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

Filing 93

DECLARATION of Claudia Ray in Opposition re: 68 MOTION to Preclude the Testimony of Defendant's Expert Witness Gregory S. Carpenter.. Document filed by Apple Inc.. (Attachments: # 1 Tab - Carpenter Dep, # 2 Tab - McDonald Dep)(Cendali, Dale)

Page 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
JT COLBY AND COMPANY, INC., D/B/A
BRICK TOWER PRESS, J. BOYLESTON AND
COMPANY PUBLISHERS, LLC, AND
IPICTUREBOOKS, LLC,
Plaintiffs,
-against-

Index No.
11-CV-4060(DLC)

APPLE, INC.,
Defendant.
-------------------------------------X

VIDEOTAPED DEPOSITION OF
SUSAN SCHWARTZ MCDONALD
New York, New York
December 12, 2012, 9:56 a.m.

Reported By:
Nicole Sesta
Ref: 8606

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S. Schwartz McDonald
reviewed the deposition of Dr. Jacoby.
Q

Okay.

plaintiffs' marketing materials?

5

MR. RASKOPF:

6
7

Did you review any of

Objection to

the form.
A

I'm not sure what you mean by

8

"marketing materials."

9

going to have to say no pending some

10
11

So at the moment, I'm

clarification on that.
Q

Okay.

Other than the complaint,

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did you review any -- in the documents you

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previously identified, did you review any other

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documents relating to plaintiffs' business?

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MR. RASKOPF:

16

Objection to

the form.

17

A

Not that I'm aware of.

18

Q

Do you know how much money

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plaintiffs have spent on advertising since it

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acquired the iBooks imprint in 2006?

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MR. RASKOPF:

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Objection to

the form.

23

A

I have no idea.

24

Q

Do you know whether it was

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collectively less than $50,000 during this

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S. Schwartz McDonald
entire six-year period?

3

MR. RASKOPF:

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5

Objection to

the form.
A

One, I would have no way of

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knowing, and two, I would really have no way of

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putting whatever number it was in context given

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the nature of, quote, advertising in the

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publishing industry and the way that publishers

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communicate with the trade and with

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distributors, so...

12
13
14

Q

But you're not an expert in the

publishing industry as we discussed, right?
A

And that's precisely why I said

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what I did, because I have no way of putting it

16

in context.

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Q

Fair enough.

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And do you have any idea what the

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average annual sales figures have been for

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plaintiffs for books bearing the iBooks' imprint

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since 2006?

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A

I don't know, no.

23

Q

Do you have an idea as to whether

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they have ever sold more than $100,000 worth of

25

books in a year?

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S. Schwartz McDonald

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are not questions.

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associated with research is, is my hypothesis

4

true or not.

5
6

Q

And in fact, the question

So -Isn't it true that you wrote that

your survey concerns --

7

MR. RASKOPF:

I'm sorry.

8

Did you finish your question?

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word "so" was out there --

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THE WITNESS:

It was.

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MR. RASKOPF:

And all of a

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sudden another question.

13
14

The

THE WITNESS:
A

I'm sorry.

It was.

I think that, at least

15

for the moment, that I had answered the

16

question, but, you know, perhaps we ought to

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reread the question unless you're satisfied with

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the answer.

19

Q

Isn't it true that you wrote this

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report championing plaintiffs' cause as if you

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were a lawyer and did not write your report as a

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dispassionate survey expert commonly reporting

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on the results of her work?

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MR. RASKOPF:

Objection to

25

the form of the question.

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S. Schwartz McDonald
A

I'd like to parcel out all those

assertions in your question.

4

First of all, I think I answered

5

this before, but with all due respect to

6

attorney, I would not have described myself as

7

writing this as if I were an attorney.

8

I read in any legal cases ever sounds quite like

9

the way I write.

Nothing

And I think what I sounded

10

like and the way I wrote it, at any rate, was in

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the voice of a marketing consultant and

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marketing expert who is free and, in fact, who

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is professionally empowered and required to do

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her job, generally, to form inferences and

15

interpretations of the world around her.

