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 G

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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.,
Plaintiff,

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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 COUNSEL ONLY

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Videotaped Deposition of JONATHAN DIORIO

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Tuesday, September 18, 2012
9:08 a.m.

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Job No.: 26134

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Pages: 1 - 206

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Reported By:

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Kellie A. Zollars, CSR, RPR, CRR
CSR License No. 5735

CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
118
1

Q.

And during that review process where the initial

12:43:59

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draft of the materials are circulated and people are

12:44:29

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providing feedback, they're providing feedback on the

12:44:33

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content; correct?

12:44:37

5

MS. O'BRIEN:

Objection.

Vague and ambiguous.

12:44:39

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THE WITNESS:

They could be providing comments

12:44:42

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on anything.
BY MS. SCOTT:

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9
10

12:44:44

Q.

And they could provide feedback on the

12:44:45

consistency of the branding?

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A.

Perhaps.

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Q.

And would you expect them to do that?

12:44:48
12:44:50
If there

12:44:52

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was a problem with the consistency of the branding,

12:44:54

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would you expect someone to identify that?

12:44:57

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MS. O'BRIEN:

Objection to form.

12:44:59

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THE WITNESS:

It's purely speculative; but it

12:45:01

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could probably happen, someone smart enough to see the

12:45:05

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same name is used two different ways.

12:45:07

BY MS. SCOTT:

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Q.

Is that something that in your experience you

would hope a product marketing manager would identify?

12:45:11
12:45:13

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MS. O'BRIEN:

Objection to form.

12:45:16

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THE WITNESS:

Back when I was managing them I

12:45:18

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would have expected my people to.
BY MS. SCOTT:

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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12:45:23

CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
119
1

Q.

Would you -- when you were a product marketing

12:45:26

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manager and you were supervising other people, would

12:45:30

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you expect those people to make sure that the content

12:45:35

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was going to be helpful for advertisers?

12:45:43

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MS. O'BRIEN:

Objection.

12:45:45

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THE WITNESS:

Sure.

12:45:47

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BY MS. SCOTT:

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Q.

Would you expect them to review for

12:45:48

typographical errors?

12:46:06

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A.

Sure.

12:46:10

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Q.

Would you expect them to review for the material

12:46:11

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being useful to an advertiser?

12:46:18

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A.

Yes.

12:46:30

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Q.

Would you expect them to review the content for

12:46:30

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accuracy?

12:46:36

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MS. O'BRIEN:

Objection.

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THE WITNESS:

Again, accuracy is vague.

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I would

expect them to look for inaccuracy.

12:46:38
12:46:40
12:46:42

BY MS. SCOTT:

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Vague and ambiguous.

Q.

But if there were inaccuracies, you would expect

them to identify them?
A.

If there was a misstatement, yes, I would expect

them to identify it.

12:46:46
12:46:48
12:46:50
12:46:54

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Q.

Okay.

12:46:56

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A.

Or -- yes.

12:46:56

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
120
To the best of their knowledge.

1

In your

12:47:02

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understanding, do advertisers rely on the Help Center

12:47:08

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pages to be truthful?

12:47:11

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Q.

THE WITNESS:

Vague and ambiguous.

12:47:12
12:47:14

I can't -- I can't say what's in

their mind.

12:47:16
12:47:21

BY MS. SCOTT:

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Objection.

Calls for speculation.

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Going back to the Help Center.

MS. O'BRIEN:

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Okay.

12:47:01

Q.

In your experience, do you expect the

12:47:23

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advertisers to rely on the materials in the Help Center

12:47:27

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for developing their ad campaigns?

12:47:31

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A.

I expect them to use those materials.

12:47:34

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Q.

So you expect them to put them to use in their

12:47:37

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ad campaigns?

12:47:39

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MS. O'BRIEN:

Objection to form.

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THE WITNESS:

I would expect them to.

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That's

why we make them.

12:47:42
12:47:43

BY MS. SCOTT:

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12:47:41

Q.

And when you make the materials in the Help

12:47:46

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Center, is one of the goals to provide some

12:47:50

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transparency into the process?

12:47:55

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MS. O'BRIEN:

Objection.

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THE WITNESS:

I just want to make sure I

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Form.

understand what you mean by transparency.

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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12:47:58
12:48:00
12:48:09

CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
121
BY MS. SCOTT:

1

How do you use that in marketing at Google?

12:48:12

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MS. O'BRIEN:

Same objection.

12:48:15

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THE WITNESS:

I don't.

12:48:16

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BY MS. SCOTT:

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Q.

Q.

Have you ever heard people within Google use

12:48:18

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that term with respect to the messaging that's provided

12:48:21

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to advertisers --

12:48:26

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A.

Potentially.

12:48:27

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Q.

-- regarding AdWords?

12:48:28

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A.

Potentially.

12:48:29

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Q.

