J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
135
DECLARATION of Claudia T. Bogdanos in Opposition re: 120 MOTION in Limine to Exclude any Testimony, Argument or Evidence Regarding the Expert Reports and Opinions of Susan Schwartz McDonald.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I Part 1, # 10 Exhibit I Part 2, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R)(Chattoraj, Partha)
EXHIBIT B
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,
Plaintiffs,
vs.
No. 11-cv-4060 (DLC)
APPLE, INC.,
Defendant.
-----------------------------X
DEPOSITION OF STEPHEN M. NOWLIS
Friday, December 14, 2012
New York, New York
9:30 a.m.
Reported by:
Maureen Ratto, RPR, CCR, CLR
Job No: 27929
Stephen M. Nowlis, Ph.D. – 12/14/2012
STATE OF NEW YORK
COUNTY OF NEW YORK
)
ss:
)
I wish to make the following changes, for the following
reasons:
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You are correct, you really
You are correct, I really
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ibooks
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ipicturebooks
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I-imperialist
i-imperialist
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eye-tracking
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attention
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ibooks, inc.
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inc.
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ibooks
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Stephen M. Nowlis, Ph.D. – 12/14/2012
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a way
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Stephen M. Nowlis, Ph.D. – 12/14/2012
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Stephen M. Nowlis, Ph.D. – 12/14/2012
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REASON:
*Throughout the transcript, when I referred to the name IBOOKS
the court reporter transcribed it in the following manner:
iBooks. Also, when I referred to ILIT the court reporter
transcribed it as “iLit.” I corrected the capitalization for
these words wherever the court reporter was transcribing a quote
from an exhibit in order to match the capitalization used in the
original document. Otherwise, for simplicity, I have not
changed the capitalization used by the court reporter.
Subscribed and sworn to before me
this 14th day of January, 2013.
_________________________
Stephen M. Nowlis, Ph. D.
5
45
1
NOWLIS
2
buy something I think it says,
3
"sending," it takes five seconds, and
4
then it will say "Your sample has now
5
been received on your Nook.
6
now open it and look at it. I think
7
they use the word "sending" but I'm not
8
sure.
9
10
Q.
How would you describe the
business of Apple?
11
12
You may
MS. CENDALI:
A.
Objection.
I would say Apple is a -- in a
13
very general sense, a computer company
14
-- well, a computer company that sells
15
-- that sell phones, they sell
16
computers, they sell iPads, so I guess
17
I would call it a computer company.
18
19
Q.
Do you consider Apple to be a
book publisher?
20
A.
No.
21
Q.
From the data generated from
22
your study, is it your opinion that
23
consumers consider Apple to be a book
24
publisher?
25
A.
No.
DAVID FELDMAN WORLDWIDE, INC.
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1
2
3
NOWLIS
has nothing to do with selling?
A.
Well, I mean selling -- again,
4
the reason why I say "puts out," is
5
because that was meant to get at the
6
idea, if people thought that Apple was
7
the publisher but not -- I didn't ask a
8
question, for example, about available
9
because that might have meant something
10
else to people about whether they were
11
the distributor or, quote/unquote, the
12
seller, if you want to use that term.
13
14
15
Q.
Is "available," then, in your
opinion, a broad word?
A.
"Available," yes, it's a broad
16
word that it could encompass lots of
17
different things beyond source.
18
could encompass, for example,
19
distributor.
20
21
22
Q.
It
What else could it encompass, in
your opinion?
A.
Like I said, the distributor,
23
the retailer, that sort of thing, above
24
and beyond just whether the company had
25
anything to do with being the source of
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
3
4
5
NOWLIS
the item.
Q.
So what do you mean by "source"
then?
A.
The questions that I was getting
6
at about the source, affiliation and
7
sponsorship were meant to get more at
8
the publisher of the book.
9
10
Q.
Is publishing encompassed by the
word "available" or "made available"?
11
12
13
14
15
MS. CENDALI:
A.
I don't think in a very precise
way so, no, I don't think so.
Q.
Is "release" encompassed by
"available," "made available"?
16
17
18
Objection.
MS. CENDALI:
A.
