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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1

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.

01:38:01

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Q. Can you describe that sort of what those roles

01:38:03

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were and responsibilities historically from when you

01:38:06

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first had those roles and responsibilities to date?

01:38:11

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A. So I've done things such as press interviews to

01:38:17

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describe what we're doing with AdWords. I've spoken at

01:38:21

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conferences. I've spoken -- I speak to advertisers from

01:38:26

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time to time. I've spoken with advertisers from time to

01:38:29

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time. I've spoken with investors. From time to time

01:38:31

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I've reviewed blog posts. From time to time I've

01:38:37

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reviewed press statements that we've made. I've

01:38:41

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reviewed material that the sales team has used.

01:38:53

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Probably a pretty good summary.

01:39:08

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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
01:39:21
01:39:32

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probably changed over time. I listed six or seven

01:39:34

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things on that list. I don't know if I did all those on

01:39:39

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day one when I became -- when I started working closely

01:39:41

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with Ads Quality.

01:39:44

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Q. But from the beginning of working with Ads

01:39:48

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Quality to today, you've always had some type of

01:39:51

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association with external messaging?

01:39:54

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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

01:40:04

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statements and sales material when you used the word

01:40:07

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review; was that to sort of vet the material before they

01:40:10

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were actually used?

01:40:13

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A. Yeah. I would say reviewing incorporates --

01:40:15

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could be a range of things: providing feedback; editing

01:40:21

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it; making sure it's clear. Those types of things.

01:40:30

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9
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Q. Did you attempt to make sure the information

01:40:35

that was being messaged externally was accurate as

01:40:38

possible?

01:40:41

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MR. PERLSON: Objection. Form.

01:40:44

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THE WITNESS: I would describe my goal as

01:40:49

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trying to ensure that the audience would understand the

01:40:55

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messaging and understand -- yeah. Understand what we're

01:41:01

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talking about.

01:41:06

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MR. CIMINO: Q. But understand it
accurately, correct?

01:41:07
01:41:08

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MR. PERLSON: Objection. Form.

01:41:12

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THE WITNESS: The -- there is a lot of

01:41:18

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technical detail in what we actually do. And a lot of

01:41:23

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that technical detail would be difficult or impossible

01:41:27

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for an external audience to fully understand. So my

01:41:30

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goal was largely to translate what we're doing

01:41:35

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technically into language and concepts that our

01:41:44

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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.

01:42:00

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Q. Okay. I understand that. But my question is

01:42:03

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did you attempt to make sure that the information that

01:42:05

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was being messaged externally was as accurate as

01:42:07

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possible?

01:42:11

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MR. PERLSON: Objection. Form.

01:42:15

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THE WITNESS: I would not say the goal was a

01:42:16

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hundred percent accuracy. I would say the goal was that

01:42:19

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it enabled our advertisers to understand broadly sort of

01:42:24

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the concepts of what we were doing and how to optimize

01:42:37

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based on that. Our messaging was generally -- I would

01:42:41

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say our messaging was generally not intended to be a

01:42:45

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fully accurate description of all the technical details

01:42:48

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of what we were doing.

01:42:49

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MR. CIMINO: Q. Did you attempt to make

01:42:52

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sure that the information that was being messaged

01:42:53

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externally at a high level was as accurate as

01:42:57

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possible?

01:43:00

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MR. PERLSON: Objection. Form.

01:43:01

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THE WITNESS: Not quite sure what that means.

01:43:11

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MR. CIMINO: Q. Well, did you --

01:43:14

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24
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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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01:43:18
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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

01:43:26

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which some of the external messaging went, like

01:43:32

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investors and advertisers, was at a higher level than

01:43:36

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the technical details. Is that right?

01:43:38

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MR. PERLSON: Objection. Form.

01:43:41

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THE WITNESS: I think -- so the way I would

01:43:44

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interpret a phrase like "high level" implies

01:43:48

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summarization and abstraction. And that summarization

01:43:52

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and abstraction is not necessarily consistent with

01:44:00

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accurate. So those are -- it's hard to be high level

01:44:04

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and accurate at the same time, I would argue.

01:44:09

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MR. CIMINO: Q. In any of your external

01:44:13

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messaging to advertisers or investors or to the

01:44:17

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press, did you allow a knowingly -- allow a

01:44:21

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statement that was knowingly misrepresenting how

01:44:30

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AdWords works to make it out?

01:44:34

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MR. PERLSON: Objection. Form.

