J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 127

DECLARATION of Dale M. Cendali in Opposition re: 87 MOTION for Partial Summary Judgment.. Document filed by Apple Inc.. (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 Tab - Borden Dep., # 10 Tab - Colby 30(b)(6) Dep., # 11 Tab - Gedikian Dep., # 12 Tab - Goldhor Dep., # 13 Tab - Gundersen Dep., # 14 Tab - Kvamme Dep., # 15 Tab - La Perle Dep. (REDACTED), # 16 Tab - Widup Dep.)(Cendali, Dale)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2
3

4

5

J.T. COLBY & COMPANY, INC.,
d/b/a BRICK TOWER PRESS,
J. BOYLSTON & COMPANY,
PUBLISHERS, LLC and
IPICTUREBOOKS, LLC,

6

Plaintiff,
7

vs.

Case No. 11-CIV4060 (DLC)

8

APPLE, INC.,
9

10

Defendant.
-----------------------------/

11
12
13
14
15
16
17

HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Attorneys' Eyes Only Confidential Pages 300 - 302
VIDEOTAPED DEPOSITION OF THOMAS LA PERLE
30(b)(6) Capacity
Redwood Shores, California
Wednesday, September 19, 2012

18
19
20
21
22
23

Reported by:
LORRIE L. MARCHANT, CSR No. 10523
RPR, CRR, CCRR, CLR

24
25

JOB NO. 53418
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question pending.

2

please read the question back.

Madam Court Reporter, can you

3

(Discussion off the record.)

4

(Record read as follows:

5

"Q

6

to use the '

7

"A

Yes.

8

"Q

Who made that decision?

9

MS. CENDALI:

10

THE WITNESS:
that decision.

13
14

' name?
Just a name.")

And without waiving any

privilege, he can answer as to a factual matter.

11
12

Was a decision at some point made not

I believe Steve Jobs made

Subject to our trademark clearance.

BY MR. CHATTORAJ:
Q.

You -- I just want to make sure I

15

understand your testimony.

16

made that decision subject to your trademark

17

clearance?

18

A.

So he decided that he did not want to go

19

with "

" and wanted us to look at "iBooks."

20

And we were doing trademark clearance for that.

21
22
23

Q.

You said that Steve Jobs

So in what way was Mr. Jobs' decision

subject to your trademark clearance?
A.

Well, your question was did someone -- who

24

made the decision to look into -- this is how I

25

interpreted your question:

Who made the decision to

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look into "iBooks"?

2

asked us to look into that -- that name.

3

Q.

And that person was Steve Jobs

That was helpful testimony, but that was

4

not my question.

5

promise.

6
7

My question was just who made the decision
not to use "

8
9
10

We'll get there, though, I

"?

MS. CENDALI:

Well, objection.

question speaks for itself.

Your

But is there a new

question?

11

MR. CHATTORAJ:

I think we really need to

12

stick to the -- the order the Court made about

13

objections.

14

BY MR. CHATTORAJ:

15
16

I am asking the following question.

Q.
"

Who made the decision not to use the name
"?

17

A.

I don't know.

18

Q.

Were any names other than "

19
20

" and

"iBooks" considered for the eReader application?
A.

I don't believe so.

But as I sit here

21

today, I don't recall if there were other names.

22

Those are the two that I do recall.

23
24
25

Q.

Is it fair to say that Steve Jobs had the

idea of calling the eReader application "iBooks"?
A.

I -- I was told that Steve Jobs wanted us
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with using the name "iBooks" for its eReader and

2

bookstore application?

3
4
5

A.

We proceeded with the -- some further work

that we had to do for the trademark clearance.
Q.

What was that further work?

Without

6

revealing attorney-client privilege, beyond

7

trademark clearance?

8
9

A.

Well, we had to -- as you know, we had to

acquire the Family Systems rights.

10

Q.

When was that decision made?

11

A.

I don't recall the exact date.

12

Q.

Were you instructed to carry that out, or

13
14
15
16
17

did you make that decision on your own?
A.

The decision to -- what decision are you

referring to?
Q.

The decision to acquire the Family Systems

mark.

18

A.

Oh, that was my recommendation.

19

Q.

When you made that recommendation, was that

20

in reliance on the opinion prepared by the Dechert

21

firm or based on your own analysis?