And when you've heard that word, what did you

12:48:31

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take it to mean?

12:48:33

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A.

I can't interpret what they meant it to mean.

12:48:34

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Q.

When you hear that word, what does it mean to

12:48:38

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you?

12:48:40

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A.

Visibility.

12:48:41

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Q.

Visibility in what?

12:48:41

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A.

Whatever the subject is.

12:48:44

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Q.

Is one of the objectives in providing messaging

12:48:58

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materials to advertisers to provide some visibility

12:49:08

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into the AdWords system?

12:49:15

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MS. O'BRIEN:

Objection.

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THE WITNESS:

I would say our goal is to provide

12:49:18

them useful information by which they can become better

12:49:21

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Vague.

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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12:49:18

CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
198
1

Is that sentence accurate?

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MS. O'BRIEN:

Objection.

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THE WITNESS:

Again, not having any technical

15:27:32
Form.

15:27:34
15:27:36

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background nor having worked on this team, I cannot

15:27:38

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tell you whether it's accurate nor if it's inaccurate.

15:27:40

BY MS. SCOTT:

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Q.

But as you sit here today, you're not aware of

any inaccuracies in that statement?
A.

Lacking -- again, I don't have the background to

say one way or the other whether this is accurate.
Q.

Was marketing involved in the preparation of

this document?

15:27:44
15:27:47
15:27:52
15:27:54
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MS. O'BRIEN:

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Lacks personal knowledge.

15:28:18

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THE WITNESS:

I do not know.

15:28:20

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BY MS. SCOTT:
But you weren't personally involved in its

15:28:23

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Q.

Objection.

Calls for speculation.

preparation?

15:28:16

15:28:26

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MS. O'BRIEN:

Objection to form.

15:28:26

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THE WITNESS:

I do not recall working on this

15:28:29

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document nor having seen it before.
BY MS. SCOTT:

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15:28:30

Q.

Okay.

On the second page of the document,

ending in Bates No. 876 -A.

Uh-huh.

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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15:28:31
15:29:00
15:29:04

CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
199
1

Q.

-- at the bottom there is a heading called "How

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we calculate Quality Score."

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someone does a search that triggers your ad, we

15:29:13

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calculate a Quality Score.

15:29:17

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Score, we look at a number of different things related

15:29:21

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to your account, like the following:"

15:29:24

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first bullet point is "your keyword's past

15:29:28

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click-through rate (CTR):

How often that keyword led

15:29:31

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to clicks on your ad."

Is that an accurate description

15:29:36

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It says, "Every time

15:29:04

To calculate this Quality

And then the

of a component of the quality score?

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MS. O'BRIEN:

Objection.

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Lacks personal knowledge.

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THE WITNESS:

Calls for speculation.

15:29:06

15:29:48
15:29:52

Vague and ambiguous.

15:29:55

Again, since I've never worked in

15:29:59

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ads quality nor do I have any technical understanding

15:30:01

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of how it works, I cannot tell you if that's an

15:30:03

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accurate description of a component.

15:30:05

BY MS. SCOTT:

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Q.

As you sit here today, do you have any reason to

believe that it is inaccurate?

15:30:09
15:30:11

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MS. O'BRIEN:

Objection to form.

15:30:14

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THE WITNESS:

I can neither say whether it's

15:30:16

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accurate or inaccurate based on my lack of background

15:30:17

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in this area.

15:30:20

BY MS. SCOTT:

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25

Q.

So as you sit here today, you are not aware of

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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15:30:21

CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO

CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
200
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any inaccuracies?

15:30:24

2

MS. O'BRIEN:

Same objections.

15:30:25

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THE WITNESS:

I cannot tell you if there are

15:30:26

4

inaccuracies because I do not understand the subject

15:30:27

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well enough.

15:30:30

BY MS. SCOTT:

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7

Q.

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CTR:

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URL."

The second bullet is "Your display URL's past

15:30:38

How often you received clicks with your display

15:30:41

Is that an accurate statement?

15:30:47

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MS. O'BRIEN:

Same objections.

15:30:57

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THE WITNESS:

Same response.

Because I've never

15:31:00

12

worked on ads quality nor do I have a technical

15:31:01

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background in the area, I cannot tell you if it's

15:31:03

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accurate and I cannot tell you if it's inaccurate.

15:31:06

BY MS. SCOTT:

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16

Q.

For the next two bullet points, account history

15:31:09

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and quality of the landing page, is it fair to say that

15:31:12

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you cannot tell me whether they are accurate or

15:31:16

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inaccurate?

15:31:18

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A.

That's correct.

15:31:19

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Q.

Staying on this page ending in Bates No. 876, we

15:32:11

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just looked at the four bullet points under how we

15:32:15

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calculate quality score.

And they included the past

15:32:18

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click-through rate, the display URLs, past CTR, your

15:32:23

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account history, and the quality of your landing page.

15:32:27

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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