CONFIDENTIAL

1 UNITED STATES DISTRICT COURT

 SOUTHERN DISTRICT OF FLORIDA

2 MIAMI DIVISION

3 CASE NO.: 1:20-cv-23391-MGC

4 ADT; et al,

5 Plaintiff,

6 v. (CONFIDENTIAL)

7 VIVINT SMART HOME, INC., f/k/a

 MOSIAC AQUISITION CORP.; et al.,

8

 Defendants.

9 ________________________________/

10

 * * * * * * * * * * * * * * * * * * * * * * * * * * * *

11

12 VIDEOTAPED DEPOSITION OF DR. RUSSELL S. WINER

13 DATE TAKEN: AUGUST 30, 2022

14 TIME: 11:27 A.M. UNTIL 7:59 P.M. EASTERN

15 TAKEN BY: DEFENDANTS/COUNTERCLAIMANTS

16 LOCATION: VIA VIDEOCONFERENCE

17 REPORTED BY: DIANE C. ROBERTS

 STENOGRAPHIC SHORTHAND REPORTER,

18 NOTARY PUBLIC, STATE OF FLORIDA

 AT LARGE

19

20

21

22

23

24

25 Job No. CS5384054

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1 A P P E A R A N C E S

2 (Via Videoconference)

 ERIC J. HOBBS, ESQUIRE

3 OF: Shook, Hardy & Bacon, LLP

 1660 17th St., Suite 450

4 Denver, CO 80202

 ehobbs@shb.com

5

 Attorney for the Plaintiff

6

7 (Via Videoconference)

 JOSHUA R. BROWN ESQUIRE

8 and MICHAEL N. KREITZER, ESQUIRE

 OF: Greenberg, Traurig, P.A.

9 450 S. Orange Avenue, Suite 650

 Orlando, FL 32801

10 brownjr@gtlaw.com

11 Attorneys for Defendants/Counterclaimants

12

 ALSO PRESENT: BRIAN BUSS

13 Defense Expert

14 TIMOTHY LENZ

 Videographer

15

16

17

18

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1 I N D E X

 PAGE

2 VIDEOCONFERENCE VIDEOTAPED TESTIMONY OF:

 DR. RUSSELL S. WINER

3 Direct Examination by Mr. Brown....................6

 Cross Examination by Mr. Hobbs...................279

4

 CERTIFICATE OF OATH...............................284

5

 CERTIFICATE OF DEPOSITION TRANSCRIPT..............285

6

 ERRATA SHEET......................................286

7

 NOTIFICATION LETTER...............................287

8

9 E X H I B I T S

 PAGE

10 DEFENDANTS' EXHIBIT:

11 EXHIBIT NO. 1 Expert Report.......................11

12

13 S T I P U L A T I O N S

14 It is hereby stipulated and agreed by and

15 between the counsel for the respective parties and the

16 deponent that the reading and signing of the deposition

17 transcript be reserved.

18

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1 P R O C E E D I N G S

2 * * *

3 MR. VIDEOGRAPHER: Good morning. We're now

4 going on the video record and the time is

5 11:27 a.m., Eastern.

6 Today is Tuesday, August 30th, 2022. Please

7 note that this deposition is being conducted

8 remotely, using virtual technology. The quality of

9 the recording depends on the quality of the cameras

10 used and Internet connection of all participants.

11 What is seen from the witness and heard on the

12 screen is what will be recorded.

13 Audio and video recording will continue to take

14 place until all of the parties agree to go off the

15 record.

16 This is Media Number 1 of the video-recorded

17 deposition of Dr. Russell S. Winer, taken by

18 Counsel for Defense in the matter of ADT, et al.,

19 vs. Vivint Smart Home, Incorporated, et al.

20 It's been filed in the U.S. District Court,

21 Southern District of Florida, Miami Division, and

22 has a Case Number of 1:20-cv-23391.

23 My name is Timothy Lenz and I represent

24 Veritext Legal Solutions. The court reporter is

25 Diane Roberts, also representing Veritext Legal

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1 Solutions.

2 If there are any objections to this proceeding,

3 please state them at the time of your appearance.

4 Counsel and all present, including remotely, will

5 now state their appearance and affiliations, for the

6 record, beginning with the noticing attorney.

7 MR. BROWN: Good morning. This is

8 Joshua Brown, with Greenberg Traurig. I'm here

9 representing the Vivint Defendants. With me here

10 today is Michael Kreitzer, also with Greenberg

11 Traurig, representing the Vivint Defendants. And

12 then, also, we have on the line Brian Buss, who is

13 an expert witness that the Vivint Defendants have

14 retained in this matter.

15 MR. HOBBS: And good morning. This is

16 Eric Hobbs, with the law firm of Shook, Hardy &

17 Bacon, on behalf of ADT.

18 VIDEOGRAPHER: Thank you. If the court

19 reporter will please swear in the witness, then

20 counsel may proceed.

21 COURT REPORTER: Raise your right hand to be

22 sworn. Do you solemnly swear the testimony you're

23 about to give will be the truth, the whole truth,

24 and nothing but the truth, so help you God?

25 THE WITNESS: I do.

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1 COURT REPORTER: Thank you.

2 THEREUPON:

3 DR. RUSSELL S. WINER,

4 having been produced and first duly sworn as a witness,

5 was examined and testified upon his oath as follows:

6 DIRECT EXAMINATION

7 BY MR. BROWN:

8 Q. Good morning, Dr. Winer. How are you doing

9 today?

10 A. Good morning, Mr. Brown.

11 Q. So, can you -- just for the record, can you

12 state your full name?

13 A. My name is Russell S. -- middle initial --

14 Winer, W-I-N-E-R.

15 Q. Thank you, Dr. Winer. And I'll just go

16 through -- I know that you've been deposed before, but

17 I'll just put some reminders on the record. First of

18 all, you understand that you're under oath?

19 A. Yes, I do.

20 Q. You understand there are penalties for perjury?

21 A. Yes, I do.

22 Q. Do you know that, if you are to give testimony

23 at trial in this case, that your deposition testimony

24 here today will have equal weight to whatever testimony

25 you might give at trial?

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1 A. Yes, I do.

2 Q. Because we are doing our deposition today -- we

3 have a court reporter that's taking down what you say.

4 So, because of that, it's really important that we do

5 not talk over each other. So, I will do my best to

6 allow you to complete your answer before I start my next

7 question. But, I'll ask that you please wait for me to

8 finish my question before you begin your answer.

9 A. Sounds good.

10 Q. If at any time you do not understand the

11 question that I'm trying to ask, please let me know.

12 A. Okay.

13 Q. And if you don't tell me you didn't understand

14 the question, I'm going to assume that you understood

15 the question. Is that fair?

16 A. Yes.

17 Q. Okay. The other thing is, because we're doing

18 the deposition today, it's important that your response

19 is an out-loud verbal response. You can't -- so,

20 shaking your head or nodding your head doesn't come --

21 or, doesn't -- doesn't show up on the record well.

22 Neither do things, you know, like "uh-huh" and "uh-uh,"

23 things like that. So, please try to use an out-loud

24 verbal response to the questions.

25 A. Okay.

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1 Q. So, there are multiple ADT entities that are

2 Plaintiffs in this case. Do you understand that?

3 A. No, I don't.

4 Q. Okay. Who do you understand is the Plaintiff

5 in this case?

6 A. I only understand that it is the corporate

7 entity ADT. I don't know anything about multiple

8 entities.

9 Q. Do you know the name of the -- do you know the

10 name of the entity that -- that is the Plaintiff? What

11 is the exact name of the entity that is the Plaintiff?

12 A. Well, I'm reading it off my report. ADT, LLC,

13 and the ADT Security Corporation.

14 Q. Okay. And for the purpose of your analysis, is

15 there any distinction between ADT, LLC, and the ADT

16 Security Corporation?

17 A. No.

18 Q. So, if -- and for the purposes of our

19 deposition, when I'm referring to the Plaintiffs, I'll

20 collectively refer to them as ADT. Does that make

21 sense?

22 A. Yes, it does.

23 Q. Okay. If at any time it's important for your

24 analysis that there's some distinction between which ADT

25 entity we're talking about, please let me know.

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1 A. Okay.

2 Q. Do you understand that there are multiple

3 Defendants in the case?

4 A. Again, I only considered one entity, Vivint.

5 Q. Okay. And -- and do you know the precise

6 Vivint entity that you're referring to, when you say

7 Vivint?

8 A. I believe it is Vivint Smart Home,

9 Incorporated.

10 Q. Okay. Well, if we look again at your report,

11 it lists Vivint Smart Home, Incorporated, formerly known

12 as Mosaic Acquisition Corp., and Legacy Vivint Smart

13 Home, Inc., formerly known as Vivint Smart Home, Inc.

14 Did I read that right?

15 A. Yes, you did.

16 Q. Okay. And do you understand those are both --

17 both of those entities are Defendants in this case?

18 A. I only considered one Defendant in this case,

19 Vivint.

20 Q. Okay. And when you say Vivint, who do you

21 mean?

22 A. I assume it is Vivint Smart Home. I didn't

23 draw any distinction between the different entities

24 here.

25 Q. Would it change your analysis in this case if

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1 the Defendant in the case were Legacy Vivint Smart Home,

2 Inc., instead of Vivint Smart Home, Inc.?

3 A. As I said before, I only considered one entity,

4 Vivint. That's -- I made no distinction between the

5 other entities here.

6 Q. Okay. And when you say you only considered one

7 entity, Vivint, what precisely is that entity that you

8 considered?

9 A. Whatever you want to call it. It's the company

10 that made the alleged deceptive sales calls on ADT

11 customers.

12 Q. Okay. Well, we'll get into that as we go.

13 But, for the purposes of the deposition, I'll refer to

14 the Defendants collectively as Vivint. But, if it is

15 important to your analysis to draw some distinction

16 between the various Vivint entities, please let me know.

17 A. Okay.

18 Q. Okay. So, let's go ahead and -- let me go

19 ahead and share my screen. I'm going to share the copy

20 of the deposition -- excuse me, of your expert report.

21 Prior to the deposition this morning, I

22 e-mailed a copy of -- of the report to your counsel.

23 Did you receive an e-mail from your counsel with a copy

24 of your expert report?

25 A. Yes, I did.

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1 Q. Okay. And the report that you received in that

2 e-mail, was that a true and correct copy of your expert

3 report?

4 A. Yes, it was.

5 MR. BROWN: So, I will represent to you that

6 I'm sharing with you the same -- a copy of that same

7 report which I have marked for identification

8 purposes with a "1" in the file name.

9 So, this is, for Identification purposes,

10 Exhibit 1 to your deposition.

11 (Received and attached to the transcript as

12 Defendants' Exhibit No. 1.)

13 BY MR. BROWN:

14 Q. And I'm starting -- I have the first page. Do

15 you recognize this as the cover page of your expert

16 report?

17 A. Yes, I do.

18 Q. Let me go down and find the signature page,

19 just so we can make sure that we have the signature.

20 Okay. Let me see. I think it's about in the --

21 A. You have to go a little further above my

22 resume.

23 Q. Yeah, I'm trying to get to it faster. Okay.

24 I'm now on Page 50 of the PDF -- on Page 50 of

25 Exhibit 1, which is your expert report. And do you

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1 recognize the signature on this page as your signature?

2 A. Yes, I do.

3 Q. Do you recall signing this expert report?

4 A. About a year ago, yes.

5 Q. Did you review the expert report more recently

6 in preparation for your deposition?

7 A. Yes, I did.

8 Q. Do you stand by everything in your report?

9 A. Yes, I do.

10 Q. Are you aware of any errors? When you reviewed

11 the report, did you find any errors?

12 A. No.

13 Q. Is there anything you've relied on for your

14 opinions in this case other than the things that you've

15 cited in your expert report?

16 A. Well, over my 45-year career as a marketing

17 professor, I've read a lot of papers and books,

18 et cetera. So, that's all part of my accumulated

19 knowledge. So, if you want to be specific, I only

20 relied on those things that are on my reference list for

21 the report. But, in general, of course, I rely on

22 everything that's gone into my expertise over the years.

23 Q. Okay. Well, specifically related to this

24 case, let's go ahead and go to that appendix. I think

25 it's Appendix B that you're referring to. Is what the

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1 you're referring to as the list of things that you

2 relied on for your report?

3 A. As soon as you get to it, I'll let you know.

4 Q. Okay. So, I'm at Page 67 of Exhibit 1. It's

5 titled, Appendix B: Materials Considered. Is this the

6 list that you mentioned before of the things that you

7 relied on for your expert report?

8 A. Yes, it is.

9 Q. Okay. And is this list complete?

10 A. As far as I know, it is.

11 Q. Okay. Can you think of anything else that

12 you've relied on for your opinions in this report other

13 than those things that are listed on this Appendix B of

14 your expert report?

15 A. Not specifically for the report.

16 Q. Have you reviewed any customer files for any

17 customers that ADT alleges that were subject to

18 deceptive sales practice -- practices?

19 A. Could you --

20 MR. HOBBS: Object to form.

21 THE WITNESS: Could you repeat that question?

22 MR. BROWN: Yeah. I'll rephrase it. I

23 apologize.

24 BY MR. BROWN:

25 Q. So, in your report you referred to audio files.

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1 I think you referred to 1,300 audio files. Let's go

2 ahead and find that.

3 Okay. I'm not finding it right off, but we'll

4 get there? Do you recall reviewing audio files in

5 relation to your reaching your opinion in this case?

6 A. I reviewed a few of them, yes.

7 Q. Okay. How many audio files did you review?

8 A. I don't recall exactly. Maybe six or seven.

9 The ones that I included in the report.

10 Q. And when you say the ones included in your

11 report, which -- what are you referring to?

12 A. Well, in my report, I have a section called

13 Customer Complaints and that has some snippets of the

14 audio files that I reviewed.

15 Q. Okay. Let's go to that portion of your report.

16 Can you give me a page number?

17 A. Page 19 in my report. The paragraph starts

18 with Paragraph 48.

19 Q. Okay. So, I'm on Paragraph 48. And it says,

20 "One set of evidence of Vivint's actions I found very

21 useful were audio recordings of ADT customer complaint

22 calls."

23 Did I read that right?

24 A. Yes, you did.

25 Q. And then you go on to say, "I understand that

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1 there are approximately 1,300 of these recorded calls of

2 which my team and I reviewed several hundred drawn from

3 the full set."

4 Did I read that right?

5 A. Yes.

6 Q. Okay. And then, you just testified that you

7 reviewed just six or seven audio files. Is that right?

8 A. Yes. I did not review all of the ones that we

9 randomly selected from those 1,300.

10 Q. Well, let's -- let's start with, which -- well,

11 let's start with the 1,300. So, it says there's

12 approximately 1,300 audio -- is it 1,300 audio files?

13 A. Yes, 1,300 audio files.

14 Q. Do you know what format the audio files were

15 in?

16 A. WAV files.

17 Q. Okay. And so the files were actual audio

18 files, not transcripts of -- of audio. Is that right?

19 A. The WAV files are the actual audio, correct.

20 Q. Did you also review any call transcripts?

21 A. Yes, I did.

22 Q. Okay. I'll come back to that.

23 So, in terms of the 1,300 or so audio WAV

24 files, how did you obtain those files?

25 A. They were obtained from ADT.

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1 Q. Who -- who sent them to you?

2 A. Don't remember exactly who obtained them

3 through the Discovery portion of the litigation.

4 Q. Do you mean that those files were -- came from

5 Vivint?

6 A. No. As I just said, they came from ADT.

7 Q. Okay. And how did you receive them?

8 A. I don't recall.

9 Q. Were they e-mailed to you?

10 A. I don't recall.

11 Q. Okay. Did you personally receive them?

12 A. I did not personally receive them.

13 Q. So, who actually received the 1,300 or so audio

14 WAV files?

15 A. The team of consultants that I work with at the

16 company called GBX.

17 Q. Who is GBX?

18 A. It's the litigation consulting firm that I

19 worked with on this case.

20 Q. And have you worked with GBX before?

21 A. Yes, I have.

22 Q. How many times?

23 A. Maybe eight to ten times.

24 Q. Have you worked with GBX for cases that did not

25 involve Vivint as a Defendant?

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1 A. Yes.

2 Q. Okay. Have you worked with GBX on cases that

3 did not involve Shook, Hardy & Bacon as counsel?

4 A. Yes.

5 Q. Okay. Do you work with GBX on all of your

6 litigation cases?

7 A. Most of them. But, not all of them.

8 Q. How did you first become acquainted with GBX?

9 A. I worked with two of the principals of GBX on

10 a case maybe 10 -- 10 years ago. They were working for

11 another firm at the time and then they split off and

12 formed their own company called GBX.

13 Q. Okay. And what was that case where you first

14 worked with these principals of GBX?

15 A. You know, I remember the product involved. It

16 was football helmets. I remember one of the litigants

17 was a company called Schutt, S-C-H-U-T-T. I don't

18 remember the other litigant's name.

19 Q. What was the -- can you spell that name once

20 again of the party you remember?

21 A. S-C-H-U-T-T. Again, it had to do with football

22 helmets.

23 Q. And were you representing Schutt or were you

24 representing a different party?

25 A. I don't recall.

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1 Q. Do you recall who the attorneys were for --

2 that you working with in that case?

3 A. No, I don't.

4 Q. But, you recall that you were working with the

5 principals of GBX -- the principals that later formed

6 GBX?

7 A. That is correct.

8 Q. Who were those -- what were those principals?

9 A. One is Mark Pelofsky, P-E-L-O-F-S-K-Y.

10 Q. Can you spell that again for me? I'm sorry.

11 A. P --

12 Q. Last name.

13 A. P-E-L-O-F-S-K-Y. And the other is Brenda

14 Arnott, A-R-N-O-T-T, dash, Wesson, W-E-S-S-O-N.

15 Q. Okay. So, you worked with Mark Pelofsky and

16 Brenda Arnott-Wesson in this case related to football

17 helmets?

18 A. Yes. As I said, it was a number of years ago.

19 Q. Do you recall what your analysis -- did you

20 issue a report in that case?

21 A. Yes, I did.

22 Q. Do you recall what your opinions were in that

23 case?

24 A. No, I don't.

25 Q. Do you know what the outcome of that case was?

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1 A. No, I don't recall. I do recall the other

2 company, now, involved is a major football helmet

3 manufacturer called Riddell.

4 Q. But, do you recall whether you represented

5 Riddell or Schutt?

6 A. No, I don't.

7 Q. Do you remember what the case was about?

8 A. It had to do with some kind of -- some aspect

9 of liability of the -- of injuries from football

10 helmets. But, that's all I recall.

11 Q. Okay. Were you -- were you testifying -- were

12 you -- were your opinions related to damages in that

13 case?

14 A. I believe it had to do with a rebuttal to a

15 study that was done. But, again, I don't remember all

16 the details.

17 Q. Do you remember what kind of study it was that

18 you were rebutting?

19 A. No, I don't.

20 Q. Was it a marketing study?

21 A. I don't recall, Counselor.

22 Q. Okay. So, when did -- when did Mark Pelofsky

23 and Brenda Arnott-Wesson form GBX?

24 A. I don't remember the exact year.

25 Q. Okay. Can you give me a ballpark?

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1 A. Maybe six to eight years ago. Somewhere around

2 that.

3 Q. Did you work with Mark Pelofsky or Brenda

4 Arnott-Wesson on any other cases outside of their

5 involvement with -- with GBX?

6 A. I don't recall if they immediately founded GBX

7 after the football helmet case or there was another case

8 we worked on. I just don't recall.

9 Q. Okay. How many employees does GBX have?

10 A. I have no idea.

11 Q. Is it a large company?

12 A. Well, other companies I've worked with, like

13 Cornerstone Research, have more employees than GBX. I

14 know that.

15 Q. How do you know that?

16 A. Because I know Cornerstone is a huge company

17 and I know GBX is not a huge company.

18 Q. Okay. Other than saying GBX is not a huge

19 company, can you give me any indication of how many

20 employees GBX has?

21 A. As I said, they have a lot fewer than

22 Cornerstone or Charles River, those -- those big

23 companies, Analysis Group. They have a lot fewer than

24 them.

25 Q. Okay. Can give me an idea of how many they

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1 have?

2 A. No, I can't.

3 Q. So, over the period of eight to ten cases that

4 you worked on with GBX, how many different individuals

5 have you worked with at GBX?

6 A. I primarily worked with Mark Pelofsky. He has

7 other staff people that he brings into doing analyses.

8 But, I don't know many.

9 Q. Do you know how many people GBX had working on

10 this case?

11 A. No, I don't.

12 Q. Do you know how many people you've worked --

13 you've interacted with at GBX, on this case?

14 A. Maybe two, other than Mark.

15 Q. Who are they?

16 A. I don't remember their names.

17 Q. Are you aware -- so, let's go back to these

18 1,300 audio files. Someone at GBX -- you believe

19 someone at GBX received the 13- -- approximately 1,300

20 audio files. Do you know who at GBX received those

21 files?

22 A. No, I don't.

23 Q. Have you ever had the 13- -- approximately

24 1,300 audio files in your possession?

25 A. No, I have not.

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1 Q. So, how did you receive any of the audio -- you

2 said you reviewed six or seven audio files. How did you

3 receive those files?

4 A. I received them from GBX.

5 Q. And how did you receive them from GBX?

6 A. Oh, I don't remember. Maybe by e-mail. Or

7 they were just posted on a site, maybe. I don't know.

8 I don't remember.

9 Q. Is it -- do -- do you know for sure -- do you

10 still have copies of the audio files you received from

11 GBX?

12 A. I have access to them, yes. I don't have

13 copies on any of my own hard drives or Cloud-based

14 files.

15 Q. How do you have access to them?

16 A. I have access to them through a list of all of

17 the sources that are referenced in this report.

18 Q. What do you mean by a list?

19 A. We have a list or binder, electronic binder,

20 that has all of these references and citations in the

21 report. And, so, I can access them that way.

22 Q. Okay. And what form is the electronic binder

23 in?

24 A. I'm sorry, I did not -- I didn't hear the first

25 part.

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1 Q. I said, what format is the electronic binder

2 in?

3 A. I -- I don't know what format it is. It's

4 just, I can access it. I can click on a reference and

5 I can get access to whatever the file is.

6 Q. Okay. And do you -- do you know what program

7 that -- what software program you were using when you

8 click on those references?

9 A. No.

10 Q. Do you know where the actual files are stored?

11 A. No, I don't.

12 Q. Okay. When you received these six or seven

13 audio files, did you receive those separately from this

14 list of sources that you're talking about, the

15 electronic binder?

16 A. No, they were all part of that.

17 Q. Okay. So, how -- how did you -- how did you

18 determine to look at the six or seven, out of the

19 1,300 -- well, let me ask you this.

20 Through that electronic binder, do you have --

21 can you access all 13- -- approximately 1,300 audio WAV

22 files?

23 A. I actually don't recall.

24 Q. So, you don't know whether you have access to

25 all of the approximately 1,300 audio files that you

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1 referenced here in Paragraph 48 of your report?

2 A. No.

3 Q. Okay. How did you come to look at the six or

4 seven audio files that you -- that you listened to? Let

5 me rephrase.

6 How did you come to listen to the six or seven

7 audio files that you listened to out of the

8 approximately 1,300?

9 A. The GBX personnel went through the files and

10 selected a number that we thought would provide

11 supporting evidence to my opinions in the case.

12 Q. Did GBX ever indicate any of the approximately

13 1,300 files that did not support your hypotheses that

14 you were considering in the case?

15 A. I know that there were some, based on

16 Mr. Buss's report. But, I did not hear any of them.

17 Q. If you listened to those files, might it change

18 your opinion in the case? Any of your opinions in this

19 case?

20 A. No, it would not.

21 Q. Why not?

22 A. Well, first of all, you would have to listen

23 to the entire file to see what the text was of the

24 full -- full conversation. But, secondly, I felt that,

25 when I wrote the report, that I had enough evidence in

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1 the report from the audio files I looked at, the

2 depositions of some of the customers, from the social

3 media posts, and also given a historical record of

4 deceptive practices, to be convinced that some kind of

5 remedial information campaign needed to be implemented.

6 Q. So, who -- do you know if anyone reviewed all

7 1,300 -- approximately 1,300 audio files?

8 A. I was informed that GBX personnel reviewed all

9 1,300 audio files.

10 Q. Who at GBX reviewed the audio files?

11 A. I don't know.

12 Q. Do you know how many people were involved in

13 that effort?

14 A. No.

15 Q. Do you know if it were 10 people?

16 A. I have no idea how many people were involved.

17 Q. Could it have been 20 people?

18 A. I don't know.

19 Q. Do you know how long it took GBX to review the

20 approximately 1,300 audio files?

21 A. No, I don't.

22 Q. Did you do anything to verify that GBX actually

23 reviewed all 13- -- approximately 1,300 audio files?

24 A. No.

25 Q. Who at GBX selected the six or seven audio

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1 files that you reviewed?

2 A. I don't know.

3 Q. Do you know that GBX made that determination?

4 A. To the best of my information, yes.

5 Q. Is it -- is it possible that someone at ADT

6 selected those six or seven audio files for you to

7 review?

8 A. To the best of my knowledge, that's not

9 correct.

10 Q. Okay. And what is that based on?

11 A. My knowledge that it was GBX that reviewed the

12 audio files, not ADT.

13 Q. Okay. Did someone at ADT review the audio

14 files? The 1,300 or approximately 1,300 audio files?

15 MR. HOBBS: Object to form.

16 THE WITNESS: It's possible that they did. I

17 mean, they were their files. They have internal

18 customer service, you know, processes. And probably

19 just in the normal course of business outside of

20 this litigation, they would review the files. So,

21 I wouldn't be surprised if someone, or a group of

22 people, reviewed the files within ADT.

23 BY MR. BROWN:

24 Q. Do you know if anyone at Shook, Hardy & Bacon

25 reviewed the approximately 1,300 audio files?

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1 A. No, I do not.

2 Q. Okay. So, who -- I may have asked this, again,

3 but bear with me. Excuse me. Let me get a drink of

4 water. I apologize.

5 Who at GBX directed you to these six or seven

6 audio files that you listened to?

7 A. I don't recall. There was a group of us -- of

8 them, I'm sorry -- that supported me in this report.

9 So, I don't know if it was an individual or a group of

10 people that found the relevant audio files.

11 Q. So, the six or seven audio files you reviewed,

12 you believe those were the relevant audio files?

13 MR. HOBBS: Object to form.

14 THE WITNESS: Yes. They were selected from the

15 1,300 that were supplied to me.

16 BY MR. BROWN:

17 Q. Does that mean the rest of the approximately

18 1,300 audio files were not relevant?

19 A. No, it doesn't.

20 MR. HOBBS: Object to form.

21 THE WITNESS: I'm sorry. There may have been

22 many more that had similar information. There were,

23 you know, perhaps some that were contrary, as I

24 indicated earlier. So, I really don't know what the

25 content is of the other ones.

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1 BY MR. BROWN:

2 Q. Did anyone tell you what criteria they used --

3 well, first, you said that you were working with a group

4 of people at GBX. Who -- who is in that group of people

5 you were working with at GBX on this case?

6 A. Well, as I told you earlier, my main point of

7 contact was Mark Pelofsky. I don't know who within his

8 company, on his team specifically, reviewed the audio

9 files.

10 Q. Okay. And you don't know if it was one person

11 or 20 people that reviewed the audio files?

12 A. No, I don't.

13 Q. Do you remember any of the -- any other names

14 of the people on that group at GBX that may have been

15 involved in reviewing the audio files?

16 A. No, not sitting here today.

17 Q. Do you know what criteria GBX used to determine

18 which audio files that you should review related to this

19 case?

20 A. As I indicated earlier, we were looking for

21 evidence of Vivint practices, or malpractices, when

22 they made sales calls on ADT customers. So, that was

23 certainly one of the criteria.

24 Q. So, they -- you believe -- directing you to

25 these six or seven audio files, GBX selected audio files

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1 that showed some of the deceptive sales practices that

2 are alleged by ADT in this case?

3 A. Yes. But, as I said before, they may not be

4 the only ones. They're a representative.

5 Q. What did you do to determine that these six or

6 seven audio files were representative of the approximate

7 1,300 audio files that you had access to? Or, excuse

8 me, that GBX had access to?

9 A. I didn't do anything else. I just accepted

10 these six or seven.

11 Q. Did GBX tell you anything about the six or

12 seven audio files that they suggested you review?

13 A. I'm sorry, I don't know what -- did they tell

14 me -- what specifically do you have in mind?

15 Q. Did -- when GBX -- well, first of all, how

16 did -- how did GBX tell you which audio files to review?

17 A. Well, as I've answered previously, they found a

18 small sample of -- of customer interactions with Vivint

19 that would help to support my claims in this report that

20 some kind of remedial information campaign was needed.

21 Q. Okay. And did they attempt to identify any

22 audio files that did not support the opinions that you

23 were rendering in this case?

24 A. Not to my knowledge.

25 Q. Did -- when GBX directed you to these six or

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1 seven audio files, how did they direct you? Did they --

2 did they send you copies of the files?

3 A. Well, as I said, we have -- we have the files.

4 And not only do we have the original WAV files, but we

5 have transcripts of the files.

6 Q. Okay. How -- where did you receive transcripts

7 of the files?

8 A. As I said, they're part of this information

9 binder that we have that represents all of the -- all of

10 the footnotes in my report.

11 Q. Do you have transcripts of -- to your

12 knowledge, are there transcripts of all of the

13 approximately 1,300 audio files?

14 A. I don't know if they exist. My understanding

15 is that they were done by an outside company.

16 Q. Okay. Who --

17 COURT REPORTER: "I don't know if" -- could you

18 please repeat the answer?

19 THE WITNESS: My understanding is that the

20 transcripts for the ones that I used for my report

21 were created by an outside company. I don't know if

22 they did -- or created transcripts for all of the

23 other remaining from the 1,300.

24 BY MR. BROWN:

25 Q. What was the name of the company that created

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1 the transcripts?

2 A. I don't know.

3 Q. Did you direct the company that created the

4 transcripts?

5 A. No, I did not.

6 Q. Did you do anything to verify the accuracy of

7 the transcripts?

8 A. No.

9 Q. And of the approximately 1,300 audio files, how

10 many transcripts of those files are you aware of?

11 A. I only looked at the ones that I used in my

12 report. I don't know how many others might exist.

13 Q. So, you're only aware of transcripts of the six

14 or seven audio files that you reviewed?

15 A. Correct.

16 Q. Okay.

17 MR. BROWN: I'm just going to note, for the

18 record, that we have not received -- I don't believe

19 we've received copies of any transcripts. So, I

20 will go ahead and request that at this time.

21 MR. HOBBS: Okay. Josh, I guess I'm confused

22 by your -- by your request. But, we can talk about

23 that later.

24 MR. BROWN: Okay. We can talk about it after

25 the depo.

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1 BY MR. BROWN:

2 Q. Okay. So, Mr. -- excuse me, Dr. Winer, when

3 you say you reviewed six or seven audio files, did you

4 actually listen to the audio files or did you read

5 transcripts of the audio files?

6 A. Both.

7 Q. Okay. Why -- why both?

8 A. I want to get a sense of what the -- what the

9 customer was saying. So, that's why I listened to the

10 audio file. And I don't think I listened necessarily to

11 the whole -- whole audio file. The transcript allowed

12 me to be more efficient in analyzing what was said

13 during the conversation.

14 Q. So, do you not listen -- of the six or seven

15 audio files that you listened to, you did not listen to

16 the complete copies of the six or seven audio files?

17 A. I don't recall today whether I did or I didn't.

18 This was a while ago. It was over a year ago when I

19 wrote this report. I can't recall all my exact actions

20 that I took preparing the report.

21 Q. Well, of the six or seven audio files, can you

22 tell me how long they were, the six or seven audio files

23 you did review?

24 A. Well, some of them -- of the 1,300, some of

25 them were multiple files from the same call. So, there

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1 were fewer unique calls, but I don't remember how long

2 each one was.

3 Q. So, let me make -- let me see if I understand

4 that. You're saying, of the 13- -- of the approximately

5 1,300 audio files, some were recordings of the same

6 call?

7 A. (Unintelligible.)

8 Q. Are you -- are you -- go ahead.

9 A. Do you want me to answer?

10 Q. Yeah. Sorry.

11 A. From what I understand, a particular call might

12 have been broken up into multiple WAV files. So, there

13 were fewer unique -- unique calls.

14 Q. To your knowledge, of the 1,300 audio files --

15 approximately 1,300 audio files, were -- were any of

16 them duplicative?

17 A. I don't know. I don't know about being

18 duplicative, no.

19 Q. I mean -- I mean, the exact same recording.

20 Recording the exact same information.

21 A. I know what duplicative means. I don't know if

22 any were duplicative.

23 Q. Did you ask that question of GBX?

24 A. No, I did not.

25 Q. Of the approximately 1,300 audio files, do you

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1 know how many separate calls were represented in those

2 approximately 1,300 files?

3 A. I believe it represented 250 different

4 customers.

5 Q. Okay. And that wasn't my question, but let's

6 go there first. So, you believe that 250 unique

7 customers are included in the 1,300 -- approximately

8 1,300 files?

9 A. Yes.

10 Q. Did you do anything to verify that?

11 A. No.

12 Q. Who -- who told you that?

13 A. I don't remember.

14 Q. Was it someone at ADT?

15 A. As I just said, I don't remember.

16 Q. Is it someone at -- with Shook, Hardy & Bacon?

17 A. I don't remember.

18 Q. Okay. So, going back to my original question,

19 of the approximately 1,300 audio files, you testified

20 earlier that you believe that some of those were -- were

21 audio files that had been broken up. So, that they --

22 each audio file represented a portion of a phone call.

23 Is that right?

24 A. Yes. As I said, the 1,300 calls were based on

25 250 different customer complaints. So, obviously there

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1 were multiple files from, you know, some of the

2 customers.

3 Q. Okay. That's not my question I'm trying to ask

4 you. I'm trying -- you testified earlier that some of

5 the calls were broken up into multiple files. Did I

6 understand you correctly?

7 A. Yes. And I think that's what I just said.

8 Q. And you -- what you were just talking about was

9 unique customers. I'm trying to get a feel for unique

10 calls. Are you aware that some customers called

11 multiple times? Is that true? Or maybe it's not true.

12 A. I don't know if it's a customer that called

13 multiple times or whether the call was so long that they

14 had to break up the WAV file. I don't know. I don't

15 know that.

16 Q. Who would know that?

17 A. Probably the people at GBX who listened to all

18 the calls.

19 Q. Did they tell you that? They didn't tell you

20 whether there were multiple calls from these customers?

21 A. I was told that --

22 Q. Go ahead.

23 A. I'm sorry.

24 THE WITNESS: Eric, did you say something?

25 MR. HOBBS: No, I did not.

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1 THE WITNESS: Okay.

2 MR. HOBBS: Go ahead.

3 THE WITNESS: I heard a noise.

4 Could you repeat the question, please?

5 BY MR. BROWN:

6 Q. Did someone at GBX tell you whether or not the

7 approximately 1,300 audio files represented individual

8 calls from 250 customers or whether there were multiple

9 calls from the 250 customers?

10 A. No. I don't know the -- I didn't -- no, I -- I

11 don't know the distinction.

12 Q. Did -- did anyone at GBX -- from GBX tell you

13 whether any of the 250 customers that were represented

14 in the approximately 1,300 files, whether any of those

15 customers called multiple times?

16 A. I don't know the answer to that.

17 Q. The -- of the six or seven audio files that you

18 reviewed, are any of those multiple calls from the same

19 customer?

20 A. I don't recall.

21 Q. Of the six or seven audio files that you

22 reviewed, are any of those multiple files relating to

23 the same call? In other words, different portions of

24 the same call?

25 A. I don't recall.

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1 MR. HOBBS: Object to form.

2 BY MR. BROWN:

3 Q. Of the -- you understood -- someone told you --

4 you don't remember who, but someone told you there were

5 250 unique customers represented in the approximately

6 1,300 audio files. Do you know who -- who they were

7 customers of?

8 A. They were ADT customers.

9 Q. Okay. And who told you they were ADT

10 customers?

11 A. I don't recall.

12 Q. Was it someone at Shook, Hardy & Bacon?

13 A. I don't recall.

14 Q. Did you do anything to verify that the 250

15 customers were all customers of ADT?

16 A. As far as I know, they were all customer

17 complaints from ADT customers that called in to ADT

18 customer service. We did not receive any information

19 from Vivint, so they had to be ADT customers.

20 Q. Okay. Well, you don't -- you didn't receive

21 any information from anyone. GBX received the

22 information, correct?

23 MR. HOBBS: Object to form.

24 THE WITNESS: Well, they -- they received the

25 information and passed it along to me.

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1 BY MR. BROWN:

2 Q. Okay. They passed along six or seven audio

3 files?

4 A. No, that's --

5 MR. HOBBS: Mischaracterizes testimony.

6 COURT REPORTER: Okay. Go ahead.

7 THE WITNESS: No. They said that they were ADT

8 customer calls.

9 BY MR. BROWN:

10 Q. Who said they were ADT customer calls?

11 A. The GBX people.

12 Q. You previously said you didn't recall who told

13 you they were ADT customers?

14 A. I know they're ADT customers because we used

15 that 250 later in my report. So, somebody told me they

16 were ADT customers.

17 Q. Who told you they were ADT customers?

18 A. I don't know. I can't recall.

19 Q. Did you do anything to verify that they were

20 ADT customers?

21 A. No.

22 Q. And you believe the 250 -- you believe that the

23 approximately 1,300 audio files were all calls that were

24 made to ADT customer support. Is that correct?

25 A. I know that they were ADT customers. I can't

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1 say that they were all made to ADT customer support.