Objection.
I mean, in a very ambiguous
sense.
19
Q.
How about "print"?
20
A.
Is "made available" the same as
21
"print"?
22
the same thing, no.
23
Q.
I do not believe those are
That wasn't my question.
24
"print" encompassed by "made
25
Is
available"?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
NOWLIS
Q.
Looking through Exhibit 3, do
3
you see instances in Exhibit 3 where
4
plaintiffs imprint appears as little I,
5
big B?
6
A.
I do and my understanding is
7
this was done recently and this is
8
where I see examples of that.
9
Q.
What is the basis for your
10
understanding that it was done
11
recently?
12
A.
I -- it's just -- that's my
13
understanding.
14
communications that I had with the
15
attorneys.
16
17
18
Q.
I believe this is
Any basis, other than
communications with counsel?
A.
No.
Other than, again, we
19
talked earlier about Exhibit 2 and
20
that's something that I produced and we
21
talked about Exhibit 2 confirms this
22
point that that Exhibit 2 we only see
23
small I, large B recently.
24
25
Q.
Can you take a look please at
page -- it's somewhat near the
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
NOWLIS
A.
Yes.
As we talked about this
3
before, my understanding is that was
4
done fairly recently.
5
MS. BOGDANOS:
6
marked as Nowlis Exhibit 2?
7
Can I have this
And I would like to note for the
8
record that the questions and answers,
9
the testimony concerning this document
10
are confidential and the exhibit itself
11
is confidential.
12
page, yes it's -- is confidential,
13
"Restricted Confidential, Subject to
14
the Protective Order."
15
At least the cover
(Nowlis Exhibit 2, an e-mail
16
from John T Colby, Jr., was received
17
and marked on this date for
18
identification.)
19
20
Q.
2?
21
22
Dr. Nowlis, please read Exhibit
(Whereupon, the Deponent reviews
the document.)
23
A.
Okay.
24
Q.
Have you ever seen what has been
25
marked as Exhibit 2 before today?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
93
1
2
NOWLIS
a survey?
3
MS. CENDALI:
Objection.
4
A.
A way to capture opinion.
5
Q.
Is it an experiment?
6
A.
It can be.
7
Q.
Was yours?
8
A.
Yes.
9
10
11
12
I would call -- I would
call it an experiment, yes.
Q.
And your survey, you've said,
"captured opinions."
A.
Yes.
Is that right?
Well, you said -- it's not
13
my survey, you said, "How would you
14
describe a survey in general here?"
15
Q.
Okay.
16
A.
Survey in general, let me come
Right.
17
up with something here.
18
capture people's opinions, sure.
19
20
Q.
It's a way to
Did your survey also capture
people's opinions?
21
A.
Yes.
22
Q.
You intended for it to?
23
A.
Yes.
24
Q.
So the data from your survey,
25
I believe it did.
they don't represent facts?
Is that
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
NOWLIS
2
hypothesis but maybe you had an axe to
3
grind and you were trying to find
4
support for that.
5
You could design a survey
6
without a hypothesis or you could
7
design a survey where you don't have a
8
hypothesis because you don't even know
9
exactly what you're testing.
It's a
10
very broad based, there is a lot of
11
ambiguity, so I think a survey can
12
serve different purposes but one of
13
those certainly is to test a
14
hypothesis.
15
16
Q.
hypothesis?
17
18
Did your survey test a
MS. CENDALI:
A.
Objection.
My survey addressed an issue,
19
yes, which we could call a
20
"hypothesis."
21
Q.
How did that differ from what
22
Dr. McDonald did, because she also
23
tested a hypothesis, did she not?
24
25
A.
My understanding of her
testimony is what she said is she
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
NOWLIS
2
number of things in here and what
3
exactly you wanted me to focus on.
4
I'm focusing on "dramatic rhetoric,"
5
which I wrote in my report about the
6
earlier pages, so now I will see --
7
look at the later pages.
8
9
10
So
(Whereupon, the Deponent reviews
the document.)
A.
Okay.
I would say I don't see
11
any examples of, quote/unquote,
12
dramatic rhetoric, from pages 8 to 17.