22

MS. CENDALI:

Okay.

Again, I'm concerned

23

that we're getting into matters of privilege here.

24

I think we should take a break to discuss it.

25

MR. CHATTORAJ:

That's fine.

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If it's okay

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with you, Mr. La Perle.

2

THE WITNESS:

3

MR. CHATTORAJ:

4

THE VIDEOGRAPHER:

5

No. 1, Volume I.

6

Yes.
We'll go off the record.
This is the end of Disk

12:04 p.m.

We are off the record at

7

(Recess taken, from 12:04 to 12:17.)

8

THE VIDEOGRAPHER:

9
10
11

Disk No. 2, Volume I.
12:17 p.m.

This is the beginning of

We are back on the record at

You may proceed.

MR. CHATTORAJ:

We went off the record so

12

that Mr. La Perle could consult with his counsel

13

regarding a question of privilege.

14

that, there was a question pending.

15

that the reporter kindly read back that question.

When we did
I would ask

16

(Record read as follows:

17

"Q

18

that in reliance on the opinion prepared by

19

the Dechert firm or based on your own

20

analysis?")

21

MS. CENDALI:

22
23

When you made that recommendation, was

I instruct you not to answer

on the grounds of attorney-client privilege.
However, you could inquire as to a factual

24

matter as to who made the decision to pursue an

25

agreement with Family Systems.
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2
3

BY MR. CHATTORAJ:
Q.

Who made the decision to pursue an

agreement with Family Systems?

4

A.

Steve Jobs.

5

Q.

Did anyone else participate in that

6
7

decision besides Mr. Jobs?
A.

Bruce Sewell, who I reported -- reported

8

to, had reported to Steve.

9

don't know to what extent, but I know he was the one

10
11

So he was involved.

I

that was portraying our -- our search reports.
Q.

Did Steve Jobs make the decision to use the

12

"iBooks" mark before or after he made the decision

13

to acquire the mark from Family Systems?

14

A.

I don't know the answer to that.

I know we

15

were instructed to pursue the trademark clearance

16

project.

17
18
19

Q.

So it's fair to say that Steve Jobs made

the decision to use the "iBooks" mark; right?
A.

No.

I'm saying that Steve Jobs made the

20

decision to instruct us to pursue the acquisition of

21

the Family Systems mark.

22

Q.

At some point in time, did Steve Jobs make

23

the decision to use the "iBooks" mark for the

24

eReader software application we've been discussing?

25

A.

I assume that Steve Jobs was the person
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that made the decision from -- based on the

2

correspondence I had seen that was between -- again,

3

as I testified, I was corresponding with

4

Bruce Sewell, who was having discussions with

5

Steve Jobs.

6
7

Q.

When was the decision made to seek -- to

acquire the trademark from Family Systems?

8

A.

I don't know the exact date.

9

Q.

Do you know what year?

10

A.

Again, I'm not sure.

11

January of 2010.

12

I believe it was in

certain.

13

Q.

But I -- I am not 100 percent

Do you know when Apple first publicly

14

announced the name "iBooks" for the eReader

15

application that would be made available on the

16

iPad?

17

A.

Yes.

18

Q.

What date was that?

19

A.

I believe it was January 21st, 2010.

20
21

MS. CENDALI:

I believe, Counsel, it was,

for the sake of the record, January 24th.

22

THE WITNESS:

24th.

23

MS. CENDALI:

26th?

24

MR. CHATTORAJ:

25

I'm sorry.

24th.

You know what, Counsel,

we'll take the witness's testimony.
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Q.

Does -- would anyone at Apple know that?

2

A.

People in our corporate communications

3
4
5
6
7

department would know that.
Q.

testify about that issue; right?
A.

I don't have knowledge of the specific

press release related to the iPad product.

8
9

But right now you're not prepared to

MS. CENDALI:

Is lunch here?

It's after

12:30.

10

MR. CHATTORAJ:

Lunch is here.

I'm just

11

going to ask one or two more questions, and then

12

we'll break.

Is that okay?

13

MS. CENDALI:

14

MR. CHATTORAJ:

Okay.
And for the record, lunch

15

has actually been put in your breakout room, so what

16

we'll do is we'll take our food and go elsewhere so

17

you have privacy.

18

MS. CENDALI:

19

BY MR. CHATTORAJ:

20
21
22
23
24
25

Q.