2 Q. Okay. Who else were they made to besides ADT

3 customer support?

4 A. I don't know.

5 Q. Who would know?

6 A. Probably ADT personnel.

7 Q. Did you do anything to obtain that information?

8 A. No.

9 Q. When GBX somehow directed you -- well, let

10 me -- so, the -- let me start over, sorry.

11 When GBX somehow directed you to these six or

12 seven audio files, did they tell you anything about the

13 files?

14 A. When I looked at the files, I could see that

15 they represented the -- deceptive behavior on the part

16 of Vivint. And I used them in my report, as I've said.

17 Q. Okay.

18 A. I don't think they told me anything about them

19 other than that these would be supportive calls.

20 Q. Okay. At any time did GBX tell you anything

21 else about the six or seven audio files you reviewed?

22 A. No.

23 Q. Did GBX tell you anything about the remainder

24 of the approximately 1,300 audio files that you did not

25 review?

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1 A. No.

2 Q. Did anyone in the case tell you anything about

3 the remainder of the 1,300 audio files that you did not

4 review?

5 A. No.

6 MR. HOBBS: Object to form.

7 THE WITNESS: No.

8 BY MR. BROWN:

9 Q. So, GBX did not tell you anything about the

10 approximately 1,300 audio files that you did not review

11 in this case?

12 A. Not that I recall.

13 Q. And you don't recall anyone else telling you

14 anything about those approximately 1,300 audio files

15 that you did not review in this case?

16 A. No.

17 Q. Did you direct GBX regarding what files -- what

18 audio files they should send you to review?

19 A. No. We took -- initially, GBX took a random

20 sample of the 1,300 files and then found these files

21 that, as I said, are supportive of our position in the

22 case.

23 Q. Tell me about the random sample that GBX took

24 of the approximately 1,300 audio files. How many audio

25 files were in the random sample?

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1 A. I don't know.

2 Q. Who told you about the random sample?

3 A. A GBX personnel told me that they took a random

4 sample of the 1,300 files.

5 Q. What did they tell you about that random

6 sample?

7 A. Nothing.

8 Q. What -- how many -- other than the six or seven

9 audio files that you reviewed, how many other files were

10 in the random sample?

11 A. I don't know the size of the sample.

12 Q. Did you do anything to verify that the random

13 sample was an appropriate random sample?

14 A. No, I did not. I delegated this analysis to

15 them.

16 Q. And do you know how they determined that they

17 were doing an appropriate random sample?

18 A. Well, they have statisticians on their staff

19 who know how to do these kinds of things, so I just

20 assumed they did it in an appropriate manner.

21 Q. What statisticians do they have on their staff?

22 A. I don't -- I don't know their names.

23 Q. Do you know that the statisticians were

24 involved in creating the random sample?

25 A. No, I do not.

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1 Q. Do you know how many statisticians GBX has on

2 its staff?

3 A. No, I do not.

4 Q. Did you -- did you do anything to verify that

5 the random sample was selected appropriately in this

6 case?

7 A. No, I did not.

8 Q. Do you know anything about the method that was

9 used to select the random sample of the approximately

10 1,300 audio files?

11 A. No.

12 Q. So, the -- you talked earlier about, you

13 reviewed transcripts in addition to the audio files.

14 How many transcripts did you review?

15 A. Just the ones that I used in my report.

16 Q. Which transcripts did you use in your report?

17 A. Well, you can see them. They're in this

18 section of the report. If you look through this

19 section, Section A, there are a number of specific

20 examples. Loretta Paragraph 50; Catherine 

21 Paragraph 51; another one, Paragraph 52; et cetera.

22 Q. Okay. And let's go through these. So, in

23 Paragraph 50, you're referencing Exhibit 1 to the

24 deposition which is your expert report. And we're at

25 Section A, beginning on Page 19 of your expert report,

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1 correct?

2 A. Yes.

3 Q. And now you're directing me to Paragraph 50,

4 which talks about a woman named Loretta correct?

5 MR. HOBBS: Object to form.

6 And Josh, I think he was starting on

7 Paragraph 48. He referred to Section A.

8 BY MR. BROWN:

9 Q. Okay. I think the question is fine. Go ahead.

10 A. Please restate the question.

11 Q. Okay. I'm now directing your attention to

12 Paragraph 50, which you mentioned before mentions a

13 Loretta correct?

14 A. That's correct.

15 Q. Okay. And in Footnote 54, it says, "The

16 customers' names have not been verified as to spelling."

17 Did I read that right?

18 A. Yes, you did.

19 Q. So, you don't know if you have spelled

20 Loretta name correctly?

21 A. Yes, that's correct.

22 Q. Okay. And do -- do you know if you are the one

23 who chose that spelling or did that come from a

24 transcript?

25 A. I did not choose the spelling.

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1 Q. Who chose the spelling?

2 A. GBX.

3 Q. All right. Is GBX who actually typed out this

4 paragraph of your report?

5 A. Are you going to let me answer?

6 Q. I'm sorry. Go ahead.

7 A. I wrote the report myself. They gave me the

8 information from the particular customer in this case

9 and I wrote the paragraph.

10 Q. So, you actually typed out Loretta as it

11 appears here?

12 A. Yes.

13 Q. So, did you choose that spelling or did someone

14 else choose that spelling?

15 A. The spelling was provided to me.

16 Q. By whom?

17 A. The -- whoever did the analysis at GBX.

18 Q. Okay. Do you know who at GBX?

19 A. I'm sorry. Repeat that, please.

20 Q. Do you know who at GBX provided the spelling?

21 A. No, I do not.

22 Q. So, here, when you're talking about

23 Loretta later on in the paragraph you have

24 references to a WAV file?

25 A. Correct. Yes.

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1 Q. Go ahead.

2 A. (No response.)

3 Q. Hold on. I'll finish my question.

4 A. Yeah.

5 Q. So, this WAV file, ADT00000191.wav, is that a

6 audio file or a transcript?

7 A. That's an audio file.

8 Q. Okay. So, it's an audio file of a -- of what?

9 A. Of this call from the customer.

10 Q. Okay. And did you listen to that audio file?

11 A. I listened to at least some of it. Enough to

12 be able to write the paragraph.

13 Q. How much of the audio file did you not listen

14 to?

15 A. As I said earlier, it was over -- over a year

16 ago. I don't remember exactly how much I listened to.

17 Q. Okay. Could you say you listened to a quarter

18 of the audio file?

19 A. Of the small number that I used in the report,

20 I believe I listened to the whole audio files from the

21 customers.

22 Q. Okay. So, now you're changing your testimony

23 and you're saying that you listened to this entire audio

24 file, ADT00000191.wav?

25 A. You asked me if I --

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1 MR. HOBBS: Object to the form.

2 THE WITNESS: You asked me if I -- how much I

3 listened to, a quarter or whatever. I said I

4 listened to at least most of it. As I said, I don't

5 remember exactly what I did more than 12 months ago.

6 BY MR. BROWN:

7 Q. Okay. Do you -- do you know whether you

8 listened to this entire audio file that you referenced

9 here at Paragraph 50, Footnote 55 and 56, of your

10 report?

11 A. As I said, I don't remember exactly how much I

12 listened to of the audio file.

13 Q. Okay. Do you know -- I don't see a transcript

14 that related to Loretta Am I missing something?

15 A. No, you're not missing anything.

16 Q. Okay. Did you review a transcript related to

17 any audio files -- any audio calls from Mr. -- from

18 Mrs. 

19 A. I don't remember. I might have taken it just

20 from the WAV file.

21 Q. Okay. Are the transcripts that you referred to

22 listed in Appendix B to your report?

23 A. I don't know. I'd have to look at the

24 appendix.

25 Q. Well, let's go ahead and do that. We'll keep

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1 our place here at Paragraph 50 -- we'll remember where

2 we are -- and we'll go down to the Appendix B.

3 So, once again for the record, we are in

4 Exhibit 1 for the deposition, which is your expert

5 report, and we're going now to Appendix B of that

6 document. Okay. So, I'm now at Page 67 of Exhibit 1,

7 your expert report.

8 A. Um-hum.

9 Q. Is this the Appendix B that you're referring

10 to?

11 A. Yes.

12 Q. Okay. And do you see any transcripts of audio

13 files that are listed anywhere on Appendix B?

14 A. Could you go slow? More slowly?

15 Q. Sure. I'll start at the top. Let me know --

16 you're welcome to refer -- I believe you have a paper

17 copy with you. You're welcome to refer to that if it's

18 easier.

19 A. Why don't you do it?

20 Q. Okay. So, this section, the first section

21 says, Articles.

22 A. Um-hum.

23 Q. Is it -- are any transcripts listed there?

24 A. (No response.)

25 Q. Are any transcripts listed in the section

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1 titled, Articles?

2 A. No.

3 Q. Okay. The next section is called, Produced

4 Documents. Are there any transcripts listed there?

5 A. I don't recall what those ADT files are, the

6 four at the top.

7 Q. So, it's possible that these are transcripts

8 that you reviewed?

9 A. I -- I don't know.

10 Q. Okay. Well, there are only six or -- you

11 mentioned six or seven audio files and there's only four

12 files here. So, were there transcripts of all six or

13 seven audio files that you reviewed?

14 A. I don't recall.

15 Q. Were there transcripts of all six or seven

16 audio files that you received?

17 A. I don't recall.

18 Q. How did you receive the transcripts?

19 A. I don't recall.

20 Q. Do you -- do you still have access to these

21 transcripts?

22 A. I may.

23 Q. Okay. How -- how would you figure that out?

24 A. I'd have to go back to the -- to the binder and

25 other information that I have.

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1 Q. Okay. I'm going to ask that you do that on a

2 break and let me know if you have access to those.

3 Because, if you do, I'd like copies of them.

4 The transcripts -- you -- you don't recall

5 who -- let me ask you. Do you have copies of the

6 transcripts saved locally anywhere? On a computer hard

7 drive or a flash drive or something like that?

8 A. I don't know. I didn't --

9 Q. I'm sorry. Go ahead.

10 A. I can't recall.

11 Q. Do you have copies of the transcripts in an

12 e-mail?

13 A. I can't recall right now.

14 Q. All right. Here, there's a bullet point under,

15 Produced Documents, that says, "ADT audio files or

16 customer calls, see index." What is that referring to?

17 A. There's another file there, another appendix or

18 exhibit, that has all -- all the files listed.

19 Q. Okay. We'll go there in a moment. I'm sorry.

20 Did I miss something?

21 A. No. Keep going.

22 Q. Okay. We'll go there in a minute. But, before

23 we do, other than these four ADT Bates numbered files,

24 do you see any other places where transcripts of audio

25 files are listed in the Produced Documents section of

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1 your Appendix B?

2 A. If you could go down and see the whole

3 appendix, please?

4 Q. I will. But, right now, I'm just asking you

5 about this Produced Documents section.

6 A. As I said, I don't recall what those ADT files

7 are referring to.

8 Q. Okay. Before we do this, there's also three --

9 there's also an entry here, "Ring Video From Complaint."

10 What is that referencing?

11 A. Well, in my report, there is a video that one

12 of the customers took of the interaction that he had

13 with a Vivint salesperson. And I think it came

14 through -- let me take a look for it. Paragraph 61,

15 "Video produced by ADT in this matter from a customer's

16 Ring Video Doorbell."

17 Q. So, that -- that video here is discussed in

18 Paragraph 61 of your report?

19 A. Yes, it is.

20 Q. Okay. And here in Appendix B, I see three

21 separate videos. What are the other two videos

22 referring to?

23 A. Well, it must be the case that the whole

24 incident took three videos or three components -- three

25 parts.

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1 Q. So, you believe these are three separate videos

2 that represent different portions of the same

3 interaction?

4 A. Yes, the one in Paragraph 61 that I just

5 referred to.

6 Q. And how did you obtain these videos?

7 A. From the same source where we got the WAV

8 files. From the customer complaints.

9 Q. I'm sorry. I mean, who sent you these videos?

10 A. We got them from ADT.

11 Q. Okay. When you say, "We got them," who

12 actually received them?

13 A. GBX analyzed them. But, they're part of all

14 the information that I received.

15 Q. Okay. Did you ever receive copies of these

16 videos?

17 A. Yes.

18 Q. Okay. Who sent them to you?

19 A. They're part of the information that we

20 received from ADT.

21 Q. Okay. I'm -- when you say, "we," who are you

22 referring to?

23 A. Myself and my team at GBX.

24 Q. Okay. I'm asking you, you personally received

25 copies of these video files? Yes or no?

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1 A. Yes.

2 Q. Who did you receive them from?

3 A. I think they were initially sent to GBX and

4 then I received them from GBX.

5 Q. How did you receive them from GBX?

6 A. I don't recall.

7 Q. Who at GBX sent them to you?

8 A. I don't recall.

9 Q. When GBX sent them to you, did they say

10 anything about the content?

11 A. They just said that it was a video of a

12 customer interaction with a Vivint salesperson. The

13 others are all audio, this one is a video of the

14 interaction.

15 Q. Okay. Do you know if GBX received any other

16 videos of any other interactions?

17 A. No, I don't.

18 Q. Did GBX tell you whether or not -- tell you

19 anything about any other videos they received?

20 MR. HOBBS: Object to form.

21 THE WITNESS: I don't recall.

22 BY MR. BROWN:

23 Q. Did you watch all three of these videos that

24 are listed here in your report on Page 68, Appendix B?

25 A. I did at one time.

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1 Q. Did you watch the entirety of each of the three

2 videos?

3 A. I don't recall what percent of the videos I

4 watched.

5 Q. Did you receive a transcript of the videos?

6 A. I don't recall.

7 Q. Okay. Let's keep going through this

8 Appendix B. The next section of Appendix B on Page 68

9 of Exhibit 1 is titled, Books. Do you see any

10 transcripts listed there under the section, Books?

11 A. No.

12 Q. Okay. Scrolling down, beginning at the bottom

13 of Page 68, continuing on to Page 69 and the top of

14 Page 70, there's a section of this Appendix B called,

15 Court Documents. I'll scroll through it slowly. Let me

16 know if you see any transcripts listed there.

17 A. No.

18 Q. I see a number of depositions listed. Are

19 those deposition transcripts that you reviewed?

20 A. Yes.

21 Q. Okay. And did you -- did you receive copies of

22 these transcripts?

23 A. Yes.

24 Q. Okay. Do you have copies of them stored

25 locally anywhere on your computer?

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1 A. Yes, I do.

2 Q. When you reviewed the transcripts, how did you

3 review them? When you reviewed the deposition

4 transcripts.

5 A. I'm sorry, what do you mean by that? Other

6 than reading them?

7 Q. Well, you may recall that I took your

8 deposition in another case where Vivint was a Defendant.

9 And in that case, you testified that, when you reviewed

10 certain deposition transcripts, you reviewed them

11 through screen -- through a screen share, like we're

12 doing now.

13 So, I'm wondering, in this case, did you review

14 the depositions that are listed here, any of these

15 depositions, via screen share?

16 A. No, I looked at the -- the transcript.

17 Q. How did you look at them?

18 A. I don't understand your question. I had them.

19 They were sent to me and I looked through them for

20 relevant points.

21 Q. Did you receive them on paper? Did you receive

22 them in electronic form?

23 A. They were not on paper. They were in

24 electronic form.

25 Q. Okay. And how did you receive the electronic

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1 form of these deposition transcripts?

2 A. Well, again, we have a -- I'll call it a

3 binder. We have a repository for all of the sources

4 that are used in my report.

5 Q. Okay. Did you access each one of these

6 deposition transcripts that are listed on your

7 Appendix B through that electronic binder?

8 A. Yes.

9 Q. Okay. And when you accessed it, did that

10 download a copy of that entire transcript to your

11 computer?

12 A. No, I did not download a copy to my computer.

13 Q. So, you reviewed them on the electronic binder?

14 A. Correct.

15 Q. Did you review the entire transcript of each of

16 these depositions?

17 A. Well, I skimmed through them, yes. And I was

18 looking for, you know, again, relevant points.

19 Q. Okay. I'll ask you again. Did you read the

20 entire transcripts of each of these depositions?

21 A. Yes.

22 Q. You read every word in each of these

23 transcripts?

24 A. I can't say I read every word. As I just told

25 you, I skimmed them. As you know, there's a lot of

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1 irrelevant material in a transcript of a deposition.

2 So, I focused in those areas that are relevant or were

3 relevant to my opinions.

4 Q. Did anyone suggest to you any portions of any

5 deposition transcripts that were relevant to this case?

6 A. No.

7 Q. Did anyone at GBX tell you which portions -- or

8 direct to you, in any manner, to any particular portions

9 of any deposition transcripts?

10 A. No, I did it myself.

11 Q. What do you mean by, you did it yourself?

12 A. I just told you two minutes ago that I looked

13 through them myself.

14 Q. Are you aware -- do you know if there were

15 other deposition transcripts that are not listed here

16 that you reviewed in relation to this case?

17 A. They're all listed here.

18 Q. Are you aware -- were there depositions taken

19 in this case that you did not review?

20 MR. HOBBS: Object to form.

21 And, Josh, if you could just, I guess, specify

22 the time period you're referencing, I think that

23 would be --

24 MR. BROWN: I think --

25 THE WITNESS: I don't recall.

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1 MR. BROWN: Let me just ask the videographer.

2 Videographer, are we close to where we're going to

3 need to take a break?

4 VIDEOGRAPHER: Yes. Yes, sir, we are.

5 MR. BROWN: How many minutes do we have?

6 THE WITNESS: Right now, we've been on since

7 11:27 and it's now 12:51.

8 MR. BROWN: Okay. Let me ask one more

9 question, and then we can take a break, just to

10 clarify this.

11 BY MR. BROWN:

12 Q. Dr. Winer, are you aware of any depositions

13 that were taken in this case that you did not review?

14 A. I don't recall.

15 MR. BROWN: Okay. Let's take a break there.

16 VIDEOGRAPHER: All right. Please stand by.

17 This is the end of Media Number 1 in the testimony

18 of Dr. Russell Winer. We are now going off the

19 video record and the time is 12:52 p.m., Eastern.

20 Please wait until the recorder is off.

21 THE WITNESS: Counselor, how long do you want

22 to take a break?

23 MR. BROWN: Why don't we do 10 minutes, if that

24 works for everyone. Let's try to come back about

25 three minutes after the hour.

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1 MR. HOBBS: Let's say 15 minutes, if that

2 works.

3 MR. BROWN: Fifteen minutes total from here?

4 MR. HOBBS: Maybe 10 minutes after the hour.

5 MR. BROWN: Let's say 10 minutes after the

6 hour. 1:10 p.m., Eastern.

7 (Whereupon, a recess was held at 12:52 p.m., and the

8 deposition resumed at 1:13 p.m.)

9 VIDEOGRAPHER: And this is the beginning of

10 Media Number 2 in the testimony of Dr. Russell

11 Winer. We are now back on the record -- the video

12 record, and the time is 1:13 p.m., Eastern.

13 BY MR. BROWN:

14 Q. Thank you. Dr. Winer, I'm going to once again

15 share my screen. Once again, I'm going to share

16 exhibit -- what's been identified as Exhibit 1 to

17 today's deposition, which is your expert report.

18 Correct?

19 A. Yes.

20 Q. And we're now on Page 70 of your expert report.

21 We're going through the Appendix B of your expert

22 report, correct?

23 A. Yes.

24 Q. Okay. And we've gone through the previous

25 sections, now we're up to Section 5, which is titled,

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1 Additional Documents Referenced or Cited in the Body of

2 the Expert Report.

3 Do you see in this section any mention of

4 transcripts of audio files?

5 A. No.

6 Q. Okay. The next section beginning on Page 70 of

7 your expert report and continuing to Page 72, this is

8 the last section of your report. Correct?

9 A. Yes.

10 Q. And it's titled, Websites?

11 A. Yes.

12 Q. Are there any transcripts of audio files that

13 are mentioned in this portion of your expert report?

14 A. No.

15 Q. Are you aware of anywhere else in your expert

16 report where you mentioned transcripts of audio files?

17 A. No.

18 Q. You testified earlier that GBX conducted a

19 random sample of the 1,300 -- approximately 1,300 audio

20 files. Is that random sample mentioned anywhere in your

21 expert report?

22 A. Well, it says, in Paragraph 48, "I understand

23 that there are approximately 1,300 of these recorded

24 calls of which my team and I reviewed several hundred

25 drawn from the full set."

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1 Q. Okay. And were these --

2 A. So, in fact, I was reminded by Mr. Pelofsky

3 that you've been sent a spreadsheet that indicates

4 exactly how many were drawn from the 1,300 and which

5 ones those were.

6 Q. When were you reminded by Mr. Pelofsky?

7 A. During the break.

8 Q. Did you call Mr. Pelofsky during the break,

9 or --

10 A. I spoke with him.

11 Q. Did he call you or did you call him?

12 A. I called him.

13 Q. Okay. And why did you call him?

14 A. Because I wanted to substantiate more my memory

15 of what happened.

16 As I told you before, we've had a lot of --

17 there's been a lot of time that's elapsed from when this

18 work was done to this deposition today. And he reminded

19 me that you have been sent a spreadsheet that has

20 exactly the information that you need in terms of how

21 big the random sample was and which -- exactly which WAV

22 files were drawn.

23 Q. When you say, you, who are you referring to?

24 A. You.

25 Q. Me, personally? Joshua Brown?

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1 A. Yes.

2 Q. Mr. Pelofsky told you that I personally have

3 received a spreadsheet?

4 A. He told me that it was made available to the

5 opposing counsel.

6 Q. Okay. Can you give me a Bates Number for this

7 spreadsheet?

8 A. I don't have it.

9 Q. Okay. What else did Mr. Pelofsky say about --

10 what else did Mr. Pelofsky tell you while we were on a

11 break from the deposition?

12 A. That's all. He just reminded me of the

13 spreadsheet.

14 Q. When you called Dr. Pelofsky -- or

15 Mr. Pelofsky, what did you ask him?

16 A. I ask him about the random sample and the size

17 of the sample, since I don't have that specifically in

18 my report in Paragraph 48.

19 Q. Okay. Did you ask him anything else?

20 A. No.

21 Q. Did you say anything else to him?

22 A. No.

23 Q. Did you tell him anything about what was going

24 on during your deposition?

25 A. No.

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1 Q. So, the only thing you asked him was about how

2 that random sample was done?

3 A. Yes.

4 Q. Did he tell you what statistician at GBX did

5 the random sample?

6 A. I did not ask him that.

7 Q. Did he tell you that?

8 A. No.

9 Q. Okay. What -- what did he tell you?

10 A. As I just said, he reminded me of the

11 spreadsheet that has, for each WAV file, an indicator

12 of whether or not it was chosen in the random sample.

13 And then, specifically, which of the WAV files were

14 chosen to -- that we used in the report.

15 Q. Okay. Do you know -- did he tell you how that

16 random sample was generated?

17 A. No.

18 Q. Did he tell you how many audio files were in

19 the random sample?

20 A. Yes. He reminded me there were 357.

21 Q. Okay. Is that number anywhere in your report?

22 A. No. As I said before, we did not include the

23 exact number of the files that were in the random

24 sample. But, the spreadsheet has been made available to

25 you.

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1 Q. What spreadsheet are you referring to?

2 A. I just told you, Counselor. The one that lists

3 all the WAV files and the ones that were chosen in the

4 random sample.

5 Q. Okay. Can you identify that -- can you give me

6 the file name for that file?

7 A. We can make it available to you after this

8 deposition if you don't have it. If you don't remember

9 getting it.

10 Q. Okay.

11 MR. HOBBS: Josh, I'm happy to resend this to

12 you.

13 MR. BROWN: Okay. Sure.

14 MR. HOBBS: All right.

15 BY MR. BROWN:

16 Q. In terms -- did you find out anything else,

17 Dr. Winer, about how that random sample was done?

18 A. No. I did not ask him those questions.

19 Q. Okay. In terms of the 357 documents that were

20 included in the random sample, were those 357 audio

21 files treated differently than the remainder of the

22 approximately 1,300 files?

23 A. You mean the remainder of the other thousand,

24 approximately, files?

25 Q. Sure. So, we have approximately 1,300 files in

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1 the total set of audio files, correct?

2 A. Yes.

3 Q. And 357 of them were selected for this random

4 sample, correct?

5 A. Correct.

6 Q. You don't know how they were selected, but you

7 know about 357 were selected from the random sample.

8 Correct?

9 A. Correct.

10 Q. So, how were the files in the random sample

11 treated differently, if at all, from the remainder of

12 the audio files, the approximately 1,300 audio files?

13 A. Well, if 357 were taken, then that left about

14 950 of the 1,300. And once you draw the random sample,

15 it's -- the ones in the random sample are the ones that

16 we analyzed, and the others we did not look at.

17 Q. So, when you say, the ones in the random sample

18 are the ones that we analyzed, who is "we" in that

19 sentence?

20 A. GBX.

21 Q. Who at GBX analyzed the 357 files in the random

22 sample?

23 A. I don't know who exactly did that.

24 Q. What did they do to review those 357 files that

25 were included in the random sample?

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1 A. Well, they listened to the -- to the audio.

2 And, ultimately, we chose seven of them that made points

3 that I wanted to make in my report.

4 Q. You found seven of them that supported the

5 opinions that you reached in your report, correct?

6 A. Correct. But, that does not imply that the

7 other 350 were not useful. We couldn't put all of them

8 in the report, so they chose seven of the 357 that made

9 the points that we wanted to make.

10 Q. And when you say they made the points you

11 wanted to make, they were supportive of the conclusions

12 that you reached in your report, correct?

13 A. Yes. Part of the -- part of the evidence. Not

14 the whole evidence, but part of the evidence I used to

15 make the case for the -- for the campaign.

16 Q. Okay. And I'm going to stop sharing this,

17 because I'm not asking questions about Exhibit 1 right

18 now.

19 So, of those 357, did you direct GBX in terms

20 of how they should review those 357 audio files in the

21 random sample?

22 A. Yes. I directed them to look for, you know,

23 cases of obvious bad practice on the part of Vivint in

24 their interactions in sales calls with people in their

25 households.

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1 Q. So, you directed GBX to identify evidence that

2 supported the conclusions that you ultimately reached in

3 your report, correct?

4 A. Yes, that ultimately supported. We looked for

5 evidence in those sales calls of bad practices on the

6 part of Vivint that I used as part of the evidence to

7 develop a rationale for the information -- remedial

8 information campaign.

9 Q. When you say "we," you mean GBX looked for that

10 evidence?

11 A. Yes.

12 Q. You did not review the 357 audio files in the

13 sample?

14 A. I reviewed the seven that they chose.

15 Q. And when you say "they," you mean GBX?

16 A. Yes.

17 Q. You reviewed the seven files that GBX chose,

18 correct?

19 A. Yes. And as I said, there may have been others

20 that also provided information. But, there's only so

21 many that we could put in the report, so we limited it.

22 Q. Who made the determination that you should

23 limit it to six or seven?

24 A. I did.

25 Q. Did you tell GBX, just send me six or seven?

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1 A. I said, you know, look for maybe half-a-dozen

2 or so that we can highlight in the report.

3 Q. Okay. And when you told them that you wanted

4 six or -- half-a-dozen, you meant that you wanted

5 half-a-dozen examples that supported your conclusions?

6 A. Well, I hadn't drawn any conclusions yet. You

7 know, I was looking for information that would be more

8 evidence of what Vivint was doing in these interactions

9 with the households. You know, I didn't write the end

10 of the report and then go back and fill it in with

11 things that I want. I looked for information that would

12 lead me to the conclusion.

13 Q. Okay. Did you ask GBX to tell you about -- did

14 GBX tell you anything about the remainder of the random

15 sample? In other words, the 350 or 51 files that you

16 did not receive?

17 A. They did not give me specific information about

18 those -- the other files.

19 Q. Did they give you any information about them?

20 A. They said that there was nothing negative about

21 ADT in those files. But, not all of the files

22 necessarily had, you know, significant negative

23 interactions with Vivint.

24 Q. Who told you that?

25 A. GBX.

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1 Q. Who at GBX?

2 A. I don't recall.

3 Q. How did they communicate that to you?

4 A. In a -- you know, we communicated via phone

5 call. Um --

6 Q. Did they ever send you -- I'm sorry. Go ahead.

7 A. No. With attorneys present, yes.

8 Q. Who -- who were the attorneys present?

9 A. Mr. Hobbs, generally.

10 Q. Anyone else?

11 A. Don't recall.

12 Q. Do you have any -- did you have any

13 interactions with GBX where there were no attorneys

14 present?

15 A. No. Never.

16 Q. Are -- was it Mr. Hobbs or GBX that told you

17 about the contents of the 350 or so files that were

18 selected for the random sample but you did not discuss

19 in your report?

20 A. It was GBX, not Mr. Hobbs.

21 Q. Who at GBX?

22 A. I don't recall.

23 Q. Did GBX ever send you any summary or any type

24 of description, at all, of the 357 files included in

25 their random sample?

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1 A. No, they did not.

2 Q. Of -- they just directed you to these six or

3 seven audio files that we've been discussing?

4 A. I'm sorry. Could you repeat the question?

5 Q. They just directed you to the six or seven

6 audio files that we've been discussing?

7 MR. HOBBS: Object to form.

8 THE WITNESS: Yes. With the spreadsheet, you

9 can see seven -- which seven we decided to use,

10 correct.

11 BY MR. BROWN:

12 Q. When you say we decided to use, you mean GBX

13 decided to use?

14 A. GBX recommended these as good examples of

15 Vivint's bad practices.

16 Q. Did you direct GBX to send you any examples of

17 audio files that did not exhibit bad practices on the

18 part of Vivint?

19 A. No, I did not.

20 MR. HOBBS: Object to form.

21 THE WITNESS: No, I did not.

22 BY MR. BROWN:

23 Q. Of the six or seven audio files that were

24 selected, you did not, in fact, review the entirety of

25 all of the six or seven files. Correct?

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1 MR. HOBBS: Object to form. Misstates

2 testimony.

3 THE WITNESS: That's not correct. I did listen

4 to those audio files.

5 BY MR. BROWN:

6 Q. In their entirety?

7 A. As I said earlier, I don't recall how much of

8 the audio files I listened to.

9 Q. So, you -- as you sit here today, you don't

10 know for sure whether you listened to the entirety of

11 the six or seven audio files that GBX directed you to?

12 A. I listened to enough of them to be able to pick

13 out the material that I needed for my report.

14 Q. Well, how do you know what material existed in

15 the remainder of the files that you didn't listen to?

16 GBX didn't tell you anything about the files, you

17 already testified. So, how do you know what was in the

18 part you didn't listen to?

19 A. I don't. As I said before, I'm not going to

20 put 350 examples of Vivint's behavior in the report. I

21 wanted to limit it to, you know, a certain amount of

22 evidence that would lead to my conclusions.

23 Q. Is it possible that there are portions of those

24 six or seven audio files that you did not listen to that

25 would impact your opinions in this case?

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1 MR. HOBBS: Object to form.

2 THE WITNESS: No.

3 BY MR. BROWN:

4 Q. That's not possible?

5 A. No.

6 Q. How can you say that with such certainty?

7 A. Because we have enough weight of evidence,

8 between the audio files, the depositions, the social

9 media posts, and just Vivint's record, track record, to

10 lead me in the direction that I went.

11 Q. Is it possible that there are other audio files

12 in the random sample of 357 audio files that GBX

13 selected that would impact your opinion in this case?

14 A. I think, if there was something that was so

15 contrarian, they would have told me.

16 Q. Did you ask them to tell you about contrary

17 evidence?

18 A. No.

19 Q. All right. I want to go to appendix --

20 Exhibit 2. I'm going to share my screen again.

21 I'm sharing, once again, Exhibit 1 to the

22 deposition which is your expert report, correct?

23 A. Yes.

24 Q. And I'm going to scroll down. I'm going to go

25 to Exhibit 2 of your expert report.

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1 Okay. I am now at, for the record, Page 76 of

2 Exhibit 1 to the deposition. And it's titled, Audio

3 Recordings Produced by ADT for Disclosed Customers.

4 Did I read that correctly, sir?

5 A. Yes.

6 Q. Okay. And to your knowledge, what is

7 Exhibit 2?

8 A. This is a list of all 1,300 WAV files that ADT

9 provided to us.

10 Q. And when you say "us," you mean GBX?

11 A. Well, and me.

12 Q. Well, did you review -- did you receive these

13 1,300 audio files?

14 A. Well, they were produced -- the list was

15 produced to me, as well as GBX.

16 Q. Did you receive all 1,300 of the audio files?

17 A. No, I did not.

18 Q. During the break, did you test, to see if you

19 had access to all 1,300 of the audio files?

20 A. No, I did not.

21 Q. Did you ever consider asking for additional

22 audio files other than the six or seven that you

23 reviewed?

24 A. You're misrepresenting what we did, all right?

25 We took a random sample of 357 from the 1,300 and

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1 analyzed those.

2 Q. Dr. Winer, GBX is not the expert in the case,

3 you are. I'm asking what you did. So, did you

4 receive -- or, did you ask for any other -- did you ever

5 ask anyone or attempt to obtain additional audio files

6 other than the six or seven audio files that you

7 reviewed?

8 MR. HOBBS: Object to form. Misstates

9 testimony.

10 He's already said that he has this entire set

11 available to him, Josh. You can't --

12 MR. BROWN: Eric, stop talking now. Because,

13 it's a speaking objection and inappropriate. You

14 may say, object to form, that's enough. Do not go

15 beyond that. It is entirely inappropriate and I'm

16 not going to allow it.

17 MR. HOBBS: Well, you keep on characterizing

18 what he's testifying.

19 MR. BROWN: You're welcome to state that you

20 think I'm mischaracterizing his testimony. You

21 really don't need to, to preserve your objections.

22 You just say, object to form, and that preserves

23 all of your objections. If you continue to make

24 speaking objections, I will shut down the

25 deposition.

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1 THE WITNESS: Can you restate the question,

2 please?

3 MR. BROWN: I'm going to have to ask the court

4 reporter to read it back.

5 COURT REPORTER: Okay.

6 "Dr. Winer, GBX is not the expert in the case,

7 you are. I'm asking what you did. So, did you

8 receive -- or, did you ask for any other -- did you

9 ever ask anyone or attempt to obtain additional

10 audio files other than the six or seven audio files

11 that you reviewed?"

12 THE WITNESS: No, I did not.

13 MR. HOBBS: Same objection.

14 THE WITNESS: No, I did not.

15 BY MR. BROWN:

16 Q. All right. So, going back to the screen share.

17 Once again, we're on Exhibit 1 to the deposition and

18 we're at Exhibit 2, starting at Page 76. And can you

19 tell me what Exhibit 2 is?

20 A. Can you first please enlarge it? It's kind

21 of --

22 Q. Sure.

23 A. -- micro-sized.

24 Q. Does that work?

25 A. Yeah. Thank you.

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1 Could you page down? Scroll down.

2 Q. Um-hum.

3 A. Could you go down to the bottom? Do a quick

4 scroll?

5 Q. Um-hum. I should say, yes. I apologize for

6 saying, "um-hum," earlier. I meant, yes.

7 Okay. I think I've scrolled through the

8 entirety of Exhibit 2.

9 A. So, this is the original set of WAV files that

10 were produced by ADT of customer calls.

11 Q. Okay. And -- and to your knowledge, is this

12 all of the audio files of customer calls that ADT has in

13 its possession?

14 MR. HOBBS: Object to form.

15 THE WITNESS: I'm sure they have a lot more

16 than these. I mean, it's a big company. They've

17 got six million customers and I think that roughly

18 1,300 is not all of the calls that they have.

19 BY MR. BROWN:

20 Q. Okay. Do you know how ADT selected these

21 1,300 -- and it appears to be 1,342, is that right?

22 There are 1,342 files that are listed in this Exhibit 2?

23 A. Yes. As I note in my report, Paragraph 48, I

24 say approximately 1,300. So, yes.

25 I don't know how ADT selected them.

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1 Q. Okay. Do you know if all of these audio files

2 are -- I think you stated earlier you did not know --

3 well, strike that.

4 Do you know if ADT included audio files -- all

5 of the audio recordings they had in terms of

6 interactions with the 250 unique customers that are

7 represented in the 1,342 audio files?

8 A. I assume so. But, I don't know for certain.

9 Q. Did anyone ever tell you that?

10 A. No.

11 Q. Okay. I'm going to start back at the beginning

12 of Exhibit 2. And let's just start looking through it,

13 see if we can figure anything out.

14 So, I'm now at Page 77 of Exhibit 1. The first

15 two audio files listed relate to, or have in their file

16 name, Donald Do you know who Donald is?

17 A. No.

18 Q. Okay. Do you know if that's an ADT customer?

19 A. My assumption, for this report and the

20 analysis, is that they're all ADT customers that called

21 ADT customer service.

22 Q. What is that assumption based on?

23 A. Why would any other customer call ADT customer

24 service?

25 Q. Okay. I'm not going to answer your question,

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1 sir. I'm trying to find out the basis for your

2 opinions. What is your assumption based on?

3 A. My experience with --

4 MR. HOBBS: Form.

5 THE WITNESS: Sorry. My experience in the

6 customer service area, customer relationship

7 management, and knowledge of how these -- how these

8 systems work. They are ADT customers.

9 BY MR. BROWN:

10 Q. Did anyone tell you that Donald is an

11 ADT customer?

12 A. No.

13 Q. Did anyone tell you -- did you ever speak to

14 Donald 

15 A. No.

16 Q. Do you have a copy of Donald contract

17 with ADT?

18 A. No.

19 Q. Did you review any other files in relation to

20 Donald 

21 MR. HOBBS: Object to form.

22 THE WITNESS: I did not review his files unless

23 he was one of the 357 that were chosen through the

24 random sample. I'd have to go look at that

25 spreadsheet to see if his was in there.

