J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
159
DECLARATION of Bonnie L. Jarrett in Support re: 104 MOTION for Summary Judgment.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 (REDACTED), # 4 Exhibit 4 (REDACTED), # 5 Tab - Borden Dep, # 6 Tab - Colby 30(b)(6) Dep (REDACTED), # 7 Tab - Colby Dep, # 8 Tab - Freese Dep, # 9 Tab - Goldhor Dep, # 10 Tab - Gundersen Dep, # 11 Tab - Kvamme Dep)(Cendali, Dale)
CONFIDENTIAL
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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.
No. 11-cv-4060
APPLE, INC.,
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
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MR. CHATTORAJ:
Objection.
3
A.
I'm still confused about valuation.
4
Q.
Any analysis where a -- someone was
5
asked to quantify the financial worth of the
6
iBooks mark or the ipicturebooks mark?
7
8
A.
In that sense, yes, as it relates
to the entity.
9
Q.
Can you explain what you mean?
10
A.
Byron tried to sell the company
11
12
before the bankruptcy.
Q.
So prior to Byron Preiss' death he
13
tried to sell his company before it went into
14
bankruptcy?
15
A.
He wasn't aware it was going to go
16
into bankruptcy, but he wasn't aware that he
17
was going to get hit by the bus.
18
Q.
19
Fair enough.
But the point is you were aware
20
that Mr. Preiss had been trying to sell
21
iBooks, Inc. and Byron Preiss Visual
22
Publications; is that right?
23
24
25
A.
After the bankruptcy I learned
about it, but not before.
Q.
And what valuation documents were
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2
Confidential-Colby
Q.
And which of your entities sold the
3
books, was it J. Boylston or was it plaintiff
4
Brick Tower?
5
A.
J. Boylston.
6
Q.
So who -- were there contracts
7
between J. Boylston and somebody reflecting
8
sales of iBooks?
9
MR. CHATTORAJ:
10
A.
No.
11
Q.
Okay.
Objection.
12
books using the iBooks mark?
13
14
15
16
How did J. Boylston sell
MR. CHATTORAJ:
A.
Objection.
Our distributor PGW sold iBooks
products.
Q.
And who -- and your distributor PGW
17
paid a fee or gave royalties to your company
18
as a result of that, right?
19
A.
In theory, yes.
20
Q.
Okay.
21
A.
Practically, no.
22
Q.
What do you mean by that?
23
A.
Just what it says.
24
Q.
Did you not receive compensation
25
from your distributor PGW?
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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?
7
MR. CHATTORAJ:
8
A.
9
distributor.
10
Q.
Objection.
The sales records from its
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?
14
MR. CHATTORAJ:
Objection.
15
A.
No.
16
Q.
So do you obtain monthly or
17
quarterly sales records from distributors?
18
A.
I'm sorry.
Do I retain them?
19
Q.
Do obtain them?
20
A.
Obtain them, yes.
21
Q.
How often do you receive reports
22
from distributors?
Again, relating to sales
23
of iBooks imprint products?
24
A.
After the acquisition?
25
Q.
Correct.
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Confidential-Colby
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
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?
11
A.
Which -- I'm sorry, which
12
distributors?
13
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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bought them, so they were returned and sales
3
plummeted?
4
MR. CHATTORAJ:
Objection.
5
A.
I can't say that.
I don't know.
6
Q.
But you understand that the problem
7
was that there were a -- that a lot of
8
returns in 2006 and 2005?
9
MR. CHATTORAJ:
Objection.
10
A.
That's my understanding, yes.
11
Q.
Okay.
And turning, if you would,
12
to the second page of the exhibit.
13
broke out 2005.
14
died.
15
We just
accident; is that right?
That was the year Mr. Preiss
He died on July 9 of 2005 via car
16
A.
That's about right, yeah.
17
Q.
And this indicates on a monthly
18
basis that sales in January of 2005 were much
19
better than the rest of the year.
20
that, they were roughly
Do you see
?
21
A.
Yes.
22
Q.
Yes.
23
A.
Yes, 646, yes, I see it.
24
Q.
And then they dropped in February
25
to roughly
In January of '05?
, in March to only
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, in April to roughly
.
And then
3
isn't it true then in May, June and July of
4
'05 there were no sales at all?
5
A.
According to this schedule, yeah.
6
Q.
So in July of 2005, the month that
7
Mr. Preiss died, the 2 months preceding that
8
there were no sales at all of iBooks?
9
10
MR. CHATTORAJ:
A.
Objection.
There are no shipments to -- from
11
the distributor to the retailer, but it
12
doesn't mean there weren't any retail sales
13
of iBooks in that period.
14
15
Q.
Well, there was no income earned by
iBooks, Inc. during that period, right?
16
MR. CHATTORAJ:
Objection.
17
A.
Income from what?
18
Q.
From sales of iBooks?
19
20
21
22
MR. CHATTORAJ:
A.
I can't say.
Objection.
I can't say for
certain that's true.
Q.
Well, you were attempting in
23
finding out the information in preparing the
24
spreadsheet Exhibit A to report all of the
25
sales accurately; correct?
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A.
That's right.
3
Q.