13
I see lots of other problems but I
14
would not phrase those as "dramatic
15
rhetoric" for these pages,
16
specifically.
17
Q.
Thank you.
And taking a look at
18
paragraph 19, page 7 of your own
19
report, that paragraph begins with the
20
words "Dr. McDonald's report." Correct?
21
A.
Yes.
22
Q.
And indeed, the heading B under
23
which paragraph 19 falls, begins
24
"Dr. McDonald's Report"?
25
A.
That is correct.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
NOWLIS
2
Apple consumer, do you consider Apple
3
to have strong "i-" brands?
4
5
6
MS. CENDALI:
Objection. Outside
the scope.
Q.
Let me rephrase it.
As a
7
marketing expert and as an Apple
8
consumer do you consider the iPhone to
9
be a strong brand?
10
A.
Do I?
I really don't know.
11
What I can tell you as a marketing
12
expert, I have seen studies that show
13
that Apple is a strong brand.
14
are studies on -- that analyze the
15
brand equity of different companies and
16
I believe they say that Coca-Cola is
17
the strongest brand in the world and
18
Apple is the second strongest brand in
19
the world, so I've seen their
20
methodology, it makes sense to me, and
21
I believe that.
22
There
I don't think I've ever seen any
23
studies on whether iPhone in and of
24
itself is a strong brand or not, so I
25
don't know. I'd like to rely on
DAVID FELDMAN WORLDWIDE, INC.
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1
2
3
NOWLIS
something and not just speculate.
Q.
Do you -- as a marketing expert,
4
are you unable, then, to say that the
5
iPhone is a strong source indicator for
6
Apple, without having data to rely on?
7
8
9
MS. CENDALI:
A.
Objection.
That iPhone is a strong source
indicator for Apple?
Again, I couldn't
10
tell you that without some empirical
11
information.
12
and I don't believe in guessing.
13
marketing expert but I try to, as best
14
I can, have my opinions be based on
15
something rather than pure speculation.
16
17
Q.
I'm a
Would your answer be the same if
I asked it about Apple's iPad?
18
19
I don't want to venture
MS. CENDALI:
A.
Objection.
Again, I've seen no studies on
20
this, whether "iPad is a strong source
21
indicator for Apple," and I'm using
22
your exact wording here.
23
seen anything on that, so I honestly
24
couldn't tell you that without
25
speculating.
I've never
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
NOWLIS
Q.
Do you provide marketing
3
consultancy services for anyone or any
4
company?
5
A.
Do I in terms of litigation?
Is
6
that what you mean?
7
expert, sitting here today, providing
8
consulting services in a litigation
9
matter.
I'm a marketing
10
Q.
In any non-litigation matters?
11
A.
I rarely, if ever, in terms of a
12
paid consultancy.
13
professor, I have students, I teach
14
executives, and many of these people
15
are working for a business at the time
16
they take my class.
17
marketing issues and I'll give my
18
opinions about different things they
19
tell me about and explain what the
20
situation is, and where they have
21
information I'll provide my expertise
22
in that area.
23
consulting, I would call that a
24
professor.
25
Q.
Again, I'm a
We talk about
I wouldn't call that
So the information that they
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
3
4
NOWLIS
informed decision.
Q.
Have you seen advertisements for
the iPhone?
5
A.
I'm sure I have.
6
Q.
More than one?
7
A.
I can't recall.
8
9
to guess.
Q.
I'm not going
I'm not sure.
Have you studied anything, in
10
any literature or business reports,
11
about Apple's iPhone?
12
A.
I probably have seen articles
13
written on it but nothing comes to mind
14
right now about it.
15
Q.
Are you able to say whether
16
Apple, itself, considers that the
17
iPhone is a strong source indicator?
18
19
MS. CENDALI:
A.
Objection.
I have no idea what Apple would
20
say, itself.
21
what they think.
22
guess what they would say.
23
Q.
I would say ask Apple
I'm not going to
So when Dr. McDonald testified
24
that she "Entered into the case in the
25
spirit of intellectual freedom and
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
NOWLIS
2
selected your stimulus and what you
3
were trying to achieve in selecting
4
your stimulus was to replicate
5
marketplace reality in the kind of
6
survey laboratory?
