J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
162
DECLARATION of Mary Mazzello in Support 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 Apple Inc.. (Attachments: # 1 Exhibit 1 (Part 1 of 5), # 2 Exhibit 1 (Part 2 of 5), # 3 Exhibit 1 (Part 3 of 5), # 4 Exhibit 1 (Part 4 of 5), # 5 Exhibit 1 (Part 5 of 5), # 6 Exhibit 2, # 7 Exhibit 3, # 8 Tab - Colby 30(b)(6) Dep, # 9 Tab - Jacoby Dep, # 10 Tab - McDonald Dep, # 11 Tab - Nowlis Dep)(Cendali, Dale)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
J.T. COLBY & COMPANY, INC.
d/b/a BRICK TOWER PRESS,
J. BOYLSTON & COMPANY
PUBLISHERS LLC, and
IPICTURES LLC,
Plaintiffs,
vs.
Civil Action
No. 11-cv-4060(DLC)
APPLE, INC.,
Defendant.
-------------------------)
VIDEOTAPED DEPOSITION OF
JACOB JACOBY, Ph.D.
New York, New York
Thursday, December 6, 2012
Reported by:
SHAUNA STOLTZ-LAURIE
Ref: 8576
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1
Jacoby
2
3
Q.
And why wouldn't you want people
with atypical or higher levels of knowledge?
4
MS. BOGDANOS:
5
A.
Objection.
You wouldn't want them to distort
6
the findings, but if -- to take this as a
7
concrete example, if we're talking about
8
universe of people who publish books, we'd
9
want to have both print -- prospective
10
purchaser of print and prospective purchaser
11
of electronic books tested.
12
Q.
Well, again, would that be the case
13
-- wouldn't your view as to how necessary
14
that was depend in part upon how many
15
electronic books Plaintiffs actually have
16
sold?
17
18
MS. BOGDANOS:
A.
No.
Objection.
I think you notice the issue
19
is not how much of a product is sold; it's
20
how many minds, you know, are affected.
21
-- and it should be in the sample in proper
22
proportion.
23
category, you -- there are three levels of
24
purchasers.
25
only print books, people who purchase only
If
So if you take a look at this
There are people who purchase
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Jacoby
2
whole word by itself, like "phone," like
3
"book," like "pad," that would have an
4
initial cap as the part of the -- the second
5
part of the term.
6
Q.
Okay, and I appreciate what you're
7
saying on the second part of the term, and
8
we're going to get a to "lit" and talk about
9
that in a moment.
10
A.
Okay.
11
Q.
But I'm just talking about, you
12
know, in light of, as we discussed, the --
13
the importance for confusion, that in light
14
of the fact that for confusion to be
15
actionable, it must be shown to be found to
16
be caused by the allegedly infringing action,
17
not by something else, as we discussed, would
18
you agree that it would be important to use a
19
control with "i" with something else in order
20
to filter out the people who might say Apple
21
just because they think, oh, "i" means Apple?
22
A.
Yes.
23
Q.
Fair enough.
24
25
Now, here you criticize Dr. Nowlis
not for using an "i" but for using "i" with
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2
Jacoby
your assumption, correct?
3
A.
Correct.
4
Q.
Okay.
So now would you agree that
5
"lit", similar to "pad" and "phone" and "MAC"
6
and "tunes," is a one-syllable word that
7
shares many of the same attributes as the
8
one-syllable word "books"?
9
MS. BOGDANOS:
10
A.
Objection.
I don't agree it shares many of the
11
same.
12
There may be one syllable, but it doesn't
13
have a B, an O, a K or an S.
14
agree it has many characteristics in common.
15
One syllable is three letters as opposed to
16
five letters.
17
Q.
18
It doesn't have any letters in common.
So no, I don't
What control would you have used if
you were designing a survey?
19
A.
I haven't given it a thought.
20
Q.
Is it fair to say that you would
21
not have used "ebooks" as a control, because
22
that would not control for the "i" and was a
23
generic?
24
25
A.
Yes.
MS. BOGDANOS:
Objection.
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Jacoby
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knows is a funnel approach:
3
the general down to the more specific.
4
don't think her survey, which could have
5
drilled down further, did so, which would
6
have -- which could have yielded a tremendous
7
amount of relevant information.
8
9
10
Q.
You go through
And I
Are you -- you mentioned earlier
that you're familiar with an expert named
Itamar Simonson?
11
A.
Very.
12
Q.
And are you aware that he has
13
written in the past that it's important for a
14
respondent to not be deprived of contextual
15
clues that would help make the respondent
16
have information to be able to answer a
17
question?
18
MS. BOGDANOS:
19
A.
20
wrote that.
21
Itamar writes.
22
he writes are very different from what he
23
says in the courtroom.
24
25
Q.
Yes.
Objection.
I'm not familiar that he
I don't agree with everything
In fact, some of the things
Fair enough.
But do you agree that a survey
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expert should not deprive respondents of
3
contextual clues that might be helpful to
4
them one way or the other in assessing
5
confusion?
6
A.
I do.
7
MS. BOGDANOS:
8
(Discussion off the record.)
9
Q.
Objection.
Now -- now, in your report,
10
paragraph ten again that we're still talking
11
about, Exhibit 3, you say at the end of that
12
paragraph "I am of the opinion that while
13
point of sale confusion may occur, it is post
14
sale confusion that is more likely."
15
see that?