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1 BY MR. BROWN:

2 Q. Well, of the 357 that were chosen as the random

3 sample, you don't -- you personally did not review any

4 of those files either other than the six or seven that

5 GBX selected for your review. Correct?

6 A. Correct.

7 Q. Okay. So, the first and second files are

8 labeled, Audio Intake 1 and Audio Intake 2. Do you know

9 what audio intake refers to?

10 A. I assume that the call that was recorded was

11 broken up into two parts and that's the way they're

12 labeling it.

13 Q. How -- what is your assumption based on?

14 A. Well, intake means to receive it and that is

15 basically what it is. It's the receiving of an audio

16 complaint from Mr. 

17 Q. Okay. And what -- do you know that this was a

18 complaint?

19 A. It was a contact. Let me restate that.

20 Q. Do you know if anything in this WAV file says

21 anything about Vivint?

22 A. No, I don't know.

23 Q. Do you know if -- in terms of the two audio

24 files that are referenced in here relating to

25 Donald do you know if anything is said in these

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1 WAV files about Vivint?

2 A. No.

3 Q. Do you know if anything in these WAV files --

4 is it possible that there is anything in these WAV files

5 that would support your opinions in this case?

6 MR. HOBBS: Object to form.

7 THE WITNESS: Yes, it's possible. If the files

8 were not chosen through the random sample, the other

9 950 or so might have had some information in them

10 that would have been useful to me.

11 BY MR. BROWN:

12 Q. If the -- if the -- if these files were in the

13 random sample, but they were not selected as part of the

14 six or seven, does that mean they don't have information

15 that would have been useful to you?

16 A. No, I didn't say that. You asked me, if his

17 was not chosen in the random sample, would that mean

18 that there was no information that was useful to me.

19 And I said, no.

20 Q. Okay. Is it possible that there is information

21 in this -- in these two WAV files that would contradict

22 the opinions that you reached in this case?

23 A. It's possible. I -- since I haven't listened

24 to them, nor did GBX, we don't know what's in them.

25 Q. Okay. Who made the decision to not listen to

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1 all 1,300 of the -- of these audio recordings?

2 A. Well, I think it was a -- it was a team

3 decision. I talked about it with GBX. As you know,

4 there's always a time constraint in terms of having to

5 file these reports. And, so, we made the decision to

6 sample roughly a quarter of the -- of the total number

7 of audio recordings.

8 Q. And when you say we made that decision, who

9 made that decision?

10 A. We -- I did, in conjunction with the

11 discussions with GBX.

12 Q. Did anyone at ADT -- at ADT -- did anyone at

13 ADT have any input in that decision?

14 A. No. Certainly not.

15 Q. Did anyone at Shook, Hardy & Bacon have any

16 input in that decision?

17 A. Definitely not.

18 Q. Do you know if ADT has recordings of other

19 contacts with Mr. Donald 

20 A. No, I do not.

21 MR. HOBBS: Objection to form.

22 THE WITNESS: No, I do not.

23 BY MR. BROWN:

24 Q. Do you know for sure that -- are you sure that

25 these two WAV files are not separate contacts with

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1 Donald 

2 MR. HOBBS: Object to form.

3 THE WITNESS: No. As we said earlier in the

4 deposition, they could be one contact broken up into

5 multiple files or it could be multiple contacts.

6 BY MR. BROWN:

7 Q. Okay. I'm going to scroll down. Now I'm at

8 Page 78, Exhibit 2 to Exhibit 1 of the deposition, your

9 expert report. And I'm looking at Rows 56, 57, and 58

10 and I see three different WAV files here with the name,

11 Jackie Was -- did you personally review any

12 information relating to Jackie in relation to

13 reaching your opinions in this case?

14 A. No.

15 Q. Okay. Do you know if these WAV files that are

16 represented here at Rows 56, 57, and 58 of Exhibit 2 of

17 Exhibit 1, do you know if these represent three separate

18 contacts between Ms. and ADT?

19 MR. HOBBS: Form.

20 BY MR. BROWN:

21 Q. Were they separate portions of the same call or

22 contact?

23 A. I don't know.

24 Q. Do you know if ADT has audio -- other audio

25 recordings of interactions with Ms. 

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1 A. No, I don't know.

2 Q. Did you review these interactions -- did you

3 review these audio files that are shown at 56, 57, and

4 58 of Exhibit 2 of Exhibit 1?

5 A. No, I did not.

6 Q. If you did review them, is there any chance

7 that they would change your opinions in this case?

8 A. No.

9 Q. Do you know -- if there are other recordings of

10 ADT's interactions with Ms. would that change

11 your opinions in this case?

12 A. No.

13 MR. HOBBS: Object to the form.

14 BY MR. BROWN:

15 Q. Did you review any other files in relation to

16 Jackie 

17 A. No.

18 Q. Did you ever speak to Ms. 

19 A. No, I did not.

20 Q. Do you know who she is?

21 A. No.

22 Q. Do you know where she lives?

23 A. No.

24 Q. Do you know if she ever had any interactions

25 with Vivint, at all?

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1 A. I don't know.

2 Q. All right. I'm going to go back to

3 Paragraph 48 of your expert report. I'm sorry, I'm just

4 scrolling through.

5 Now we're at Paragraph 48 on Page 19 of

6 Exhibit 1 to the deposition, which is your expert

7 report, correct?

8 A. Yes.

9 Q. Do you know -- the 357 files that were in the

10 random selected set, what did GBX do in relation to

11 those 357 files?

12 A. They listened to them.

13 Q. In their entirety?

14 A. I don't know.

15 Q. The 900-odd files -- okay, the approximately

16 900 files that were not in the selected -- randomly

17 selected set, what did ADT -- excuse me, what did GBX do

18 in relation to those files?

19 A. Nothing.

20 Q. Did they review them, at all?

21 A. They only reviewed the ones in the random

22 sample.

23 Q. In Paragraph 49, you state, "The calls I

24 listened to support those allegations." Correct?

25 A. Yes.

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1 Q. And when you say those allegations, you're

2 referring to ADT's allegations against Vivint in this

3 case?

4 A. Yes.

5 Q. Did the calls -- do you know if the

6 approximately 1,300 calls that you did not listen to

7 support those allegations?

8 MR. HOBBS: Object to form.

9 THE WITNESS: Well, we did not -- they, GBX,

10 did not listen to roughly 950 of them, they did

11 listen to 357.

12 As I said earlier, if there was a lot of

13 information in there contrary to what we were trying

14 to -- what our objective was in the report, they

15 would have told me.

16 BY MR. BROWN:

17 Q. How do you know they would have told you?

18 A. Because, they are an honest legitimate

19 consulting firm. We've worked together a lot, as I've

20 said before. And I have to stand by any report that I

21 write. And if there's not information in there that is

22 correct or supportive, I want to know that.

23 Q. Did you tell that to GBX? Did you tell them,

24 if there's anything in these 357 files that doesn't

25 support my opinions, I want to know about it?

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1 A. I told them that if there was a consistent

2 pattern of contrary information, that they should tell

3 me.

4 Q. Who did you tell that to?

5 A. Probably, Mark.

6 Q. Anyone else?

7 A. No.

8 Q. Who reviewed the 357 files?

9 A. I don't know.

10 Q. Was it Mark?

11 A. I don't know.

12 Q. Do you know if Mark reviewed any of them?

13 A. I don't know.

14 Q. When you say Mark, you mean Mark Pelofsky, the

15 principal of GBX?

16 A. Yes. One of the principals, correct.

17 Q. So, of the 950 files -- approximately 950 files

18 that GBX did not review, do any of those calls

19 represented in those files not support your -- the

20 allegations that ADT makes against Vivint in this case?

21 MR. HOBBS: Object to form.

22 THE WITNESS: We don't know what's in them. We

23 did not analyze them.

24 BY MR. BROWN:

25 Q. Is it possible that there's information in

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1 there that does not support ADT's allegations in this

2 case?

3 A. There could be some. I have no way of knowing

4 how much.

5 Q. Okay. If there were some, would that affect

6 your opinions in this case?

7 MR. HOBBS: Object to form.

8 THE WITNESS: I don't know. I'd have to -- I'd

9 have to listen to the recording and -- and ascertain

10 exactly what's being said.

11 BY MR. BROWN:

12 Q. I think you alluded earlier that it's been over

13 a year since you wrote this report. Is that right?

14 A. That is true.

15 Q. It's dated, August 9th of 2021. Correct?

16 A. That's correct.

17 Q. Okay. In that year, did you ever take any

18 action to review any of those 950 files that you know

19 nothing about?

20 A. No. There was no need to.

21 Q. They would not change your opinions in this

22 case even if you did review them?

23 A. We took a random -- the purpose of random

24 sampling is to do exactly that. We got a random sample

25 of all 1,340, or whatever the exact number is, reports.

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1 The purpose of random sampling is that it gives you an

2 estimate of what we call the population, which was, in

3 this case, 1,340. So, there's no reason to believe that

4 there's any information in those other 950 that would be

5 any different than what was in the 357.

6 Q. And that's true if the sample that you took is

7 representative of the entire set, correct?

8 A. We used -- GBX used random sampling, which has

9 well-known properties and very clear directions on how

10 to proceed.

11 Q. All right. Did you give GBX any direction on

12 how to conduct that random sampling?

13 A. No. I assumed that they know how to do it.

14 Q. Did they tell you how they did the random

15 sample?

16 A. No. I didn't ask. Because, as I said, they

17 have some statisticians on their staff that can do it

18 very well.

19 Q. Do you know that those statisticians were the

20 ones that actually did the random sample in this case?

21 A. I don't know. I didn't ask who did the random

22 sampling.

23 Q. Did you take any steps to ensure that the

24 sample was representative?

25 A. I did not verify that the sampling was random.

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1 I trusted GBX to do that appropriately.

2 Q. Did you do anything to ensure that the sample

3 was representative of the entire population?

4 MR. HOBBS: Object to form.

5 THE WITNESS: As I said before, if you take a

6 random sample the way you're supposed to do it, it

7 is representative of a population, period.

8 BY MR. BROWN:

9 Q. And how do you know it was done "the way you're

10 supposed to do it," quote, unquote?

11 A. Because I trust GBX and its staff to do it

12 correctly.

13 Q. Any other reason?

14 A. That's enough for me.

15 Q. Should that be enough for the jury in this

16 case?

17 MR. HOBBS: Object to form.

18 THE WITNESS: If you'd like, you're free to

19 call the statistician who did the random sampling

20 and he or she can talk about what they did.

21 MR. BROWN: Okay. Tell me their name.

22 THE WITNESS: I think you've asked me this

23 half-a-dozen times. I don't know who did it.

24 BY MR. BROWN:

25 Q. Okay. Let's go to Paragraph 50. Paragraph 50

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1 is -- talks about a woman named Loretta And I

2 believe you testified earlier that you reviewed audio

3 files related to interactions between ADT and

4 Loretta correct?

5 A. That's correct.

6 Q. How many audio files did you review related to

7 Loretta 

8 A. Well, we'd have to go back to the exhibit you

9 showed before indicating how many files there were for

10 her. I did see her name on the list. There were

11 multiple, but I don't remember how many there were.

12 Q. Well, you testified earlier that you only

13 reviewed six or seven audio files. Did you review all

14 of the files for Loretta 

15 A. What I meant was, I reviewed six or seven sets

16 of audio files. I'm sorry. There are six or seven

17 reports in my report based on the audio files. I

18 reviewed those. I did not mean to imply that I only

19 read -- listened to maybe one audio file from any one

20 individual.

21 Q. Well, that's what I'm trying to figure out.

22 How many audio files did you listen to, total? I

23 thought you said it was six or seven.

24 A. As I said, I misinterpreted the question.

25 Those represent the number of people from whom we have

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1 information from the audio files. I don't recall

2 exactly how many total audio files I reviewed. But, if

3 there were multiple files for an individual, I listened

4 to multiple files.

5 Q. Okay. So, you believe you listened to every --

6 all of the audio files related to Ms. 

7 A. Yes, I do.

8 Q. Okay. Let's -- let's go to -- let's just go to

9 Exhibit 2 and see what they are.

10 A. Okay.

11 Q. All right. I just did a search. I'm at

12 Page 82 of your expert report, Exhibit 1 of the

13 deposition. And there are two audio files listed here

14 related -- with the title, Loretta Does that

15 refresh your recollection that you reviewed two audio

16 files relating to Loretta 

17 A. Yes, I did.

18 Q. Did you review audio -- these audio files for

19 Sandra 

20 A. I don't know who she is.

21 Q. Do you know if she has any relationship to

22 Loretta 

23 A. No, I don't.

24 Q. So, you believe you reviewed both of these

25 audio files for Loretta Are there other files

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1 for -- audio files in ADT's possession related to

2 Loretta 

3 MR. HOBBS: Object to form.

4 THE WITNESS: I wouldn't know that.

5 BY MR. BROWN:

6 Q. Did you ask that?

7 A. No.

8 Q. Did you -- did you speak to Ms. 

9 A. No, I did not.

10 Q. Did you review an ADT contract for Ms. 

11 A. No.

12 Q. Did you review any other documents related to

13 Ms. 

14 A. No.

15 Q. Okay. But, here we have two audio files. One

16 is ADT00000191, and then we have ADT00000192. Correct?

17 A. Yes.

18 Q. Okay. Let's go back to Paragraph 50 of your --

19 of Exhibit 1.

20 A. 50, yes.

21 Q. I see, in Paragraph 50, there are footnotes

22 referring to ADT00000191, but I don't see any references

23 to the ADT 192 WAV file. What did the -- what occurred

24 in the ADT 192 WAV file?

25 A. I don't recall. But, apparently it did not

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1 have any relevant information.

2 Q. Are you sure that you reviewed it?

3 COURT REPORTER: Are you sure that you what?

4 MR. BROWN: Reviewed it.

5 THE WITNESS: To the best of my recollection, I

6 reviewed both of the audio files.

7 BY MR. BROWN:

8 Q. Relating to Ms. 

9 A. Correct.

10 Q. In their entirety?

11 A. I don't remember exactly how much of them I

12 recall -- I reviewed.

13 Q. Well, let's see what you did say about them.

14 So, you say, for example, "One call involved an

15 ADT customer, Loretta who was confused after

16 receiving a visit from a Vivint sales representative."

17 Did I read that right?

18 A. Yes.

19 Q. Okay. When did Ms. receive a visit from

20 a Vivint sales representative?

21 A. I'm sorry. What's your question?

22 Q. When did Ms. receive a visit from a

23 Vivint sales representative?

24 A. You mean, what's the date of the call?

25 Q. No. The call is describing the interaction

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1 that Ms. --

2 A. I meant, sales call.

3 Q. Yeah. What -- sure, we can use your

4 terminology.

5 What was the date that Loretta received a

6 sales call from a Vivint representative?

7 A. I don't know.

8 Q. Do you know if it was before the year 2017?

9 A. I don't know.

10 Q. Would that change the conclusions that you

11 reached in this case?

12 A. I -- I don't know why it would. I mean, the

13 substance of the sales call has a negative impact on

14 her, which negatively impacts the ADT brand, which is

15 the main point of my report. So, I don't see why it

16 would change my opinion.

17 Q. How do you know that the person who visited

18 Ms. was actually a Vivint sales representative?

19 A. Well, I'm relying on what is -- what she is

20 saying in the call.

21 Q. Okay. Any other basis for that?

22 A. Well, she's pretty specific. She stated that

23 a person from Vivint had come to her home and told her

24 that Vivint had merged with ADT and that he was there to

25 upgrade her security system. I don't think ADT would

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1 say that and I don't think any of the competitors would

2 say that. So, I'm reasonably confident that it was a

3 salesperson from Vivint.

4 Q. Other than what Ms. had allegedly said in

5 these interactions between Ms. and ADT, do you

6 have any other basis for your belief that Ms. was

7 actually visited by a sales representative from Vivint?

8 A. Well, there might have been more on the call,

9 but I did not put it here in the text. So, I have to

10 rely on what I have here in Paragraph 50.

11 Q. So, other than what you have here in

12 Paragraph 50, do you have any other basis for your

13 belief that Ms. was actually visited by someone

14 who was a Vivint sales representative?

15 A. No.

16 Q. So, according to what you say here, a

17 person -- Ms. called ADT and stated that a person

18 from Vivint had come to her home and told her that

19 Vivint had merged with ADT and that he was there to

20 upgrade her system. Right?

21 A. Yes.

22 Q. Okay. And then, next, it says, "In her call to

23 ADT, Ms. stated she had been duped and that she

24 thought it was ADT but then later found out it was a

25 totally different company."

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1 Did I read that right?

2 A. Yes. A total different company, not totally.

3 But, yes.

4 Q. Okay. Sorry. Thank you for the correction.

5 Do you know -- when did Ms. figure out

6 that she had been duped?

7 A. Well, if you look at the timeline, it's clear

8 that it happened after Vivint upgraded her security

9 system.

10 Q. Why do you say that?

11 A. Well, if you just look at the -- just look at

12 the information that I took from the call, you can see

13 that, first, a person -- a Vivint person came and that

14 he was there to upgrade her security system. Then, she

15 called ADT.

16 She would have only been duped after the

17 security system had been upgraded incorrectly, and she

18 would only find out it was a different company after the

19 security system had been upgraded inappropriately.

20 Q. Well, it says that she said that the alleged

21 Vivint representative was there to upgrade her security

22 system. Do you know for sure that her Vivint -- that

23 her security system was upgraded?

24 A. Well, I'm inferring that. Otherwise, why would

25 she say she had been duped?

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1 Q. What is the basis of your inference?

2 A. Well, if someone is duped, by the

3 interpretation of the word, they have been tricked. So,

4 clearly she was tricked by the Vivint salesperson.

5 Q. Is it possible that she was -- she meant that

6 she was duped, in that she let the person in the door,

7 but then she later figured out that they weren't

8 actually related to ADT and did not actually sign any

9 contracts with Vivint?

10 A. To my mind, it really doesn't matter, you know,

11 fully. If the person from Vivint had come to her home

12 and told her Vivint had merged with ADT, that's enough

13 in my mind that Vivint is misrepresenting the facts.

14 You know, if in fact the system even hadn't

15 been switched out, there's still a negative and a lie

16 being told in the interaction. So, all it has to be, to

17 in fact support my -- my report, is that it was a person

18 from Vivint and that -- I guess it's a he, told her that

19 Vivint had merged with ADT. End of story.

20 Q. Does it matter if Ms. or -- does it

21 matter, for your analysis, whether Ms. believed

22 the misinformation that was allegedly given by the

23 Vivint sales representative?

24 MR. HOBBS: Object to form.

25 THE WITNESS: Well, she must have believed it,

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1 with the follow-up about having been duped. I think

2 that sort of solidifies the fact that she believed

3 that it was a Vivint salesperson and that in fact

4 Vivint was merging with ADT.

5 BY MR. BROWN:

6 Q. Okay. But, that wasn't my question. My

7 question is, is that important to your analysis? You

8 said before that it was enough that a Vivint salesperson

9 said that Vivint and ADT were merging. Is it also

10 important to your analysis whether or not the customer

11 believed the allegedly incorrect information?

12 A. Yes. She has to have believed it, of course.

13 Q. If she did not believe the allegedly incorrect

14 information, is there still a damage to ADT that needs

15 to be remedied?

16 A. If she did not believe that Vivint was merging

17 with ADT, and that he was there to upgrade her security

18 system, she wouldn't have said that she had been duped.

19 She clearly believed it.

20 Q. Okay. Well, I'm asking you, is that important

21 to your analysis? Had she not believed it, is there

22 still harm to ADT that needs to be remedied?

23 A. Yes.

24 Q. Okay. Why?

25 A. Because, it's possible that -- that the

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1 customer is still being exposed to misinformation from

2 Vivint. So, even if you call on this Ms. and she

3 doesn't believe it, it doesn't mean that she can't tell

4 neighbors or believe that maybe there's some --

5 something wrong with ADT, that maybe they're scamming

6 customers. So, there's definitely negative information

7 still in this call, even if she doesn't -- I mean, sales

8 call -- even if she doesn't believe that ADT is merging

9 with Vivint.

10 Q. So, if someone from Vivint makes a sales call

11 and says something negative about ADT, does it matter

12 whether -- it does not matter whether the person

13 believed that? It's enough that a Vivint representative

14 said something negative about ADT?

15 MR. HOBBS: Object to form.

16 THE WITNESS: Okay. Let's be very careful

17 here, okay? You say something negative about ADT,

18 all right? Now, companies say negative things about

19 competitors all the time. So, let's distinguish

20 between something negative about ADT, all right,

21 which, you know, might have to do with, you know, a

22 report that the salesperson shows her about, say,

23 ADT customer service. I don't know what it could

24 be. That's negative information, but that is

25 legitimate information to give to a customer.

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1 We're not talking about negative information

2 here, we're talking about a lie. And that's very

3 different.

4 BY MR. BROWN:

5 Q. So, sometimes it's okay for a company to say

6 negative things about its competitor?

7 A. It happens all the time. It's very common in

8 business.

9 Q. Okay. So -- so, the important thing is that

10 the negative thing that was said was not true. Is that

11 correct?

12 A. Yes.

13 MR. HOBBS: Object to form.

14 BY MR. BROWN:

15 Q. So, what if an ADT -- a Vivint representative

16 said something to Ms. that was negative about ADT,

17 but Ms. did not believe it?

18 A. Well, you're just saying negative, again.

19 Q. Hold on. I'm not done with my question.

20 Please wait until the end of my question.

21 A. Okay. You stopped. So, I interpreted it that

22 you were done.

23 Q. No. It was a comma, Dr. Winer, not a question

24 mark.

25 A. Got it.

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1 Q. Okay. What if a Vivint representative came to

2 Ms. and said something to her that was negative

3 about ADT, but she did not believe it. Is that

4 important to -- would that affect your analysis in this

5 case?

6 MR. HOBBS: Object to form. Improper

7 hypothetical, vague and ambiguous.

8 THE WITNESS: That's not an example of

9 misbehavior on the part of Vivint.

10 BY MR. BROWN:

11 Q. So, that would not be something that you would

12 need to remedy in this case?

13 A. Correct.

14 Q. Okay. If Ms. was subjected to false

15 information about ADT by the Vivint representative, but

16 she did not believe it, then that is not something that

17 you need to remedy in this case?

18 MR. HOBBS: Object to form. Misstates

19 testimony.

20 THE WITNESS: That's not true. As I said

21 before, let's assume that a Vivint representative

22 states some lie, okay? Ms. doesn't believe

23 it, okay? That still doesn't mean that there's not

24 a negative impact on ADT, all right? Because,

25 Ms. could say, well, you know, some company

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1 is getting into ADT. Maybe I should start to be

2 suspicious of ADT, what they're doing. You know,

3 maybe she's going to talk to her neighbor who's also

4 an ADT customer, saying, there's this person saying

5 negative -- you know, lies about ADT, all right?

6 Maybe it's ADT's fault, all right? Maybe it's a

7 problem with -- with ADT's association with this

8 company.

9 So, no, I'm not going to agree with that.

10 BY MR. BROWN:

11 Q. Okay. I -- I'm not sure I have a problem.

12 What I'm trying to determine is, if an ADT (sic)

13 representative says something false and negative about

14 ADT, but the customer they say it to does not believe

15 it, is that something that your opinion in this case,

16 the advertising campaign that you opine to in this case,

17 is meant to remedy?

18 MR. HOBBS: Object to form.

19 THE WITNESS: Well, I believe I've answered

20 that already. I would say that, yes, we still need

21 the remedial information campaign.

22 BY MR. BROWN:

23 Q. Okay. So, in this example, Ms. -- well,

24 first of all, are you -- here in this case, do you plan

25 to testify as to the state of mind of Ms. 

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1 A. No.

2 Q. Are you able to -- as you sit here today, or

3 later if this case goes trial, are you going to be able

4 to testify what was in Ms. head?

5 A. I would assume that maybe Ms. would be

6 brought as a witness and she could say for herself.

7 But, I could not say.

8 Q. Okay. If Ms. comes as a witness, then

9 she'll be able to say for herself what she meant by

10 being duped, correct?

11 A. She could, yeah. I would assume that you would

12 follow up with her on the stand.

13 Q. And if Ms. does not testify in this case,

14 how do you -- how would you know what was actually in

15 her mind in terms of whether she was duped or not?

16 A. Well, I have to rely on her own words -- which

17 are in quotes -- that she had been tricked. Which, to

18 me, says a lot. But, I cannot -- I'm not a mind reader,

19 nor can I go back in time and figure out what was said

20 back when this recording was made. So, I -- I can't say

21 what was in her mind.

22 Q. Okay. And the only information that you have

23 related to what was in her mind was these audio

24 recordings that you reviewed in relation to her,

25 correct?

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1 A. That's correct.

2 Q. Now, you go on, here. And it says, "So she

3 says that she had been duped and that she thought it was

4 ADT, but then later found out it was a total different

5 company." Correct?

6 A. Yes.

7 Q. So, at some point, Ms. found out that the

8 information that was given to her by the Vivint sales

9 representative was incorrect?

10 A. Yes.

11 Q. And then, "The ADT call representative told

12 Ms. about the deceptive sales practices that

13 Vivint practices and noted that ADT's employees are

14 trained to be on the lookout for these occurrences."

15 Did I read that right?

16 A. Yes, you did.

17 Q. So, at some point, Ms. found out that the

18 incorrect information that was given to her by Vivint

19 about ADT was incorrect, right?

20 A. Correct.

21 Q. And then, the ADT representative, during this

22 phone call, confirmed that the information that she had

23 been given by this alleged ADT representative was

24 incorrect, right?

25 A. Right.

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1 Q. So, at the end of this phone call between ADT

2 and Ms. is Ms. confused regarding a

3 relationship between ADT and Vivint?

4 A. It's hard to tell. You know, we don't -- I

5 don't put in there and I don't remember everything that

6 the ADT call representative said. It could have been

7 just a boilerplate response. It's -- it's hard to tell

8 from the text.

9 Q. Okay. Where would you go to find out if

10 Ms. is still confused about a relationship between

11 Vivint and ADT?

12 A. There's nowhere for me to go. There would have

13 had to have been a follow-up from the ADT call

14 representative just verifying that Ms. is not

15 confused anymore. And that did not happen.

16 Q. How do you know it didn't happen?

17 A. Well, I don't remember the exact phone call,

18 but -- I don't know it didn't happen.

19 Q. Okay. Is it possible it happened in a separate

20 phone call?

21 A. It's possible. I don't know. I don't -- I

22 don't recall the second phone call. I don't know what

23 was said in that phone call.

24 Q. Okay. Did ADT actually -- well, we know there

25 were two audio files, right? We saw that on your

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1 Exhibit 2, correct?

2 A. Right.

3 Q. So, it's possible it happened in the second

4 phone call?

5 A. I -- I don't know.

6 Q. Is it important to your analysis whether or not

7 Ms. was confused or remained -- remains confused

8 about an association between Vivint and ADT?

9 A. Well, not really. I mean, even if she's not

10 confused anymore, as I said several times earlier, she

11 can still have some suspicions that there's an issue

12 with ADT. Some company or some companies are -- have

13 gotten involved by taking over some of ADT's messaging

14 and she may still have a negative perception of ADT.

15 It's possible.

16 Q. Okay. So, is it -- and your analysis seeks

17 to -- so, let's say -- let's say Ms. is not

18 confused, but she still has some lingering negative

19 feeling about this interaction. And does -- in your --

20 does your expert opinion, the campaign that you've come

21 to in your expert opinion, does it seek to remedy those

22 negative feelings even if there's no confusion?

23 A. Yes.

24 MR. HOBBS: Object to form.

25 THE WITNESS: Yes, it does.

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1 BY MR. BROWN:

2 Q. If Ms. is not confused about a

3 relationship between ADT and Vivint, and also no longer

4 believes the negative information that was allegedly

5 given to her by the Vivint sales representative, is it

6 still necessary that she be contacted in order to remedy

7 the harm that you're testifying to in this case?

8 THE WITNESS: Could you read back the question

9 to me, please?

10 COURT REPORTER: Remedy the what, that you're

11 testifying to in this case? Let me get that word,

12 first.

13 MR. BROWN: The harm.

14 COURT REPORTER: Oh, harm. The harm. Okay.

15 Hold on. Okay.

16 "If Ms. is not confused about a

17 relationship between ADT and Vivint, and also no

18 longer believes the negative information that was

19 allegedly given to her by the Vivint sales

20 representative, is it still -- is it still" --

21 sorry -- "is it still necessary that she be

22 contacted in order to remedy the harm that you're

23 testifying to in this case?"

24 THE WITNESS: Yes.

25 BY MR. BROWN:

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1 Q. Why is that?

2 A. Because, she still may have -- you know, as

3 you've said in the premises of the question, she still

4 may have some lingering negative residual feelings

5 towards ADT. And, so, it needs to be clarified and --

6 and remedied.

7 Q. Okay.

8 MR. BROWN: Let's go ahead and take a break.

9 I think we're getting to the end of the media.

10 THE WITNESS: We've been going about 80

11 minutes.

12 VIDEOGRAPHER: All right. Please stand by.

13 This is the end of Media Number 2, in the testimony

14 of Dr. Russell Winer. We're now going off the

15 record and the time being 2:28 p.m., Eastern.

16 Please wait until the recorders are off.

17 THE WITNESS: Can we take 15?

18 MR. BROWN: That's fine with me.

19 (Whereupon, a recess was held at 2:28 p.m., and the

20 deposition resumed at 3:02 p.m.)

21 VIDEOGRAPHER: This is the beginning of Media

22 Number 3 in the testimony of Dr. Russell Winer.

23 We're now going back on the video record and the

24 time is 3:02 p.m., Eastern.

25 BY MR. BROWN:

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1 Q. Okay. I'm going to go back to your report,

2 your expert report, Dr. Winer. I'm sharing again what

3 has been marked as Exhibit 1 to the deposition, which is

4 your expert report. Correct?

5 A. Yes, it is.

6 Q. So, I want to turn your attention now to

7 Paragraph 51 of your expert report. We're now on

8 Page 20 of Exhibit 1 to the deposition. Paragraph 51

9 discusses an ADT customer named Catherine correct?

10 A. Yes.

11 Q. And did you review audio files with alleged

12 interactions between Ms. and ADT?

13 A. Yes, I did.

14 MR. HOBBS: Object to form.

15 BY MR. BROWN:

16 Q. How many audio files did you review related to

17 Ms. 

18 A. Well, can you go back to my -- to my exhibit,

19 then you can see how many files there are.

20 Q. Sure.

21 A. Obviously, I'm not going to remember how many

22 files I listened to.

23 Q. Okay. So, I -- do you have a copy in front of

24 you? Or, I can go here. I'll just go here.

25 A. Actually, I didn't print it out. It's just

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1 like 10 pages of just stuff, so I didn't print it out.

2 Q. All right. So, we're going back down to

3 Exhibit 2 --

4 A. Right.

5 Q. -- of your expert report, which is Exhibit 1 to

6 the deposition, and we're looking for Ms. 

7 A. Right there.

8 Q. Okay. So, does that refresh your recollection

9 as to how many audio files you reviewed in relation to

10 Ms. 

11 A. It looks like I did two.

12 Q. Okay. And do you know if those files were

13 separate portions, distinct portions of the same

14 interaction with ADT? The same phone call with ADT?

15 A. I don't -- I don't remember.

16 Q. You don't remember if they were separate phone

17 calls between Ms. and ADT?

18 A. No, I don't remember.

19 Q. Do you -- do you remember if they were calls

20 between Ms. and ADT?

21 A. I'm sorry. Could you repeat that question?

22 Q. Were both of these audio recordings, recordings

23 of calls between Ms. and ADT?

24 A. Yes, they were.

25 Q. Okay. But, you don't remember if they are two

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1 different portions of the same call or whether they're

2 separate calls?

3 A. That's correct.

4 Q. Okay. And did you review the entirety of each

5 of these audio files?

6 A. Again, I don't remember.

7 Q. Did you review any other -- did you speak to

8 Ms. 

9 A. No, I did not.

10 Q. Did you review any other information regarding

11 Ms. 

12 A. No, I did not.

13 Q. Did you ask whether or not she had signed a

14 contract with Vivint?

15 A. Why don't we take a look at Paragraph 51 and

16 find out what she did.

17 Q. Well, I'm asking you a question. You're

18 welcome to look at your expert report if you want, but

19 I'm asking you, did you ask to see whether Ms. 

20 signed a contract with Vivint?

21 A. It appears that she did.

22 Q. She did sign a contract with Vivint?

23 A. That's what it says in Paragraph 51.

24 Q. Okay. Did you request a copy of that contract?

25 A. No.

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1 Q. Why not?

2 A. These can be produced when she gets called to

3 trial. I didn't see any need to do it.

4 Q. Okay. Does -- would it affect -- did -- did --

5 does the content of any contract that Ms. signed

6 with Vivint affect your analysis in this case?

7 A. No. It's the conditions under which she signed

8 the contract, not the contract itself.

9 Q. Okay. And are you going to testify today as to

10 her state of mind?

11 A. No. I think she'll be able to tell you that,

12 herself.

13 Q. Okay. Well, let's look at what we do know from

14 Paragraph 51. Did you request any other information in

15 relation to Ms. 

16 A. No, I did not. All I did was to listen to the

17 audio recording and try to faithfully reproduce what

18 happened in the encounter.

19 Q. Well, it goes into a portion of the audio

20 recording, right?

21 A. As I said, I don't remember how much I listened

22 to.

23 Q. Did you request from ADT any information --

24 other than the six or seven audio recordings that you

25 reviewed or the audio recordings relating to six or

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1 seven customers, did you request from ADT any other

2 information related to those six or seven customers?

3 MR. HOBBS: Object to form.

4 THE WITNESS: No, I did not.

5 BY MR. BROWN:

6 Q. Did you ask ADT or anyone on the ADT team -- by

7 which, I mean GBX, or Shook, Hardy & Bacon, or any other

8 attorneys related to ADT -- for copies of any contracts

9 between ADT and any of these six or seven customers?

10 A. No. I didn't feel that I needed any contracts.

11 I know you've been asking me that question. The

12 witnesses can produce them, themselves. And what I'm

13 trying to do here is just lay the foundation for the

14 misconduct that Vivint is perpetrating on the customers

15 in the field. And that's basically the kind of

16 information I was looking for in these -- in these

17 calls.

18 Q. Did you request copies -- does it affect your

19 analysis whether or not -- what the terms of the six or

20 seven customers, or any customers' contracts with ADT

21 are or were?

22 A. No. Again, it's the -- it's the information

23 that the Vivint salesperson was communicating to the

24 customer, the kind of information, whether it fairly

25 represented or did not fairly represent the truth. And

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1 then, you know, how it affected the customer, at least

2 in terms of their behavior.

3 Q. Okay. Did you request from ADT, or anyone

4 else associated with this case, copies of any Vivint

5 contracts between any of these -- any ADT customer and

6 Vivint?

7 A. No. I didn't think the contracts, as I said,

8 were relevant to my -- to my report.

9 Q. Is it relevant whether or not the customer

10 entered into a contract with Vivint?

11 A. No.

12 Q. That doesn't affect your analysis?

13 A. No. I think it makes it worse for the customer

14 if in fact they've been tricked into doing it. But, as

15 I said earlier, the fact that there's misinformation

16 in the marketplace that it's affecting a customer's

17 attitude towards ADT, is really a determining factor in

18 my report, which then lead to the requirement of a

19 remedial information campaign.

20 Q. Does it -- so, it does not affect your analysis

21 whether or not -- well, let me ask.

22 Does it affect your analysis whether or not the

23 customer stopped being a customer for -- of ADT at any

24 point in time?

25 A. Well, I don't know what you mean, by any point

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1 in time. I mean, you know, obviously, it could be -- it

2 could be in the future. You're talking about this

3 particular time frame that's represented here in the

4 case?

5 Q. Well, let's say that the customer -- I'm trying

6 to distinguish from a position -- a period of, you know,

7 perhaps there are some customers that left ADT, went to

8 Vivint, and then went back to ADT.

9 If you -- if you knew that a customer left ADT,

10 but -- and went to Vivint, but later went back to ADT,

11 does that affect your analysis in any way?

12 A. Well, I think it still is the fact that the

13 customer at some point had a negative impression of ADT.

14 And, so, even if they went back to, you know,

15 subscribing to ADT's services, there's still this issue

16 lingering out there of, what's going on here in the

17 marketplace? What's the truth? You know, can I trust

18 ADT even if I re-enter into a contract going forward?

19 So, I think it's just this whole misinformation

20 environment that needed to be corrected and that's why I

21 recommended the approach that I did.

22 Q. And that's true regardless of whether -- well,

23 whether the customer later rejoined ADT and became a

24 customer -- a customer again of ADT?

25 A. Yes, I believe that to be true.

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1 Q. What if the customer never left ADT at all?

2 What if the -- regardless of what the interaction was,

3 or the alleged interaction was with the Vivint sales

4 representative, what if the customer never left ADT.

5 Does that affect your analysis, at all?

6 A. No. Because -- that's already come up. We've

7 already talked about this a few minutes ago with the

8 first customer. You know, just because they didn't

9 leave ADT, it doesn't mean, again, that there is some

10 seed of doubt planted in their mind that there is

11 something going on with the security company.

12 And I make a point in my report that, you know,

13 you can't get worse than having any suspicions or

14 problems with your security company, right? Because,

15 that's what you're paying for, security. And if you

16 feel insecure about your security company, that's like

17 the worst of everything. So, I don't think that the

18 customer -- the customer does not have to switch to a

19 Vivint product, or somebody else's product, to make my

20 analysis relevant.