7
A.
Yes.
I mean, that -- that's
8
exactly why I gave them an actual book
9
that they would actually see in the
10
actual marketplace and asked them to
11
evaluate it. That's exactly why I did
12
that.
13
Q.
Do you agree or disagree with
14
the following statement, and this is
15
again as a marketing professional, as a
16
survey expert: "I think we attempt in
17
many of the more conventional scenarios
18
to try to create a kind of laboratory
19
understanding that a survey is never a
20
replication of the market. It is always
21
a laboratory.
22
stilted representation of the way
23
consumers shop and the way they
24
experience brands.
25
any sense at all and products are
It's always a somewhat
But where it makes
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
NOWLIS
2
pedestrian and their marketing or sales
3
environment is pedestrian, we do it."
4
5
MS. CENDALI:
A.
Objection.
I'm not sure what the word
6
"pedestrian" means in this case.
7
with you for a while and then we
8
switched over to pedestrian.
9
Q.
Oh, okay.
10
A.
I was
Well -- and if you want a
11
complete answer here and then you
12
switched over to something else and I'm
13
not sure how to respond to it.
14
Q.
Okay.
Let me ask you again,
15
cutting out that word.
16
attempt in many of the more
17
conventional scenarios to try to create
18
a kind of laboratory understanding that
19
a survey is never a replication of the
20
market.
21
It's always a somewhat stilted
22
representation of the way consumers
23
shop and the way they experience
24
brands."
25
"I think we
It's always a laboratory.
Do you agree with that
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
NOWLIS
A.
No.
And it also supports my
3
earlier point that you asked me about
4
before, about why did I pick a printed
5
book for my study and this shows 72% of
6
the adults have read a printed book,
7
which is by far the most common kind of
8
book.
9
Q.
Is it possible that someone
10
who's a reader of an e-book might
11
respond differently to the stimulus in
12
your study than someone who is a reader
13
exclusively of printed books?
14
15
MS. CENDALI:
A.
Objection.
Again, anything is possible.
I
16
try to live in the world of probable
17
and because in this case there is such
18
a great overlap amongst the -- both
19
people, they -- that read both types,
20
so if somebody is going to read a
21
printed book, they're also going to
22
ready an electronic book, and I see no
23
reason why they would respond
24
differently if they read both kinds of
25
books.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
2
3
NOWLIS
Q.
Have you ever discussed this
case with Mr. Kivetz?
4
A.
No.
5
Q.
Are you friends with Mr. Kivetz?
6
A.
I would say we're -- we're
7
colleagues, we're professional
8
colleagues, yes.
9
10
Q.
Have you ever worked as an
expert for Apple before?
11
A.
No.
12
Q.
As a marketing expert are you
13
able to opine whether Apple has a
14
strong brand or would you not be able
15
to do that without data in front of
16
you?
17
A.
I think we talked about this
18
before and the research that I'm aware
19
of shows that Apple has a very strong
20
brand, I believe it was the second
21
strongest brand. I have not seen any
22
studies on their individual products,
23
so I would need some sort of support,
24
some sort of information, to be able to
25
give an intelligent answer to that,
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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1
NOWLIS
2
Q.
Sure let's start with that one?
3
A.
I don't -- I have no idea what
4
-- what they would do.
5
think -- get in the mind of a company
6
and see how they would react.
7
know we talked about this, that when --
8
when people see a word starting with
9
"I," they tend to speculate and guess
I try not to
I do
10
that it has something to do with Apple
11
in many cases.
12
important to use a control that gets at
13
that guessing.
14
Q.
Okay.
That's why it's
With your experience with
15
brands and marketing and consumer
16
psychology, do you think consumers
17
would assume that a frozen pizza
18
product in the grocery store that was
19
called "iCheese," would have anything
20
to do with Apple?
21
22
MS. CENDALI:
A.
Objection.
If it has nothing to do with the
23
type of product that they sell, I
24
really don't know.
25
don't know how the average consumer
I'm not sure.
I
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A.
Right.
