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
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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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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
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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
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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
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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.
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In your
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understanding, do advertisers rely on the Help Center
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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.
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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
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advertisers to rely on the materials in the Help Center
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for developing their ad campaigns?
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A.
I expect them to use those materials.
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Q.
So you expect them to put them to use in their
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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
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Center, is one of the goals to provide some
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transparency into the process?
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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:
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How do you use that in marketing at Google?
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MS. O'BRIEN:
Same objection.
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THE WITNESS:
I don't.
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BY MS. SCOTT:
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Q.
Q.
Have you ever heard people within Google use
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that term with respect to the messaging that's provided
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to advertisers --
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A.
Potentially.
12:48:27
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Q.
-- regarding AdWords?
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A.
Potentially.
12:48:29
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Q.
And when you've heard that word, what did you
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take it to mean?
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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
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you?
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A.
Visibility.
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Q.
Visibility in what?
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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
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materials to advertisers to provide some visibility
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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
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Vague.
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12:49:18
CONFIDENTIAL VIDEOTAPED DEPOSITION OF JONATHAN DIORIO
CONDUCTED ON TUESDAY, SEPTEMBER 18, 2012
198
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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.
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background nor having worked on this team, I cannot
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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?
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15:27:47
15:27:52
15:27:54
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MS. O'BRIEN:
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Lacks personal knowledge.
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THE WITNESS:
I do not know.
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BY MS. SCOTT:
But you weren't personally involved in its
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Q.
Objection.
Calls for speculation.
preparation?
15:28:16
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MS. O'BRIEN:
Objection to form.
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THE WITNESS:
I do not recall working on this
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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.
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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
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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
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to your account, like the following:"
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first bullet point is "your keyword's past
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click-through rate (CTR):
How often that keyword led
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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
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ads quality nor do I have any technical understanding
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of how it works, I cannot tell you if that's an
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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
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accurate or inaccurate based on my lack of background
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in this area.
15:30:20
BY MS. SCOTT:
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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
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MS. O'BRIEN:
Same objections.
15:30:25
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THE WITNESS:
I cannot tell you if there are
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inaccuracies because I do not understand the subject
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well enough.
15:30:30
BY MS. SCOTT:
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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
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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
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worked on ads quality nor do I have a technical
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background in the area, I cannot tell you if it's
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accurate and I cannot tell you if it's inaccurate.
15:31:06
BY MS. SCOTT:
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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
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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
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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
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account history, and the quality of your landing page.
15:32:27
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