21 Q. So, if a customer has any amount of doubt about

22 ADT after their alleged interactions with Vivint, then

23 that customer needs to be a subject of your remedial

24 information -- of your advertising campaign?

25 A. Well, I wouldn't call it an advertising

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1 campaign; but, yes. The answer is, yes.

2 Q. Okay. I did get that's what you called it

3 later in your report, an advertising campaign.

4 A. I don't think I ever called it an advertising

5 campaign.

6 Q. Well, we'll get there. What would you call it?

7 It's not an advertising campaign?

8 A. Well, there -- it's two parts. There's the

9 personal selling part. That's personal visits to

10 people's homes, which is an information campaign being

11 delivered face-to-face. And then there's an

12 informational campaign being delivered, you know, using,

13 you know, other media.

14 So, it's not advertising. It's not selling

15 information. It's trying to assuage their -- you know,

16 their doubts and concerns they have about ADT.

17 Q. So, if they have any remaining doubts, after

18 the alleged interaction with Vivint, then they need to

19 be a subject of this information campaign?

20 A. Well, not just the people that are -- that we

21 analyzed here. But, as you know from the report, there

22 are many others, as well, who could have well been

23 affected by Vivint's deceptive practices. Alleged

24 deceptive practices.

25 Q. Okay. But, my question is, if the person

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1 has -- that has been subjected to this Vivint's alleged

2 deceptive practices, has any doubt related to ADT left

3 in their mind, then that person needs to be the subject

4 of your information campaign, correct?

5 A. Correct.

6 Q. Okay. Does it matter if that doubt is related

7 to confusion relating to an affiliation between Vivint

8 and that -- and ADT?

9 A. Well, I mean, there are different sources of

10 that doubt, right? I mean -- I mean, a lot of it

11 relates to consumers being confused about their -- the

12 salesperson's information, right? Whether -- (witness

13 coughs) -- excuse me.

14 Q. Well, that's my question. Does it matter --

15 A. Excuse me. Let me take -- let me take a drink

16 for a second, okay?

17 Okay. Go ahead.

18 Q. Does it matter what that doubt is about?

19 A. Well, the doubt has to be related to a

20 deceptive practice, okay? As we discussed earlier, just

21 saying negative information about a competitor is part

22 of normal business practice. If the doubt is a Vivint

23 salesperson saying that they are taking over ADT's

24 customers, or they're servicing ADT's customers, that's

25 a very different category of doubt.

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1 Q. Dr. Winer, did you have any phone calls during

2 the break we just took?

3 A. We got on the line with the attorney and Mark,

4 yes.

5 Q. Okay. And what did you discuss?

6 A. We didn't discuss anything. He asked how I was

7 doing, we talked about time left. Nothing -- nothing in

8 particular.

9 Q. Okay. You did not talk about your -- the

10 deposition today?

11 A. No. Eric needed to get his lunch, so we didn't

12 spend too much time on it.

13 Q. How long was the phone call?

14 A. Maybe 10 minutes.

15 Q. Okay. Did you talk about how the deposition

16 was going?

17 A. No.

18 Q. Did you talk about the questions that you might

19 encounter in the deposition?

20 A. You'll have to repeat that. Somebody was

21 coughing in the background.

22 Q. Did you talk about the questions that you might

23 encounter in the deposition?

24 A. No. We've done that the last couple days. We

25 didn't do that today.

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1 Q. Did anyone suggest to you how you should answer

2 any particular questions that I might ask?

3 A. No. Definitely not.

4 Q. Okay. So, let's look at -- back at

5 Paragraph 51. So, Ms. was -- according to what you

6 write here, Ms. was contacted by ADT after

7 reporting a deceptive sales call and asked in a

8 follow-up discussion to describe what happened.

9 So, did ADT -- did Ms. call ADT or did ADT

10 call Ms. 

11 A. It looks like both. Ms. was contacted,

12 after reporting a deceptive sales call, and was asked

13 in a follow-up discussion to describe what happened.

14 So, perhaps the first recording was her -- I

15 don't recall -- contacting ADT and then the second

16 recording was ADT calling her.

17 Q. Did you review the first call?

18 A. I reviewed both calls.

19 Q. Okay. In their entirety?

20 A. I don't remember that, Counselor.

21 Q. Okay. So, ADT followed up with Ms. and

22 asked her to describe what happened. Is that right?

23 A. Correct.

24 Q. To your knowledge, does ADT have a practice of

25 following up with customers that cancel their services

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1 with ADT?

2 A. Oh, it's very common. You know, they try to

3 win back the accounts. Vivint does it. Everybody does

4 it. Any service company does it.

5 Q. My question is, does ADT do it?

6 A. Well, I don't know for a fact. But, I would be

7 shocked if they didn't.

8 Q. So, you believe -- you believe that ADT has a

9 practice of, when someone leaves their service, they try

10 to win that customer back?

11 A. Yes.

12 Q. And do you know if they reach out to those

13 customers in phone calls in order to try to win them

14 back?

15 A. I don't know exactly how they do it. But,

16 certainly, a lot of the customer service operations I've

17 seen that do this win-back operation, do it by phone.

18 Q. Okay. Do you know if ADT tries to determine,

19 if a customer is leaving, if they're going to a

20 competitor?

21 A. As opposed to just not having any service at

22 all?

23 Q. Sure.

24 A. I mean, where else would they go if they didn't

25 go to a competitor?

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1 Q. My question is, do you know if ADT attempts to

2 determine, when a customer leaves ADT, if they are going

3 to a competitor?

4 A. I -- of all the customer service operations

5 I've seen, they definitely want to know that. I mean,

6 they want to know who -- if they're -- you know, who

7 they might be losing customers to, why it's happening.

8 Often, they do exit interviews with the customer, to try

9 to figure out, you know, what were they happy with, what

10 were they unhappy with. Very common.

11 Q. And -- and you believe that ADT does that, as

12 well?

13 A. I do.

14 Q. ADT tries to determine why someone is -- if

15 someone's leaving ADT, ADT tries to determine why

16 they're leaving. Correct?

17 A. Yes.

18 Q. And if a customer is leaving ADT, ADT tries to

19 determine what competitor that customer is going to.

20 Correct?

21 A. Yes.

22 Q. And if a customer is leaving ADT, ADT tries to

23 determine whether that customer was subject to a

24 deceptive sales practice. Correct?

25 A. That, I don't know for sure. I wouldn't know

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1 that. It seemed like it happened here.

2 Q. ADT -- ADT tries to determine why a customer

3 leaves, but they don't care whether it was a deceptive

4 sales practice or not?

5 A. I don't know that. They may. They may ask

6 that question. I don't know that they would go into

7 this kind of a discussion on a win-back call, assuming

8 it was deceptive. I would think they would have to

9 depend on the customer to tell them there was some

10 deception going on.

11 Q. Do you believe that ADT seeks that

12 information -- information from customers that are

13 leaving?

14 A. I don't know the answer to that.

15 Q. They did in this instance?

16 A. They did in this instance. And maybe it is

17 because of the issues they've had with Vivint and maybe

18 other -- other competitors. Maybe it's a standard part

19 of their -- of their follow-up phone call.

20 Q. Did you ask anyone related -- excuse me.

21 Did you ask anyone involved in this case

22 whether ADT has a practice of following up on -- with

23 customers to see if they were subjected to deceptive

24 sales practices?

25 A. No, I did not.

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1 Q. Did you ask anyone whether ADT has a practice

2 of tracking whether customers were subject to deceptive

3 sales practices?

4 A. By asking anyone, do you mean someone in ADT?

5 Q. Someone with ADT, someone with Vivint, one of

6 the attorneys, someone at GBX. Anyone related to this

7 case.

8 A. No, I did not.

9 Q. Did you ask anyone related to this case whether

10 ADT tracks where -- where customers that are leaving ADT

11 are going in terms of what competitor they're going to?

12 A. I don't need to ask that. I know they do.

13 Q. So, does ADT track when its customers are

14 leaving ADT to go to Vivint?

15 A. I'm sure they do.

16 Q. Okay. Was that information made available to

17 you?

18 A. I didn't ask for it.

19 Q. Why not?

20 A. I didn't feel I needed it for the purposes of

21 my report.

22 Q. Would it impact your analysis in this case to

23 know how many customers left ADT to go to Vivint?

24 A. Well, it would have been nice to get that kind

25 of information from Vivint, too. We didn't get any

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1 information from Vivint indicating the customers that

2 left ADT to go to Vivint. We do have some information

3 from these calls, of customers that left ADT for Vivint,

4 from ADT. But, we don't -- we don't have any big

5 picture idea of how much that happened, because we

6 didn't get anything from Vivint.

7 Q. Okay. Your answer is largely unresponsive, so

8 I'll ask my question again.

9 Did you ask --

10 MR. BROWN: Well, I'm just going to -- I

11 apologize, but I'm going to have the court reporter

12 read back my question.

13 COURT REPORTER: "Would it impact your analysis

14 in this case to know how many customers left ADT to

15 go to Vivint?"

16 THE WITNESS: No. My analysis was based on --

17 MR. HOBBS: Objection, asked and answered.

18 THE WITNESS: No. My analysis -- in fact, I

19 explicitly state, early in my report, that I'm not

20 doing a lost customer analysis, I'm doing a grand

21 harm analysis here and trying to calculate the

22 damages to the brand. So, I wasn't interested in

23 tracking numbers of lost customers.

24 BY MR. BROWN:

25 Q. Your ultimate conclusion is that door-to-door

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1 visits are required of about 750,000 customers in this

2 case, correct?

3 A. Correct.

4 Q. It's necessary for ADT to send sales

5 representatives to visit the 750,000 of its customers in

6 this case, correct?

7 A. Right. About 12 percent of its customer base.

8 Q. If you knew that only 100 customers left ADT to

9 go to Vivint, would that affect your conclusion that

10 750,000 customers need to be visited door-to-door in

11 this case?

12 A. No.

13 Q. If it were one customer that left ADT to go to

14 Vivint, would that affect your analysis of the

15 information campaign that is required in this case?

16 A. No.

17 MR. HOBBS: Object to the form.

18 BY MR. BROWN:

19 Q. What if no customers left ADT to go to Vivint

20 as a result of any alleged deceptive sales practices by

21 Vivint. Would that affect your analysis as to the scope

22 of the information campaign that is required in this

23 case?

24 MR. HOBBS: Object to form, improper

25 hypothetical.

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1 THE WITNESS: Could you read back the question,

2 please?

3 COURT REPORTER: "What if no customers left ADT

4 to go to Vivint as a result of any alleged deceptive

5 sales practices by Vivint. Would that affect your

6 analysis as to the scope of the information campaign

7 that is required in this case?"

8 THE WITNESS: No, it would not.

9 MR. HOBBS: Same objection.

10 THE WITNESS: No, it would not.

11 BY MR. BROWN:

12 Q. So, is it fair to say that the facts -- well,

13 strike that. Let's go back to Paragraph 53.

14 So, Ms. -- sorry, let me find my spot,

15 here. Ms. reported that someone came to her --

16 "That a Vivint employee came to her door in the evening

17 and told her Vivint was going around the neighborhood to

18 switch out old equipment."

19 Did I read that right?

20 A. Yes.

21 Q. What did you do -- or, did you do anything to

22 verify that Ms. was actually visited by a Vivint

23 employee?

24 A. I didn't do anything. I think that you're

25 going to have to talk to Ms. about what happened

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1 that evening.

2 Q. Did you talk to Ms. 

3 A. No.

4 Q. Other than the audio recordings that you

5 reviewed, do you have any other basis for your belief

6 that a Vivint employee visited Ms. 

7 A. No. I relied on the audio.

8 Q. Do you know when that visit occurred?

9 A. I don't know the date.

10 Q. Does it affect your analysis if it occurred

11 before 2017?

12 A. No.

13 Q. Okay. You then say, "The Vivint employee told

14 her that Vivint is taking over the company you're with.

15 A statement which gave Ms. the impression that he

16 was with ADT."

17 Did I read that right?

18 A. Yes.

19 Q. Do you know precisely what the alleged Vivint

20 employee said to Ms. 

21 A. Well, I have it in quotes, so I must have taken

22 it directly from the recording.

23 Q. Well, that was a recording of Ms. talking

24 to ADT, correct?

25 A. Yes.

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1 Q. Okay. So, do you know what -- the exact words

2 that the Vivint representative said to Ms. 

3 A. Well, I wasn't a fly on the wall, so I don't

4 know if this is not exactly what she said. But, I have

5 to take it -- I'm taking it as truth.

6 Q. Okay. And what about for -- what about for the

7 prior customer that we talked about in Paragraph 50,

8 Ms. Do you know exactly what the alleged Vivint

9 representative said to Ms. 

10 A. She reported that Vivint -- that the person

11 from Vivint came to her home, told her that Vivint had

12 merged with ADT, and that he was there to upgrade her

13 security system.

14 Now, a merger is not something sort of normal

15 people talk about, in -- in everyday conversation,

16 unless she happens to be an investment banker or some

17 other related profession. So, it sounds pretty accurate

18 to me.

19 Q. My question was, do you know the exact words

20 that the alleged Vivint representative said to Ms. --

21 A. No.

22 Q. -- I'm sorry, finishing the question --

23 Ms. 

24 A. I'm sorry, I didn't hear the beginning.

25 Q. I was just trying to finish the question,

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1 because you had interrupted me.

2 Do you know what the alleged Vivint

3 representative said, the exact words that the alleged

4 Vivint representative said to Ms. 

5 MR. HOBBS: Objection, asked and answered.

6 THE WITNESS: No.

7 BY MR. BROWN:

8 Q. Okay. So, going back to Paragraph 51, "The

9 Vivint representative told Ms. that it would help

10 to -- help her cancel her contract with ADT."

11 Did I read that right?

12 A. Yes.

13 Q. And -- and also that the Vivint representative

14 indicated they would cover any expenses stemming from

15 the cancellation.

16 A. That's right.

17 Q. Let's -- let me ask this.

18 What if the doubt or confusion or deception,

19 that the customer has left in their mind after an

20 interaction with Vivint relates to a promise or

21 representation regarding who would pay for cancellation

22 expenses -- who would pay certain expenses. Is that

23 something that your information campaign needs to remedy

24 in this case?

25 MR. HOBBS: Object to the form.

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1 THE WITNESS: Well, I mean, in this particular

2 interaction, the -- the misrepresentations are

3 that Vivint is taking over ADT. He gave her the

4 impression that he was with ADT. The parts that

5 you're referring to in this question, cancel her

6 contract, cover any expenses, are not the same kinds

7 of misrepresentations. They're just promises that

8 the Vivint representative is making if she switches

9 to Vivint.

10 BY MR. BROWN:

11 Q. So, if the only deception interaction -- the

12 only deception or alleged misrepresentation that

13 occurred in an interaction between an alleged Vivint

14 representative and an ADT customer relates to whether or

15 not Vivint would pay certain expenses in switching that

16 customer from ADT to Vivint, is that something that

17 needs to be remedied in this case?

18 MR. HOBBS: Object to form. Misstates

19 testimony.

20 THE WITNESS: It does, if, to get to that

21 point, there have been deceptive statements to the

22 customer. If the Vivint representative makes a

23 sales call, and it's an honest approach to try to

24 get a customer to switch and he says that he will

25 cancel their contract with ADT and cover any

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1 expenses, that is a fair business practice.

2 BY MR. BROWN:

3 Q. Okay. What -- what if -- what if the Vivint

4 representative says that he will cancel the ADT contract

5 and cover the expenses for switching over, but that's a

6 lie, that's a deception. Is that a deception that your

7 information campaign needs to remedy?

8 A. Yes.

9 Q. Why? Why does that need to be remedied?

10 A. Because it's all part of the -- it's -- it

11 leaves the customer with still a bad taste about ADT as

12 a company. I mean, it's not just Vivint, right, that is

13 doing the deception, but it's ADT that is the one that

14 is being switched from. And, so, the customer still has

15 this feeling or some thought in her head, in this case,

16 that there is some problem with ADT. And that needs to

17 be remedied.

18 Q. Well, what -- but, what I just described is a

19 deception related to Vivint. A deception that Vivint

20 would pay some expenses or take some action. That's not

21 a deception related to ADT. I'm talking -- correct?

22 That's a deception related to Vivint?

23 MR. HOBBS: Object to form.

24 THE WITNESS: Right. But, it's -- it's

25 getting -- it could be effective. It might be

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1 getting ADT customers to switch and to switch under

2 false pretenses. So, ADT customers need to be

3 informed that there is this kind of behavior going

4 on in the marketplace and to be forewarned about it.

5 And that's part of my remedial information campaign.

6 BY MR. BROWN:

7 Q. I think I'm following you. I just want to

8 confirm that. So, if the Vivint -- if the deceptive

9 sales practice by the Vivint representative relates only

10 to Vivint, and it's not a deception about ADT, but a

11 deception only related to Vivint, and that deception is

12 successful in getting the customer to switch from ADT to

13 Vivint, then that is something that needs to be remedied

14 and the subject of your information campaign?

15 A. Yes, it does.

16 MR. HOBBS: Object to form, asked and answered.

17 BY MR. BROWN:

18 Q. Now, what if the Vivint representative says --

19 makes a deceptive statement related to Vivint, not ADT,

20 and the ADT customer does not switch from ADT to Vivint.

21 Is that still something that needs to be remedied by

22 your information campaign?

23 A. Could you repeat the question? The scenario?

24 Q. The scenario is, a Vivint representative comes

25 to an ADT customer and makes a deceptive sales -- excuse

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1 me, makes a deceptive statement related to Vivint,

2 such as, Vivint will cover the cost of switching your

3 account. Is that a deceptive sales practice that needs

4 to be -- does -- does that deception need to be remedied

5 by your information campaign?

6 MR. HOBBS: Object to form, asked and answered.

7 THE WITNESS: I mean, yes. The -- my remedial

8 information campaign not only talks about, you

9 know -- well, it talks about the kind of deceptive

10 practice that Vivint has, tries to warn consumers

11 that this is going on in the marketplace. So, any

12 form of deceptive practice would fall under the --

13 under the aegis of my remedial information campaign.

14 BY MR. BROWN:

15 Q. So, let's say that -- it's a different

16 question, now. Let's say that an ADT customer was never

17 visited by Vivint. And we know for sure that this ADT

18 customer has never been visited by Vivint. Is it

19 necessary to -- for that customer to be a subject of

20 your information campaign?

21 A. Definitely.

22 MR. HOBBS: Object to form, improper

23 hypothetical, foundation.

24 THE WITNESS: Definitely.

25 BY MR. BROWN:

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1 Q. Why is that?

2 A. Because --

3 MR. HOBBS: Same objection.

4 THE WITNESS: Because, Vivint has a large sales

5 force, calls on many customers, even if they haven't

6 been called on yet. You know, part of this remedial

7 information campaign is to try to contact and talk

8 about things or situations where maybe a customer

9 has been contacted by Vivint. But, it may well be

10 the case there are actually more people who haven't

11 been contacted by Vivint yet.

12 So, the idea is kind of inoculation, all right?

13 And try to get them to watch out for this kind of

14 behavior, watch out for the deceptive tactics that

15 Vivint salespeople use. And, so, definitely, even

16 if they have not been contacted by Vivint yet, they

17 should be part of the population that receives this

18 campaign.

19 BY MR. BROWN:

20 Q. Can you say more what you mean by inoculation?

21 I'm not sure I'm following you.

22 A. Yeah. Even if a customer has not been called

23 on by Vivint, that customer needs to be informed that

24 this kind of behavior is going on in the marketplace and

25 to warn them that they could be called on by somebody in

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1 the future who claims that Vivint is taking over ADT,

2 et cetera.

3 So, I use the word inoculation, because it's

4 kind of like inoculation against a virus. It's kind of

5 like giving them information in advance so that they

6 don't get deceived when they're called on.

7 Q. So, even if -- to go back to your virus

8 analogy, even if someone has not been exposed to the

9 virus -- which, in this case, would be analogous to

10 deceptive sales practices by Vivint -- part of your

11 information campaign is to inoculate that person to

12 prevent any future harm that would be caused by a future

13 visit by Vivint?

14 A. Yes. That's the point.

15 Q. Okay. I think I'm following you. So, part of

16 your -- part of your -- the purpose of your information

17 campaign is to inoculate ADT customers from future

18 conduct by Vivint?

19 A. That's part of it, yes.

20 Q. So, part of your -- the purpose of your

21 information campaign is to prevent not only past harm

22 that has already occurred, but future harm that has not

23 yet occurred, but could occur if Vivint rep- -- sales

24 representatives do visit those customers?

25 A. That's correct.

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1 MR. HOBBS: Object to form.

2 THE WITNESS: That's correct.

3 BY MR. BROWN:

4 Q. Is it possible to -- I'll just -- I'll leave

5 it there. Okay. Let's go back to Paragraph 51.

6 Okay. In -- in the conclusion of this

7 interaction between ADT and Ms. Ms. calls ADT

8 and -- and tells them that she was deceived. Correct?

9 A. Yes.

10 Q. So, at some point, Ms. realizes that she

11 was deceived by the Vivint sales representative?

12 A. Yes.

13 Q. And then she calls ADT and she tells ADT that

14 she was deceived by a Vivint sales representative?

15 A. Yes.

16 Q. So, at the time of that second sales call,

17 she's no longer deceived. She realizes she was

18 deceived, so she's never -- no longer deceived by what

19 the Vivint sales representative had told her. Correct?

20 MR. HOBBS: Object to form.

21 THE WITNESS: Give me a minute to re-read this.

22 Well, okay. Ask the question again, please.

23 Can you read it -- read it back?

24 BY MR. BROWN:

25 Q. So, at some point, Ms. realizes that she

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1 was deceived by the Vivint sales representative,

2 correct?

3 A. Yes.

4 Q. And then she calls ADT and reports that she had

5 been deceived by the Vivint sales representative?

6 A. Yes.

7 Q. So, we know, at the time she makes the call to

8 ADT, that she's no longer deceived about the alleged

9 misrepresentation by the Vivint sales representative?

10 MR. HOBBS: Object to form.

11 THE WITNESS: Yes. But, she has already

12 switched out all of her ADT equipment. It says here

13 in the paragraph.

14 BY MR. BROWN:

15 Q. Okay. But, you said the fact that she switched

16 is not relevant to your analysis?

17 A. I did not -- I did not track all the switches,

18 that's correct. The issue was whether or not it is

19 still a -- whether it hurts the ADT brand, all right,

20 which is the focus of my analysis. And I would argue

21 that it -- it still does. I mean, because now she

22 doesn't have ADT equipment. She's not going to be able

23 to be reminded every day that she feels secure with ADT

24 equipment. And, so, at least in this person, the brand

25 equity is going to be -- for ADT is going to be

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1 diminished.

2 Q. So, it is relevant that she switched from ADT

3 to Vivint?

4 A. I -- I never said switches are irrelevant.

5 What I said was that I'm not measuring -- the intent of

6 this report is not to estimate how many switches there

7 were due to Vivint's sales behavior.

8 Q. Okay. And maybe I'm being imprecise. What I

9 mean by relevant is, does it impact your conclusion?

10 Does it impact your opinions in this case whether or not

11 she switched from ADT to Vivint?

12 A. Yes. It's not the number of switches that

13 matters, it's the fact she doesn't have ADT equipment

14 anymore. So, as I said, the value of the brand within

15 Ms. is diminished.

16 Q. Okay. So, if that is relevant to your

17 analysis -- how many people switched from ADT to

18 Vivint -- did you attempt to obtain that information

19 from anyone related to this case?

20 A. I'll repeat that my intent was not to try to

21 measure how many switches there were, all right? The

22 fact that there were switches, all right, is all I

23 needed to know. The fact that there were switches based

24 upon deceptive behavior laid the foundation for my

25 remedial communications campaign. So that, the people

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1 that -- even if they had switched, all right, might feel

2 more favorable towards ADT in the future and therefore

3 maybe switch back at some point.

4 Q. Well, you previously testified that it -- it

5 wouldn't matter how many people switched. I asked you,

6 does it matter if one person switched? You said, no. I

7 asked you, does it matter if no one switched? And you

8 said, no. You said it wouldn't affect your analysis.

9 So, I'm confused.

10 Does it affect your analysis, the number of

11 people who switched from ADT to Vivint?

12 A. No. I've said this several times. I did

13 not -- I was not interested in the exact number -- in

14 the number or an estimate of the number for how many

15 people switched. It's just the general idea that there

16 were switches due to deceptive behavior, right, that

17 supports my position that the campaign is needed.

18 Q. So -- but, I asked you, does it matter if no

19 one switched? And you said, no, it doesn't matter.

20 MR. HOBBS: Object to form.

21 THE WITNESS: It doesn't matter if no one --

22 it -- it all -- it -- I'm sorry. It does not matter

23 if no one switched, I agree with that.

24 BY MR. BROWN:

25 Q. Okay. But, now I want to direct your attention

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1 to the bottom of Paragraph 51, because I think I'm

2 understanding what matters to you.

3 In the last phrase of the last sentence, it

4 says, "Which left her feeling really stupid and upset."

5 Right?

6 A. That's what it says.

7 Q. And that's what matters to you, that she felt

8 stupid and upset. Right?

9 MR. HOBBS: Object to form.

10 THE WITNESS: It's not just -- yeah, it's not

11 just -- it's not the fact that she actually

12 switched. Even if she didn't switch, it still hurts

13 ADT. So, that's the -- again, the foundation of

14 my -- of my thesis in this report.

15 BY MR. BROWN:

16 Q. Right. And it doesn't matter if she's still

17 deceived or not. What matters is that she felt stupid

18 and upset. Right?

19 MR. HOBBS: Object to form, asked and answered.

20 THE WITNESS: Yes. Which then carries over to

21 her feelings about ADT.

22 BY MR. BROWN:

23 Q. Okay. And, so, the information campaign --

24 regardless of whether she remains deceived or not by

25 the practices of Vivint, the information campaign that

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1 you're opining to is necessary to remedy any lingering

2 negative feelings that she has about ADT?

3 MR. HOBBS: Object to form.

4 THE WITNESS: That certainly is part of it,

5 yes.

6 BY MR. BROWN:

7 Q. What if she has negative feelings lingering,

8 but they're directed to Vivint, not ADT?

9 A. Well, there's still --

10 MR. HOBBS: Object to form.

11 THE WITNESS: I mean -- I mean, there's still

12 all this complicated interaction that happened

13 between her and Vivint. She may well feel negative

14 about Vivint, but that's not our problem in this

15 litigation. You know, our problem is that she may

16 well feel negative towards ADT, as well, and might

17 even switch to a third one, you know, because she's

18 just unhappy with the situation.

19 BY MR. BROWN:

20 Q. Well -- so, here she says she feels really

21 stupid and upset. How do you know whether she's feeling

22 stupid and upset with ADT or feeling stupid and upset

23 with Vivint? How does your analysis discern who she's

24 upset with?

25 MR. HOBBS: Object to the form.

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1 THE WITNESS: Well, it says, if you look at

2 the clause before that, she was told she had been

3 deceived, probably by the ADT person. That left her

4 feeling really stupid and upset. So, clearly, it's

5 due to Vivint's actions.

6 BY MR. BROWN:

7 Q. Okay. So, if she's upset with Vivint, is that

8 something that your information campaign needs to

9 remedy?

10 MR. HOBBS: Object to form.

11 THE WITNESS: My information campaign is

12 intended to remedy any negative feelings that people

13 may have towards ADT, but also, as I said, inoculate

14 them against any future sales calls from Vivint.

15 So, yes. I mean, if they feel negative towards

16 Vivint, then that's part of the communications

17 campaign. We have to warn people about what's

18 happening in these sales calls.

19 BY MR. BROWN:

20 Q. Well, if the customer already feels negatively

21 towards Vivint and doesn't have any remaining negative

22 feelings about ADT, why is it necessary to contact that

23 customer?

24 MR. HOBBS: Object to form, improper

25 hypothetical, misstates testimony.

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1 THE WITNESS: Well, as I said before, the --

2 the remedial campaign is intended to be a broad

3 campaign to educate all ADT customers about what

4 Vivint was doing in the marketplace and try to --

5 try to build back the ADT brand, which was harmed or

6 has been harmed by Vivint's actions.

7 BY MR. BROWN:

8 Q. And it's necessary to -- for that campaign to

9 reach all of the ADT customers, including customers that

10 were never exposed to any Vivint representatives?

11 A. Yes.

12 MR. HOBBS: Object to form.

13 THE WITNESS: As I said before, it -- that's

14 important, as well.

15 BY MR. BROWN:

16 Q. All right. Let me have you turn to

17 Paragraph 61 of your report. I'm going to bring us

18 there, to Exhibit 1 to the deposition. We are now at

19 Paragraph 61, which appears at 25 -- Page 25 of

20 Exhibit 1 to the deposition.

21 So, here -- I think we focused on this earlier.

22 Here, this is -- the Ring Video that we found on your

23 Exhibit B is discussed here, correct?

24 A. Yes.

25 Q. Is there any other place in your report where

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1 you talk about the Ring Video -- either of the three

2 Ring Videos that are referenced on your Exhibit B?

3 A. No.

4 Q. And the -- this -- this video is a video of an

5 interaction between an alleged Vivint representative and

6 an ADT customer at the customer's home, correct?

7 A. Yes.

8 Q. And it's called a Ring Video, because this was

9 a video that was captured by a Ring Doorbell?

10 A. Correct.

11 Q. Okay. How did you obtain the video?

12 A. That was part of the -- of the information that

13 ADT sent GBX and me, including the calls, the WAV files.

14 Q. Did you personally receive a copy of the three

15 videos that are referenced on your Exhibit B?

16 A. I don't remember how I received them, but I

17 have seen them. I don't remember -- I don't remember

18 how I received them.

19 Q. But, you know you did receive them?

20 A. And I viewed them.

21 Q. Is it possible that you only viewed them over a

22 screen share, similar to what we're doing today?

23 A. No, it's not possible. I looked at the

24 originals.

25 Q. You looked at the original videos, yourself?

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1 A. Correct.

2 Q. Did you watch the entirety of all three videos?

3 A. I don't remember.

4 Q. So, you can't say today whether you did or did

5 not?

6 A. I can't say today whether I watched 100 percent

7 of all three videos.

8 Q. Did -- regardless, you've described the videos.

9 And you said, "In the video, the Vivint representative

10 is shown trying to gain access to the ADT customer's

11 home."

12 How did you know that the person trying to gain

13 access to the ADT customer's home was associated with

14 Vivint?

15 A. Well, the -- the customer, as you can see in

16 Footnote 68 and 69, also submitted an Affidavit, which I

17 read where he reported that.

18 Q. Okay. So, your basis for the fact that the

19 person in the video that was trying to gain access to

20 the home was a Vivint representative is this Affidavit

21 from the customer?

22 A. Well, I think the two are mutually supportive.

23 I don't know -- it's possible. I don't remember if the

24 video showed actually the representative with a Vivint

25 badge. I don't remember that kind of detail. But, that

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1 could have been in it. It could have been, in this

2 case, the customer or the potential customer who

3 reported that.

4 Q. So, you don't recall whether there was some

5 indication in the video that the person who was trying

6 to gain access was somehow associated with Vivint?

7 A. I don't recall the basis for the conclusion

8 that it was a Vivint salesperson.

9 Q. Okay. Other than the video and the Affidavit,

10 is there any other basis that you have for your

11 conclusion that it was a Vivint representative?

12 A. Well, it's not clear why the person would say

13 it's a Vivint representative if it wasn't. Because,

14 there are other competitors in the marketplace who could

15 have also made a sales call to him to try to get him to

16 switch. So, why did he say Vivint?

17 Q. Well, if he wanted the customer to think he was

18 associated with ADT, then the most explicit thing that

19 he can do is say that he's with ADT. Right?

20 A. Yes. Well, that even reinforces my point. If

21 the most obvious case would be it was someone from ADT,

22 for him to say it was somebody from Vivint, it must have

23 been produced by some relatively vivid information that

24 made an impact on him.

25 Q. That it made an impact on who?

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1 A. The customer.

2 Q. Okay. But, I'm not asking about what the

3 customer thought. I'm asking what was the basis for

4 your conclusion that the person shown on the video is

5 actually a Vivint representative.

6 A. I'm using the testimony from this customer.

7 Q. Okay. Anything else besides the testimony from

8 the customer?

9 A. No.

10 Q. Did you assume -- were you asked, in this

11 case -- scratch that.

12 Were you directed in this case to assume that

13 the allegations that ADT made in its Complaint were

14 true?

15 A. No.

16 Q. Okay. Were you asked to assume in this case

17 that Vivint is going to be found liable for one or more

18 of the claims that ADT is bringing against Vivint in

19 this case?

20 A. Of course not. That's not my job as an expert.

21 Q. Maybe you misunderstood my question. I asked

22 you, were you directed to assume that Vivint would be

23 found liable on some of the claims that ADT is bringing

24 in this case?

25 A. No.

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1 Q. You did not make that assumption?

2 A. No. There's a trial and the jury decides that.

3 I don't decide that.

4 Q. But, for the purposes of your analysis, were

5 you asked to make that assumption?

6 A. No. I -- in fact, the reason that we're going

7 through these calls in excruciating detail, as well as

8 the depositions and other information, it forms the

9 foundation for my conclusion that, in fact, Vivint is,

10 in fact, culpable of deceptive behavior to its

11 consumers. I didn't -- I was not asked to assume that

12 from the beginning.

13 Q. So, your position that -- part of your opinion

14 in this case is that Vivint did, in fact, commit the

15 misconduct that ADT alleges they committed?

16 A. My -- my conclusion is that there was enough

17 evidence to support the fact -- to support my conclusion

18 that, yes, in fact, Vivint is culpable of deceptive

19 behavior at the point of purchase with consumers in

20 their homes.

21 Q. And if you're allowed to testify at trial,

22 would part of your testimony be to tell the jury that

23 there is sufficient evidence for you to determine that

24 Vivint was culpable of that behavior?

25 A. Yes. I would say that --

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1 MR. HOBBS: Object to form.

2 THE WITNESS: I would say that -- I would say

3 that there is sufficient evidence supporting that.

4 That, in fact, Vivint did, in fact, use deceptive

5 sales practices on customers and that some kind of

6 remedy needs to be implemented.

7 BY MR. BROWN:

8 Q. So, you plan -- if you testify in this case,

9 part of the testimony that you would make to the jury

10 in this case is to tell them that there is sufficient

11 evidence, in your view, to find that Vivint had

12 committed these alleged deceptive sales practices?

13 MR. HOBBS: Object to form.

14 THE WITNESS: I think -- actually, I think,

15 most of the evidence that's going to be put in front

16 of the jury will be not my -- not be my report. You

17 know, there will be the customers, ADT managers.

18 Other people are going to provide the foundation for

19 that.

20 My analysis of seven recordings and a few

21 depositions, et cetera, was more for me to be

22 comfortable concluding that. But, in a jury trial,

23 I assume that our counsel is going to bring forth

24 many more people to testify to -- to Vivint's

25 actions. It's not going to be my job to do that.

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1 BY MR. BROWN:

2 Q. Okay. I didn't -- I didn't ask if it was your

3 job. I asked if you plan to testify to the jury as to

4 your view of the evidence that you discussed in your

5 report and your conclusion that it's sufficient to

6 determine that Vivint did, in fact, commit the alleged

7 misconduct that ADT has put in the Complaint.

8 A. I think that's a --

9 MR. HOBBS: Object to form.

10 THE WITNESS: I think that's a decision that

11 will have to be made by the ADT attorneys, not me.

12 BY MR. BROWN:

13 Q. Okay. So, if you're asked to testify to the

14 jury whether the evidence that you reviewed establishes

15 that Vivint was, in fact, culpable, what would your

16 answer be?

17 A. My answer would be, yes, based upon the

18 evidence that I've seen.

19 Q. Okay. And in this -- going back to

20 Paragraph 61, this customer -- you're -- you're -- I

21 think you're describing the videos. You say, "The

22 customers are very skeptical and repeatedly tell the

23 rep- -- the Vivint representatives to leave, which they

24 eventually do."

25 Did I read that right?

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1 A. Yes.

2 Q. And is that you describing what you saw in the

3 Ring Doorbell Video?

4 A. Yes.

5 Q. Okay. So, on the Ring Doorbell Video, you're

6 seeing what you believe are customers being skeptical of

7 what the Vivint representative is telling them?

8 A. Yes.

9 Q. Okay. And they tell -- and because they're

10 skeptical, they repeatedly tell the Vivint

11 representative to leave their home?

12 A. Yes.

13 Q. Okay. Now -- and when I say -- this is a video

14 of an interaction that occurred on the front doorstep.

15 Is that correct?

16 A. Yes.

17 Q. Okay. And, so -- so, the Vivint

18 representatives didn't -- in this instance, the Vivint

19 representatives did not actually gain access to the

20 home. Correct?

21 A. Correct.

22 Q. The Vivint representatives attempted to gain

23 access to the home, but the ADT customer repeatedly told

24 them to leave. Correct?

25 A. Yes.

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1 Q. Okay. And the Vivint representatives do, in

2 fact, leave?

3 A. Yes.

4 Q. So, in this instance, the -- the ADT customer

5 did not switch to Vivint?

6 A. That's correct.

7 Q. They -- they did not buy what the Vivint

8 representative was trying to sell?

9 A. That's correct.

10 Q. Okay. And, in fact, they told -- repeatedly

11 told the Vivint representative to leave?

12 A. Correct.

13 Q. Okay. Is it necessary -- for this ADT customer

14 that's the subject of Paragraph 61 and the subject of

15 the Ring Video that you reviewed, is it necessary, as

16 part of your information campaign, for this customer to

17 be visited door-to-door?

