
the assets, you wrote to the distributors and
9
you asked them to give you summaries of the
10
sales figures; is that right?
MR. CHATTORAJ:
11
Objection.
12
A.
Not completely, no.
13
Q.
What's wrong about it?
14
A.
Some of the information came from
15
the trustee and some of the information came
16
from the distributors.
Q.
17
Okay.
Did any of the information
18
used to create exhibits A, B and C come from
19
the preexisting business records of iBooks,
20
Inc.?
21
A.
No.
22
Q.
What information did you obtain
23
from the trustee?
MR. CHATTORAJ:
24
25
A.
Objection.
350 boxes of information.
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2
Confidential-Colby
Q.
Let me be more specific.
What
3
information did you obtain from the trustee
4
that you used to create exhibits A, B and C?
MR. CHATTORAJ:
5
Objection.
6
A.
The wks file.
7
Q.
Anything else?
8
A.
No.
9
Q.
Are there in existence
10
contemporaneous sales records, such as
11
invoices and the like, showing what the
12
actual sales in units and dollars were from
13
1999 through 2006 prior to your acquisition
14
of the assets in December?
15
16
17
18
MR. CHATTORAJ:
A.
Objection.
What do you mean by
"contemporaneous"?
Q.
Ordinary course of business
19
documents that iBooks, Inc. or Byron Preiss
20
Visual Publications would have had that
21
reflected sales information?
22
A.
None that I've seen.
23
Q.
All right.
So turning then to the
24
period post acquisition of the iBooks, of the
25
assets that included iBooks mark, so in other
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words, post mid-2006 when you acquired the
3
assets of iBooks, Inc. and Byron Preiss
4
Visual Publications, okay, what was the
5
source for the information contained in
6
exhibits A, B and C of that information?
MR. CHATTORAJ:
7
Objection.
The sales records from its
8
A.
9
distributor.
10
Q.
You didn't need to post
11
acquisition, write to each distributor and
12
say please give me copies of the sales
13
records, correct?
MR. CHATTORAJ:
14
Objection.
15
A.
No.
16
Q.
So do you obtain monthly or
17
quarterly sales records from distributors?
18
A.
I'm sorry.
19
Q.
Do obtain them?
20
A.
Obtain them, yes.
21
Q.
How often do you receive reports
Do I retain them?
22
from distributors?
Again, relating to sales
23
of iBooks imprint products?
24
A.
After the acquisition?
25
Q.
Correct.
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2
A.
Each distributor is different.
Not
3
most of them are pretty good, I get them once
4
a month.
5
so I get them once every 3 months.
6
distributors don't send them to me at all, I
7
have to go after them to get them.
8
9
10
11
12
13
Q.
Some distributors are not so good,
Some
What distributors have you used to
distribute iBooks' products since you
acquired the assets in mid-2006, December?
A.
Which-- I'm sorry, which
distributors?
Q.
With regard specifically to
14
describing iBooks' products in the United
15
States?
16
A.
PGW, NBN and Lightning Source.
17
Q.
So there are only three
18
distributors of iBooks' products since you
19
acquired the assets in mid-2006; is that
20
correct?
21
A.
That's a lot of distributors.
22
Q.
And -- but not 15?
23
A.
You're talking about the print
24
books only?
25
Q.
What distributors -- so did you --
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do underlying records exist showing in a
3
contemporaneous fashion what the sales
4
figures actually were in the post
5
mid-December 2006 period to the present for
6
iBooks' products?
MR. CHATTORAJ:
7
8
9
10
A.
I'm sorry.
Objection.
Let me just understand
the question.
Q.
As opposed to a spreadsheet that
11
may have a summary of information, does there
12
exist monthly or quarterly documents from
13
distributors that report on sales of books
14
using the iBooks imprint?
15
A.
There are computer files.
16
Q.
And are these computer files
17
generated by your company or are these
18
computer files sent to you by the
19
distributors?
20
A.
They're all sent to me by the
21
distributors.
22
Q.
Okay.
How would I find, if I
23
wanted to, the documents that were sent to
24
you by the distributors since you've acquired
25
the assets?
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1
2
A.
How do you find them where?
3
Q.
On the hard drive.
4
A.
You would go to the trade 3 folder,
5
look under a folder called "distributors" and
6
they're listed as each distributor, and then
7
within each distributor folder there are any
8
sales information from that distributor.
9
Also there is a folder called I think sales
10
reporting or sales history, that appears
11
under the "distribution" folder, and that too
12
would contain the sales information from the
13
distributor.
14
Q.
Did you personally create the
15
spreadsheets, A, B and C that were provided
16
with the Interrogatory Responses?
17
A.
I gave them to my attorney.
18
Q.
Did you give your attorneys the
19
underlying data or did you give your
20
attorneys the completed spreadsheets?
21
A.
I gave them the completed
22
spreadsheets.
23
Q.
24
25
Okay.
(Defendant's Exhibit 76, CD
labeled,
"Plaintiffs' Responses and
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