I don't know at this
point.
Q.
Do you know in a relative
5
context if a consumer seeing my frozen
6
pizza, my frozen iCheese pizza and a
7
consumer seeing, say, something called
8
an "iPen" that came with a little flash
9
drive on the top of it, if consumers
10
would be more likely to think the iPen
11
had something to do with Apple than
12
that -- than the iCheese pizza had
13
something to do with Apple?
14
15
MS. CENDALI:
A.
Objection.
Possibly because it -- consumers
16
can -- can see that it has something to
17
do with their core business.
18
19
Q.
Dr. Nowlis, who selected the
control that was used in your study?
20
A.
I did.
21
Q.
Can you take a look, please, at
22
exhibit -- Exhibit 1 in your study, at
23
page 40, in paragraph 98 you say "In
24
addition, all references to 'iBooks' on
25
the title page of the book were
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around with what they think they're
3
supposed to say, with what the right
4
answer is, even though they may --
5
never would have associated this with
6
-- with Apple at all, in the first
7
place, but they are asked this
8
question, they see an "I" and they say,
9
"Hmm, I see an 'I' on other things and
10
I guess I'm supposed to say 'Apple'
11
here."
12
I tried to point out examples of
13
this in -- in my report where people
14
said "I'm assuming," "I'm guessing,"
15
and that kind of a thing, so you would
16
want to remove that kind of "noise"
17
from your survey.
18
Q.
In my iPen example, then, is
19
there another type of noise to be
20
removed, namely someone who thinks of
21
Apple simply because the product has
22
something to do with electronics, with
23
computers?
24
25
A.
If -- if there's a basis for
that opinion other than "Hmm, I'm just
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going to take a wild guess, I'm
3
supposed to answer this," if there's a
4
real reason for them saying it, then,
5
that's perfectly okay. But that's
6
exactly is why the control is there, to
7
remove the sort of real reasons versus
8
the guessing and speculation, and it
9
can come in various forms.
You don't
10
know exactly what the "noise" is going
11
to be, but a good control can take care
12
of all of those different kinds of
13
"noise," so you get a true response.
14
Q.
Do you consider -- in your
15
study, do you consider Xbooks to be a
16
good control?
17
A.
18
did?
19
Q.
20
In my -- in the study that I
Right.
If in that study -- did
you consider using Xbooks as a control?
21
A.
I considered it, yes.
22
Q.
Why did you not select it?
23
A.
I thought that in my particular
24
study that iLit would be better.
25
didn't see a problem with it, I just
I
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Q.
In general, why are surveys
validated?
A.
To make sure that people
actually responded to the survey.
6
Q.
Is that the only reason?
7
A.
You asked me in general.
That
8
was the general reason.
9
other reasons besides making sure -- I
Are there
10
mean, I'm not -- I think that
11
encompasses a lot, to make sure that
12
somebody actually did it.
13
So, therefore, there wasn't some
14
sort of fraud going on or sloppiness or
15
other reasons to make sure that the
16
results were -- are real and not, you
17
know, the survey company didn't make
18
things up to make money, for example.
19
That's the general reason.
20
Q.
So if the survey company made
21
things up, that would really be a
22
fraudulent action on the part of the
23
interviewer or supervisor or someone
24
working for the survey company.
25
that right?
Is
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A.
True.
And it -- right.
And
3
another good reason for doing it is to
4
make sure that the person who said that
5
they did the survey, actually did the
6
survey, himself or herself, rather than
7
having somebody else complete it for
8
him or her.
9
Q.
So in a mall context, then, that
10
would be akin to a respondent providing
11
his brother's name instead of his own
12
name?
13
A.
Yeah.
That would be very
14
unlikely in a small setting for
15
somebody to fill out a survey and then
16
when they were recontacted, to say,
17
"No, it wasn't really me, that was my
18
brother who gave my name." That
19
wouldn't be very common to happen in a
20
mall survey, I don't think but, again,
21
validation, is just to make sure that
22
the person actually did it.
23
why.
24
Q.
25
Who knows
How does the context of an
internet study affect, if at all, the
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need to validate survey research?
A.