18 A. I think the purpose of including this is just

19 to continue to document the deceptive behavior on the

20 part of the Vivint salespeople. This particular

21 customer seems to be pretty competent, I guess, in his

22 ability or her ability to reaffirm that ADT is their

23 security company. So, this particular customer may not

24 need as much assurance, maybe, as most of the others.

25 Q. Okay. So, how do we distinguish customers like

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1 this, that don't need much assurance, from those that do

2 need more assurance?

3 A. Well, again, I think that still part of this is

4 inoculation, just warning them of other practices. In

5 this case, the Vivint representative stated that ADT

6 sold their company. What if another Vivint

7 representative tries to call on this particular ADT

8 customer and says that they have an arrangement with

9 ADT, in terms of -- in terms of swapping out equipment

10 or something like that.

11 So, I think all customers need to be exposed to

12 the remedial information campaign, even a customer like

13 this one.

14 Q. So -- so, from this customer, one possible

15 representation -- misrepresentation did not work on

16 this ADT customer. But, it's possible that a future

17 Vivint representative could come with a different

18 misrepresentation that would be effective?

19 A. Yes. And the --

20 MR. HOBBS: Object to form.

21 THE WITNESS: And the remedial information

22 campaign would detail all of the approaches that

23 Vivint has attempted on customers.

24 MR. BROWN: Okay.

25 VIDEOGRAPHER: Mr. Brown, this might be an

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1 opportune time for a media break.

2 MR. BROWN: Yeah, that works for me.

3 VIDEOGRAPHER: Okay. Stand by, please.

4 This is the end of Media Number 3 in the

5 testimony of Dr. Russell Winer. We're now going off

6 the video record and the time is 4:11 p.m., Eastern.

7 Please stand by.

8 MR. BROWN: Let's take five minutes.

9 MR. HOBBS: Okay.

10 MR. BROWN: See everybody when you get back.

11 (Whereupon, a recess was held at 4:11 p.m., and the

12 deposition resumed at 4:20 p.m.)

13 VIDEOGRAPHER: And this is the beginning of

14 Media Number 4 in the testimony of Dr. Russell

15 Winer. We are back on the record, the time being

16 4:20 p.m., Eastern.

17 BY MR. BROWN:

18 Q. Okay. I'm going to continue to share the

19 Exhibit 1 to the deposition, which is your expert

20 report, Dr. Winer. I've now moved to Page 26 of the

21 report, which starts a section called, Customer

22 Depositions. And you've stated at the beginning that

23 you have reviewed six customer depositions in relation

24 to this case. Is that correct?

25 MR. HOBBS: Object to form.

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1 THE WITNESS: Yes.

2 BY MR. BROWN:

3 Q. I'll rephrase.

4 Dr. Winer, have you read six customer

5 depositions -- have you reviewed six customer

6 depositions in relation to this case?

7 MR. HOBBS: Same objection.

8 THE WITNESS: Yes.

9 BY MR. BROWN:

10 Q. Have you reviewed more than six?

11 A. I just -- I reviewed just this -- these six.

12 Q. Okay. And when say these six, do you mean the

13 six that are found in Footnote 70 of -- on Page 26 of

14 Exhibit 1?

15 A. They are the six that are in this section of

16 the report.

17 Q. The six that are described in this section of

18 your report?

19 A. Correct.

20 Q. Other than these six customer depositions, have

21 you reviewed any other depositions that were -- that

22 have been taken in this case?

23 MR. HOBBS: And I'm just going to object,

24 again, with respect to the form of the question.

25 Again, you know, the report was rendered in 2021.

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1 COURT REPORTER: I can't -- you're -- I can't

2 understand what you're saying, Mr. Hobbs.

3 MR. HOBBS: I'm sorry. I'm objecting to the

4 form of the question with respect to his lack of, I

5 guess, specifying a time frame. The report was

6 rendered in '21.

7 MR. BROWN: Okay. I'm intending to ask about

8 any deposition that he's reviewed in this case,

9 regardless of if he reviewed them before or after

10 this opinion was rendered.

11 BY MR. BROWN:

12 Q. Does that change your answer, Dr. Winer?

13 A. Oh. I mean, there are other depositions that I

14 reviewed that we saw on my list of sources. If you're

15 just referring to customer depositions, these are the

16 only six I reviewed.

17 Q. Okay. Yeah, I'm -- I'm actually interested in

18 both answers. So, let's confirm that. I'm talking now

19 specifically about customer depositions that have been

20 taken in this case. Have you reviewed any other

21 customer depositions that have been taken in this case

22 other than those that are listed in Footnote 70 of

23 Exhibit 1?

24 MR. HOBBS: Same objection. I just want to be

25 clear. I'm happy to elaborate more, Josh. I don't

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1 want to be improper, here. But --

2 MR. BROWN: I -- I'm not a fan of speaking

3 objections. Maybe we can go off the record. It

4 seems like something is bothering you, Eric.

5 MR. HOBBS: Well, I -- I'm happy to elaborate

6 more on my objection. I'm not trying to make an

7 improper objection. I just think the question is

8 unclear.

9 MR. BROWN: Unclear as to when he reviewed the

10 depositions?

11 MR. HOBBS: Well, he rendered the depo- -- the

12 report in August of '21, before a number of other

13 depositions were taken. So, I -- my objection is

14 just, are you asking him about if he reviewed

15 additional depositions that were taken after the

16 date of the report or are you just asking him about

17 what he's cited in this section of the report?

18 MR. BROWN: Yeah. I mean -- I mean to ask him

19 what he's reviewed, regardless of whether he

20 reviewed it before or after this report.

21 MR. HOBBS: Okay. Okay.

22 MR. BROWN: So, let me try it again.

23 BY MR. BROWN:

24 Q. Dr. Winer, other than the six customer

25 depositions that are listed in Footnote 70 of Exhibit 1

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1 to the deposition, have you reviewed any other

2 depositions that were taken in this case, regardless of

3 whether those depositions were taken before or after the

4 date of your report?

5 A. I have not reviewed any other customer

6 depositions and I do not believe I've reviewed any other

7 type of deposition.

8 Q. That was taken in this case?

9 A. Correct.

10 Q. Okay. How did you obtain copies of the

11 depositions that you did review?

12 A. I believe they were provided by Counsel.

13 Q. When you say Counsel, do you mean Shook,

14 Hardy & Bacon?

15 A. Yes.

16 Q. What format were they provided to you in?

17 A. Some kind of -- I believe, PDF, or maybe Word.

18 I don't remember which type format.

19 Q. Okay.

20 A. Not physical. Electronic -- e-copies.

21 Q. They provided you electronic copies of these

22 six depositions?

23 A. Yes.

24 Q. And how did you receive the depositions that

25 they provided to you?

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1 A. I don't recall.

2 Q. Do you know if you received them by e-mail?

3 A. I don't think they put them in e-mails. It's

4 not typically the way they work. So, they must have

5 been just available in that binder that we talked about

6 this morning.

7 Q. The electronic binder?

8 A. Yeah. Yes.

9 Q. Were there other customer depositions -- well,

10 are there other customer depositions that are available

11 through that electronic binder that you have not decided

12 to review?

13 A. Not that I'm aware of.

14 Q. How did you determine that these were the six

15 customer depositions that you wanted to review?

16 A. As I said, I was provided these by Counsel.

17 They had taken the depositions of a number of customers.

18 And, again, I'm just using these as providing a

19 foundation for my perceptions of Vivint's selling

20 practices.

21 Q. But, are you -- is it your practice here,

22 similar to what we talked about earlier, that you intend

23 these six depositions to operate as a representative

24 sample?

25 A. Well, unlike -- unlike the -- the WAV files

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1 that were -- where there was a sample taken from a

2 larger population, in this case, these were the only

3 ones that were made available -- that I -- that were

4 available to me.

5 Q. Okay. And do know whether there were other

6 depositions that ADT had taken of customers at the time

7 you wrote your report?

8 A. I don't know.

9 Q. Do you know if ADT selected these customer

10 depositions from a larger set of customer depositions

11 that had been taken in this case?

12 A. No, I don't know.

13 Q. Did you ask ADT how it selected the depositions

14 it was providing to you in this case?

15 A. No, I did not.

16 Q. Did you -- did you direct ADT or its counsel as

17 to which depositions you wanted to review?

18 A. No, they just gave me these that they had taken

19 recently.

20 Q. And did they say anything about the depositions

21 at the time they gave them to you to review?

22 A. No.

23 Q. Did they tell you anything about any other

24 customer depositions that had occurred in the case?

25 A. No. I don't -- I don't know if other customer

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1 depositions were taken. All I know is that ADT counsel

2 plans to call some of these people as witnesses, if it

3 goes to a trial, and I was asked to take a look at them

4 and see how they informed my opinions.

5 Q. Okay. And did -- if -- are you aware that

6 Vivint also took customer depositions in this case?

7 A. No, I'm not.

8 Q. Are you aware that Vivint has a counterclaim in

9 this case?

10 A. I was told the other day that Vivint has a

11 counterclaim, but I don't know any details about it.

12 Q. Who told you that?

13 A. Mr. Hobbs.

14 Q. Okay. Do you know anything about the Vivint

15 depositions that were taken -- let me rephrase.

16 Do you know anything about the depositions that

17 Vivint took of customers in this case?

18 A. No, I don't.

19 Q. Do you know anything about any of the other --

20 besides these six customer depositions, do you have any

21 information about any other depositions that were taken

22 by customers in this case?

23 A. No, I don't.

24 MR. HOBBS: Object to the form.

25 BY MR. BROWN:

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1 Q. Besides these six customer depositions that are

2 listed in Footnote 70 of Exhibit 1, do you have any

3 information about any other depositions that have been

4 taken in this case at any time?

5 MR. HOBBS: Object to form.

6 THE WITNESS: Now, again, my question is, are

7 you referring to customer depositions or are you

8 referring to any depositions?

9 BY MR. BROWN:

10 Q. At that time, it was any depositions.

11 A. I'm sorry. Say that again.

12 Q. At that -- that last question, I said, any

13 depositions.

14 A. I -- I have not read any other depositions

15 other than those that are in my sources list.

16 COURT REPORTER: My what list?

17 THE WITNESS: Sources.

18 COURT REPORTER: Oh. Thank you.

19 BY MR. BROWN:

20 Q. And when you say sources list, you're referring

21 to Exhibit B of Exhibit 1?

22 A. Yes.

23 Q. Or -- I'm sorry, I think it's Appendix B of

24 Exhibit 1.

25 A. Well, yeah. Yes.

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1 Q. Correct?

2 A. Correct.

3 Q. Okay. What -- what -- how did what you

4 reviewed in the six customer depositions impact the

5 conclusions you reached in this case?

6 A. Well, again, I used the -- the audios, the

7 depositions, and the social media -- the social media

8 comments and Vivint's history with the FTC and -- and

9 other government agencies, to just support my position

10 that some kind of a remedial communication campaign is

11 needed. It's not a scientific sample. It's just enough

12 to -- for me to be convinced that there is something

13 going on here that requires a remedy.

14 Q. Okay. And, so, part of what your -- well,

15 let's go to -- actually, there's a place in your -- at

16 the beginning of the report, where you summarize your

17 conclusions. Is that right?

18 A. I do summarize them at the beginning, yes.

19 Q. Let's go to that section, briefly. All right.

20 I'm going to go to Paragraph 12 of Exhibit 1.

21 A. Okay. I'm here.

22 Q. Okay. Just before Paragraph 12, on Page 6 of

23 Exhibit 1, it says, Summary of Opinions, correct?

24 A. Yes.

25 Q. And Paragraph 12 says, "ADT has alleged that

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1 Vivint's door-to-door salespeople have damaged this

2 company and brand in a variety of ways. In my expert

3 opinion, the alleged Vivint actions suggests a threat

4 to ADT's business, particularly with regard to its

5 reputation among its consumers and its brand equity, the

6 value of the brand of the company."

7 Did I read that right?

8 A. Yes.

9 Q. Okay. And skipping down to Paragraph 14,

10 which begins at the top -- at the bottom of Page 6 of

11 Exhibit 1, you say, "I've reviewed several sources of

12 evidence that corroborate the allegations made in the

13 Complaint. These sources include recordings of calls

14 from ADT customers, deposition transcripts of ADT

15 customers, ADT's internal deceptive sales reports,

16 social media posts, and postings on Vivint's own

17 website. Additionally, Vivint's actions appear to be

18 far more extensive and have had more impact than what

19 ADT has been able to document. The academic literature

20 explains that consumers usually do not report problems

21 they experience. In short, Vivint's misleading and

22 aggressive intrusion of ADT customers have been -- has

23 been widespread and harmful and needs to be remedied."

24 And then, going into para- -- did I read that

25 right?

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1 A. Yes.

2 Q. Okay. Okay. And then, in Paragraph 15, it

3 says, "It is clear to me that Vivint's actions in this

4 case are consistent with the pattern of behavior that

5 Vivint has engaged in, as identified by government

6 agencies and other companies competing in the industry,

7 and even by ADT in a previous lawsuit. This pattern

8 strongly suggests that Vivint's behaviors at issue in

9 this case are not incidental to Vivint's business, but

10 have instead -- excuse me, but instead are fundamental

11 to the way that it operates, generally. In addition,

12 the pattern of past behavior is consistent with the

13 alleged in this case -- with that alleged in this case,

14 as additional weight to the evidence I've reviewed."

15 Did I read that right?

16 A. Yes.

17 Q. So, is part of the conclusion that you

18 reached -- having reviewed all of the evidence that

19 you've described here, is part of the conclusions that

20 you reached that ADT's allegations in this case are

21 true?

22 MR. HOBBS: Object to form.

23 THE WITNESS: Yes. The weight of the evidence,

24 from everything put together, seems to support the

25 position that ADT has taken in this case.

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1 BY MR. BROWN:

2 Q. And if asked to testify on that in trial, would

3 you testify as to the weight of the evidence as you've

4 just described it?

5 MR. HOBBS: Same objection.

6 THE WITNESS: If asked at trial to opine on

7 that, I would.

8 BY MR. BROWN:

9 Q. Okay. And in Paragraph 14, you describe a

10 number of different sources that you're referring to.

11 Now, did you review each of those sources or

12 was some of that review done by GBX?

13 A. Well, we've gone through pretty much all of

14 these -- the recordings of the calls, deposition

15 transcripts, the calls on the deceptive sales reports,

16 social media posts. Yeah, I've looked at those.

17 Q. Okay. So, you reviewed all of the social media

18 posts that you're relying on in this case?

19 A. I reviewed the ones that I put in the report.

20 I can't claim to have reviewed all social media posts,

21 which would be a large number. A very large number.

22 Q. Okay. Well, let's go back to the section we

23 were starting to talk about, social media posts, and get

24 more detailed on that.

25 A. So, Page 28?

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1 Q. Yeah. Back to Page 28, Paragraph 72.

2 A. Okay.

3 Q. Okay. So, who directed your attention -- how

4 did you -- how did you find these social media posts?

5 A. Well, GBX has a social media analysis group in

6 their organization. And they were directed -- I asked

7 them to see if there were any of these kinds of posts

8 that have been made mentioning Vivint by name. And, so,

9 we found some.

10 Q. When you say we found some, you mean GBX found

11 some?

12 A. Yes, they found some.

13 Q. Okay. And did they find more than just the

14 ones -- well, first of all, you reference several in

15 your report. Are there more that you reviewed other

16 than just the ones you referenced in your report?

17 A. No. Essentially, they found this sample of

18 social media posts -- I guess there are nine of them --

19 and I used them in the report.

20 Q. Okay. Did -- did they find more than nine, do

21 you know?

22 A. I don't know.

23 Q. Did you review more than nine?

24 A. No, I just reviewed these.

25 Q. And when you directed them to use their social

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1 media group to find social media posts, did you tell

2 them to find social media posts that would support your

3 analysis in this case?

4 A. What I asked them to do was to find social --

5 find if there were any social media posts that referred

6 to Vivint's deceptive practices. It would be possible

7 that there wouldn't be any. But, there were some.

8 Q. Did you ask them to search for social media

9 posts that referred to ADT's deceptive sales practices?

10 A. No, I did not.

11 Q. Did you ask them to find social media posts

12 that said positive things about Vivint?

13 A. No, I didn't.

14 Q. Did you do anything to verify the accuracy of

15 the information in these social media posts?

16 A. Well, that's very difficult to do. I mean,

17 when somebody posts something on Facebook, or -- or

18 Tweets something, it's essentially impossible to verify

19 the truth.

20 Q. People post inaccurate things all the time?

21 A. That has been known to happen.

22 Q. Okay. So, did you do anything to verify the

23 accuracy of these posts?

24 A. Well, as I say here in Paragraph 72, I'm not

25 using these as a main source of evidence in my -- in my

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1 report, all right? They're kind of supplementary.

2 The answer is, no. It's -- as I said, it's

3 almost impossible to verify. The only thing you can

4 look at is the level of detail in the post. Does it

5 seem like someone actually did have that experience with

6 the company. And the more detail there is, the more

7 confidence you have that it's a truthful post.

8 Q. And what is that based on, your belief that the

9 more detailed the post is, the more likely it is to be

10 true?

11 A. It's based on academic research, actually. You

12 know, often, like in Travelocity, there are misleading

13 posts. Some of them are -- are fake. And some academic

14 papers have found that the way to determine or

15 distinguish between the fake and the real is how much

16 detail there is in the post. So, the ones that are sort

17 of general don't seem to indicate somebody actually

18 stayed in the hotel. They're much more likely to be

19 fake than the people who gave very detailed responses.

20 Q. Okay. Do you cite those papers in your report?

21 A. No.

22 Q. Are they part of the basis for your conclusions

23 in this case?

24 A. No.

25 Q. Can you -- can you give me specific citations

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1 to those articles now?

2 A. No. I'm happy to do it after the deposition,

3 though.

4 Q. Okay.

5 A. You can ask Eric to ask me.

6 Q. Just making a note of that.

7 Okay. So, in addition to looking at the level

8 of specificity -- excuse me, let me try that again.

9 In addition to looking at the level of

10 specificity of the social media posts, could you not

11 have also tried to identify the authors of the posts?

12 A. That would be a ridiculous exercise.

13 Q. Why?

14 A. Where am I going to find Sean Davenport?

15 Q. Well, I believe this is a post on Twitter.

16 And, to my knowledge, if you go to the account for

17 Sean Twitter (sic) -- for Sean Davenport, you can find

18 information about him, and you may be able to track him

19 down based on that information.

20 A. There are a lot of Sean Davenports.

21 Q. Okay. So, did you do anything to try to

22 identify the authors of these posts?

23 A. I did not.

24 Q. Did you do -- did you do anything to attempt to

25 talk to or otherwise communicate with the authors of

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1 these posts?

2 A. No. As -- as I said before, I'm not using this

3 as my main evidence. I'm using this as sort of a

4 complementary evidence to what else we found.

5 Q. Okay. Regardless of whether or not it's your

6 main evidence, are these posts part of the basis for

7 your opinions in this case?

8 A. Yes.

9 MR. HOBBS: Object to the form.

10 BY MR. BROWN:

11 Q. What are -- what are -- what is the main

12 evidence that you're using as a basis for your opinions

13 in this case?

14 A. Well, it's really a combination of the sources

15 of information that I have in this section of the -- of

16 the report.

17 If you go back and take a look at -- let's

18 see -- Evidence of Vivint's Actions Harming the ADT

19 Brand -- that's Section 8, from Paragraph 47 -- I've got

20 customer complaints, which we talked about. We've got

21 customer depositions, which we talked about a little

22 bit. I've got the social media posts, which we're

23 talking about. And we've got Section D, which is

24 labeled, Previous ADT Case Against Vivint, State

25 Government and FTC Actions.

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1 So, again, the purpose of this is to just

2 satisfy my -- satisfy me that there's enough information

3 here in all of this, taken together, that Vivint has,

4 in fact, committed deceptive practices. And then, it

5 requires the further analysis later in the report, which

6 is how much it is to remedy, in terms of information.

7 Q. Okay. So -- so, there's kind of two parts

8 here, as you've just described it. Step 1 is, were

9 there actually deceptive sales practices. And then,

10 Step 2 is, what do we need to do to remedy that in an

11 information campaign. Correct?

12 A. Yes.

13 Q. Okay. And, so, all of the information that we

14 just talked about -- the customer depositions, the

15 audio recordings, the social media posts, the things

16 we're about to talk about in terms of the Government

17 agency actions -- all of that goes into your conclusion

18 of Step 1, that deceptive sales practices actually

19 occurred. Correct?

20 A. Correct.

21 Q. So, you reviewed -- and the basis of your

22 conclusion that deceptive sales practices actually

23 occurred is your review of the information we've been

24 talking about, the depositions, the audio recordings,

25 the social media posts, and what we're about to talk

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1 about after this section, the Government Investigations

2 and Actions. Correct?

3 A. Correct. And that's exactly what is in

4 Paragraph 8, which is my assignment. Two things.

5 Q. Go ahead.

6 A. I have been asked to review and analyze how

7 Vivint has approached and marketed itself to ADT

8 customers and whether, and to what extent, its tactics

9 might have caused harm to the ADT brand.

10 Point 1, you just mentioned. Point 2, I've

11 also been asked to identify and outline potential

12 remedies to reduce any harm done to the ADT brand

13 arising from Vivint's use of deceptive sales tactics,

14 including misrepresentation, as discussed in further

15 detail below.

16 So, essentially, there are two things. Two

17 major points made in this report.

18 Q. The first point is, Vivint committed deceptive

19 sales practices. And the second point is, here's what

20 you need to do to create an information campaign to

21 remedy harm to ADT's brand. Correct?

22 A. That was my --

23 MR. HOBBS: Object to form. Misstates

24 testimony.

25 THE WITNESS: That was my assignment.

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1 BY MR. BROWN:

2 Q. Okay. So, I stated that accurately?

3 A. Yes.

4 Q. Okay. So, in terms of Step 1, my understanding

5 is that the basis for your reaching the conclusion

6 that's Step 1 -- that Vivint did commit deceptive sales

7 practices -- was a review of the deposition transcripts,

8 the audio recordings, the social media posts, and the

9 Government actions we're about to talk about. And then,

10 also, the prior case by ADT against Vivint, as well?

11 Was that a part of your basis?

12 A. Yes.

13 Q. Okay. And how -- so, all of the -- I'm sorry?

14 A. There are other sources that I list in

15 Appendix B -- you know, other depositions from managers

16 and other things -- but, I don't cite them specifically

17 in this report.

18 Q. Okay. Well, you previously -- and I was trying

19 to understand this. You made a distinction between the

20 main evidence, and, I guess, things that were not main

21 evidence, but that supported that conclusion under

22 Number 1. So, what is -- what is the main evidence and

23 what is the not main evidence that supports your

24 conclusion under the first step, that Vivint committed

25 deceptive sales practices?

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1 A. It's all four of the sources.

2 MR. HOBBS: Object to form.

3 COURT REPORTER: Are you -- I'm sorry. I'm not

4 hearing if that was an objection. Please wait a

5 couple of seconds, Mr. Winer. Was that an

6 objection?

7 MR. HOBBS: Yes. Object to form.

8 COURT REPORTER: Thank you. And the answer

9 was, "It's all four of the" -- continue.

10 THE WITNESS: Yes. All four of the sources

11 that you just mentioned.

12 BY MR. BROWN:

13 Q. And what are the four?

14 A. The audios, the depositions, the social media

15 posts, and prior litigation.

16 Q. Which includes Government litigation and ADT's

17 prior litigations against Vivint?

18 A. Correct.

19 Q. Okay. So, part of what you will testify to,

20 if you come to trial, is that, reviewing those four

21 categories of evidence, you've determined that Vivint

22 committed deceptive sales practices. Correct?

23 MR. HOBBS: Object to form.

24 THE WITNESS: Maybe. Maybe not. I may not be

25 asked to testify on those areas. They may -- they

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1 will call, as I said before, the individuals to whom

2 I reference in this report. But, maybe not. They

3 may make my analysis here less important. I don't

4 know what I will be asked to do.

5 BY MR. BROWN:

6 Q. Okay. If you are asked to give a conclusion on

7 Step 1 of your assignment, what will you say?

8 A. I will say that --

9 MR. HOBBS: Object to form.

10 THE WITNESS: Sorry. I will say that I have

11 discovered enough evidence from these four sources

12 of information, and other sources that I've read,

13 that lend credibility to the fact that Vivint is

14 practicing deceptive sales practices.

15 BY MR. BROWN:

16 Q. Okay. And then, the second part of your

17 analysis was then to determine -- well, why don't you

18 describe it. What's the second part of your analysis?

19 A. I mean, that's the damages part, the remedy.

20 How much it would cost to develop a communications

21 campaign to remedy the damage to the brand.

22 Q. Okay. And when you say the brand, what in

23 specific are you referring to?

24 A. To the ADT brand.

25 Q. Okay. So, there's a -- there's a portion of

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1 your report where you describe -- well, I'll -- let me

2 set that aside, for a second. I don't want to get off

3 track.

4 In terms of the -- how -- does the evidence

5 that we've talked about, these four main categories of

6 evidence that contributed to your conclusion under the

7 first step of your analysis, how did those four

8 categories of information impact your conclusion in the

9 second part of your analysis?

10 MR. HOBBS: Object to form.

11 THE WITNESS: Well, it just led me to believe

12 that some kind of remedy was necessary. The next

13 step, Step 2, was to figure out what that remedy

14 might be and how much it would cost to implement the

15 remedy.

16 BY MR. BROWN:

17 Q. And you came to the conclusion that it would

18 cost more than $27 million?

19 A. About $27 million, yes.

20 Q. Okay. So, the four categories of information

21 that we talked about in relationship to the first part

22 of the assignment, how did those -- how did you use

23 those four categories of information to quantify that

24 $27 million conclusion?

25 MR. HOBBS: Object to form. Misstates

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1 testimony.

2 THE WITNESS: I didn't use them at all.

3 BY MR. BROWN:

4 Q. So, they are not the basis of your conclusion

5 as to the quantity of damages that are required for this

6 information campaign?

7 A. Well, let me -- let me restate that. I

8 didn't -- there was no direct link between the four

9 sources of information and the number, okay? There is a

10 direct link between the four sources of information,

11 which led me to believe that there was damage done to

12 the ADT brand, right, which led me to the approach that

13 we took in coming up with the number. But, it's not a

14 direct link of the four sections to the $27 million, if

15 that's what you're asking.

16 Q. Did -- the four categories of information that

17 we've been discussing, did you use those to determine

18 the extent of the -- or, let me rephrase.

19 Did you use that to quantify the extent of

20 damage that was done to the ADT brand?

21 MR. HOBBS: Object to form.

22 THE WITNESS: What I did was, I used that

23 information to establish that there was damage done

24 to the ADT brand. I then came up with a model of an

25 approach to figure out how much that damage is that

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1 would have to be spent in order to rectify or repair

2 that damage.

3 BY MR. BROWN:

4 Q. Okay. I'm going to go to Page 29 of Exhibit 1.

5 Going to the next page, here. First of all, did --

6 A. 29 doesn't have an Exhibit 1.

7 Q. I'm talking about Exhibit 1 to your deposition.

8 I'm on Page 29 of Exhibit 1 to your deposition.

9 A. Oh, oh. I'm sorry.

10 Q. Looking at actually both Page 28 and 29, 30,

11 and 31, of Exhibit 1, did you review other social media

12 posts from the same authors?

13 A. No, I did not.

14 Q. So, if we're now at the top of Page 30, there's

15 two separate Tweets by this author named Teri Overturf.

16 Do you see that?

17 A. I do.

18 Q. So, here, you reviewed both of these Tweets?

19 A. Yes. They're both from the same day.

20 Q. Okay. And -- and both of these are from the

21 same author?

22 A. Yes.

23 Q. Did you review any other Tweets from this

24 author, Teri Overturf?

25 A. No, I did not.

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1 Q. Other than the social media posts shown on

2 these pages -- Pages 28, 29, 30 and 31, of Exhibit 1 --

3 did you review any other social media posts in relation

4 to this case?

5 A. No. These are the ones that GBX's social media

6 analysis group found for me.

7 Q. Okay. I'm going to direct your attention to

8 the bottom of Page 29. There's a social media post that

9 starts, "@VivintHome." Do you see that?

10 A. Yes.

11 Q. It's from an author, "Nunyabiz714."

12 A. I see it.

13 Q. Okay. And right after "@VivintHome," there's a

14 Number 1 and a slash character. Do you see that?

15 A. Yes, I do.

16 Q. Do you know what -- and this -- this is a

17 Tweet, correct?

18 A. Yes.

19 Q. This is a post on Twitter, correct?

20 A. Yes, it is.

21 Q. Do you know what that numeric character

22 followed by a slash -- do you know what that means, in

23 the context of a Tweet?

24 A. No, I don't.

25 Q. I'll represent to you that that's an indication

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1 that this is going to be a stream of Tweets on a subject

2 and this is the first one. Have you seen that before?

3 A. I am not a big Twitter person. So, the answer

4 is no.

5 Q. Okay. I'll ask you -- I think I already asked

6 you, but I'll ask it again. Now that we've seen this

7 "1" slash, here, are you aware if there was any -- if

8 there were any other Tweets by this author, following up

9 on this Tweet you had here at the bottom of Page 29 of

10 Exhibit 1?

11 A. No, I'm not.

12 Q. Okay. Did -- did GBX provide you with any

13 other Tweets from this author?

14 A. No, they did not.

15 Q. Did you ask them for them?

16 A. No.

17 Q. I'm going to now direct your attention to

18 Page 31 of Exhibit 1, your expert report. And in this

19 section, I believe you testified earlier that you

20 discussed various litigation related to Vivint.

21 Correct?

22 A. Yes. As you can see, it's labeled, Previous

23 ADT Case Against Vivint, State Government and FTC

24 Actions.

25 Q. Are ADT's prior lawsuit and allegations against

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1 Vivint part of the basis for your opinions in this case?

2 A. Yes.

3 Q. I'm going to now move to Paragraph 75. In

4 Paragraph 75, you refer to numerous actions by state

5 attorneys general offices related to the same types of

6 deceptive sales taxes -- tactics at issue in this case.

7 A. I see that.

8 Q. Okay. Are these numerous state attorney

9 general actions part of the basis for your opinions in

10 this case?

11 A. Yes. Vivint has a well-worn trail of

12 litigation. And I used that as part of my opinions in

13 this case, yes.

14 Q. Of these state attorney general actions, isn't

15 it true that some of them do not relate to ADT

16 customers?

17 A. My understanding is that some of them relate to

18 other companies other than ADT.

19 Q. So, nevertheless, even though these -- some of

20 these state attorneys general actions do not relate to

21 ADT, are conduct that Vivint took against ADT that are

22 nevertheless relevant to your analysis in this case?

23 A. That's correct.

24 Q. Isn't it true that some of the conduct that is

25 the basis for these state attorney general actions

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1 occurred in the years -- in the years prior to the year

2 2017?

3 A. Yes, that's true.

4 Q. In fact, if we look at Footnote 93, it relates

5 to an article that's dated September 2nd of 2015?

6 A. Yes.

7 Q. And you're aware that -- did you do anything to

8 parse out what conduct is described in these attorney

9 generals' actions that related to ADT from conduct that

10 related to other alarm services companies?

11 A. Well, we definitely have, in Paragraph 74,

12 specifically a lawsuit where Vivint settled the lawsuit

13 for $10 million. I did not parse, as you put it, the

14 other cases, or all the other cases, to determine which

15 were ADT, if any.

16 Q. Okay. Did you do anything to distinguish in

17 your analysis those state attorneys general actions that

18 related to conduct prior to the year 2017? I'll say --

19 I'll say prior to the year 2018, from conduct occurring

20 after December of 2017?

21 A. No. I just looked at the overall pattern.

22 There's about six or seven paragraphs with evidence of

23 bad behavior, whether it's ADT or some other company.

24 And if you take a look at it in terms of the gestalt,

25 it's pretty clear that Vivint has been sought after in

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1 this business of selling security systems.

2 Q. All right. Now, I want to move to the top of

3 Page 33. In the top of Page 33, there's a sentence that

4 says that, "In 2012 and 2013, the attorneys general in

5 at least five states reached voluntary settlement

6 agreements against Vivint for sales practices that

7 violated state rules or state law, in some cases also

8 requiring Vivint to make restitution to customers, pay

9 investigative court costs and fines."

10 Did I read that right?

11 A. Yes.

12 Q. Did all five of those settlements relate to

13 conduct that occurred before the year 2014?

14 A. Yes.

15 Q. Moving on to Paragraph 76, this paragraph

16 details sales practices that the attorney generals were

17 reprimanding Vivint for, correct?

18 A. Yes.

19 Q. And it gives -- there's a few different

20 examples it's giving here, or that you give here on

21 Page 33, in Paragraph 76. One is, "Failing to leave the

22 premises when asked by a consumer to leave."

23 Did I read that right?

24 A. Yes.

25 Q. Is -- failing to leave the premises when asked

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1 by a consumer to leave, is that a deceptive sales

2 practice?

3 A. No. But, it's a poor sales practice and also

4 offensive to the -- to the consumer.

5 Q. Is that part of ADT's allegations in this case?

6 That Vivint is culpable because it failed to leave

7 premises when asked by a consumer to leave?

8 MR. HOBBS: Object to form.

9 THE WITNESS: I don't recall all of the -- all

10 of the aspects of the Complaint. So, I don't know.

11 I don't recall.

12 BY MR. BROWN:

13 Q. Okay. If Vivint has failed to leave premises

14 when asked by a consumer to leave, is that something

15 that needs to be corrected by your information campaign

16 that you've opined to?

17 MR. HOBBS: Same objection.

18 THE WITNESS: Well, yes. It would cover that.

19 It would be part of what I call the inoculation

20 campaign or aspect of the campaign for consumers

21 that may not have had a sales call from -- from

22 Vivint. Failing to leave the premises is -- scares

23 consumers. I mean, you know, these days, you don't

24 know what a person would do when he or she refuses

25 to leave. And I think consumers need to be warned

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1 about that.

2 BY MR. BROWN:

3 Q. So, if a -- if a Vivint sales representative

4 did not say anything deceptive to a consumer, nor did --

5 and the Vivint representative also did not say anything

6 that gave the consumer a misimpression that there was an

7 affiliation between Vivint and ADT, but they failed to

8 leave the premises when the consumer asked them to

9 leave, is that something that needs to be corrected by

10 your information campaign?

11 A. Yes.

12 MR. HOBBS: Object to form. Improper

13 hypothetical.

14 THE WITNESS: Yes.

15 BY MR. BROWN:

16 Q. Okay. The next quote you have, here -- well,

17 I'm going to skip the -- well, I'm going to the next

18 one. The next one is, "Making false or misleading

19 statements to homeowners in an attempt to induce

20 purchases."

21 Did I read that right?

22 A. Yes, you did.

23 Q. That's another example of a conduct that was

24 alleged in these state attorney general actions,

25 correct?

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1 A. Correct.

2 Q. Okay. It doesn't indicate what the false or

3 misleading statements were about. Does it matter to

4 your analysis whether a Vivint representative made false

5 or misleading statements about ADT or about another

6 subject that has no relationship to ADT?

7 A. Well, if they're making these false and

8 misleading statements, trying to get people to buy a

9 Vivint system, then it's very similar to the previous

10 discussion about failing to leave the premises. People

11 have to be forewarned about Vivint's misleading sales

12 practices. It doesn't necessarily mean that they have

13 to say that, well, we're taking over ADT, or we have

14 some kind of joint venture with ADT. But, the component

15 of the information campaign that warns ADT customers

16 about the possibility of these kinds of statements is

17 definitely part of the information campaign.

18 Q. The next quotation is, "Refusal to honor

19 notices of cancellation." That was one of the examples

20 of accusations in the Ohio attorney general

21 investigation, correct?

22 A. Yes.

23 Q. And, again, is this the type of conduct, if it

24 occurred in this case, that would require a -- a visit

25 or a -- or a customer needing to receive information

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1 within your information campaign that you opined to?

2 A. Yes.

3 MR. HOBBS: Object to form.

4 BY MR. BROWN:

5 Q. Moving on to -- the next example is from a

6 Kansas investigation. And it says, "Salesmen did not

7 disclose all costs associated with switching alarm

8 service -- alarm system providers." Did I read that?

9 A. Yes.

10 Q. And, again, this doesn't necessarily indicate

11 that there was a deception as to ADT's business,

12 correct?

13 A. Correct.

14 Q. But, nevertheless, this is the type of -- this

15 statement would also be the type of statement that

16 your information campaign would be directed towards

17 alleviating?

18 A. Yes, it would.

19 Q. I want to go now to Paragraph 27 (sic). In

20 Paragraph 27, you're referring to a warning that the

21 City of Palm Coast, Florida, gave to its residents.

22 Correct?

23 A. I think you mean, Paragraph 77.

24 Q. I'm sorry, what did I say?

25 A. Twenty-seven.

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1 Q. Oh, yeah. I mean, 77. Thank you. I'll start

2 again.

3 I'm now moving to Paragraph 77 of Exhibit 1.

4 In this paragraph, you're referencing a warning that

5 the City of Palm Coast, Florida, gave to its residents.

6 Correct?

7 A. Yes.

8 Q. And Palm Coast, Florida, was warning its

9 residents about deceptive and high-pressure sales

10 tactics that occurred in August of 2013. Correct?

11 A. That's true.

12 Q. Okay. And those -- that conduct related to an

13 alarm company called Alarm Pro, correct?

14 A. Yes.

15 Q. Are you aware of any -- that ADT was involved

16 in any of the conduct that's discussed in Paragraph 77?

17 A. No.

18 Q. Nevertheless, the information in Paragraph 77

19 is part of your basis for your opinions in this case?

20 A. Yes. It represents part of a pattern of

21 deceptive marketing practices.