Okay.

When was the first time you heard of Family

Systems?
A.

I don't recall the exact date, but it was

shortly after I got to -- to Apple in 1999.
Q.

When you got to Apple in 1999, had Apple

already had communications with Family Systems, or
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did that begin at a point in time after you joined

2

the company?

3
4
5

A.

It had began before I joined the

company.
Q.

6
7

No.

At the time -- well, withdrawn.
What -- what is your understanding of what

Family Systems' business is today?

8

A.

Today?

9

Q.

Today.

10

A.

I don't know what their business is today.

11

Q.

Did you ever have an understanding of what

12

their business was?

13

A.

Yes.

14

Q.

Did you have that understanding in 1999?

15

A.

I can't say it was 19- -- I joined Apple on

16

September -- September 15th, 1999.

17

was the end of '99 or sometime in 2000, I can't say

18

exactly.

19

around late '99 and 2000.

20
21
22
23
24
25

Q.

So whether it

But I became aware of them, you know,
And at that time what was your

understanding of what Family Systems' business was?
A.

Family Systems was in the E-book reader

software business.
Q.

So it was your understanding that they made

E-book readers?
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A.

Software.

2

Q.

Sorry.

3

It was your understanding that they

made software to read E-books; right?

4

A.

Correct.

5

Q.

Who told you that?

6

A.

Well, I was aware of their U.S. trademark

7

application, and I did view their Web site as well.

8

And I was also aware of the consent agreement that

9

Apple had -- had done with Family Systems.

10

Q.

So between reviewing the consent agreement,

11

visiting the Family Systems Web site as it then

12

existed and reviewing the Family Systems trademark

13

application, you came to the conclusion that Family

14

Systems' business was to produce and distribute

15

E-book software?

16

A.

Software, you know, as it's portrayed in

17

their trademark applications.

18

and supporting user-modifiable electronic books.

Software for creating

19

Q.

So --

20

A.

Which is E-book reader software.

21

Q.

So, again, just so I'm clear, your

22

understanding at that time was that Family Systems

23

was in the business of E-book reader software; is

24

that right?

25

A.

Yeah.
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2
3

Q.

Okay.

Did that understanding ever change

at any point in time?
A.

I mean they had some other -- other

4

services, I think, that were related to that, but

5

that was primarily their business.

6

software developers.

7
8
9

Q.

They were

Did you gain knowledge about the other

areas of business they were involved in?
A.

I believe they did some Web hosting

10

business, but I didn't -- I'm not an expert on

11

Family Systems.

12

Q.

At that time of the transaction that Apple

13

entered into with Family Systems in 2010, what was

14

the business of Family Systems?

15

A.

Well, their -- their Web site was still up

16

and the software was still available for download.

17

I think they were in essentially the same business

18

as they were before.

19
20

Q.

So it's your testimony that they were in

the E-book reader software business?

21

A.

Correct.

22

Q.

And that they made E-book reader software

23
24
25

available for download on their Web site?
A.

Software, you know, as reflected in the --

in the U.S. registration.

Software that supports

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and creates user-modifiable electronic books, which

2

I would categorize as E-book reader software.

3

Q.

So what is an E-book?

4

A.

It's a -- it's a book in electronic form.

5
6

It's an electronic book.
Q.

Is there any distinction in your mind

7

between, like, the E-book version of a publicly

8

available printed book like, for example, a Stephen

9

King novel or "King Lear," on one hand, and the

10

electronic books that were made available to be read

11

through the software offered by Family Systems?

12
13
14
15

A.

I don't believe Family Systems was

providing books like Stephen King books.
Q.

Was Family Systems in the business of

providing "King Lear"?

16

A.

I don't know.

17

Q.

Was Family Systems in the business of

18

providing E-books that were available for sale in

19

hard copy in bookstores?

20

A.

Not that I'm aware of.

21

Q.

Is the answer, no?

22

A.

Not that I'm aware of.

23

Q.

Did you ever undertake an investigation of

24

Family Systems' business beyond the trademark

25

filings, their Web site and the consent agreement?
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time that was a question pending, and at this time I

2

would ask that the reporter to read back that

3

question.

4

(Record read as follows:

5

"Q

6

of Family Systems' business beyond the

7

trademark filings, their Web site and the

8

consent agreement?")