Do you
16
A.
I do.
17
Q.
What is your basis for your view
18
that point of sale confusion is more likely?
19
A.
20
more likely.
21
Q.
22
No.
I think I said post sale is
Forgive me.
What is the basis for your view
23
that post sale confusion is more likely than
24
point of sale confusion?
25
A.
My own experience, and the way I
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Jacoby
right?
3
A.
Yeah.
4
Q.
Okay.
5
A.
I think that would have been more
6
appropriate.
7
Q.
Well, suppose they had asked who
8
makes the book available?
9
about asking it that way?
10
A.
What do you feel
Barnes & Noble makes it available.
11
Amazon makes it available.
12
ambiguous.
13
14
15
Q.
I mean it's too
What do you mean that it's too
ambiguous?
A.
Many people make the book
16
available.
17
involved in this distribution chain
18
the supply chain, beginning to the publisher,
19
the supply chain being the author at the very
20
beginning, he makes it available.
21
publisher, the printer, the distributor, the
22
retailer.
23
Q.
Many independent parties are
or in
The
I think that's just too broad.
So if they had used -- using the
24
word who makes it -- who -- using the phrase
25
who would -- who makes it available would be
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too broad, because that could include
3
distributors or other people, not the
4
publisher; is that right?
5
A.
It could include Barnes & Noble
6
brick and mortar retail outlet, they make it
7
available.
8
Q.
9
Fair enough.
Now, are you aware in both the Jay
10
and Nowlis surveys respondents were given the
11
opportunity to name multiple companies in
12
response to the question who printed,
13
released or put out the book?
14
15
A.
(Reading).
16
17
18
Let me look at the questions.
They were told they could answer
more than one, yes.
Q.
Okay.
Now, you in your rebuttal
19
reports you also criticize question two of
20
Dr. Jay and Dr. Nowlis's surveys; is that
21
right?
22
A.
Yes, I do.
23
Q.
But as we've discussed, they use
24
the same question formulation that was asked
25
in the Union Carbide EverReady case, right?
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that there.
I would say in answer to your
3
earlier question, which I think was more
4
properly phrased, the screeners have two
5
overall purposes, number one, to identify
6
individuals who are members of the relevant
7
universe, assuming you have a defined
8
universe.
9
definition here; we just have questions.
Now, we don't have a universe
And
10
then the second purpose is once you get to
11
people who are members of the relevant
12
universe, to eliminate those who are
13
atypical, which is something we spoke about
14
earlier, people who might be in the
15
publishing industry.
16
And I think you have those kinds of
17
questions here.
18
question S7:
19
prints releases, puts out or sells books?"
20
(Perusing document) Yeah,
"Do you work for a company that
Also, "work in marketing research
21
or advertising research" is pretty standard,
22
because they may be familiar with the
23
research procedures.
24
over-arching objectives:
25
universe of people, and from that get rid of
See, you've got two
Get the proper
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people who are atypical.
3
Q.
So in terms of the questions that
4
get rid of people who are typical, that
5
Dr. Jay and Dr.
6
don't have any objections to that portion of
7
their -- their survey reports. They followed
8
pretty standard methodology in asking those
9
questions.
10
A.
11
A.
Not correct.
Objection.
There is one question that I did
have a problem with, and I called it silly.
14
15
Right?
MS. BOGDANOS:
12
13
Nowlis used, I take it you
Q.
Okay.
But let me -- let me take it
a step at a time.
16
You would agree that it's important
17
to screen out professional survey-takers who
18
may have taken a survey in the recent past,
19
for example.
20
A.
21
MS. BOGDANOS:
22
23
A.
Objection.
-- professional survey-takers,
but
yes.
24
25
Well, I wouldn't call them --
(Discussion off the record.)
Q.
Okay.
But you would agree that you
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would normally screen out people who had
3
recently done a survey, right?
4
A.
Not necessarily done a survey.
5
Q.
Taken a survey?
6
A.
No.
Or taken, or whichever.
I
7
think if they took a survey on automobile
8
parts in the past two months, it should not
9
exclude them from taking a survey on books
10
and computers.
11
have taken a survey on the topic under
12
consideration.
13
people who may have taken a political poll in
14
the past few months.
15
Q.
16
I -- I exclude people who
I see no reason to exclude
I see.
But you would not want to include
17
people who had taken a survey on -- in the
18
same general industry as the current one; is
19
that right?
20
A.
That -- yes.
21
Q.
And you would ask questions to try
22
to screen those people out.
23
A.
Yes.
24
Q.
And you would also ask questions to
25
screen out people who work in marketing or
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advertising, because they may not be typical,
3
right?
4
5
6
7
MS. BOGDANOS:
A.
Objection.
Marketing research or advertising
research, correct.
Q.
And is it also common to screen out
8
-- screen out respondents who work in the
9
industry being studied?
10
A.
Yes.
11
Q.
Because those people would be
12
atypical, too, and that could affect the
13
results, right?
14
MS. BOGDANOS:
Objection.
15
A.
Yes.
16
Q.
Is it common practice to find out
17
if a respondent wears glasses or contact
18
lenses so that they can see the stimulus?
19
A.
20
21
22
23
If you -MS. BOGDANOS:
A.
Objection.
If you have them read things or
watch things on a monitor, yes.
Q.
Okay.
And so Dr. Jay and Dr.
24
Nowlis in their -- in their screening
25
questions screened for these types of things,
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