FPX, LLC v. Google, Inc. et al

Filing 76

***DEFICIENT DOCUMENT, PLEASE IGNORE.***MOTION Exclude the Expert Report and Opinion of Thomas J. Maronick and Brief in Support by AOL, LLC., Google, Inc., IAC/InterActiveCorp, MySpace, Inc., Turner Broadcasting System, Inc., YouTube, LLC. (Attachments: # 1 Declaration of Carl Butzer, # 2 Exhibit A to Declaration of Carl Butzer - part 1, # 3 Exhibit A to Declaration of Carl Butzer - part 2, # 4 Exhibit A to Declaration of Carl Butzer - part 3, # 5 Exhibit A to Declaration of Carl Butzer - part 4, # 6 Exhibit A to Declaration of Carl Butzer - part 5, # 7 Exhibit A to Declaration of Carl Butzer - part 6, # 8 Exhibit A to Declaration of Carl Butzer - part 7, # 9 Exhibit A to Declaration of Carl Butzer - part 8, # 10 Exhibit A to Declaration of Carl Butzer - part 9, # 11 Exhibit A to Declaration of Carl Butzer - part 10, # 12 Exhibit A to Declaration of Carl Butzer - part 11, # 13 Exhibit A to Declaration of Carl Butzer - part 12, # 14 Exhibit A to Declaration of Carl Butzer - part 13, # 15 Exhibit A to Declaration of Carl Butzer - part 14, # 16 Exhibit B to Declaration of Carl Butzer, # 17 Declaration of Itamar Simonson, # 18 Exhibit 1 to the Declaration of Itamar Simonson, # 19 Text of Proposed Order)(Babcock, Charles) Modified on 9/20/2010 (sm, ).

FPX, LLC v. Google, Inc. et al

Doc. 76 Att. 14

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A. Q. A.

Yes, I am. What is an ever ready survey? I don't recall as we're sitting

here right now all the details of an ever ready survey. Q. All right, sir. Let me direct you

to Exhibit Number 2 before you? A. Q. A. Q. Yes. And page 79? Page 79? Yes, sir. And these are the FPX-2

results for Trek, the Trek survey. A. Q. A. Q. Yes. Do you see that? Yes. Now, as I understand from

responding to question 3, you had 200 respondents who answered 3, yes, that they use Internet search engines; correct? A. Q. Yes. And was the survey -- did the

survey -- strike that. Did you get more than 200 respondents who answered the Trek questionnaire? A. No. No.
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five people answered that question number 3 who were non-Google Internet search engine users; true? A. Q. That's correct, yes. Let me direct your attention to

page 3 of Exhibit 2, which is your report in this case. A.
Q.

Page 3? Page 3. Yes. Under materials reviewed you

A. Q.

indicated that you reviewed the Class Action Complaint; is that right? A. Q. That's correct. You didn't indicate that you had

reviewed other materials; correct? A. Q. That's correct. Did you review the Defendants in

this case Answer to the lawsuit or the Class Action Complaint? A. Q. No, I did not. Have -- has your work as an expert

or as a surveyor ever been criticized by any courts? A. Yes.
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Q. occasions?

Tell me about each of those

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A.

Two of those.

Number one was in a

case involving Trafficschool.com . Q. work there? A. The criticism was the fact that I What was the criticism of your

didn't use a control group. Q . Okay. What other criticisms were

A.

There's always criticisms in

almost every survey as to the language, whether it's leading or not, and I don't remember -those were common kind of criticisms. The one

criticism the court, I think, focused on was the fact I didn't use a control group. As in this

case, I didn't feel I could capture the issue in that case with a control group, so I didn't use one. And I still don't think one was

appropriate. Q. A. All right, sir. Okay. The other case where there My survey

was -- it really wasn't a criticism. was found,

it was excluded, involved -- it's

number 9 in my list of surveys which is David

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Craig -- one of the two Alabama cases. Either Holland versus Maple Chase or David Craig versus Maurice Tunstall, one or the other. Both were
smoke detector cases, smoke alarm cases.

There the criticism was I did a survey of the package for the claims made on a package for a smoke alarm and the court said that it was inadmissible because the woman who lived in the house whose children died had not bought the smoke detector, it was already in there, so she didn't see the package. Those are the only two I know of where -- there may have been criticisms, but those are certainly the ones I recall. Q. As you sit here today are those

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the only two cases you recall courts criticizing your work product? A. Q. Yes, that I'm aware of. Now, in the Trafficschool.com

case, looking at that opinion the court found that your survey was "significantly flawed". Do you recall that? A. Q. Yes. And he also found that there were

significant problems with Dr. Maronick's survey.

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Do you recall that? A. Yes. And, again, that's -- the

criticisms of both surveys, but the major criticisms as I said with my survey was the issue of the control group.
Q .

And the Trafficschool.com Inc.

case the court agrees that the lack of a control was a significant problem in your survey; true? A. Q. Yes. And also the failure to present

Defendant's web page as an actual consumer would see it, including the disclaimer, are significant problems with your survey. Those

are two criticisms of the court in that one; right? A. yes.
Q·

I had forgotten the second one,

All right.

Accordingly, the court

gave less weight to your survey as a result? A. Yes, that's right. MR. MORAN: MR. FENSTER: I pass the witness. I have no questions. Here marks the

THE VIDEOGRAPHER: end of videotape number six.

Also marks the end

of today's proceeding in the deposition of
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Thomas J. Maronick. Going off the record. The time on the video screen is 16:50:48. (Signature not waived.) (Whereupon, at 4:50 p.m., the deposition was concluded.)

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316 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATE SIGNATURE ( ) except for the changes noted in the attached errata sheet, the same is a true, correct and complete transcription of the answers given by me to the questions therein recorded. ( ) the same is a true, correct and complete transcription of the answers given by me to the questions therein recorded. (Check appropriate box): I do hereby acknowledge that I have read and examined the foregoing of the transcript of my deposition and that: ACKNOWLEDGMENT OF DEPONENT

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Page 317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 PAULA G. SATKIN Notary Public in and for the 23 24 25
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CERTIFICATE OF NOTARY PUBLIC I, Paula G. Satkin, the officer before whom the foregoing proceedings were taken, do hereby certify that the witness whose testimony appears in the foregoing proceeding was duly sworn by me; that the testimony of said witness was taken by me in stenotype and thereafter reduced to typewriting under my direction; that said proceedings is a true record of the testimony given by said witness; that I am neither counsel for, related to, nor employed by any of the parties to the action in which these proceedings were taken; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially or otherwise interested in the outcome of the action.

My commission expires October 31, 2010.

District of Columbia