22 Q. I'm going to now direct your attention to

23 Paragraph 80. Now, we're on Page 35 of Exhibit 1 and

24 you're referring to an FTC settlement that resulted in

25 a $50 million fine for Vivint. Correct?

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1 A. Correct.

2 Q. In the last sentence of that paragraph, you

3 state, "The FTC also mandated that Vivint verify all

4 credit accounts before turning them over to third-party

5 collection agencies and have an independent outside

6 review of Vivint's compliance with the Fair Credit

7 Reporting Act every other year."

8 Did I read that right?

9 A. Yes.

10 Q. What does -- Vivint's alleged violations of the

11 Fair Credit Reporting Act, how does that relate to ADT

12 in any way?

13 A. Well, I -- it might. I don't know -- none of

14 the examples demonstrate this. But, there may be some

15 customers, some ADT customers, who might have suffered

16 because of -- of the former ADT customers due to issues

17 with their credit or not making payments. I don't know

18 what exactly this -- these -- I don't know what exactly

19 what the problem is, but there could have been some ADT

20 customers that also suffered from this.

21 Q. Okay. Do you know that to be true or not true?

22 A. I said there could have been.

23 Q. Okay. Well, is the information discussed in

24 Paragraph 80 a basis for your opinion in this case?

25 A. Again, it's part of a pattern of misbehavior on

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1 the part of Vivint's salespeople and the company.

2 Q. How does the information that you provided in

3 Paragraph 80 impact your opinions in this case?

4 A. As I just said, it's part of a -- part of a

5 pattern of Vivint executing deceptive marketing

6 campaigns. And, as it says here, practicing -- you

7 know, having fraudulent practices. So, again, it's just

8 part of the overall picture that I drew in terms of

9 Vivint's behavior.

10 Q. Okay. So, I'm going to broaden my question now

11 to include this entire section of the prior litigation,

12 including the Vivint litigation and the attorney general

13 investigations and the FTC settlement.

14 How do all of these -- how does -- well, first,

15 let me ask you. Did -- does this evidence impact the

16 opinions that you've reached in this case?

17 A. Yes, it does. If it didn't, I wouldn't have

18 put the section in the report.

19 Q. Okay. And we've talked about your having two

20 stages of opinions here. As we've discussed it, does

21 this evidence impact your opinion as to the first step

22 of your analysis or the second step of your analysis?

23 MR. HOBBS: Object to form.

24 THE WITNESS: Well, it's certainly an important

25 component of the first step, which is the

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1 establishment of Vivint's pattern of misbehavior

2 that -- particularly, towards ADT. But, it also

3 affects the second step, as we've talked about

4 already. That, it implies that some kind of

5 remedial communication program needs to be

6 implemented. But, it's more the first step. It's

7 part of an overall pattern of misbehavior on the

8 part of Vivint.

9 BY MR. BROWN:

10 Q. So, talking first about the first step. How

11 does prior conduct that does not relate to ADT impact

12 your opinion that Vivint conducted deceptive sales

13 practices against ADT?

14 A. Well, first of all --

15 MR. HOBBS: Object to form. Misstates

16 testimony.

17 THE WITNESS: First of all, some of --

18 MR. BROWN: I'll rephrase. I'll rephrase, in

19 response to the objection.

20 BY MR. BROWN:

21 Q. How -- going -- in terms of the first step of

22 your analysis, how does the fact that Vivint committed

23 alleged misconduct against customers other than ADT

24 customers during time periods prior to 2017, how does

25 that impact your analysis and conclusion that Vivint

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1 conducted deceptive sales practices against ADT

2 customers after the year 2017?

3 MR. HOBBS: Same objection.

4 THE WITNESS: First of all, there is some

5 evidence that Vivint practiced deceptive marketing

6 practices against ADT, because of the -- that

7 settlement. Secondly, it's just part of an overall

8 pattern. As I've said before, the company has

9 consistently been accused and settled lawsuits. And

10 it just lends credence to the -- to the -- to my

11 opinion that they're continuing to be -- to exhibit

12 bad practices and deceptive practices in selling

13 their systems.

14 BY MR. BROWN:

15 Q. So, they behaved that way in the past.

16 Therefore, we can infer that they also behaved badly in

17 this case?

18 A. Well, there's also a case that I did not

19 mention, and is not mentioned here, that's also being

20 litigated, the CPI case. And, so, there is plenty of

21 evidence of -- of Vivint's continued bad practices.

22 Now, that is not against ADT, but still it's relatively

23 recent and more evidence that they've continued the

24 practices.

25 Q. So, in that -- so, you're referring -- and CPI

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1 is a separate alarm services company. Correct?

2 A. Correct.

3 Q. They're not a party to this case?

4 A. No, they're not.

5 Q. But, if I -- but, my understanding is that

6 you're inferring that because Vivint allegedly committed

7 deceptive practices against CPI, another alarm services

8 company, that we can infer that they likely committed

9 deceptive sales practices against ADT in this case.

10 Correct?

11 A. What I'm saying --

12 Q. Go ahead.

13 A. What I'm saying is that you're trying to paint

14 the practices of -- Vivint's practices all sort of in

15 the past. And as you've said before, well, is the past

16 kind of a predictor of the future? Well, the CPI case

17 is pretty recent, and so it shows that they've continued

18 these bad practices, even in the last few years. So, I

19 see no reason not to continue to believe that Vivint's

20 practices in this case against ADT are deceptive and

21 continue to be.

22 Q. Okay. Well, I'm -- I'm actually -- actually

23 interested in both of those inferences. It seems to me

24 you're making -- when you're drawing from this evidence,

25 you're making two inferences. One, that Vivint's past

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1 behavior predicts its current and more recent past

2 behavior. And two, that Vivint's behavior against one

3 company predicts its behavior against another company.

4 Am I wrong? Are you not making those inferences?

5 A. I'm -- what I'm saying is, if you look at the

6 gestalt of all of their behaviors, past and relatively

7 recent, there's no reason to believe that they're not

8 continuing to practice deceptive behavior in the sales

9 calls. That's my conclusion.

10 Q. So, you're inferring from Vivint's past

11 behavior that it is continuing to act in those ways?

12 A. Well, in some recent past. Not just 2012 and

13 '13, right? The much more recent past. So, yes.

14 Q. Both the -- both the far past and the recent

15 past are a basis for your opinion, correct?

16 A. Yes, in this portion of the analysis of Step 1.

17 Q. Okay. Now, let's talk about Step 2. For

18 Step 2, how does the information that we've been

19 discussing so far in this case -- how does that impact

20 your conclusion as to Step 2, that the appropriate

21 amount of damages in this case is over $27 million?

22 THE WITNESS: I'd ask --

23 MR. HOBBS: Object to the form.

24 THE WITNESS: I'd ask that we take a short

25 break -- I need to use the bathroom -- since you're

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1 switching -- switching topics, anyway.

2 MR. BROWN: Yeah, we can. But, I'd ask that

3 you answer the question that I just posed. It --

4 it's generally not considered fair to take a break

5 in the middle of a question. So, I would appreciate

6 it if you would answer my last question and then we

7 can take a break.

8 THE WITNESS: Okay. Can you repeat the

9 question?

10 MR. BROWN: I'm going to ask the court reporter

11 to read it back. Sorry.

12 COURT REPORTER: That's okay.

13 "Okay. Now, let's talk about Step 2. For

14 Step 2, how does the information that we've been

15 discussing so far in this case -- how does that

16 impact your conclusion as to Step 2, that the

17 appropriate amount of damages in this case is over

18 $27 million?"

19 MR. HOBBS: Same objection.

20 THE WITNESS: All right. Step 1 establishes

21 the foundation that some kind of remedial action has

22 to take place, right? I'm -- I am convinced that

23 there's been damage to the ADT brand from Vivint's

24 deceptive practices at the point of purchase.

25 All right. Having established that, then I have to

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1 think about, well, how do I measure the damage

2 that's been done to the ADT brand? And that leads

3 me to Step 2 and the approach that we took in

4 developing that model and the $27 million.

5 BY MR. BROWN:

6 Q. Okay. So, does the information we've been

7 discussing so far impact that conclusion of the

8 $27 million quantification?

9 MR. HOBBS: Object to form.

10 THE WITNESS: Actually, what it did was, it

11 just established, again, a foundation that some

12 remedial action had to take place. As I said

13 earlier, there's not like a direct correspondence

14 between the information we've already covered,

15 all right, and the $27 million. We had to develop

16 an approach that would measure the damage to the ADT

17 brand that then resulted in the $27 million total.

18 BY MR. BROWN:

19 Q. Okay. So, the information we've discussed thus

20 far does not impact your conclusion as to the quantity

21 of the $27 million?

22 MR. HOBBS: Object to form.

23 THE WITNESS: What it does is, it gives us a

24 direction to look at in terms of how to develop a

25 model for trying to quantify the remedy. So, it

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1 points in the direction of what has to be done, but

2 it doesn't produce a number.

3 MR. BROWN: Okay. With that, we can take a

4 break. Thank you for your patience.

5 VIDEOGRAPHER: All right. And this is the end

6 of Unit Number 4 in the testimony of Dr. Russell

7 Winer. We're now going off the video record. The

8 time is 5:29 p.m., Eastern.

9 MR. HOBBS: Ten minutes okay?

10 MR. BROWN: Yeah, 10 minutes works for me.

11 THE WITNESS: Okay.

12 (Whereupon, a recess was held at 5:29 p.m., and the

13 deposition resumed at 5:39 p.m.)

14 VIDEOGRAPHER: And this is the beginning of

15 Media Number 5 in the testimony of Dr. Russell

16 Winer. We are now back on the record and the time

17 is 5:39 p.m., Eastern.

18 BY MR. BROWN:

19 Q. Okay. I'm going to return to Exhibit 1 to the

20 deposition and now I'm going to go to Page 36. In this

21 section of your report, Dr. Winer, you describe various

22 mitigation efforts that ADT has already undertook in

23 this case. Is that right?

24 A. Yes. They have undertaken them, yes.

25 Q. And these are efforts that ADT undertook to

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1 mitigate the alleged misconduct of Vivint in this case?

2 A. Correct.

3 Q. Okay. Do you know what amount of money or

4 expenses ADT has incurred in taking these mitigation

5 efforts that you describe in this section of your

6 report?

7 A. No, I don't know how much money they have spent

8 on -- on these.

9 Q. Is that something that you asked of anyone in

10 relation to this case?

11 A. No. I think it's just an indicator that they

12 have attempted to try to offset Vivint's actions with --

13 as you can see, a social media campaign, YouTube,

14 e-mails. Those kinds of things.

15 Q. Would the amount of money that ADT has expended

16 thus far in these mitigation efforts impact your

17 analysis in this case either as to Step 1 or Step 2, as

18 we've been discussing it?

19 A. Well, it's not -- it's not a Step 1, it's in

20 response to Step 1. You know, it's -- it's one -- one

21 thing that you would expect them to do is to try to

22 alert their customers that there are some of these

23 practices that are going on. You know, the campaign

24 that they have here, the social media campaign, is

25 something that -- again, it's what we naturally try to

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1 do. But, they only had -- as you can see, there are

2 only two posts on Facebook, three posts on Twitter, two

3 on Instagram. It's not a large sustained program.

4 Q. Well, there are also videos on YouTube?

5 A. Yes, videos on YouTube.

6 Q. And they also -- in June of 2019, they provided

7 warnings of deceptive sales messaging inserted into

8 paper invoices mailed to customers. Correct?

9 A. Yes.

10 Q. Okay. Did you get any information on what it

11 cost ADT to do that mailing?

12 A. No. As you know, I did get some estimates on

13 costs for our -- our program. But, I did not get

14 estimates of costs on this.

15 Q. So, your -- your information campaign includes

16 a mailing, as well?

17 A. It does.

18 Q. And part of the costs that you have indicated

19 as part of the damages in your $27 million number, you

20 included postage that would be required to send those

21 mailings. Correct?

22 A. Yes. The -- that part of the campaign is a

23 relatively small part. The large part is the personal

24 visits to homes.

25 Q. But, that -- but, that part of the campaign

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1 seems in some ways similar to what ADT did in June of

2 2019, is it not?

3 A. I don't know what the text was of these -- of

4 these programs.

5 Q. Okay. Well, it says that ADT provided -- what

6 you say in Paragraph 82 is, "ADT provided warnings of

7 deceptive sales messaging, inserted in paper -- inserted

8 in paper invoices mailed to customers."

9 Did I read that right?

10 A. That's correct.

11 Q. Do you know how many customers they sent these

12 inserts to?

13 A. No. But, more importantly, we don't know how

14 many customers actually looked at them.

15 Q. Okay. Do you know how much it costs them to

16 send these inserts?

17 A. No. I didn't ask the chief marketing officer

18 how much she spent on this campaign.

19 Q. Did you ask anyone?

20 A. No.

21 Q. Do you know if ADT was able to include these

22 inserts without paying additional postage?

23 A. I'm sorry, what -- could ask you that again?

24 I'm not sure what you mean.

25 Q. Well, it said they inserted this messaging in

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1 paper invoices that it was mailing to customers. So, my

2 question is, by inserting this additional information,

3 did it increase -- did they incur any increased postage

4 costs?

5 A. I don't know if the cost of the postage of

6 the -- of the invoices went up with that insert. Maybe

7 it did, maybe it didn't.

8 Q. But, part of your calculation of the

9 $27 million of damages is a postage charge for mailing

10 information to customers, correct?

11 A. Yes.

12 Q. Is it possible that the postage may not be

13 necessary if ADT is able to insert whatever message you

14 find -- you believe is appropriate into the invoices

15 that it already sends to its customers?

16 A. I wouldn't recommend that. I think that, you

17 know, the evidence from direct marketing and campaigns

18 that I've seen are that, when you put these inserts in,

19 the readership level is often quite low. I think

20 what's needed is a stand-alone piece that just focuses

21 on the remedial information that's required.

22 Q. Well, ADT hasn't done a stand-alone piece. Why

23 didn't ADT -- if what's needed is a stand-alone piece,

24 why didn't ADT do a stand-alone piece?

25 A. I don't know. Maybe they had a budget -- a

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1 budget problem. I have no idea.

2 Q. Do you know -- did anyone at ADT -- at ADT tell

3 you that they didn't do a stand-alone piece because they

4 didn't have the funds to do that?

5 A. I didn't ask them about this -- or these

6 campaigns. So, it's irrelevant.

7 Q. It's not relevant to your analysis?

8 A. No, your question is irrelevant. Because, as I

9 said before, I didn't ask them about the campaign. So,

10 there's no way I would know the answer to your question.

11 Q. Okay. Would -- do you know how many people

12 were reached by -- well, do you know how many of these

13 inserts that ADT mailed to customers?

14 A. No, I don't.

15 Q. Do you know if they sent them to all of their

16 customers?

17 A. No, I don't.

18 Q. Okay. In May of 2018 and April 21st -- April

19 of 2021, ADT sent out newsletters, educating residents

20 on identifying and recording deceptive sales attempts.

21 And so, it appears here this was a stand-alone message.

22 Is that right?

23 A. It looks like it, yes.

24 Q. Then, do you know how much it cost ADT to

25 deliver this message to its customers?

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1 A. No, I don't.

2 Q. Do you know how many customers were reached by

3 this message?

4 A. No.

5 Q. Do you know how many customers they sent it to?

6 A. That's redundant.

7 Q. Do you know how many customers they sent it to?

8 A. It's the same as how many would be reached.

9 So, the answer is no.

10 Q. Do you know -- did you do anything to determine

11 the effectiveness of ADT's mitigation efforts thus far?

12 A. Are you referring to the remedial -- the

13 mitigation effort? Communications measures?

14 Q. Yeah, I'm -- so, I'm talking about the efforts

15 that were described in this section, so ADT's mitigation

16 efforts. You have a section of your report titled,

17 ADT's Mitigation Efforts, that starts at Page 36 of

18 Exhibit 1.

19 My question is, did you do anything to

20 determine the effectiveness of these mitigation efforts

21 that were made by ADT?

22 A. No, I didn't.

23 Q. Is it possible that ADT's mitigation efforts

24 have already alleviated some of the harm that you

25 believe occurred to ADT's brand?

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1 A. It's possible. But, since Vivint continues to

2 employ deceptive practices, there's always the need to

3 develop a new program to try to mitigate that --

4 those -- those problems. So, you know, these were

5 programs -- these were efforts in 2018, 2019, Spring of

6 2021. But, the damage continues to be -- to exist.

7 Q. Okay. I'm going to ask you again. Is it

8 possible that any of the mitigation efforts that ADT has

9 already took, as described in your report, have already

10 undone some of the damage to ADT's brand?

11 A. It's possible that some of it, all right? But,

12 anything done through mail is not going to be nearly as

13 effective as is going to be done face-to-face. Which is

14 what we argued for, for at least some of their

15 customers.

16 Q. Okay. So, I -- I'm confused by that. You say

17 that -- well, first of all, what is your -- what is

18 your basis for the conclusion that the sales -- that a

19 face-to-face delivery is required for your information

20 campaign?

21 A. The -- in the early 1980s, the FTC, in a number

22 of academic papers, opined that, to offset a deceptive

23 campaign like the one that -- deceptive activities like

24 what Vivint is using, you need to hit the same target

25 audience and you need to hit them in the same -- using

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1 the same medium in which the message was delivered.

2 That suggests that ADT's customers, in their

3 homes, is the place where you have to communicate the

4 repair or the information about repairing the damage.

5 You can't communicate the nuances of the problems in a

6 letter very easily, which may or may not be read in the

7 mail. But, you can communicate it in a face-to-face

8 encounter. And that's why we recommend at least part of

9 it be face-to-face.

10 Q. What was the FTC- -- I believe you referred to

11 an FTC --

12 A. Um-hum.

13 Q. -- article?

14 A. Yes. I read some papers, back when I was -- in

15 looking at deceptive advertising. In particular, that

16 deceptive advertising was a major topic the FTC

17 investigated in the early '80s, late '70s. And these

18 were some of the rulings of the FTC in terms of how to

19 correct your advertising.

20 Now, I'm not doing corrective advertising, but

21 it's the same principal. It's remedial information to

22 try to adjust for misinformation.

23 Q. Oh. So, you would not call your analysis

24 corrective advertising?

25 A. No. I never did. I didn't say -- I didn't

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1 call it that in the report.

2 Q. Okay. So, you're not basing your analysis on

3 the methodology that other people have referred to as

4 corrective advertising?

5 MR. HOBBS: Object to form, vague.

6 COURT REPORTER: I didn't hear the -- after,

7 "object to form."

8 MR. HOBBS: Vague.

9 COURT REPORTER: Thank you.

10 THE WITNESS: No, I'm not calling it corrective

11 advertising.

12 BY MR. BROWN:

13 Q. Okay. Why are you not -- is there something

14 that you're aware of that is called corrective

15 advertising?

16 A. Well, corrective advertising could be where

17 Vivint, you know, puts out its own information about

18 some of its practices, and, you know, says, we're sorry

19 for some of these things. And that would correct, you

20 know, some of the misimpressions that people might have

21 from some of their activities. Corrective advertising

22 also has other implications, but that's not what we're

23 doing. We're taking misinformation and deceptive

24 practices and trying to re-educate the consumers about

25 the -- these practices and how to defend against them.

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1 So, it's more of an educational program, it's not

2 corrective advertising.

3 Q. Have you -- in any of your past litigation

4 work, have you ever rendered an opinion as to corrective

5 advertising?

6 A. Well, in the Pods vs. --

7 MR. HOBBS: Objection.

8 THE WITNESS: In the Pods vs. U-Haul case, we

9 developed a -- also, a damages -- a damages estimate

10 based upon U-Haul's misimpressions by putting a lot

11 of lowercase pods on its website.

12 BY MR. BROWN:

13 Q. Okay. And would -- was -- that analysis that

14 you did in that case, was that a corrective advertising

15 analysis?

16 A. Well, not really. I mean, all it did -- all we

17 did was take a look at, what's the value of the -- what

18 we call misimpressions on the U-Haul website and

19 calculate what's the value of those misimpressions, and

20 that became part of the damages for company pods in that

21 instance.

22 I've never done an explicit corrective

23 advertising case. That's not what I do.

24 Q. So, when you say -- when you use the term,

25 "corrective advertising," what do you mean?

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1 A. Well, the classic case is, when -- if you go

2 back -- I don't know if it was in the '70s, or maybe

3 before, Campbell Soup put marbles in the bottom of its

4 soup to prop up the vegetables and make it look like

5 there were so many vegetables that they were swimming in

6 the soup. In fact, they were investigated -- I don't

7 know which agency -- and had to put out a campaign,

8 saying that our soup actually doesn't look like that,

9 and, so, therefore, correcting misimpressions people

10 might have had about the soup.

11 Q. Okay. And how is that analysis different than

12 the analysis that you conducted in the Pods vs. U-Haul

13 case that you've described?

14 A. Well, what we did was, we valued the -- tried

15 to put a value on the eyeballs that saw all the lower

16 case pods on U-Haul's site and also demanded that U-Haul

17 take down all the pods from its website. It did not

18 have to do any kind of campaign or put a post on its

19 website that, our product is confusing with the pods

20 product or any kind of corrections like that.

21 Q. So -- and -- and I'm trying to understand what

22 you mean when you say, corrective advertising. In your

23 view, is part of what corrective adverting mean --

24 means, is that the party that committed the

25 misrepresentation or the deceptive statement takes

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1 action to put out a -- a -- a corrective statement that

2 the party themselves that committed the misconduct has

3 to be the one to correct it?

4 A. I don't know if it has to be. But, certainly,

5 that's -- a lot of the earlier cases on corrective

6 advertising, that's what was done, yes.

7 Q. Okay. But, that's not what happened in the

8 Pods case. In the Pods case, the damage analysis that

9 you created was based on, number one, U-Haul needed to

10 take down the references to pods on its web pages,

11 correct?

12 A. Correct.

13 Q. And then, it also needed to -- it also

14 needed -- you also valued how much it would cost to

15 correct the misimpressions that had occurred due to the

16 existence of those web pages, correct?

17 A. That's right. That was -- right, that was the

18 monetary damages from that. There were other monetary

19 damages, but that was from our analysis.

20 Q. Okay. And, so, if I recall, your analysis was

21 that you were able to determine where the deceptive

22 statements occurred, because they were on web pages.

23 Correct?

24 A. And that's exactly what we're doing here.

25 Q. Okay. Well, I'm -- I'm curious of that.

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1 Because, in the Pods case, the statements were all on

2 web pages, so you knew exactly what was said by U-Haul,

3 correct? Because, you had --

4 A. What pages?

5 Q. You had the text of the web pages, correct?

6 A. And that's consistent with what I said before.

7 About, you know, you target the same consumers and you

8 put the campaign or the communication campaign in the

9 same medium in which the deceptive messages were

10 distributed. And that -- so, in that case, we used the

11 web, right? In other cases, you know, we've used --

12 valued it based upon advertising that was done in terms

13 of -- in that case, which was Rise -- Rise Brewing vs.

14 Pepsi, Pepsi spent --

15 Q. Doctor, I don't want to get -- I don't want

16 to -- I'm going to interrupt you. I asked about the

17 Pods case, you're now talking about another case. I'd

18 like to go back to the Pods case. I -- I have a limited

19 amount of time, here. So, my question wasn't about this

20 other case you're talking about now. I'm talking about

21 the U-Haul vs. Pods case.

22 A. I apologize.

23 Q. Okay. So -- and I apologize for interrupting

24 you. But, going back to the U-Haul case, you were

25 talking about how it's similar to this case. And I

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1 got -- and my question is, in the U-Haul case, you knew

2 exactly what deceptive statements each consumer was

3 subjected to, because you had the text of the web pages,

4 so you knew exactly what the deceptive statements were

5 that the consumers were exposed to. Correct?

6 MR. HOBBS: Object to form, foundation.

7 THE WITNESS: Well, that's not entirely true.

8 I mean, you know, consumers could go to different

9 parts of the U-Haul website and maybe be exposed to

10 other information. So, it's not the case that every

11 single consumer that went to the U-Haul website

12 would be exposed to the same information.

13 BY MR. BROWN:

14 Q. Well, when you quantified the amount of

15 misimpressions in the U-Haul case, isn't it true that

16 you were able to determine the number of people who had

17 visited the web pages that had the deceptive statements

18 on them?

19 A. Yes, that's true. We had an expert -- an

20 expert come in, estimate the number of page views. And

21 then, we used company -- Pods company data to estimate

22 the value of those page views, how much they spent

23 for -- for eyeballs and we got a number that way.

24 Q. Right. So, you were able to quantify the

25 extent of the misconduct because you had an expert who

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1 could tell you the number of people who had viewed the

2 pages that contained the -- the deceptive statements,

3 correct?

4 A. Yes. That's how we did it in that case.

5 Q. Okay.

6 A. But, again --

7 Q. So, in this case --

8 A. -- what we've done is, we've used the same

9 principle. Just different places where the

10 communications were occurring.

11 Q. So, in this case, tell me how you quantified

12 the number of people that have been exposed to

13 particular deceptive statements?

14 A. Well, what we did was, we assumed that the

15 locust of the misinformation was in the household,

16 instead of on a website, where the misinformation or

17 deception is occurring is in individuals' homes. Now,

18 obviously, the particular message could be different for

19 different -- for different households. One message --

20 one deceptive message might be, we're acquiring ADT, and

21 another one could be, your equipment is too old. So,

22 yes, there could be different messages.

23 But, again, the key point here is that the

24 deception, the deceptive communications, are happening

25 in the individual households. And because it's a

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1 complicated message, right, in terms of the -- the --

2 the kinds of deception that was going on, it has to be

3 done, you know, at least some of it, face-to-face.

4 Now, as you know, we didn't say that all six

5 million ADT customers were -- would be -- had to be

6 exposed this way. So, we actually under -- understated

7 how much it would cost by only going after about

8 12 percent of the customers. But, the key point is that

9 the message has to be delivered face-to-face. That's

10 the key point. Because, that's where the locust of

11 damage is.

12 Q. Okay. Dr. Winer, I understand that's one of

13 the points you're trying to make, but that wasn't my

14 question. I'll get back to that point, because I want

15 to hear more about your FTC study that's the basis for

16 why it has to be in the same mode that the deceptive

17 message was delivered.

18 But, my question right now is, how -- we talked

19 about how, in the U-Haul vs. -- in the Pods vs. U-Haul

20 case, you were able to quantify the misimpressions.

21 Now, you've just stated that the statements that were

22 received by different customers in this case were

23 different, so that's already a difference between the

24 U-Haul vs. Pods case, correct? In U-Haul, all the

25 statements -- all the misstatements that the customers

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1 were exposed to were on the websites, so they were

2 all -- everyone was being exposed to the same deceptive

3 statement. Correct?

4 A. Well, let me respond to that. In fact, there

5 were only a couple different messages that the -- the

6 Vivint salespeople were using, apparently. So, it's not

7 like there were 10 or 15 different messages they were

8 saying. There were far fewer than that.

9 Q. How do you know? Were you -- were you at the

10 doors when the messages were given?

11 A. Well, we got the samples from the -- from the

12 depositions. We got it from the -- from the audio.

13 It's kind of all -- the same few seem to come through

14 consistently.

15 Q. Okay. So, you based your knowledge on the

16 hearsay -- samples of hearsay evidence that you

17 reviewed, correct?

18 MR. HOBBS: Object to form.

19 THE WITNESS: I'm not going to refer to it as

20 hearsay. That's a legal term and I don't know what

21 it means.

22 BY MR. BROWN:

23 Q. Okay. Well, I'll represent to you that hearsay

24 evidence -- well, let's not go into a lecture, at this

25 late hour, on -- on the legal meaning of hearsay.

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1 What's important to my -- what -- the question

2 I need to ask is, you are not able to -- you don't have

3 direct knowledge of exactly what statements were made

4 by each of the Vivint representatives to each of the

5 customers that they allegedly approached door-to-door,

6 correct?

7 A. We have the information on the messages that

8 they delivered from the encounters that I have in my

9 report. I don't have all of them that were delivered by

10 the Vivint salespeople to people that I don't know who

11 they visited.

12 Q. Okay. And the sources for that are the

13 deposition transcripts that you reviewed and the

14 audio -- and the six or -- the six deposition

15 transcripts you reviewed and the six or seven audio

16 calls that you reviewed, correct?

17 A. Yeah.

18 Counselor, we've seen these before. We saw

19 them in the CPI case, as well, as you well know.

20 Q. Sir -- I'm going to cut you off, Dr. Winer. We

21 don't have time to talk about a different case. I'm

22 talking about this case.

23 My question for you is, your basis -- you claim

24 that you know what the handful of messages were that

25 were delivered to customers at their doors. And I'm

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1 asking you, what is your basis for that knowledge?

2 MR. HOBBS: Hold on. I -- I object to the form

3 of that and that misstates testimony.

4 THE WITNESS: Well, I'll just repeat what I

5 said before. I mean, we looked at seven -- we had

6 seven audio recordings, we had six depositions, we

7 had a bunch of social media posts. I can't -- I

8 can't claim to know the whole universe of what was

9 said, but I think we have a pretty good idea of at

10 least a number of the things that were said in these

11 sales encounters.

12 BY MR. BROWN:

13 Q. Okay. So, the basis for that are the ADT --

14 or, excuse me, the social media posts, the six or seven

15 audio files that you reviewed, and the six deposition

16 transcripts that you reviewed. Correct?

17 MR. HOBBS: Object to form. Misstates

18 testimony and also ambiguous.

19 BY MR. BROWN:

20 Q. You can answer, Dr. Winer.

21 A. Well, that's what I'm --

22 Q. You can answer, Dr. Winer.

23 A. That's what I'm relying on. That's what we

24 relied on with GBX to develop this -- well, let me put

25 it another way. We don't necessarily require to know

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1 what actually was said there. We just need to know that

2 something was said of a deceptive nature. So, we don't

3 necessarily need to know exactly what was said. We just

4 need to know that we have to visit the households to

5 correct the deceptive practices that were engaged by

6 Vivint.

7 Q. Okay. And like -- one other point and then

8 we'll talk more about the FTC study. How -- what -- in

9 the U-Haul vs. Pods case, you were able to quantify --

10 regardless of what exactly was said, you were able to

11 quantify the number of people that were exposed to

12 deceptive messages on the web pages by counting the page

13 views, correct?

14 A. That's correct.

15 Q. How did you quantify the number of customers

16 that were exposed to deceptive statements in this case?

17 MR. HOBBS: Object to form. Improper

18 hypothetical, misstates opinions.

19 THE WITNESS: Well, since we weren't able to

20 get any information from your client, we didn't have

21 any information about how many Vivint cust- --

22 Vivint salespeople visited ADT clients. Secondly,

23 we know -- and it's in my report -- that many more

24 people don't report problems than do. And, so,

25 there's a significant multiplier, times the number

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1 of people who were, in fact, exposed to the

2 deceptive practices. And, so, it's definitely a

3 large number of people who were exposed to these

4 deceptive messages. And, so, we have to rectify

5 that by going into the houses and educating the

6 people or re-educating the ADT customers.

7 BY MR. BROWN:

8 Q. Other than saying it's a large number of

9 people, can you quantify the number of people who were

10 exposed to alleged deceptive practices by Vivint in this

11 case?

12 MR. HOBBS: Same objection.

13 THE WITNESS: I don't know the exact number of

14 people who were exposed, because of the lack of

15 information produced -- not produced by your client.

16 And also the fact that you can't always measure word

17 of mouth, how much people are talking to each other.

18 It's impossible to know. And even some people who

19 are deceived, maybe they were happy with Vivint's

20 equipment and aren't going to complain at all. So,

21 if you take it altogether, many, many, people need

22 to receive this information.

23 BY MR. BROWN:

24 Q. Is -- the number of people that were exposed to

25 Vivint's deceptive conduct in this case, does that

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1 impact the quantity of the damages that you have arrived

2 at in this case?

3 A. We don't know the exact number of people who

4 were exposed to the deceptive messages.

5 Q. And if you did know the number of people who

6 were exposed to the deceptive messages, would that

7 impact your opinions in this case as to the $27 million

8 number?

9 A. Well, it would certainly be useful to know. I

10 mean, we could use that as a starting point and try to

11 estimate how many people did not complain from the --

12 you know, the pyramid effect of complaints. But, it

13 would be -- definitely be useful to know, yes.

14 Q. And we know, from your prior testimony today,

15 that ADT tracks the number of people -- the -- that

16 leave ADT to go to particular competitors, correct?

17 MR. HOBBS: Object to form. Misstates

18 testimony.

19 BY MR. BROWN:

20 Q. I'll rephrase.

21 Did ADT provide you any information based on

22 its tracking of customers that leave ADT to go to

23 Vivint?

24 A. No.

25 Q. Did you ask for that information?

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1 A. As I said earlier today, the exact number, or

2 the numbers leaving, is -- was not the point of what I

3 was trying to do.

4 Q. It wouldn't impact your conclusion as to the

5 $27 million number?

6 A. Even if I had the numbers from ADT, I had no

7 numbers from Vivint. So, what -- what was I supposed

8 to do? I had no -- I had -- we had insufficient

9 information to do what you think we ought to do.

10 Q. All right. Let's talk about this FTC study.

11 You're saying the basis for your opinion that the

12 remedial -- or -- not remedial, but the information

13 campaign needs to -- needs to be delivered, at least in

14 part, door-to-door, is an FTC study that says that the

15 deceptive message needs to be corrected in the same mode

16 that it was delivered. Correct?

17 A. It has to target the same customers and it has

18 to be delivered through the same medium or media in

19 which the deceptive message was delivered.

20 Q. What have you done in this case to make sure

21 that the information campaign is targeting the same

22 customers that were visited by Vivint sales

23 representatives?

24 A. Our analogy to that is just, all ADT -- ADT

25 customers who are vulnerable to the messages. So --

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1 Q. But, you told me earlier today that, even if an

2 ADT customer has not yet been visited by a Vivint sales

3 representative that they are still a subject of your

4 information campaign?

5 A. I don't see how that's inconsistent with what I

6 said. I said that, if they're an ADT customer, then

7 they are in the set of people to be targeted, whether

8 they've been visited or not. So, you're

9 mischaracterizing what I said, or getting it wrong. One

10 or the other.

11 Q. I think I misunderstand it. Because, I thought

12 you just told me that one of the conclusions of the FTC

13 study was that you had to target the same customers that

14 had received the misinformation?

15 A. Well, in this case, the -- all the ADT

16 customers are potential receivers of the misinformation.

17 So, that's my -- that's the basis for our analysis.

18 Q. But, you told me earlier that, even if an ADT

19 customer had not been visited by Vivint, they're still a

20 subject of your information campaign?

21 A. Yes. That's because of the inoculation effect

22 that I've described.

23 Q. Okay. So, doesn't that go against what the

24 FTC -- FTC's study suggests?

25 A. It's the same -- it's not the same customers,

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1 it's the same target audience -- the same target

2 audience that is being focused on by the deceptive

3 campaign. So, if they're going after, say, teenagers,

4 okay, it wouldn't necessarily just be teenagers who

5 received the message, it would be all teenagers who

6 could be possible receptors of the campaign.

7 Q. Okay. Is the FTC -- excuse me. Is the FTC

8 study that you're referring to cited in your report?

9 A. No. But, I have it. I'd be happy to send it

10 to you.

11 Q. Why did -- why didn't you --

12 A. I have it in my file.

13 Q. -- have it in your report?

14 A. It's just part of my background knowledge.

15 I -- I've been involved with this kind of thing for a

16 while. I didn't put every -- as I told you at the

17 beginning of the deposition, I didn't put everything I

18 know in the source list or everything I've read.

19 Q. Other than the FTC study that you didn't list

20 in your report, is there any other basis for your

21 opinion that the information campaign must be delivered

22 in the same mode, to the same customers, as the -- as

23 the deceptive statement was made in?

24 A. I mean, that just makes sense, from a marketing

25 strategy standpoint. That, if the deceptive campaign

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1 is targeting a certain -- certain audience, through a

2 certain medium, it's just intuitive sense that you

3 should -- if there has to be a corrective campaign, it

4 should go to the same target audience using the same

5 media. I mean, that's just, to me, you know, basic

6 marketing.

7 Q. It's common sense?

8 A. I don't know if I'd call it common sense, but

9 it may be just -- it may be basic marketing.

10 Q. What -- is it -- so, you said that it's

11 intuitive. Do you mean that it would be intuitive to

12 anyone?

13 A. It would be intuitive to marketing managers who

14 have to execute these campaigns.

15 Q. I'm going to direct your attention to

16 Paragraph 84 of Exhibit 1, which is your expert report.

17 A. Okay.

18 Q. In your first sentence, you say, "In my

19 opinion, ADT's efforts to mitigate the damage caused by

20 Vivint have been significant, though not sufficient to

21 repair the damage already done by Vivint."

22 Did I read that right?

23 A. Yes, I see that.

24 Q. What is your basis for the conclu- -- for that

25 conclusion?

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1 A. Which part of the conclusion? The significant

2 part or not sufficient part?

3 Q. Both. What's your basis for your conclusion

4 that the efforts have been significant?

5 A. Well, we already went through, in Paragraph 82,

6 the social campaign, the newsletters, et cetera. So,

7 they have undertaken some efforts to mitigate the --

8 the deceptive information. But, at the same time, the

9 practices continue.

10 Again, we don't know who Vivint is targeting,

11 because we don't have any information on customers that

12 they're calling on. We know that they're -- as I said

13 before, there are customers that might -- that maybe

14 were deceived, maybe they're happy with Vivint and

15 they're not going to complain. So, we just -- we just

16 don't know how many other people out there have been

17 deceived and -- and have not received or been affected

18 by the mitigation campaign.

