I/P Engine, Inc. v. AOL, Inc. et al
Filing
310
Declaration re 307 MOTION in Limine #5 to Preclude Plaintiff From Introducing Evidence of Damages Against AOL Inc., Gannett Co., Inc., IAC Search & Media, Inc. and Target Corporation, 301 MOTION in Limine #2 to Exclude Evidence of Entire Market Value of Accused Products and of Defendants' Size, Wealth and Overall Revenues, 303 MOTION in Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate, 305 MOTION in Limine #4 to Preclude Plaintiff from Offering Evidence or Argument Relating to Defendants' Conduct During Discovery or to Google's Unproduced Licenses, 299 MOTION in Limine #1 to Preclude Plaintiff From Introducing Evidence of Willful Infringement, Pre-Suit Knowledge, or Copying of Joshua L. Sohn in Support of Defendants' Motions in Limine by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Noona, Stephen)
EXHIBIT F
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STATES UNITED DISTRICT COURT
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EASTERN DISTRICT OF VIRGINIA
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NORFOLK DIVISION
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x
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I/P ENGINE, INC.,
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Plaintiff,
v.
: Civ. Action No.
: 2:11-cv-512
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AOL, INC., et al.,
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Defendants.
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x
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CONFIDENTIAL - OUTSIDE COUNSELS' EYES ONLY
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Videotaped Deposition of NICHOLAS FOX
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San Francisco, California
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Wednesday, September 12, 2012
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9:10 a.m.
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Job No.: 25943
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Pages: 1 - 237
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Reported by: GINA V. CARBONE, CSR#8249, RPR, CCRR
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AdWords?
01:38:00
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A. Yes.
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Q. Can you describe that sort of what those roles
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were and responsibilities historically from when you
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first had those roles and responsibilities to date?
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A. So I've done things such as press interviews to
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describe what we're doing with AdWords. I've spoken at
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conferences. I've spoken -- I speak to advertisers from
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time to time. I've spoken with advertisers from time to
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time. I've spoken with investors. From time to time
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I've reviewed blog posts. From time to time I've
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reviewed press statements that we've made. I've
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reviewed material that the sales team has used.
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Probably a pretty good summary.
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Q. And these types of activities you've done since
you were first associated with AdWords quality?
A. I'd say the nature of these activities have
01:39:17
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probably changed over time. I listed six or seven
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things on that list. I don't know if I did all those on
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day one when I became -- when I started working closely
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with Ads Quality.
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Q. But from the beginning of working with Ads
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Quality to today, you've always had some type of
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association with external messaging?
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A. Yes, I think that's fair.
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Q. And you said you reviewed blog posts and press
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statements and sales material when you used the word
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review; was that to sort of vet the material before they
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were actually used?
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A. Yeah. I would say reviewing incorporates --
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could be a range of things: providing feedback; editing
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it; making sure it's clear. Those types of things.
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Q. Did you attempt to make sure the information
01:40:35
that was being messaged externally was accurate as
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possible?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I would describe my goal as
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trying to ensure that the audience would understand the
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messaging and understand -- yeah. Understand what we're
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talking about.
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MR. CIMINO: Q. But understand it
accurately, correct?
01:41:07
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MR. PERLSON: Objection. Form.
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THE WITNESS: The -- there is a lot of
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technical detail in what we actually do. And a lot of
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that technical detail would be difficult or impossible
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for an external audience to fully understand. So my
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goal was largely to translate what we're doing
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technically into language and concepts that our
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advertisers would understand and would be helpful for
01:41:51
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them as they think about how to run and manage their
01:41:56
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accounts.
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Q. Okay. I understand that. But my question is
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did you attempt to make sure that the information that
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was being messaged externally was as accurate as
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possible?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I would not say the goal was a
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hundred percent accuracy. I would say the goal was that
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it enabled our advertisers to understand broadly sort of
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the concepts of what we were doing and how to optimize
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based on that. Our messaging was generally -- I would
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say our messaging was generally not intended to be a
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fully accurate description of all the technical details
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of what we were doing.
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MR. CIMINO: Q. Did you attempt to make
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sure that the information that was being messaged
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externally at a high level was as accurate as
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possible?
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MR. PERLSON: Objection. Form.