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so, based on that, I entered into this scenario

17

with a hypothesis, which I tested.

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that my reporting of the data was extremely

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dispassionate.

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in its language.

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answer all of the elements of your question, but

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if not, we can return to some of the --

And

I believe

I think it was extremely neutral
And I think that that may

23

Q

Didn't you say --

24

A

-- the phrases.

25

Q

Didn't you say that your survey

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confirmed your opinion?

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MR. RASKOPF:

4
5

Objection to

the form.
A

I would have to see the sentence

6

before I stipulate to that, but I freely concede

7

that the survey confirmed my hypothesis.

8
9

Q

Turn to page 1 of your survey

report, Exhibit 1.

On the first page of your

10

survey, you wrote, "The survey", in the second

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paragraph, "The survey confirms my opinion that

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since early 2010 iBooks has become a strong

13

identifier for Apple," and it continues.

14

Do you see that?

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A

Yes, I do.

16

Q

So you constructed a survey that

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confirmed your prior opinion, isn't that true?

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MR. RASKOPF:

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Objection to

the form.
A

Once we are in the context of

21

research, it should be stated as a hypothesis

22

and it was.

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have been disproved, it wasn't.

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and I want to be very clear about this.

25

not retained only as a survey expert.

It was a hypothesis which could
I absolutely -I was
I was

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retained as a marketing expert.

I was retained

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as a brand expert, who forms opinions all the

4

time, offers her clients consultation -- and

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clients of all kinds, I would add, not just

6

pharmaceutical companies, but well-known brands

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outside that arena -- someone who is retained to

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offer them opinions and advice.

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with that mission in mind, and because I also

I was retained

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happen to be a survey expert who does literally

11

hundreds of surveys in the course of a year or

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two, I was also charged with responsibility for

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proving or disproving the hypothesis that arose

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in a research context from my opinions.

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16

Q

Dr. McDonald, you wrote, "The

survey confirms my opinion."

Do you see that?

17

A

Yes, I do.

18

Q

Were you being truthful when you

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wrote that?

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A

Absolutely.

21

Q

And isn't it true that prior to

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conducting your survey, you had formed an

23

opinion that there was a likelihood of

24

confusion?

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MR. RASKOPF:

Objection.

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the form.

3

A

I think that it ultimately, the

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only thing that a witness who was retained by a

5

particular partisan in a case, the only thing

6

that a witness can do really is avail himself or

7

herself of the facts at her disposal.

8

obviously, I don't know what Apple's defense

9

will be in that regard.

So

I've already told you

10

that I don't know any Apple fact witnesses.

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Apple has not told me their side of the story.

12

So based on the information available to me,

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that's the conclusion that I draw.

14

Q

So when you say that you were

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retained as a marketing expert in this case not

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just as a survey expert in this case, what was

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the basis of your opinions with regarding the

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marketing aspects of your opinion?

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MR. RASKOPF:

20
21

Objection to

the form.
A

It was several things.

One, of

22

course, the cyber, digital environment that

23

envelopes us all is one that I think any

24

sentient consumer is fairly aware of.

25

certainly a marketer, probably more keenly so.

It's

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I am a person who consults extensively on brand

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development, on the health and evolution of

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brands, a life cycle management of brands, not

5

just in the pharmaceutical industry, but outside

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it.

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publishing expert and I have disclaimed that, I

8

feel qualified to form observations and arrive

9

at opinions about the importance of the "I"

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prefix to the Apple branding strategy, even

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though I've never worked with Apple.

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their staple of consultants.

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And although I am absolutely not a

Q

Okay.

I'm not in

When you formed your

14

opinions with regard to what you call the

15

marketing portions of your report, did you rely

16

on any documents that were produced in discovery

17

by either party?

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MR. RASKOPF:

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the form of the question.

20

A

Objection to

Well, I think I mentioned that the

21

complaint was available to me.

I believe I

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mentioned, also, that the trademark office, the

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Apple answer and the letter from the government

24

trademark office was also available to me, and I

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believe in that dialogue between them that there

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