I don't think it changes
anything. I think it's still needed.
Q.
Even though there's no middle
6
person, as it were, such as the mall
7
interviewer or the supervisor who might
8
be cheating to get their quotas or --
9
even without the middle person, your
10
11
opinion is that the same issues remain?
A.
There is a middle person,
12
though, within a survey.
13
company that's conducting the survey,
14
right?
15
whose conducting the survey that is
16
giving you responses. Hypothetically,
17
they can make up responses to give you,
18
potentially.
It's the
So there's a middle person
19
But there's also the issue with
20
an internet survey where now the other
21
issue becomes much more likely.
22
now somebody who signed up for the
23
survey who met certain criteria, now he
24
or her does not fill out the survey,
25
but has somebody else do the survey for
We're
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Q.
Okay.
I didn't mean to leave
3
that unclear.
4
then, I apologize.
5
Okay.
I'll use your language
So the fact that 61% of
6
your respondents were reached and all
7
of the 61% verified their participation
8
in your study. Is that usual, such a
9
perfect track record?
10
11
12
13
14
A.
That's very common, yes.
I -- I
don't know why it wouldn't be.
Q.
Was that common in the internet
study that you conducted as well?
A.
I wish I could remember to help
15
you out here but I honestly don't
16
recall the percentage of people that
17
were validated, I wish I could.
18
Q.
And I made reference to a single
19
study and I know you said there may or
20
may not have been more than that.
21
you, as you sit here today, have any
22
recollection of an internet study that
23
you conducted where the validation
24
results were such -- were -- were lower
25
than 100%?
Do
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A.
I do not recall that, no.
3
Q.
Do you know of any study,
4
perhaps in your role as a rebuttal
5
expert, and it doesn't have to be a
6
study conducted by you, any trademark
7
study for litigation where the survey
8
results were thrown out because of
9
validation problems?
10
A.
When you say "thrown out," you
11
mean they weren't accepted by the judge
12
because of validation issues?
13
what you mean?
14
Q.
15
Yes.
16
A.
Is that
Let's start with that.
Sure.
I couldn't -- I couldn't
17
pinpoint, one way or the other.
18
simply don't know.
19
Q.
I
Do you recall any studies that
20
you have critiqued where the validation
21
was so low as to be problematic?
22
A.
I can vaguely recall possibly --
23
I'm not going to guess.
24
don't know.
25
Honestly, I
That's my truthful answer.
MS. BOGDANOS:
Let's take a
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doesn't mess up the covers.
3
sound good to you?
4
MS. BOGDANOS:
Yes.
Does that
Why -- why
5
don't we mark them on the inside of the
6
hardcover and then we are fine with
7
counsel taking these back into -- into
8
custody.
9
MS. CENDALI:
10
Thank you.
(Nowlis Exhibit 9, the test cell
11
for iBooks, was received and marked on
12
this date for identification.)
13
(Nowlis Exhibit 10, the control
14
cell for iLit, was received and marked
15
on this date for identification.)
16
17
18
(Whereupon, a discussion is held
off the record.)
Q.
Dr. Nowlis, a survey like yours
19
is an experiment designed to examine
20
what might happen in the real world.
21
Is that correct?
22
A.
It's -- it's -- right.
Right.
23
I refer to it as an experiment, it's an
24
experiment meant to replicate
25
marketplace conditions in the real
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world, yes.
Q.
And do you, then, attempt to
4
extrapolate from the data derived from
5
your survey experiment to predict
6
actual market conditions?
7
A.
Right.
They were -- people were
8
shown actual market conditions and the
9
responses that they gave would be
10
representative of the population, a
11
sample, a smaller group of people than
12
everybody in the population just like
13
political polls do, but that -- that is
14
meant to be representative of everybody
15
in -- in the universe.
16
Q.
And representative of everyone
17
in the universe's reaction to the
18
stimulus?
19
20
21
22
A.
25
Their opinion, based on
the stimulus.
Q.
No study replicates actual
market conditions.
23
24
Yes.
MS. CENDALI:
A.
Is that right?
Objection.
Well, I mean, I guess not to
split hairs here, but what actual
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