And you didn't find any sales for
4
those months in 2005, correct?
5
6
7
8
MR. CHATTORAJ:
A.
That's correct.
Objection.
I didn't find
them, no.
Q.
9
Correct.
Okay.
So turning back to the first
10
page of the document, again, in 2006 the
11
sales were negative; isn't that true?
12
A.
Yes, that's right.
13
Q.
And is that because there were more
14
returns than were sales?
15
A.
That's correct.
16
Q.
And then in 2007, that was the
17
first full year that -- where you owned the
18
iBooks mark; isn't that right?
19
20
21
MR. CHATTORAJ:
A.
Objection.
The first full year, that's
correct.
22
Q.
And in 2007 you had sales of
23
approximately
24
that right?
25
A.
in iBooks books; is
That's right.
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for 21st century publishing.
3
Q.
What specific documents are you
4
referring to?
5
A.
How will we find these ads?
They are in the original titles
6
launched in '99 on the back page of each book
7
announcing the iBooks launch.
8
idea behind it was that the books live and
9
are new things and new entities.
10
Q.
And the whole
There is nothing in Mr. Preiss'
11
letter announcing iBooks to USA Today that
12
says that iBooks is to refer to new ideas,
13
correct?
14
about is that this is the first publishing
15
imprint to take full advantage of the
16
promotional and distribution potential of the
17
internet?
18
Isn't it true that what he writes
MR. CHATTORAJ:
Objection.
19
A.
He does.
20
Q.
Isn't it true that you don't know
21
what the "i" in iBooks is supposed to relate
22
to?
23
A.
I do know.
24
Q.
How do you know this?
25
MR. CHATTORAJ:
Objection.
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A.
Through Byron's history of
3
publishing and the kinds of books he
4
published.
5
6
Q.
And that's a very amorphous
statement.
7
What specifically are you aware of
8
that tells you what the "i" in iBooks is
9
supposed to refer to?
10
A.
11
Books sentient beings.
MR. CHATTORAJ:
Counsel, you've
12
asked the same question three times.
13
answered the question differently
14
before.
15
MS. CENDALI:
16
Q.
The judge said
"object."
17
He
18
Go ahead.
MR. CHATTORAJ:
I'm going to direct
19
him not to answer because you are
20
badgering the witness.
21
MS. CENDALI:
22
23
I'm not badgering the
witness.
MR. CHATTORAJ:
You certainly are.
24
You've asked the question four times,
25
four times.
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MS. CENDALI:
3
MR. CHATTORAJ:
4
MS. CENDALI:
I don't care.
You don't care?
This is
5
cross-examination, he gives an amorphous
6
answer, I'm allowed to --
7
MR. CHATTORAJ:
8
He previously
answered.
9
MS. CENDALI:
And your answer is
10
objection and I will put this all before
11
Judge Cote again.
12
MR. CHATTORAJ:
13
MS. CENDALI:
And I will -Don't interrupt him.
14
Read it back before counsel started
15
interrupting his answer, when's he's
16
talking about --
17
Q.
18
19
20
21
22
23
What were you saying about a
sentient beings, sir?
A.
To Byron's world books are three
dimensional sentient beings.
Q.
So what does that have to do with
the what the "i" in iBooks stands for?
A.
The history of Byron's work with
24
Isaac Asimov, specifically the "I, Robot"
25
books and works, the "I, Robot" screenplay,
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specifically Byron is coauthor of a book
3
called "Dragon World" with Michael Reaves,
4
who is the author of "I, Alien."
5
Byron had many software products he
6
manufactured in 1990s with the help of his
7
science fiction writers that we have
8
advantage of today, Arthur Clarke and Isaac
9
Asimov.
Byron used his name next to anything
10
he could possibly produce with Isaac Asimov's
11
name or Michael Reaves of the "I, Alien"
12
genre.
13
discussion of books of standalone sentient
14
beings, that's where the "I" comes from.
15
And based on that and Byron's
Q.
You believe the "I" in iBooks
16
refers to books as standalone sentient
17
beings?
18
A.
That's right.
19
Q.
Are you aware of any documents
20
where Preiss said this?
21
A.
No.
22
Q.
Did Preiss tell you that the "i" in
23
iBooks was intended to refer to books as
24
sentient beings?
25
A.
He used the word -- he used the
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word sentient as a standalone
3
three-dimensional object.
4
Q.
There's nothing in Exhibit 18 that
5
refers to Isaac Asimov or books as sentient
6
beings, is there?
7
A.
No.
8
Q.
Instead he simply says, "iBooks is
9
the first publishing imprint designed to take
10
full disadvantage of promotional and
11
distribution potentials of the internet,"
12
right?
13
14
A.
Right, because he was trying to
sell the book.
15
Q.
Was he being truthful?
16
A.
Sure, as a marketing person.
17
18
He's
trying to sell the book.
Q.
Isn't it true that iBooks, Inc.
19
applied for a trademark registration in the
20
mark iBooks but its application was rejected
21
by the PTO?
22
A.
23
24
25
I was not aware of that until
counsel researched it.
Q.
So you weren't aware of that at the
time you bought the assets in bankruptcy; is
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