01:44:37

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THE WITNESS: I'm sorry, what was the last part

01:44:38

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of your -- to -- you said to make it something?
MR. CIMINO: Q. To allow a statement that

01:44:39
01:44:44

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you knew was a misrepresentation of how AdWords

01:44:45

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worked, to make it to external audience?

01:44:50

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MR. PERLSON: Objection. Form.

01:44:55

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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

02:06:10

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a -- we didn't view that as a sort of controversial

02:06:13

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thing to do, so I don't know whether it would have had a

02:06:25

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review.

02:06:33

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MR. CIMINO: Q. Would you expect there

02:06:33

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would have been emails about making such a statement

02:06:34

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that was a simplification?

02:06:36

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MR. PERLSON: Objection. Form.

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THE WITNESS: I don't know.

02:07:05

MR. CIMINO: Q. You don't know whether you

02:07:07

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would expect there would have been emails?

02:07:07

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MR. PERLSON: Objection. Form.

02:07:16

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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

02:07:21

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know what would have -- it's hard for me to answer what

02:07:23

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would have had emails versus not.

02:07:26

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MR. CIMINO: Q. What's the approval
process for external messaging?

02:07:33
02:07:34

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MR. PERLSON: Objection. Form.

02:07:38

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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

02:07:49

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approval process for external messaging. Sometimes

02:07:52

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they'll be reviewed by people like me, sometimes they

02:07:56

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won't. Sometimes they'll be reviewed by people lower

02:07:59

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down. Sometimes they'll just be reviewed within

02:08:02

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marketing. Sometimes they'll be reviewed by product

02:08:04

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management.

02:08:07

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MR. CIMINO: Q. Things relating to quality
score, are they vetted by the Ads Quality team?

02:08:11
02:08:12

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MR. PERLSON: Objection. Form.

02:08:17

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THE WITNESS: The Ads Quality team being the

02:08:19

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engineers? The product managers?
MR. CIMINO: Q. Both.

02:08:21
02:08:24

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A. I imagine in some cases the messaging was

02:08:35

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reviewed by engineers and in some cases it was reviewed

02:08:38

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by product managers and I some cases it was probably

02:08:40

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reviewed by neither.

02:08:43

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Q. Do you believe it is misleading to inform

02:08:53

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advertisers that quality score is calculated based on

02:08:56

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historical click-through rate?

02:09:01

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MR. PERLSON: Objection. Form.

02:09:03

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THE WITNESS: Misleading is a pejorative term.

02:09:35

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02:09:37

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02:09:40

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MR. CIMINO: Q. Do you believe it was
misleading is my question.

02:09:41
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MR. PERLSON: Objection. Form.

02:09:45

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THE WITNESS:

02:09:45

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25

02:09:47
MR. CIMINO: Q. You said it was a

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pejorative term. How would you describe it?

02:09:48

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MR. PERLSON: Same objection.

02:09:56

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THE WITNESS:

02:10:15

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02:10:16

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02:10:22

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02:10:26
MR. CIMINO: Q. You would say it's

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incorrect; is that right?

02:10:28
02:10:29

MR. PERLSON: Objection. Form.

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02:10:32

THE WITNESS:

9

02:10:33
02:10:35

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MR. CIMINO: Q. The statement about

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02:10:35

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quality score including historical click-through

02:10:37

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rate. That's incorrect, right?

02:10:39

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A.

02:10:41

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Q.

02:10:44

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A.

02:10:46
02:10:50

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Q.

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A.

02:10:52
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02:10:56

Q.

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MR. PERLSON: Objection. Form.

02:11:01

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MR. CIMINO: Q.

02:11:01

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02:11:02

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MR. PERLSON: Objection. Form.

02:11:04

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THE WITNESS:

02:11:06
02:11:12

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5

MR. CIMINO: Q. Okay. Well, so is the

02:11:14

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statement that was made to advertisers about quality

02:11:19

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score, including historical click-through rate,

02:11:21

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correct or incorrect?

02:11:23

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MR. PERLSON: Objection. Form.

02:11:26

THE WITNESS:

02:11:27

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02:11:28

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02:11:33

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MR. CIMINO: Q. Is the statement in any

02:11:44

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way accurate that quality score includes historical

02:11:45

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click-through rate?

02:11:49

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MR. PERLSON: Objection. Form.

02:11:51

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THE WITNESS:

02:12:49

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02:12:51

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02:12:59

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02:13:02

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MR. CIMINO: Q. Okay. But my question is,

02:13:03

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is the statement in any way accurate that quality

02:13:06

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score includes historical click-through rate?

02:13:09

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MR. PERLSON: Objection. Form.

02:13:12

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THE WITNESS: I would say

02:13:15

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