9

MS. CENDALI:

Did you ever undertake an investigation

And I instruct you not to

10

answer with regard to your communications with your

11

outside counsel; however, you can answer factually

12

with regard to what was done.

13

THE WITNESS:

So during the trademark

14

clearance process and the acquisition of the Family

15

Systems' mark, we did additional investigations of

16

the company.

17
18
19

BY MR. CHATTORAJ:
Q.

And when you say "investigations," you mean

investigations of their business?

20

A.

Yes.

21

Q.

What they do?

22

A.

Yes.

23

Q.

And what they did?

24

A.

Yes.

25

Q.

You indicated that a decision had been made
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adopted the iBooks software, it did not allow you to

2

do that.

3
4

Q.

When was the iBooks Author product made

available to consumers?

5

A.

I don't know the exact date.

6

Q.

Was it in 2010?

7

A.

I -- I don't know the date, actually.

8

Offhand I'd have to check.

9

supplement the record on that.

10
11

MR. CHATTORAJ:

We'll leave a blank

(Information requested:

________________

__________________________________________________.)

14
15

Okay.

if you'd like to supplement that.

12
13

I could -- I could

BY MR. CHATTORAJ:
Q.

If I represented to you that iBooks Author

16

was made available to consumers in 2012, would that

17

seem crazy and off the wall and wrong to you?

18

A.

No.

19

Q.

It's possible that it was in 2012?

20

A.

Yeah.

So when I'm talking about Apple

21

adopting the mark that's substantially similar, I'm

22

not talking about every single functionality of

23

Family Systems' ibooks.

24

was was E-book reading and creation software, and

25

that's exactly what Apple's iBook is.

What Family Systems' ibooks

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have the Web hosting functionality that Family

2

Systems used.

3

Q.

Let me make sure I understand.

If you turn

4

to page 2 of this document, there appears a question

5

in the middle of the page:

6

Can I have my own ibook?

And then there appears to be the answer:

7

Yes.

8

server working on your Web sites.

9

enrolled, you will be able to read about how to set

10

Subject to some rules, you can have an ibook
Once you are

up an ibook server.

11

Do you see that there?

12

A.

Yes.

13

Q.

Did Apple ever offer for consumers a

14

software package that was called iBook Server?

15

A.

No.

16

Q.

Did -- did Apple at any time after

17

January 2010 make available to consumers software

18

that allowed people to set up an iBook server, you

19

know, using the name "iBook Server"?

20

A.

No.

21

Q.

The bottom of the first page is written:

22

Can I contribute to ibooks?

23

And then the answer appears on the second

24

page:

25

the ibook you want to contribute to.

We hope you will.

First, you need to find

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Systems, Limited, products, do you have an

2

understanding of whether -- before 2010, a user

3

modification of a Family Systems ibook would change

4

other users experience of that ibook?

5

A.

I do not have direct knowledge of that, no.

6

Q.

Do you have any knowledge, direct or

7
8
9
10

indirect?
A.
that.
Q.

Right now my recollection is I don't recall
I believe -- well, I don't recall right now.
All right.

It was a -- the way that Family

11

Systems used ibooks, they were essentially personal

12

Web sites; right?

13

MS. CENDALI:

14

BY MR. CHATTORAJ:

Objection.

15

Q.

You may answer.

16

A.

It was software for creating E-books.

17

Whether the E-books were on Web sites or elsewhere,

18

I believe they were hosted on the Web sites.

19

Q.

Were there -- I'm sorry.

20

A.

But it's -- it was E-book reading software.

21
22
23

E-book reading and creation software.
Q.

So the E-books that you're referring to

were available on Web sites; right?

24

A.

That's my understanding.

25

Q.

In other words, they could only be read on
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Web sites; right?

2

A.

That's my understanding.

3

Q.

They could not be read anywhere except on

4
5

the Web; right?
A.

That's my understanding.

But, again, I'm

6

not an expert on every aspect of Family Systems'

7

software.

8
9

Q.

When a person modified the ibook, as Family

Systems used it, before January 2010, anyone

10

visiting that Web site and accessing that ibook

11

would see those modifications; right?

12

A.

I -- I don't have knowledge of that.

13

Q.

A person visiting such an ibook owned by

14

Family Systems or made available by Family Systems

15

could make changes to such ibooks; correct?