19 Q. What information did you use to reach the

20 conclusion that ADT's efforts to mitigate the damage

21 caused by Vivint have not been sufficient to repair the

22 damage?

23 A. I'm using my judgment as a marketing expert as

24 to how effective those kinds of campaigns are. I mean,

25 they're limited, they're useful. But, people don't read

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1 e-mails, people don't open direct mail. The direct mail

2 open rate is extremely low, in the single digits. All

3 these kinds of things make these programs less effective

4 than it can be. So, there's still many people who are

5 not being reached by them.

6 Q. What you just referred to were a bunch of

7 general pieces of information that aren't specific to

8 this case. Did you rely on any specific data or

9 information related to this case to determine that ADT's

10 mitigation efforts have not been sufficient to repair

11 the damage?

12 A. I don't know --

13 MR. HOBBS: Object to form.

14 THE WITNESS: -- what the reach rates are, or

15 open rates are, of those -- of those campaigns. So,

16 I don't know all of the statistics associated with

17 those. As I said, just from my opinion of these

18 kinds of campaigns, I know there are a lot of people

19 that aren't reached, as I said before.

20 BY MR. BROWN:

21 Q. If you -- if you found out that the reach rates

22 of those campaigns were very high, would that impact

23 your analysis in this case?

24 A. Well, I'd have to take a look at -- you know,

25 study, looking at how many people read the insert, how

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1 many people opened the e-mails. Any of the social media

2 kinds of -- like, the metrics, like, shares, or likes,

3 or things like that. It might have an impact on -- on

4 how big a campaign is necessary.

5 Q. Did you ask for any of that information in this

6 case?

7 A. No, I didn't.

8 Q. Why not?

9 A. Because, my -- my -- my feeling is, based upon

10 all of the actions that Vivint continues to take, is

11 that there's still a lot of people that need to be

12 reached. And this is happening -- continues to happen

13 in peoples' households and so we continue to need some

14 kind of remediation.

15 Q. Did you do anything to quantify the impacts of

16 ADT's mitigation efforts, thus far?

17 A. Well, I think you've already asked me that.

18 And my answer was, no.

19 Q. Did you do anything to quantify what's left, in

20 terms of damages that need to be mitigated, to ADT's

21 brand?

22 A. That's not going to be possible. There's just

23 not enough information to be able to do that.

24 Q. Dr. Winer, do you do academic research?

25 A. Of course. You've seen my CV, right?

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1 Q. I have. What is the field -- I'm sure I can't

2 describe it as well as you -- what is the field of your

3 academic research?

4 A. Well, there actually is several areas where I

5 conduct research, advertising effectiveness. I've done

6 a lot of work modeling the effects of advertising on

7 household purchasing. Done a lot of work on the effects

8 of price -- what we call psychological pricing, how

9 people react to price at point of purchase. I've done

10 some research in general methodology, research

11 methodology. So, a number of areas.

12 Q. Is part of your research specific to -- to

13 quantifying the effective advertising?

14 A. Yes.

15 Q. Okay. When you conduct your academic research,

16 do you apply the scientific method?

17 A. Yes, I do. For most cases, not all. Let me

18 quantify that. Not every paper is -- involves data

19 collection. Some of them are just theory papers. But,

20 the empirical papers, yes, I do.

21 Q. Okay. And when you conduct research using the

22 scientific method, you begin by stating a hypothesis.

23 Correct?

24 A. Well, you begin by doing literature review, you

25 know, background kinds of reading, which then lead to

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1 the generation of a hypothesis, which then leads to the

2 generation of -- or to data collection, which then leads

3 to testing the hypotheses and then drawing conclusions.

4 Q. Okay. And when you state a hypothesis, that is

5 a prediction you're making of -- of something in the

6 world?

7 A. Yes. Your -- your hypothesis is that

8 advertising has an effect on people and the no

9 hypothesis is that advertising has no effect. Something

10 like that.

11 Q. Okay. And then, you test your hypothesis, I

12 think you said, by gathering data and seeing if that

13 data matches your hypothesis or not?

14 A. Well, I wouldn't state it that way. But, you

15 do collect data on some statistical analyses, test the

16 hypothesis, and see whether or not you accept the --

17 your hypothesis or reject it.

18 Q. Okay. If your hypothesis doesn't match the

19 data that you collect, do you still continue to put

20 forth that hypothesis?

21 A. Well, it depends on the kind of study. But,

22 sometimes, what you have to do is, you go back to the

23 drawing board, go back to the literature. Find out, is

24 there something you missed? Is there something more

25 complicated? Maybe it's not just a simple effect.

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1 Maybe it's what we call an interaction effect, some

2 other thing is affecting it. So, you kind of go back

3 and do a little bit more research, a little bit more

4 reading, and find out, you know, am I really wrong or is

5 there something I missed?

6 Q. So, you might, based on -- you know, it sounds

7 like you're cycling back to the beginning of the -- of

8 the analysis. Is that right?

9 A. That's often what people do with scientific

10 method.

11 Q. And, so, you may then modify your hypothesis if

12 you need to. Is that right?

13 A. Yes.

14 Q. And then you would conduct more testing of the

15 hypothesis, right?

16 A. That's correct.

17 Q. And I think you indicated that your -- this

18 type of research is empirical research. Is that right?

19 A. Yes. It involves data collection. I mean,

20 some -- some research is theoretical, where you're just

21 stating propositions or it's a literature review paper

22 or something that doesn't involve data collection.

23 Q. But, imperative research has to do with

24 collecting data -- stating a hypothesis and then

25 collecting data, to see if that empirical information,

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1 the data that you collect, matches what you have

2 hypothesized. Is that right?

3 A. That -- that is the classic scientific method.

4 There are other approaches to research, that -- that

5 people use. They create case studies and try to draw

6 general conclusions from a number of case studies. So,

7 the scientific method isn't the only approach to doing

8 research.

9 Q. Okay. But, it is an approach that you use when

10 you're doing empirical research?

11 A. Well, not exclusively. But, I do use it a lot,

12 yes.

13 Q. Okay. Do you apply that same method -- I think

14 we've talked about a few different examples today of

15 litigation cases that you're -- you have been involved

16 in, correct?

17 A. That's correct.

18 Q. Do you apply -- the scientific method, as

19 you've described it, for your empirical research, do you

20 apply that same method in the litigation projects that

21 you're involved in?

22 A. Well, generally, the litigation projects are --

23 are quite different. You're not always -- you're not

24 necessarily testing hypotheses. And sometimes you have

25 to use science, but not necessarily the scientific

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1 method.

2 So, for example, in the present litigation, you

3 know, we're not using the classic scientific method, but

4 we are using a scientific approach. We built a model

5 based upon the assumption of a certain number of people

6 that need to be exposed to the -- to the personal

7 message and we quantified it using data that we're able

8 to collect and came up with a number. So, there's

9 science there, but it's not always the scientific method

10 that's used in the litigation studies.

11 Q. Well, let's look at the conclusion you reached

12 in Paragraph 84. That the mitigation efforts that ADT

13 has conducted thus far are not sufficient to repair the

14 damage done by Vivint. If we take that and if we start

15 with that as a hypothesis, I assume you don't just go

16 straight to assuming that's true, correct? You have to

17 start with it as a hypothesis, right, that the -- you

18 might assume that the efforts were not sufficient to

19 repair the damage done by Vivint. That would be a

20 hypothesis, correct?

21 A. There are actually two hypotheses in this one

22 sentence. One could be, ADT's efforts to mitigate the

23 damage caused by Vivint have been significant. That

24 could be a hypothesis.

25 Q. Okay.

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1 A. A second hypothesis could be that the damage to

2 ADT's brand is still significant. I don't know, I'm

3 wordsmithing on the fly. But, what I'm saying is, there

4 could be a second hypothesis here.

5 Q. Okay. Let's -- let's focus on that second

6 hypothesis. Can you state it for me again what the

7 second hypothesis would be?

8 A. There was still significant damage to the ADT

9 brand caused by Vivint's deceptive actions. That would

10 be Page 1. The alternative would be, if not, it would

11 be the -- the null. The negative of that.

12 Q. In other words, there's not damage left?

13 A. Correct.

14 Q. Okay. And what did you do to test those two

15 hypotheses and which is actually true?

16 A. I didn't test those hypotheses. As I said

17 before, there is insufficient data to be able to test

18 them.

19 Q. Did -- did you try to obtain data that you

20 could use to test them?

21 A. Well, as I -- as I've also said before, a good

22 chunk of the data would come from Vivint, which we've

23 been unable to obtain. So, there's just not enough

24 information out there, so we had to take a different

25 approach.

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1 Q. Okay. The -- what -- so, what is the different

2 approach that you took?

3 A. It's the approach that we described -- I

4 described in the -- in the report.

5 Q. Okay. And what is that approach that you took

6 instead of testing those hypotheses?

7 A. We started with --

8 MR. HOBBS: Object to form. I don't know if

9 the -- (unintelligible).

10 COURT REPORTER: I -- I can't hear you.

11 THE WITNESS: I couldn't hear.

12 MR. HOBBS: Object to form.

13 THE WITNESS: Well, it's the same approach that

14 we've done -- used in several -- several cases. We

15 start with the assumption that people -- in this

16 case, ADT customers -- need to be communicated with

17 face-to-face, all right? So, we started with that.

18 Then, we count, well, how many -- how many ADT

19 customers are there, all right? Well, I think, from

20 my recollection, there's six million. Well, it's

21 unrealistic to develop a program to reach six

22 million customers in their individual homes. So,

23 we took a more conservative approach and instead

24 took the top 20 percent. Looked at the distribution

25 of ADT customers in different cities, took the top

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1 20 percent of the cities, which resulted in about

2 750,000 customers and developed a plan to reach them

3 individually, and the plan to reach the other

4 88 percent would be using a more conventional media.

5 BY MR. BROWN:

6 Q. And what is the more conventional media?

7 A. Direct mail, e-mail campaign, and social media

8 posts.

9 Q. And those other methods are much less

10 expensive, correct?

11 A. That's correct.

12 Q. And why -- why did you decide to go against the

13 FTC study that you have touted to me? Why did you

14 decide to go against that study and say, well, we're

15 supposed to reach the same customers in the same mode,

16 but in this case we don't have to reach all the

17 customers. Why -- why did you make that determination?

18 MR. HOBBS: Object to form. Misstates

19 testimony.

20 THE WITNESS: Well, I tried to be realistic.

21 To reach six million ADT customers and multiply it

22 by the cost of doing that would result in a number

23 that is high, put it that way. It would be, I don't

24 know, $500 million. I don't know exactly what the

25 number is, but not realistic. Not realistic.

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1 BY MR. BROWN:

2 Q. Would it be not a realistic -- would it be --

3 would it cost more than ADT's brand had been damaged?

4 A. Well, this was my estimate of the damage to the

5 ADT brand. So, what we did was, we said, well, you

6 know, the damage to the brand takes place in the house.

7 So, we go to the house, communicate with them, to try to

8 repair the damage. So, this is in effect what we think

9 the damage to the ADT brand is.

10 Q. Okay. I -- I'm going to get back to how we

11 value that, what the brand damage is. But, first I'd

12 like to take you to Figure 3 of Exhibit 1.

13 A. Um-hum.

14 Q. This is what you were referring to when you

15 made the decision to target just the top 20 cities where

16 ADT has customers, correct?

17 A. That's correct.

18 Q. So, you've got a -- what you call a histogram

19 here, where you lay out the top 20 cities where ADT has

20 customers, correct?

21 A. That's correct.

22 Q. Why did you choose 20 cities? Why not seven

23 cities?

24 A. Well, we wanted to be able to reach enough

25 people where not only are we reaching the people, but

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1 we're also going to be able to facilitate maybe

2 spreading more information through word of mouth. It

3 was a balance between reaching enough people and

4 spreading it out too much and getting an extremely high

5 number. So, it was my judgment that this would provide

6 the balance. It was a judgment call.

7 Q. What data did you use to reach that balance

8 determination?

9 A. Well, I think we -- we tried to look at

10 distribution, again, of the customers over the cities.

11 And as you can see from the histogram, you can see that

12 there are -- the two top cities are Chicago and Houston

13 in the system. And then, we just look at the pattern

14 and we provided the information in one of the exhibits

15 in the back. And, again, I just used my judgment to try

16 to balance getting the message out to enough people

17 while keeping the cost at a reasonable number. So, it

18 was my judgment, as I said before.

19 Q. And was that judgment informed by the shape of

20 this histogram?

21 A. Yes, it was.

22 Q. So, if we look at this histogram, after we

23 get to -- to -- after we get past Orlando, and we get

24 into Phoenix, Philadelphia -- excuse me, Phoenix,

25 Indianapolis, Philadelphia, Jacksonville, Columbus, it

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1 seems like there's a bit of a plateau that occurs in

2 this section of the histogram. Is that a fair

3 description?

4 A. Yes. I wouldn't disagree that it does

5 seemingly flatten out at Columbus, to some extent.

6 Q. So, did you consider just using the top

7 seven -- Houston, Chicago, San Antonio, Miami, Los

8 Angeles, Las Vegas, and Dallas, I think that's the top

9 seven -- before that plateau starts to occur?

10 A. Yes, we did consider alternatives. You know,

11 we looked at fewer cities, we looked at more cities.

12 And as I said, we talked about it. We talked about it

13 with GBX people and we thought that this was a

14 reasonable balance, as I said before, between trying to

15 get the message out to enough people, but not getting a

16 ridiculous number at the end of the day.

17 Q. Did you do a -- did you actually do a

18 calculation, or did anyone that you know of do a

19 calculation based on just choosing the top -- fewer --

20 based on using fewer of the 20 places?

21 A. Yeah. We did a sensitivity analysis of

22 stopping somewhere -- somewhere where you point out

23 and -- versus, adding cities. And as I said, we just

24 developed a -- kind of a middle ground.

25 Q. What was the alternative -- what was the

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1 conclusion of that alternative analysis where you looked

2 at fewer cities?

3 A. Well, it would have been a smaller number,

4 obviously.

5 Q. Do you remember what the number was?

6 A. No, I don't remember.

7 Q. Less than 27 million?

8 A. Huh?

9 Q. Less than 27 million?

10 A. Less than 27 million.

11 Q. And would that be a plausible analysis? If

12 another expert did that kind of analysis and chose, you

13 know, say, seven cities, or some number fewer than 20,

14 and worked out the calculations in the same way you did,

15 but used a fewer number of cities, would that also lead

16 to a reasonable estimate of what the damages might be in

17 this case?

18 A. Well, I think -- I'm not going to rule out the

19 possibility that another expert might choose another

20 stopping point. They could choose one that's -- that's

21 further to the right.

22 Q. Right.

23 A. They could choose one further to the left. So,

24 I -- I don't know what the answer is other than saying

25 another expert could come up with a different answer,

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1 sure.

2 Q. What would you tell that other expert that

3 wanted to use fewer cities, to tell them that their

4 analysis is not as good as your analysis?

5 MR. HOBBS: Object to form.

6 THE WITNESS: I would never say it's not as

7 good. I would just say it's different.

8 BY MR. BROWN:

9 Q. Okay. So -- so that -- a different analysis

10 that another expert might do, based on fewer cities, may

11 also lead to a plausible estimate of damages in this

12 case?

13 A. But, they might also have more cities. So,

14 if you added the ones -- the ones that come after

15 Washington -- is it Washington? Yes. If you added

16 some cities that come after Washington, maybe the other

17 expert would say we need to reach more households

18 face-to-face. I'm not going to say what that other

19 expert or other experts might do.

20 Q. Can you say any more about why you chose 20?

21 A. As I said, I thought it was a reasonable

22 balance between the number of households reached and --

23 and the damages amount.

24 Q. Okay.

25 MR. BROWN: I think we're at a good stopping

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1 point and need to change the media.

2 THE WITNESS: Okay.

3 MR. BROWN: Let's go ahead and take a break at

4 this point.

5 VIDEOGRAPHER: All right. Stand by, please.

6 This is the end of Media Number 5 in the testimony

7 of Dr. Russell Winer. We're now going off the

8 record, and the time being 6:45 p.m., Eastern.

9 MR. BROWN: Okay. I can do -- let's do -- if

10 you don't mind let's do 10 minutes. We can do 10

11 minutes here and that will help me get organized, as

12 I think we're in our last push, here.

13 MR. HOBBS: Yeah. And how much time do we have

14 left on the seven hours?

15 MR. BROWN: Well, after the last break, we

16 had --

17 VIDEOGRAPHER: We're at 364 minutes right now.

18 MR. BROWN: Okay.

19 MR. HOBBS: So --

20 VIDEOGRAPHER: Just under an hour.

21 MR. HOBBS: So, back in five minutes is

22 alright?

23 MR. BROWN: I said, 10, please.

24 MR. HOBBS: Yeah.

25 (Whereupon, a recess was held at 6:45 p.m., and the

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1 deposition resumed at 6:57 p.m.)

2 VIDEOGRAPHER: This is the beginning of Media

3 Number 6 in the testimony of Dr. Russell Winer.

4 We're back on the record. The time is 6:57 p.m.,

5 Eastern.

6 BY MR. BROWN:

7 Q. Okay. Dr. Winer, I want to go to some of the

8 exhibits to Exhibit 1 of your report. Well, first of

9 all, going back to the figures. So, on Page 42 of your

10 report, Figure 2, can you tell me who created Figure 2

11 of your report?

12 A. GBX did, under my direction. It was my --

13 my -- my idea to find out where the 250 ADT customers

14 who had created the WAV files -- where they lived.

15 Q. And then, you -- so, you directed GBX to shade

16 in all of the states where the 250 ADT customers that

17 you indicated are represented by the over 1,300 ADT

18 calls that we've been talking about today?

19 A. That's correct.

20 Q. Did you do anything to verify the information

21 that was produced by GBX?

22 A. No, I did not.

23 Q. Other than directing them to create Figure 2,

24 did you have any involvement in the creation of

25 Figure 2?

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1 A. No.

2 Q. How about Figure 3? Who created Figure 3,

3 which is Page 45 of Exhibit 1?

4 A. Yes. Again, GBX at -- at my direction. I

5 suggested looking at a histogram of the ADT customers

6 to help us determine how many in-home visits to do.

7 Q. And did you tell them the number of cities to

8 look for?

9 A. No. If you look in -- I don't remember the

10 exhibit number, but one of the exhibits has all -- has

11 many cities in it. Exhibit 4 has down to Chesapeake,

12 which has 8,457 customers. So, all the cities are in

13 Exhibit 4.

14 Q. Okay. And who was involved in the

15 discussion -- you mentioned earlier that you considered

16 different numbers of cities to focus on. Who was

17 involved in the discussion where you were discussing the

18 number of cities that you should use?

19 A. I did it with my team at GBX, with Mark and

20 maybe some other people. I don't remember who exactly.

21 But, it was a joint decision.

22 Q. Do you remember anyone else being in the room

23 besides Mark?

24 A. I know he has some people that work -- work

25 with him. I don't remember who exactly was in the room

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1 at the time.

2 Q. Was anyone from ADT in the room?

3 A. No.

4 Q. How about ADT's counsel?

5 A. They're always -- either Eric or Charlie Eblen

6 are always there.

7 Q. Okay. And did they give any input on the

8 number of cities -- did -- did any of the attorneys from

9 Shook, Hardy & Bacon give any input on the number of

10 cities that should be used?

11 A. No. Not at all.

12 Q. Did you share with them the results of your

13 alternative analyses that you had done, including what

14 the damages would be if you use the alternative

15 analyses?

16 A. Well, as I said, they were on every -- somebody

17 was on every meeting. So, when we did the alternative

18 analyses, somebody was there. I don't know which --

19 which attorney from Shook was there.

20 Q. Do you have -- obviously, they didn't make it

21 into the report, but did you ever write up any of these

22 alternative analyses that GBX did?

23 A. No.

24 Q. They don't exist anywhere in any kind of fixed

25 form?

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1 A. I mean, you could almost do it in -- you know,

2 in your head, you know, the way it is. But, no, I

3 don't -- I haven't written it up. I don't have any

4 notes or anything.

5 Q. Do you have any spreadsheets that relate to

6 those analyses?

7 A. I don't have them. It's possible that GBX

8 people do, but I don't.

9 Q. How about Figure 4? Who created Figure 4?

10 A. Who created Figure 4? It's just a -- just a

11 table with numbers in it. I did not -- I'm not good

12 at -- I'm pretty good at typing in Word, but I'm not too

13 good at figures, so I believe somebody from GBX must

14 have done that.

15 Q. Okay. Did you direct them on how to -- what

16 information should be in Figure 4?

17 A. Oh, yes. For sure.

18 Q. Okay. So, what was your direction to them?

19 A. Well, the direction was, try to figure out,

20 first of all, how many salespeople would be needed to

21 cover the 750,000 customers. We made some assumptions.

22 We assumed eight customer visits per day, assumed a

23 three-month campaign, and that got us to the sales

24 representative force. It's pretty simple division.

25 Q. What -- what led you to choose eight customer

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1 visits per day?

2 A. Well, we talked about it. How many -- how

3 many houses do we think a representative could visit,

4 on, say -- I wouldn't say eight hours. I don't remember

5 the exact discussion. I don't think you would want to

6 get a sales call at 9:00 in the morning. But, you know,

7 a reasonable number of hours -- maybe 10:00 or 11:00 to

8 5:00 p.m. -- in a neighborhood, assuming they're in a

9 neighborhood. How many of these visits could they make,

10 and spend maybe a half-hour, or a certain amount of

11 time, with each one of them, talking about the issues,

12 and warning them -- warning them about Vivint's

13 practices -- Vivint's practices and doing this on an

14 individual basis, trying to find out if they had any

15 prior experience with Vivint or not. So, it was a

16 very -- pretty customized. It's -- it's very -- very

17 individual.

18 Q. Well -- so, would these be -- these visits to

19 the customers' residences, I think you -- you testified

20 earlier, based on the FTC study, that the mode should be

21 similar to the mode in which the deceptive practices

22 occurred. But, these sound longer than the sales calls

23 that -- that you've been discussing. I think, at one

24 place in your report, you say that sales calls could

25 last just seconds. Is that right?

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1 A. I don't recall that. Can you point it out?

2 Q. Maybe it was something you testified to. You

3 testified that some sales calls lasted seconds or

4 minutes, I believe.

5 A. I don't see how a sales call could last

6 seconds, to be honest, but -- anyway, I -- I can't

7 respond to that.

8 Q. Okay. Well, would these sales -- these visits,

9 as part of your information campaign, would you expect

10 them to be longer than -- than sales calls --

11 A. Oh, yeah.

12 Q. -- conducted?

13 A. I think, the length of a sales call would be

14 highly variable. I mean, a sales call, somebody could

15 come in and be dismissed. Or, as we saw in the Ring

16 Doorbell one, not even get in the front door. So, it

17 could be -- could be short. If the person gets in, is

18 persuasive, if the panel has to be replaced or even new

19 equipment put in, it could be -- could be longer. So, I

20 think, the -- the variance around these calls, that I'm

21 recommending, would be much lower than it is around a

22 sales call.

23 Q. Did you ask ADT for any information about the

24 number of customers a visit -- an ADT dealer, sales

25 representative, was able to reach in a particular day?

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1 A. No. We just estimated how long these

2 particular calls would take, allowed for some travel

3 time around the neighborhood, lunch, that kind of thing,

4 and estimated they could do eight. Again, they're not

5 sales calls, so they would be very different from what

6 a dealer would say they would do on a sales call.

7 Q. So, how are they different than sales calls? I

8 think you indicated -- I think you chose the -- well,

9 here, you say, sales representative force, 1,036.

10 That's the number of people -- you call them sales

11 representatives, don't you?

12 A. Yeah, that's the way they're labeled. But,

13 they're not doing any selling. The idea here is purely

14 informational. It's sort of a -- again, very -- sort of

15 customized. They would have an interview scheme set up.

16 They would ask them, first, have they been called by a

17 Vivint salesperson? If so, you know, what did the

18 salesperson say? Not every Vivint sales call

19 necessarily is deceptive. I'm not saying that. And if

20 they have any --

21 Q. If the person -- let me cut you off there. If

22 the person says they haven't been visited by a Vivint

23 salesperson, does -- does the information campaign

24 person walk away at that point?

25 A. No. I mean, as I said earlier in the

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1 deposition, there's still the inoculation part of it,

2 right? That -- what they would do is say that Vivint

3 has a history and has also demonstrated that they

4 would -- or, they could provide misleading information,

5 sometimes, or half-truths, untruths. And that they

6 should -- they should be aware of that. That, if

7 anybody calls from -- from Vivint, don't necessarily --

8 don't let them change your equipment, don't listen to

9 them, if they say, well, ADT has been acquired by

10 Vivint. And --

11 Q. Would part of --

12 A. And contact customer -- a customer service at

13 ADT and let them know. So, maybe a half-hour.

14 Q. Okay. So, would the -- would the information

15 that they -- that the -- well, first of all, the people

16 who are visiting -- doing these door-to-door visits, are

17 they ADT employees?

18 A. Yes. I think sales representative force is a

19 bit of a misnomer. I don't -- I can't think, right now,

20 off the top of my head, what to call them. But, they're

21 not going to do any selling.

22 Q. But, you based the damages estimation on the --

23 the salary for a sales representative, didn't you?

24 A. Well, that's because there is no such person at

25 ADT, right now, for doing what we want to do. In fact,

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1 we used $194, which is very conservative, which is the

2 cost of a first-year salesperson. So, we were

3 conservative on that number.

4 Q. Yeah. But -- so -- but, salespeople usually

5 work on commission. Are these people going to be

6 working on commission?

7 A. No, this is salary.

8 Q. So, you're basing the -- the cost on what it

9 would cost for the salary of a salesperson, correct?

10 A. That's correct.

11 Q. Are you -- are the people who are -- these ADT

12 employees that are going door-to-door, are they allowed

13 to make sales, as part of their visit?

14 A. Well, you know, I haven't gotten to the detail

15 of writing an exact script for them. But, our

16 conceptualization of this would be -- the answer would

17 be, no.

18 Q. They'll be prohibited from making sales?

19 A. Well, look, if one of the -- if one of the

20 customers they're talking to says, I need a new -- a new

21 panel, or something like that, then the salesperson --

22 or the person would jot that down and maybe provide that

23 information back to the district office. But, the

24 purpose of this is not -- not to make a sales call.

25 Q. What -- what if the person they approach is no

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1 longer an ADT customer and is now a Vivint customer.

2 Would they then be allowed to sell them ADT?

3 A. Well, they're only going to be working off an

4 ADT customer list.

5 Q. Well, what if the customer list is not up to

6 date and the -- and the person they visited has, since

7 the customer list was generated, moved to Vivint?

8 A. The intention is not to get Vivint customers to

9 switch to ADT or back to ADT. So, I would say that

10 they'll just say, thank you, and go to the next one.

11 Q. So, if they -- if the person that they approach

12 is not an ADT customer, they'll walk away?

13 A. That's my conceptualization of this process.

14 Q. But, if the person is an ADT customer, even if

15 they've never been visited by Vivint, then there's still

16 more discussion to be had?

17 A. Correct.

18 Q. And as you've described, you -- you would then

19 perform the inoculation?

20 A. That's correct.

21 Q. Okay. Is there going to be a script that these

22 people are supposed to follow?

23 A. There's always a script with people like this.

24 I mean, they're not going to have it in their hands.

25 But, yes, there's going to be -- because, there's going

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1 to be what we call, branches, you know? If they say

2 this, then do this. If they say something else, do

3 something else. So, yes, there will have to be

4 training. In fact, we have a budget in there for

5 training, $1,500 for recruiting and training cost,

6 per employee. And part of that training will be on the

7 script.

8 Q. Would the people be able to say negative things

9 about Vivint?

10 A. Well, if they've been visited by Vivint, and

11 they've been -- had been deceived or, what they felt,

12 you know, lied to or created confusion, yes, they will

13 say some negative things about Vivint.

14 Q. What if -- what if the person -- what if the

15 ADT person says, I've never been visited by Vivint.

16 Will the salesperson who's visiting them still say

17 negative things about Vivint?

18 A. Well, that's the inoculation, right? That

19 Vivint has been visiting some -- has been visiting some

20 ADT clients and been saying that, we've acquired ADT.

21 We've got an arrangement with them to swap out -- you

22 know, whatever the line happens to be.

23 Q. Okay. And let's say the ADT customer says, I

24 have been visited by Vivint, but they didn't say

25 anything deceptive to me. Does the sales call end or do

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1 they still need to be inoculated?

2 A. I would say they would still need to be

3 inoculated. But, it would be a different -- it would --

4 it's the inoculation talk, it's not the, you've been

5 deceived by Vivint talk.

6 Q. What if the -- what if -- what if the

7 customer -- well, so, how many different branches of

8 this script is there going to be?

9 A. I don't know. As I said, I didn't write it

10 out. It's not in -- it's not in the report. I'd have

11 to give it some thought. So, I'm not going to -- I'm

12 not going to say anything off the top of my head, right

13 now.

14 Q. When are you going to give it more thought?

15 Before trial?

16 A. I don't plan to -- to present -- I don't -- I

17 don't plan to present the presentation at trial, no.

18 Q. How -- how -- how will the visits be -- will

19 the visits be coordinated with the other portions of the

20 information campaign? And -- well, first of all, will

21 the people who are receiving door-to-door visits, will

22 they also receive other communications?

23 A. No, they won't receive -- the 88 percent --

24 12 percent receive the in-home, 88 percent receive the

25 e-mails, direct mail, social media.

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1 Q. How will you be able to tell if the information

2 campaign is successful?

3 A. Well, you can follow up. What I would

4 recommend -- although it's not in the report -- is, you

5 follow up with interviews, or a survey of some type, to

6 see whether or not, you know, it's -- it's helped them.

7 Q. Is -- is that part of your information

8 campaign?

9 A. No. It's not in this -- it's not in this

10 budget.

11 Q. What if you did that analysis now? Would you

12 perhaps determine that the campaign isn't needed or the

13 same scope of campaign isn't required?

14 A. Well, you can't get at the nuances of these

15 personal interactions with a survey. I mean, first of

16 all, survey response rates are very low. And, secondly,

17 what happened between a Vivint salesperson and the

18 customer is something that is very hard to characterize

19 with a survey. So, I don't think that a survey would be

20 very appropriate here.

21 Q. Okay.

22 A. Prior -- prior -- as you said, prior to the

23 campaign.

24 Q. I'm going to direct your attention back to

25 Exhibit 1 to the deposition. I'm now looking at

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1 Exhibit 1 of Exhibit 1, which is entitled, ADT Media

2 Spend. It appears to be an e-mail chain from a Shannon

3 Hendrickson to Dan McGrath. Who is Shannon Hendrickson?

4 A. She's the Chief Marketing Officer, ATT -- ADT.

5 Q. She's ADT's Chief Marketing Officer?

6 A. Yes.

7 Q. How long has she --

8 A. Actually, technically, Vice-President of

9 Marketing.

10 Q. How long has she held that position?

11 A. I have no idea.

12 Q. Did you speak to her in relation to this case?

13 A. Yes, I did.

14 Q. When did you speak to her?

15 A. I don't know the exact date. It's in a

16 footnote.

17 Q. Who is Dan McGrath?

18 A. Dan McGrath is General Counsel and the

19 Vice-President Deputy General Counsel.

20 Q. So -- so, in this e-mail chain, Dan McGrath is

21 sending some information to Shannon Hendrickson about

22 ADT media spends, correct?

23 A. Yes. This is just a -- their estimate of how

24 much they -- well, her estimate of how much they spend

25 on TV each year and how much they spend on print.

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1 Q. Okay. Do you know where this information in

2 the body of Dan McGrath's e-mail came from?

3 A. You mean, those numbers? The 45 million and

4 48?

5 Q. And the 93, yes. The 45 million and the 48.

6 The 93 is 45 plus 48, correct?

7 A. Yes. It came from Shannon Hendrickson.

8 Q. Well, but here Dan is sending them to Shannon?

9 A. I'm sorry. Could you repeat that? I didn't

10 hear that clearly.

11 Q. In this e-mail from Dan McGrath, dated

12 August 6th, 2021, at 1:47 p.m., Dan McGrath is sending

13 this information to Shannon Hendrickson. So, my

14 question is, where did Dan McGrath get the information?

15 A. Well, if you read above what you've

16 highlighted, it says -- Dan McGrath is writing Shannon,

17 "We're wrapping up our expert report. On this piece

18 of our damages case, you made the following statements

19 in an earlier e-mail." So, it came from

20 Shannon Hendrickson.

21 Q. Do you have a copy of the earlier e-mail?

22 A. This is the only e-mails I have.

23 Q. Okay. Do you know where Shannon Hendrickson

24 developed that information?

25 A. Well, as the Vice President of Marketing, I

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1 assume she knows what their advertising budgets are.

2 So, she must just know them off the top of her head.

3 Q. Do you know -- did you ask her for copies of

4 the advertising budgets?

5 A. No. I -- we took this as a given that she

6 knows what they are.

7 Q. Did you do anything to verify that the

8 information she gave you was correct?

9 A. No.

10 Q. Let's go to Exhibit 2. This one, we've talked

11 about. Let's go to Exhibit 3. Okay.

12 So, we're now at Page 114 of the PDF page

13 number for Exhibit 1 to the deposition, which is,

14 Exhibit 3, ADT Customer Initiatives.

15 A. Yes, I have it.

16 Q. Okay. Where did the information in Exhibit 3

17 come from?

18 A. Well, this is the supporting documentation for

19 that paragraph that we went through on the mitigation

20 efforts.

21 Q. So, this is a description of the mitigation

22 efforts that ADT undertook already?

23 A. Paragraph 82, that we already went through.

24 Q. I'm asking you. This is the description of the

25 mitigation efforts that ADT already undertook in

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1 relation to Vivint's alleged misconduct?

2 A. That's correct.

3 Q. Okay. And where did you get this information?

4 A. I believe we got it from Shannon Hendrickson.

5 Q. To your knowledge, who created this document?

6 A. I didn't hear you. Could you say it again?

7 Q. To your knowledge, who created Exhibit 3?

8 A. I don't know for sure.

9 Q. Do you know what data was used to pull together

10 Exhibit 3?

11 A. You say, what data was used for this exhibit?

12 Q. Yeah. What -- do you know what source

13 documents -- Exhibit 3 appears to be a couple of tables

14 that summarize information about what was done. Do you

15 know what source documents were used to create these

16 tables?

17 A. No, I don't.

18 Q. Do you know where the information that's

19 presented here came from?

20 A. As I said before, it's either from

21 Shannon Hendrickson herself or from her marketing

22 department at ADT.

23 Q. Did you talk to anyone at the marketing

24 department of ADT about any of these initiatives?

25 A. No, I did not.

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1 Q. Did you request any back-up for Exhibit 3?

2 A. No.

3 Q. Did you do anything to verify the information

4 in Exhibit 3?

5 A. No.

6 Q. Let's go to Exhibit 4. This is the -- the city

7 counts that you referred to earlier. So, we have here

8 a list of cities that's sorted by the number of ADT

9 customers in that city. Is that right?

10 A. Correct.

11 Q. So, the first column is the number of ADT

12 customers in -- or, excuse me, the first column is the

13 name of the city, the second column is the number of ADT

14 customers in that city?

15 A. Yes.

16 Q. And what's the third column?

17 A. It's a cumulative count. Which, you get

18 from --

19 Q. Who --

20 A. I'm sorry. You get -- you get from adding

21 the -- all the previous numbers together.

22 Q. Okay. Do you know who put this data together?

23 A. I believe it was GBX. Because, this is our

24 analysis that we used for the -- for the report.

25 Q. Do you know who at GBX put this together?

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1 A. No, I don't.

2 Q. Do you know where the data -- the underlying

3 data came from?

4 A. Well, they must have gotten it from ADT.

5 Q. Do you know where they got it from ADT?

6 A. No, I don't.

7 Q. Did you do anything to verify the accuracy of

8 the information in this exhibit?

9 A. No, I did not.

10 Q. Do you know why they included a column for

11 cumulative?

12 A. Yes. Because, if you take a look back at

13 Figure 4, the graph has a histogram of the number of --

14 of customers in each city and it also has a cumulative

15 curve that represents the total. And that was again

16 what we looked at, to try to balance the total number of

17 customers that we would visit with the total expense of

18 visiting individual households.

19 So, it gives you an idea of, as you're going,

20 you know, down the city, with the number of -- number

21 of customers, how many total customers are being

22 considered.

23 Q. So, as you're going down the list, you always

24 know how many total customers you would be at if you cut

25 the list off at that point?

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1 A. Correct.

2 Q. So, if you wanted to get to, say, three

3 quarters of a million customers, and you have this

4 cumulative column, you could quickly see, oh, okay, all

5 I need to do is get to Washington, and I'll be at three

6 quarters of a million customers?

7 A. That's what --

8 Q. Correct?

9 A. That's what cumulative curves do, yes.

10 Q. Okay. And if your goal in putting this

11 information together was to get to a certain number

12 of customers to visit, this would be an easy way to

13 determine that quickly? By having this cumulative

14 count, we could quickly say, if I want to get to

15 750 million customers, as I run down this, I'll know

16 when I get there?

17 A. Well, 750,000, yes.

18 Q. Yeah, I'm sorry. 750,000?

19 A. I think they wish it was 750 million.

20 Q. Who wishes?

21 A. ADT wishes they had 750 million customers.

22 Q. Okay. All right. Let's go on to the next

23 exhibit. Exhibit 5, Daily Compensation. This appears

24 to be an e-mail exchange between Dan McGrath and

25 Mark Pelofsky. Now, Mark we talked about earlier.

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1 Dan McGrath is the General Counsel or one of the General

2 Counsels of ADT?

3 A. He's the Vice-President and Deputy General

4 Counsel.

5 Q. Okay. And Mark Pelofsky is one of the

6 principals at GBX?

