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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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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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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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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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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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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