16

A.

Yes.

17

Q.

And it -- and it's that way in which Family

18

Systems referred to the ibook system as interactive;

19

right?

20

MS. CENDALI:

Objection.

21

THE WITNESS:

I don't know what Family

22

Systems meant by "interactive."

23
24
25

BY MR. CHATTORAJ:
Q.

When you reviewed their Web site and when

you reviewed their trademark filings, did you have
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any understanding of what they meant by

2

"interactive"?

3

A.

Part of the inter -- user modifiability was

4

part of the interactiveness.

5

people could make changes to the books.

6

haven't -- I never created a Family Systems ibook

7

and modified it or followed one to see the changes,

8

so I don't have personal knowledge of that.

I do recall that
Again, I

9

Q.

Do you know anyone who did do that?

10

A.

Not that I'm aware of, no.

11

Q.

So the person who was the content creator,

12

the person who downloaded the software that's made

13

available by Family Systems before January 2010,

14

could make changes to that content; right?

15

A.

I'm sorry.

16

Q.

That person who generated the content using

Could you repeat the question?

17

the ibook software that was then available on the

18

Web site, that person could then change the content

19

subsequently; right?

20

A.

Correct.

21

Q.

But other users could also change that

22
23

content when they visited; right?
A.

Again, I think -- I think that's true.

I

24

did not follow the Family Systems Web site or the

25

books on -- that were being hosted there to confirm
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A.

Not that I'm aware of.

2

Q.

After --

3

A.

I'm sorry.

It may be that there were -- in

4

some of the research that we did, we had that

5

information.

6

right now.

7

Q.

8

I just don't have that in my knowledge

Did you have it in your knowledge at that

time?

9

A.

I just don't recall.

10

Q.

Did Apple make any effort to identify any

11

customers of Family Systems after Apple acquired --

12

withdrawn.

13

After the execution of the acquisition

14

agreement, did Apple make any effort to identify

15

Family Systems' customers?

16

A.

Not that I'm aware of.

17

Q.

After the agreement was executed, did Apple

18

make any effort to identify Family Systems' users?

19

A.

Not that I'm aware of.

20

Q.

After the execution of the agreement, did

21

Apple have any intention of marketing to Family

22

Systems' customers?

23

A.

Apple's marketing was focused on the

24

general consumer, so I'm sure some of those

25

consumers would be Family Systems' customers.
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1
2

Q.
before.

On the next paragraph after what I read
This is the --

3

A.

We are in heavy use --

4

Q.

That's exactly right.

5

I'm referring to the

second sentence in that paragraph.

6

A.

Okay.

7

Q.

Is it your understanding today that Family

8

Systems has retained their existing "ibook" domain

9

name on their internal network?

10
11
12

A.

No.

That's -- my understanding is they've

transferred all their "iBook" domain names to Apple.
Q.

Is it your understanding that they did so

13

within the transition period called for by the

14

acquisition agreement?

15
16

A.

I believe so, but I -- I haven't checked

myself, but I believe that's true.

17

Q.

18

right?

19

A.

Yes.

20

Q.

Somebody employed by or acting on behalf of

21

But it's fair to say that somebody checked;

Apple; right?

22

A.

Yes.

23

Q.

Did you ever receive any reports that

24

Family Systems is violating the terms of the

25

agreement?
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1

A.

Not that I'm aware of.

2

Q.

The following paragraph reads, It was not

3

clear from talking to Brewster which of Family

4

Systems' ibooks -- sorry -- which of Family Systems'

5

ibook assets Apple are interested in.

6

multiple domain names and trademark registration, as

7

well as software technology and patents which

8

reference ibook systems.

9

There are

Do you see that?

10

A.

Yes.

11

Q.

To the best of your knowledge, was Apple

12

interested in acquiring Family Systems' software

13

technology?

14

A.

No.

15

Q.

Was Apple interested in acquiring Family

16

Systems' patents?

17

A.

No.

18

Q.

Was Apple interested in acquiring Family

19
20
21
22
23

Systems' patents which reference ibook systems?
A.

they reference -- I'm not -Q.

I -- I have -- my question is oriented

exclusively toward the words on this page.

24
25

What do you mean by -- in the patent claims

MS. CENDALI:

Then objection as to form.

Vague.
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