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THE WITNESS: Not quite sure what that means.
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MR. CIMINO: Q. Well, did you --
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A. I'm having trouble with "high level" and
"accurate statement."
Q. Well, I'm responding to your statement that the
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technical details would have been too difficult to
01:43:22
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understand. So the -- I assume that the audience for
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which some of the external messaging went, like
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investors and advertisers, was at a higher level than
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the technical details. Is that right?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I think -- so the way I would
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interpret a phrase like "high level" implies
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summarization and abstraction. And that summarization
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and abstraction is not necessarily consistent with
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accurate. So those are -- it's hard to be high level
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and accurate at the same time, I would argue.
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MR. CIMINO: Q. In any of your external
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messaging to advertisers or investors or to the
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press, did you allow a knowingly -- allow a
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statement that was knowingly misrepresenting how
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AdWords works to make it out?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I'm sorry, what was the last part
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of your -- to -- you said to make it something?
MR. CIMINO: Q. To allow a statement that
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you knew was a misrepresentation of how AdWords
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worked, to make it to external audience?
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MR. PERLSON: Objection. Form.
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THE WITNESS: Our intent was not to
01:45:23
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simplification for advertisers, so we didn't view it as
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a -- we didn't view that as a sort of controversial
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thing to do, so I don't know whether it would have had a
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review.
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MR. CIMINO: Q. Would you expect there
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would have been emails about making such a statement
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that was a simplification?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I don't know.
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MR. CIMINO: Q. You don't know whether you
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would expect there would have been emails?
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MR. PERLSON: Objection. Form.
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THE WITNESS: We emailed about a lot of things.
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We had meetings about a lot of things. I don't quite
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know what would have -- it's hard for me to answer what
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would have had emails versus not.
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MR. CIMINO: Q. What's the approval
process for external messaging?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I don't know. There isn't a --
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in general, I don't think there is a particularly strict
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approval process for external messaging. Sometimes
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they'll be reviewed by people like me, sometimes they
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won't. Sometimes they'll be reviewed by people lower
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down. Sometimes they'll just be reviewed within
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marketing. Sometimes they'll be reviewed by product
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management.
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MR. CIMINO: Q. Things relating to quality
score, are they vetted by the Ads Quality team?
02:08:11
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MR. PERLSON: Objection. Form.
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THE WITNESS: The Ads Quality team being the
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engineers? The product managers?
MR. CIMINO: Q. Both.
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A. I imagine in some cases the messaging was
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reviewed by engineers and in some cases it was reviewed
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by product managers and I some cases it was probably
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reviewed by neither.
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Q. Do you believe it is misleading to inform
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advertisers that quality score is calculated based on
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historical click-through rate?
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MR. PERLSON: Objection. Form.
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THE WITNESS: Misleading is a pejorative term.
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MR. CIMINO: Q. Do you believe it was
misleading is my question.
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MR. PERLSON: Objection. Form.
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THE WITNESS:
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02:09:47
MR. CIMINO: Q. You said it was a
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pejorative term. How would you describe it?
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MR. PERLSON: Same objection.
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THE WITNESS:
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MR. CIMINO: Q. You would say it's
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incorrect; is that right?
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MR. PERLSON: Objection. Form.
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THE WITNESS:
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MR. CIMINO: Q. The statement about
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quality score including historical click-through
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rate. That's incorrect, right?
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A.
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Q.
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A.
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Q.
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A.
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02:10:56
Q.
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MR. PERLSON: Objection. Form.
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MR. CIMINO: Q.
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MR. PERLSON: Objection. Form.
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THE WITNESS:
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MR. CIMINO: Q. Okay. Well, so is the
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statement that was made to advertisers about quality
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score, including historical click-through rate,
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correct or incorrect?
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MR. PERLSON: Objection. Form.
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THE WITNESS:
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MR. CIMINO: Q. Is the statement in any
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way accurate that quality score includes historical
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click-through rate?
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MR. PERLSON: Objection. Form.
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THE WITNESS:
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MR. CIMINO: Q. Okay. But my question is,
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is the statement in any way accurate that quality
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score includes historical click-through rate?
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MR. PERLSON: Objection. Form.
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THE WITNESS: I would say
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