7 A. Correct.

8 Q. Do you know who Kritika Kuppuswami is?

9 A. Yes. She works at GBX.

10 Q. How about Charlie Eblen?

11 A. He's an attorney at Shook.

12 Q. And Eric Hobbs is the attorney that's

13 representing ADT on the line now, correct?

14 A. Correct.

15 Q. Okay. What was -- what is -- what information

16 is being communicated in this e-mail?

17 A. Well, to be able to come up with the total

18 amount of the remedial campaign, one of the inputs has

19 to be how much each one of these ADT representatives

20 would be paid when they call on the customers.

21 So, we -- we -- as you can see in the table

22 there, we actually took a fairly conservative view of

23 that and took the lowest number, based upon people who

24 were in their jobs less than one year.

25 Q. So, in this salary, the average annualized

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1 compensation -- this is the average annualized

2 compensation for an ADT salesperson who's been in their

3 job for less than a year?

4 A. Right.

5 Q. Okay. Is this person -- these ADT

6 salespersons, are they normally people who go

7 door-to-door to customers?

8 A. I don't know how they deploy their sales force.

9 I know they have district offices. Maybe people go into

10 the office and some of them work in the office, some of

11 them may call door-to-door. I don't know exactly how

12 ADT does it.

13 Q. Okay. At one point, you indicate that one

14 reason you found your analysis to be conservative is

15 that you did not take into account the fact that ADT's

16 field staff turned over at an approximate rate of

17 64 percent a year, correct?

18 A. Correct.

19 Q. That's in Paragraph 110 of your expert report?

20 A. Let me just double-check that, please. Yes.

21 In the first year, that's correct.

22 Q. Okay. How many of -- well, first of all, does

23 that refer to the sales representatives that you're

24 using for this first table, or is that -- as you've

25 said, field staff, is that the same as sales

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1 representatives?

2 A. Well, these people would not be salespeople, so

3 the turnover rate might be different from the 64

4 percent. I think our -- the only point here is that, if

5 you take a look at the number of people required, that

6 we show in table -- I'm sorry, Figure 4, it would in

7 reality have to be larger than 1,036, to account for the

8 fact that there's turnover.

9 Q. How much turnover -- that was turnover for a

10 year, 64 percent. How much turnover happens in the

11 first 90 days? Because, isn't your campaign only

12 90 days long?

13 A. I don't know what the turnover rate is for

14 90 days.

15 Q. Wouldn't that be --

16 A. We don't have that data.

17 Q. Did you ask for it?

18 A. No.

19 Q. This second table here, what does this table

20 represent? The -- the second table in Exhibit 5.

21 A. We didn't use this information.

22 Q. Do you know why 64 percent is highlighted in

23 this table?

24 A. No, I don't.

25 Q. Okay. Do you know what this information is?

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1 A. Well, actually, it does have the turnover

2 rates -- 64, rolling six months, annualized.

3 I'm sorry, I misspoke before. We did use this

4 information. It has the turnover rates that we referred

5 to in that paragraph.

6 Q. Okay. So, you used this number? For rolling

7 12 months, you used this 64 percent number?

8 A. Yeah. Where it says, resi reps, those would be

9 residential.

10 Q. Those are residential sales reps?

11 A. Correct.

12 Q. Why didn't you use this rolling four months

13 number?

14 A. We didn't use any number. All that would have

15 done -- if I used 24 percent for any number, it would

16 have increased the number of -- of representatives

17 needed and it would have increased the 27 million to

18 something higher.

19 Q. Well, in Paragraph 110, you mentioned the

20 64 percent number. Why didn't you mention the

21 24 percent number?

22 A. I don't know. I don't remember.

23 Q. Okay. Do you know who highlighted the 64

24 percent number?

25 A. No, I don't.

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1 Q. Let's go on to Exhibit 6, ADT Marketing Costs.

2 So, this is an e-mail exchange between

3 Shannon Hendrickson, who again -- we talked about

4 before. And it's from Shannon Hendrickson to

5 Mark Pelofsky, who we've talked about, and Dan McGrath.

6 And again we have Kritika Kuppuswami, who you've

7 indicated was a GBX employee, correct?

8 A. Correct.

9 Q. Okay. So, the purpose of this e-mail is to

10 confirm additional marketing information that was

11 conveyed to GBX by Shannon Hendrickson?

12 A. That's correct.

13 Q. And it also says that Dan McGrath was

14 involved -- well, it suggests he might have been

15 involved. Do you know if any of this information -- any

16 of the substantive information in this e-mail came from

17 Dan McGrath?

18 A. No, I don't. It's marketing data, so I assume

19 it was mainly from Shannon.

20 Q. Okay. Do you know where Shannon received the

21 information?

22 A. What I remember, we had a phone conversation,

23 which is referred to in the report. And these are just

24 notes confirming what Shannon said, in that

25 conversation, would be needed to reach the other

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1 88 percent of ADT's customers.

2 Q. So, who suggested this design of how to reach

3 the other 88 percent? Was that Shannon's idea of how to

4 reach those 80- -- other 88 percent?

5 A. Well, it was my idea to have a hybrid campaign

6 with some door-do-door and some using more conventional

7 methods. We then asked her how much it would cost or

8 what she would do for a typical campaign. And so, we

9 used her numbers for that. But, it was my idea to

10 develop the concept of the hybrid campaign.

11 Q. So, I get that your idea was to have a hybrid

12 campaign with some traditional methods and -- and some

13 door-to-door information dissemination. And then you

14 went to Shannon and asked her how to design the

15 non-door-to-door portion of that campaign, correct?

16 A. Correct. And she said that it would take about

17 $3 million to use a targeted marketing effort, using

18 both online and traditional media.

19 Q. And do you know how she reached those

20 conclusions?

21 A. I assume she just used her experience, what

22 they've done in the past.

23 Q. Did you do anything to verify that those

24 conclusions were reasonable?

25 A. No, I did not.

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1 Q. Do you -- do you know what information she used

2 to inform these conclusions?

3 A. As I said, I assume she used either her own

4 experience or past campaigns that were similar in

5 nature.

6 Q. Did you ask to see copies of the budgets from

7 those past campaigns?

8 A. No, I didn't.

9 Q. Did you do anything to verify the information

10 that she provided in this e-mail?

11 A. No, I did not. I took her word that that's

12 what they've done in the past and that would be a

13 reasonable estimate of what we would do here.

14 Q. Did you consider any other potential designs

15 for the non-door-to-door portion of the information

16 campaign?

17 A. Well, I think these are the typical ones that

18 you would use if you went to TV. It would cost a lot

19 more money. So, I think this is a fairly conservative

20 estimate of how to reach the other 88 percent.

21 Q. And did you have any -- well, who else was

22 involved in creating this design for the

23 non-door-to-door portion of your information campaign?

24 A. We just used the numbers that Shannon gave us

25 for that campaign.

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1 Q. Okay. And do you know if anyone else besides

2 Shannon was involved in coming up with these numbers?

3 A. No, I don't.

4 Q. And you don't know what source data she used to

5 come up with these numbers?

6 A. No, I don't.

7 Q. Do you know if she performed any calculations

8 to come up with these numbers?

9 A. No.

10 Q. Did you do anything to test the information

11 that she gave you?

12 A. No. I -- we just took it at face value, based

13 again on her experience that this is the way that she

14 would reach those other customers.

15 Q. Do you personally have experience valuing

16 brands?

17 A. Yes.

18 Q. Okay. What experience do you have in valuing

19 brands?

20 A. Well, I teach -- in my -- my marketing

21 management course, I have a session on how to estimate

22 brand value, different approaches to estimating brand

23 value. We talked about examples in class. So, that's

24 the experience that I have. I've also done some brand

25 valuation in other cases.

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1 Q. Did you do any brand valuation in this case?

2 A. Our brand valuation in this case was the

3 remedial campaign. What it would take to repair the

4 brand damage done by Vivint is the $27 million to

5 specifically repair this part of their brand image, due

6 to Vivint's activities.

7 Q. Briefly, the cumulative customer counts that

8 were included in the histogram, did that include

9 business customers, as well as residential customers?

10 A. I don't know the -- the answer to that. But,

11 I know that the data we wanted was for residential

12 customers. So, I assume the data that we got -- that

13 GBX got from ADT was residential customers. We're not

14 interested in the -- in the business-to-business sector.

15 Q. If it included both business and residential

16 customers, would that change your analysis or change

17 your conclusions?

18 A. Well, you know, if we had to do door-to-door

19 calls on business customers, that would certainly

20 increase the -- if this was just residential data, it

21 would certainly increase the remedial -- remedial

22 campaign budget.

23 Q. Okay. And did -- did any of the alleged

24 misconduct in this case relate to commercial business

25 customers or only residential customers?

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1 A. I've only considered residential customers.

2 Q. To your knowledge, the allegations in this case

3 relate only to residential customers, correct?

4 A. That's correct.

5 Q. Did you -- in Paragraph 45 of your report --

6 let me get there. I'm going to share it. Now, we're

7 sharing again Exhibit 1 to the report. And now I want

8 to go to Paragraph 45 on Page 17.

9 In Paragraph 45 in the report, you mentioned a

10 Harris Poll that was conducted in 2018. What -- and

11 then you've described the results of that Harris Poll

12 and you found that ADT's brand was very strong based on

13 the results of that Harris Poll in 2018. Correct?

14 A. Yes.

15 Q. Did you redo that analysis, or did anyone

16 request that that analysis be redone, at any other point

17 in time?

18 A. Well, I read the original report, which I --

19 which we referenced. It has the data in it.

20 Harris is obviously a very reputable company in

21 the polling business and market research. I actually

22 know the CEO of Harris and it's an excellent company, so

23 I have no reason to question the numbers that they have.

24 Q. I'm sorry, that wasn't the question that I

25 asked. I wasn't asking you if you questioned the

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1 numbers they had, I'm asking you, did you try to get

2 them to do this analysis again later on? So, that you

3 got this analysis in 2018 and you found that ADT's brand

4 is very strong. Did you do an analysis in 2020, to see

5 if ADT's brand had been affected by the alleged

6 misconduct in the case?

7 A. Even -- even if I -- even if we had a poll from

8 2020, it wouldn't necessarily tell us whether Vivint's

9 misconduct affected its brand.

10 Q. Why not?

11 A. Because, the effect that the misconduct had was

12 on a very specific portion of ADT's brand. It's only

13 the perceptions that the customers have of the brand

14 name. There's a lot that goes into the overall brand

15 equity or brand name, other information that's out there

16 in the marketplace. So, the overall brand name, right,

17 is like a macro or a large scale kind of estimate of the

18 brand value. But, we're only looking at a particular

19 part of that brand and how it was damaged and the part

20 that was damaged on -- in the households on a

21 household-by-household basis.

22 So, that would not necessarily tell us whether

23 it went up or down. It wouldn't necessarily be a causal

24 effect of Vivint's actions.

25 Q. So, why is this 2018 Harris Poll relevant,

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1 then? You just told me it doesn't tell you anything

2 about the particular segment of the brand or the

3 customers that -- that we're talking about in this case.

4 If that's true, then why is the 2018 version of this

5 report relevant?

6 A. What I'm trying to do is to establish a

7 baseline that ADT is the best known and the best brand

8 in the home security business and so it's also most

9 vulnerable to any activities that Vivint might -- might

10 partake of at the household level. So -- and, you know,

11 they're in the security business and so it's really

12 important to ADT that they protect the brand name.

13 Q. So, you established this baseline in 2018.

14 But, do you do anything to then -- did you do any

15 analysis that you could then compare to this baseline?

16 A. No.

17 Q. Did anyone do that analysis?

18 A. No.

19 Q. You testified earlier that you're trained in

20 doing brand valuation, but you didn't do that in the

21 analysis in this case?

22 A. I think I responded to that earlier -- a couple

23 minutes ago -- that an overall brand value is not what

24 is relevant here. What's relevant is what was the brand

25 damage that was done by these particular actions that

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1 Vivint undertook. You can't find that from looking at

2 overall brand equity estimates and so it would not be

3 helpful.

4 Q. So, in terms of ADT's brand, is ADT's brand

5 still the strongest brand in the alarm services

6 industry?

7 A. I don't have the 2020 data, but it's always

8 been the strongest brand in the business. It's by far

9 the biggest company, and, you know, my educated guess

10 would be it's still the strongest brand in that

11 industry.

12 Q. Okay. And what's that assumption based on?

13 A. Just my knowledge of different industries, the

14 number of ADT signs I see on lawns, you know? I haven't

15 done a study, but I would be shocked if ADT was not

16 still the number one brand overall in the home security

17 business.

18 Q. How does the analysis that you've done in this

19 case distinguish between an ADT customer that was

20 visited by a Vivint representative and one who was never

21 visited by a Vivint representative?

22 A. As I said earlier, both groups need to have

23 the remedial communications, one to inoculate against

24 future Vivint visits, the other to try to reassure the

25 households that, ADT is a strong brand, it still stands

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1 behind them, the number one brand overall in security

2 industry. And, so, both groups need -- need it.

3 Q. Did you do any analysis to determine if ADT's

4 attrition rate was affected by the alleged misconduct in

5 this case?

6 A. No, I did not.

7 Q. Are you aware if ADT's attrition rate increased

8 or decreased from the period from 2017 to 2020?

9 A. No. I don't know what it did.

10 Q. If you found out that ADT's attrition rate

11 actually declined significantly, from 13.7 percent in

12 2017 to 13.1 percent in 2020, would that impact your

13 analysis in this case?

14 A. No.

15 Q. If ADT's attrition rate declined, how is ADT

16 damaged by Vivint's conduct over this period?

17 MR. HOBBS: Object to form.

18 THE WITNESS: Well, what we don't -- what we

19 don't know is what it would have been, had Vivint

20 not practiced those deceptions. So, just the fact

21 that the attrition rate went down, which is good for

22 ADT, it doesn't mean it wouldn't have gone down

23 more, had it not been for the deceptive practices of

24 Vivint. So, you can't draw a causal link between

25 that decline and Vivint not having an impact on

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1 ADT's performance.

2 BY MR. BROWN:

3 Q. So, you're saying ADT may have had even less

4 attrition, other than -- after -- if it had not been for

5 Vivint's misconduct?

6 A. Yes, that's what I'm saying.

7 Q. Okay. Where is your analysis that it attempts

8 to figure out what the source of the attrition is for

9 ADT? What amount could be attributed to Vivint's

10 misconduct and what amount is expected, based on ADT's

11 other operations?

12 A. I haven't performed such an analysis.

13 Q. Have you considered performing that type of

14 multi-varied analysis?

15 A. No, I did not.

16 Q. Okay. Do you do that type of analysis in your

17 research?

18 A. Well, it would be, as you said, multi-varied.

19 You would have to develop a model of their attrition

20 rate, you'd have to have time series data over a number

21 of years, and you would have to collect -- you'd have to

22 develop a pretty complicated model to try to explain it.

23 But, I did not do that here.

24 Q. Okay. Did you consider doing that?

25 A. No, I did not.

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1 Q. Are you capable of doing it?

2 A. Capable in what sense?

3 Q. Do you have the experience and the knowledge

4 and the expertise to do that type of analysis?

5 A. Yes, I do.

6 Q. How do you distinguish, in your analysis,

7 between an ADT customer that was subjected to a

8 deceptive sales practice -- sales practice by Vivint,

9 from one who was not subjected to a deceptive sales

10 practice by Vivint?

11 A. Could you repeat the question again?

12 Q. How do you distinguish, in your analysis,

13 between an ADT customer that was subjected to a

14 deceptive sales practice by Vivint from one who has not

15 been subjected to a deceptive sales practice by Vivint?

16 A. I think I've answered this multiple times. I

17 think both groups need to be -- or have some

18 communications in person, whether they have been visited

19 by a Vivint salesperson or whether they have not. So,

20 the analysis does not draw a distinction between the two

21 kinds of -- of customers.

22 Q. How does your analysis distinguish between an

23 ADT customer that was deceived by a misrepresentation

24 from a Vivint representative from one who was not

25 deceived?

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1 A. It doesn't.

2 Q. Does it matter to your analysis if an ADT

3 customer was deceived by Vivint, but later found out --

4 later discovered the truth and was no longer deceived?

5 A. That's a little complicated. Could you restate

6 it, please?

7 Q. I'll -- I'll -- I'll rephrase.

8 How does your ADT -- how does your analysis

9 distinguish from an ADT customer who has some remaining

10 negative feelings about their interaction with Vivint,

11 from say a customer who was deceived and is still

12 deceived by misrepresentations by Vivint?

13 A. My assumption again is that both types of

14 consumers need to be communicated with on an individual

15 basis as much as possible.

16 Q. Okay.

17 MR. BROWN: I'm going to go ahead and pass the

18 witness at this time. I do have further questions

19 that I would like to ask of this witness. In

20 addition, there were multiple times during the

21 deposition where the witness mentioned sources that

22 have not yet been produced in this case. So, if

23 we actually obtain copies of those sources, I want

24 to reserve the right to question the witness on

25 those sources. And there were other topics that,

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1 unfortunately, we didn't have time to get to. So,

2 I will reserve the ability to seek to continue the

3 deposition for those reasons. But, for the purposes

4 of today, I will pass the witness.

5 MR. HOBBS: Okay. And I just have a couple

6 questions, Dr. Winer, and then I know we all got

7 to get on our way.

8 CROSS EXAMINATION

9 BY MR. HOBBS:

10 Q. I just want to start off where Mr. Brown left.

11 I mean, would -- would it be helpful to your analysis if

12 Vivint was able to supply information as to how many ADT

13 customers it has approached during the relevant period?

14 MR. BROWN: Object to form.

15 THE WITNESS: Definitely.

16 BY MR. HOBBS:

17 Q. Is that something that you've asked for?

18 A. Yes. We've tried to get that information, but

19 Vivint has not provided it to us yet.

20 Q. And along the same lines -- along the same

21 lines, would it be helpful to your analysis if Vivint

22 was able to specify how many ADT customers complained to

23 Vivint about being approached in a deceptive manner?

24 A. Yes, I agree that that would also be useful

25 information. But, again, we've gotten no -- nothing

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1 from Vivint.

2 MR. HOBBS: Okay. And those are my only

3 questions.

4 MR. BROWN: No further questions from me on

5 that.

6 VIDEOGRAPHER: So, Mr. Brown and Mr. Hobbs

7 both concur that today's deposition of this witness

8 has concluded?

9 MR. BROWN: I -- I agree that it's concluded.

10 We've gone as far as we can today. But, I reserve

11 my rights to seek to continue the deposition for the

12 reasons I've stated.

13 VIDEOGRAPHER: Okay. So, it's being suspended,

14 then. Correct?

15 MR. HOBBS: Well, no. I'm not going to agree

16 to that, no. Mr. Brown can reserve his -- his --

17 what he's stated on the record. But, I'm not going

18 to agree that we're going to keep going.

19 MR. BROWN: That's fine. If we need to make a

20 motion, we'll make a motion. And -- you know,

21 I've -- I've stated my position on the record,

22 and -- but, in the meantime, we can consider the

23 deposition concluded. And if we seek to re-open it

24 for the reasons I've stated, then we will move --

25 make that argument in a motion.

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1 VIDEOGRAPHER: All right. Please stand by,

2 then. This concludes the deposition --

3 MR. HOBBS: Wait. Wait. Before we go off the

4 record, the expert report in this case has been

5 rendered on a highly confidential, with attorney

6 eyes only basis. The opinion is based on the

7 report. And, therefore, under the protective order

8 entered in the case, I would also designate the

9 deposition testimony as highly confidential,

10 attorney eyes only, as well.

11 COURT REPORTER: Okay.

12 VIDEOGRAPHER: All right. This concludes

13 today's testimony given by Dr. Russell Winer. The

14 total number of media -- media units used in this

15 recording was six and they will be retained by

16 Veritext Legal Solutions.

17 We are now off the video record, the time being

18 7:57 p.m., Eastern. Please stand by while I turn

19 the recorders off.

20 And we're clear.

21 COURT REPORTER: Okay. Before we address

22 getting the exhibit to me, Mr. Brown, you did

23 represent earlier that you were going to order this

24 deposition be transcribed?

25 MR. BROWN: Yes, please.

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1 COURT REPORTER: Okay. And I will get with

2 your secretary on the format.

3 Mr. Hobbs, would you like a copy?

4 MR. HOBBS: Yes, please.

5 COURT REPORTER: Okay. Thank you.

6 Mr. Brown, are you going to e-mail me the

7 exhibit? And I'll have --

8 MR. BROWN: Yes. I will e-mail you the

9 exhibit, Ms. Roberts. And I'll copy Mr. Hobbs, in

10 case he has any issue. But, I don't think he will.

11 COURT REPORTER: Okay.

12 VIDEOGRAPHER: Mr. Brown, you've already

13 expressed that you don't want a video at this time.

14 Mr. Hobbs, do you want one?

15 MR. HOBBS: We would only want a copy if

16 Mr. Brown was obtaining a copy, as the taking

17 attorney. So, at this point, if there is not a

18 request from Mr. Brown, we would not request a copy

19 of the video.

20 VIDEOGRAPHER: Thank you, sir.

21 COURT REPORTER: And would the witness like to

22 read?

23 MR. BROWN: Dr. Winer, would you like to review

24 the transcript and sign or waive that right?

25 THE WITNESS: I would like to be able to sign

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1 it, yes.

2 MR. HOBBS: You can send it to us and we'll get

3 it to Dr. Winer.

4 COURT REPORTER: Okay. Thank you, all.

5 VIDEOGRAPHER: Have a good evening, everybody.

6 MR. BROWN: Thank you, Dr. Winer. Thank you,

7 Eric. Thank you, Diane and Tim.

8 (The videotaped deposition was concluded at 7:59 p.m.)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 CERTIFICATE OF OATH

2

3 STATE OF FLORIDA )

4 COUNTY OF ORANGE )

5

6 I, Diane C. Roberts, FPR, Notary Public, State

7 of Florida, certify that Dr. Russell S. Winer appeared

8 before me via videoconference on August 30, 2022, and

9 was duly sworn.

10

11 Signed this 14th day of September 2022.

12

13

 <%22778,Signature%>

14 Diane C. Roberts, Court Reporter

 Notary Public, State of Florida

15 My Commission Number HH-027866

 Expires on 10-31-2024

16

17 Type of Identification Produced:

 Driver's License

18

19

20

21

22

23

24

25

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1 CERTIFICATE OF DEPOSITION TRANSCRIPT

2

3 STATE OF FLORIDA )

4 COUNTY OF ORANGE )

5

6 I, Diane C. Roberts, FPR, Notary Public,

7 State of Florida, was authorized to and did

8 stenographically report the videotaped videoconference

9 deposition of Dr. Russell S. Winer, that a review of the

10 transcript was requested; and that the foregoing

11 transcript, Pages 4 through 283, is a true and accurate

12 record of my stenographic notes.

13 I FURTHER CERTIFY that I am not a relative, or

14 employee, or attorney, or counsel of any of the parties,

15 nor am I a relative or employee of any of the parties'

16 attorney or counsel connected with the action, nor am I

17 financially interested in the action.

18

19 DATED this 14th day of September 2022.

20

21

22

 <%22778,Signature%>

23 Diane C. Roberts,

 Court Reporter

24

25

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1 ERRATA SHEET

 DO NOT WRITE ON TRANSCRIPT, ENTER CHANGES HERE

2 IN RE: ADT VS. VIVINT SMART HOME, ET AL.

 CASE NO: 1:20-cv-23391-MGC

3 DATE: AUGUST 30, 2022

 WITNESS: DR. RUSSELL S. WINER

4 I, Dr. Russell S. Winer, wish to make the

 following corrections:

5

 PAGE LINE CORRECTION & REASON

6

7 ___________________________________________________

8 ___________________________________________________

9 ___________________________________________________

10 ___________________________________________________

11 ___________________________________________________

12 ___________________________________________________

13 ___________________________________________________

14 ___________________________________________________

15 ___________________________________________________

16 ___________________________________________________

17 ___________________________________________________

18 ___________________________________________________

19 ___________________________________________________

20 ___________________________________________________

21 ___________________________________________________

22 Under penalties of perjury, I declare that I have

 read the foregoing document, and the facts stated are

23 true.

24 __________________________________________________

 DATE DR. RUSSELL S. WINER

25 Job No. CS5384054

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1 Eric Hobbs, Esq.

2 ehobbs@shb.com

3 September 14, 2022

4 RE: ADT, Et Al v. Vivint Smart Home, Inc., Et Al

5 8/30/2022, Russell S. Winer (#5384054)

6 The above-referenced transcript is available for

7 review.

8 Within the applicable timeframe, the witness should

9 read the testimony to verify its accuracy. If there are

10 any changes, the witness should note those with the

11 reason, on the attached Errata Sheet.

12 The witness should sign the Acknowledgment of

13 Deponent and Errata and return to the deposing attorney.

14 Copies should be sent to all counsel, and to Veritext at

15 erratas-cs@veritext.com

16

17 Return completed errata within 30 days from

18 receipt of testimony.

19 If the witness fails to do so within the time

20 allotted, the transcript may be used as if signed.

21

22 Yours,

23 Veritext Legal Solutions

24

25

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&

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37:6 38:23

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2015 183:5

2017 93:8 127:11

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192:24 193:2

275:8,12

2018 183:19

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271:10,13 272:3

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2019 200:6 201:2

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2020 272:4,8

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27 177:18,19,24

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35 189:23

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74 183:11

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279:22 282:25

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accepted 29:9

access 22:12,15

22:16,21 23:4,5

23:21,24 29:7,8

48:20 49:2 55:5

72:19 145:10,13

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151:19,23

accessed 55:9

account 133:3

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adt 1:4 4:18 5:17

8:1,7,12,13,15

8:15,20,24 10:10

13:17 14:21

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26:12,13,22

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72:3,8 75:10,12

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76:20,21,23 77:8

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77:11,17 80:12

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adt's 82:10 84:2

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adt00000191

91:16,22

adt00000191....

45:5,24

adt00000192

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209:23

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239:1,11,12

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asking 50:4

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287:6

avenue 2:9

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b

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broaden 191:10

broken 33:12

34:21 35:5

78:11 81:4

brought 102:6

brown 2:7 3:3

5:7,8 6:7,10

11:5,13 13:22,24

26:23 27:16

28:1 30:24

31:17,24 32:1

36:5 37:2 38:1,9

40:8 43:8 46:6

52:22 56:24

57:1,5,8,11,15

57:23 58:3,5,13

60:25 63:13,15

69:11,22 70:5

71:3 73:12,19

74:3,15 75:19

77:9 78:1 79:11

80:23 81:6,20

82:14 84:16

85:24 86:11

88:8,21,24 91:5

92:4,7 97:5 99:4

99:14 100:10

101:10,22 106:1

106:13,25 107:8

107:18,25

108:15 112:5

124:10,24

125:18 126:11

129:7 130:10

131:2 132:6,17

133:14,25

134:19 136:3,24

137:14 139:24

140:15,22 141:6

141:19 142:6,19

143:7,15 149:7

150:1,12 153:24

153:25 154:2,8

154:10,17 155:2

155:9 156:7,11

157:2,9,18,22,23

161:25 162:9,19

166:1,8 171:10

174:1 175:12

176:5,15 177:16

178:3 179:3

185:12 186:2,15

188:4 192:9,18

192:20 193:14

196:2,10 197:5

197:18 198:3,10

198:18 207:12

208:12 212:13

215:22 217:12

217:19 219:7,23

220:19 226:20

235:5 236:1

240:8,25 241:3,9

241:15,18,23

242:6 276:2

278:17 279:10

279:14 280:4,6,9

280:16,19

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CONFIDENTIAL

281:22,25 282:6

282:8,12,16,18

282:23 283:6

brownjr 2:10

budget 202:25

203:1 252:4

254:10 270:22

budgets 257:1,4

268:6

build 143:5

built 232:4

bullet 49:14

bunch 217:7

226:6

business 26:19

99:8 117:22

131:1 164:4

165:9 184:1

188:11 270:9,14

270:14,15,19,24

271:21 273:8,11

274:8,17

buss 2:12 5:12

buss's 24:16

buy 152:7 187:8

c

c 1:17 2:1 4:1

17:17,21 284:6

284:14 285:6,23

calculate 124:21

208:19

calculation

202:8 238:18,19

calculations

239:14 269:7

call 10:9 15:20

32:25 33:6,11

34:22 35:13

36:23,24 45:9

55:2 60:8,11,11

60:13 68:5

76:23 78:10

81:21 87:2

88:19 92:14,24

92:25 93:2,6,13

93:20 94:8,22

95:12 98:2,7,8

98:10 103:11,22

104:1,6,13,17,20

104:22,23 105:4

109:14 110:1

115:25 116:6

118:13 119:7,9

119:10,12,17

122:7,19 130:23

136:16 137:7

146:15 153:7

161:2 176:1

185:19,21

206:23 207:1

208:18 224:8

228:8 230:1

236:18 237:6

246:6 247:5,13

247:14,22 248:6

248:10,18

249:20 250:24

252:1,25 262:20

263:11

called 14:12

16:16 17:12,17

19:3 35:10,12

36:15 37:17

48:3 53:14

60:12 61:14

76:20 94:17

95:15 111:2

116:2,4 134:6,22

134:25 135:6

144:8 154:21

189:13 207:14

248:16

calling 119:16

207:10 225:12

calls 10:10 14:22

15:1 28:22 33:1

33:13 34:1,24

35:5,10,18,20

36:8,9,18 38:8

38:10,23 39:19

46:17 49:16

59:24 65:24

66:5 75:10,12,18

83:23 84:5,6

85:18 109:17,19

109:23 110:2

112:17 118:1

119:18 120:13

124:3 134:5

136:7,13 137:4

142:14,18

144:13 148:7

164:13 166:14

166:15 195:9

216:16 242:18

246:22,24 247:3

247:10,20 248:2

248:5,7 249:7

270:19

cameras 4:9

campaign 25:5

29:20 65:15

66:8 101:16,21

105:20 113:19

115:24 116:1,3,5

116:7,10,12,19

117:4 125:15,22

126:6 129:23

131:7 132:5,14

132:22 133:5,8

133:13,20 134:7

134:18 135:11

135:17,21

138:25 139:17

140:23,25 142:8

142:11,17 143:2

143:3,8 152:16

153:12,22

163:10 172:11

173:20 176:21

178:6 185:15,20

185:20 186:10

187:15,17 188:1

188:16 199:13

199:23,24

200:15,22,25

201:18 203:9

205:20,23 209:7

209:18 211:8,8

221:13,21 222:4

222:20 223:3,6

223:21,25 224:3

225:6,18 227:4

235:7 245:23

247:9 248:23

253:20 254:2,8

254:12,13,23

262:18 264:11

267:5,8,10,12,15

268:16,23,25

270:3,22

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CONFIDENTIAL

campaigns 191:6

202:17 203:6

224:14 225:24

226:15,18,22

268:4,7

campbell 209:3

cancel 119:25

129:10 130:5,25

131:4

cancellation

129:15,21

187:19

capable 277:1,2

captured 144:9

care 122:3

career 12:16

careful 98:16

carries 140:20

case 1:3 4:22

6:23 8:2,5 9:3

9:17,18,25 10:1

12:14,24 14:5

16:19 17:10,13

18:2,16,20,23,25

19:7,13 20:7,7

21:10,13 24:11

24:14,18,19 28:5

28:19 29:2,23

40:2,11,15,22

42:6 44:8 50:23

54:8,9,13 56:5

56:16,19 57:13

65:15 70:25

71:13 73:2 74:6

79:5,22 81:13

82:7,11 84:3

85:20 86:2,6,22

87:3,20 88:16

93:11 100:5,12

100:17 101:15

101:16,24 102:3

102:13 106:7,11

106:23 111:6

113:4 114:4

122:21 123:7,9

123:22 124:14

125:2,6,11,15,23

126:7 129:24

130:17 131:15

134:10 135:9

138:10,19 146:2

146:21 147:11

147:12,16,19,24

148:14 149:8,10

153:5 154:24

155:6,22 156:8

156:20,21 158:2

158:8 160:2,11

160:14,24 161:6

161:9,17,22

162:4 163:5

165:4,9,13,13,20

165:25 166:18

168:3 169:23

171:7,13,24

174:10 180:4

181:23 182:1,6

182:10,13,22

185:5 187:24

189:19 190:24

191:3,16 193:17

193:18,20 194:3

194:9,16,20

195:19,21

196:15,17

198:23 199:1,10

199:17 208:8,14

208:23 209:1,13

209:16 210:8,8

211:1,10,13,17

211:17,18,20,21

211:24,25 212:1

212:10,15 213:4

213:7,11 214:20

214:22,24

216:19,21,22

218:9,16 219:11

219:25 220:2,7

221:20 222:15

226:8,9,23 227:6

231:5,6 234:16

235:16 239:17

240:12 255:12

256:18 270:1,2

270:24 271:2

272:6 273:3,21

274:19 275:5,13

278:22 281:4,8

282:10 286:2

cases 16:24 17:2

17:6 20:4 21:3

65:23 183:14,14

184:7 210:5

211:11 228:17

231:15 234:14

269:25

categories

175:21 177:5,8

177:20,23

178:16

category 117:25

catherine 42:20

108:9

causal 272:23

275:24

caused 135:12

173:9 224:19

225:21 232:23

233:9

ceo 271:22

certain 54:10

70:21 76:8

129:22 130:15

224:1,1,2 232:5

246:10 261:11

certainly 28:23

80:14 120:16

141:4 191:24

210:4 220:9

270:19,21

certainty 71:6

certificate 3:4,5

284:1 285:1

certify 284:7

285:13

cetera 12:18

42:21 135:2

149:21 225:6

chain 255:2,20

chance 82:6

change 9:25

24:17 82:7,10

86:21 93:10,16

156:12 241:1

249:8 270:16,16

changes 286:1

287:10

changing 45:22

character

180:14,21

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Case 1:20-cv-23391-JG Document 119-13 Entered on FLSD Docket 01/09/2023 Page 298 of

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CONFIDENTIAL

characterize

254:18

characterizing

73:17

charge 202:9

charles 20:22

charlie 244:5

262:10

check 263:20

chesapeake

243:11

chicago 237:12

238:7

chief 201:17

255:4,5

choose 43:25

44:13,14 236:22

239:19,20,23

245:25

choosing 238:19

chose 43:23 44:1

65:2,8 66:14,17

239:12 240:20

248:8

chosen 62:12,14

63:3 77:23 78:2

79:8,17

chunk 233:22

citations 22:20

169:25

cite 169:20

174:16

cited 12:15 59:1

157:17 223:8

cities 234:25

235:1 236:15,19

236:22,23

237:10,12

238:11,11,23

239:2,13,15

240:3,10,13,16

243:7,11,12,16

243:18 244:8,10

259:8

city 188:21

189:5 259:6,9,13

259:14 260:14

260:20

claim 166:20

216:23 217:8

claims 29:19

135:1 147:18,23

clarified 107:5

clarify 57:10

class 269:23

classic 209:1

231:3 232:3

clause 142:2

clear 87:9 95:7

146:12 156:25

165:3 183:25

281:20

clearly 96:4

97:19 142:4

256:10

click 23:4,8

client 218:20

219:15

clients 218:22

252:20

close 57:2

cloud 22:13

coast 188:21

189:5,8

collect 229:15,19

231:1 232:8

276:21

collecting

230:24,25

collection 190:5

228:19 229:2

230:19,22

collectively 8:20

10:14

columbus

237:25 238:5

column 259:11

259:12,13,16

260:10 261:4

combination

171:14

come 7:20 15:22

24:3,6 43:23

57:24 93:23

94:18 96:11

105:20 115:6

153:17 175:20

212:20 215:13

233:22 239:25

240:14,16

247:15 257:17

262:17 269:5,8

comes 102:8

132:24

comfortable

149:22

coming 178:13

269:2

comma 99:23

comments 163:8

commercial

270:24

commission

250:5,6 284:15

commit 148:14

150:6 174:6

committed

148:15 149:12

172:4 173:18

174:24 175:22

192:22 194:6,8

209:24 210:2

common 99:7

120:2 121:10

224:7,8

communicate

68:3 170:25

206:3,5,7 236:7

communicated

68:4 234:16

262:16 278:14

communicating

112:23

communication

163:10 192:5

211:8

communications

138:25 142:16

176:20 204:13

213:10,24

253:22 274:23

277:18

companies 20:12

20:23 98:18

105:12 165:6

182:18 183:10

company 10:9

16:16 17:12,17

19:2 20:11,16,17

20:19 28:8

30:15,21,25 31:3

75:16 94:25

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CONFIDENTIAL

95:2,18 99:5

100:25 101:8

103:5 105:12

115:11,14,16

120:4 127:14

131:12 152:23

153:6 164:2,6

169:6 183:23

189:13 191:1

193:8 194:1,8

195:3,3 208:20

212:21,21

271:20,22 274:9

compare 273:15

compensation

261:23 263:1,2

competent

152:21

competing 165:6

competitor 99:6

117:21 120:20

120:25 121:3,19

123:11

competitors 94:1

98:19 122:18

146:14 220:16

complain 219:20

220:11 225:15

complained

279:22

complaint 14:21

50:9 78:16,18

147:13 150:7

164:13 185:10

complaints

14:13 34:25

37:17 51:8

171:20 220:12

complementary

171:4

complete 7:6

13:9 32:16

completed

287:17

compliance

190:6

complicated

141:12 214:1

229:25 276:22

278:5

component

187:14 191:25

components

50:24

computer 49:6

53:25 55:11,12

concept 267:10

conceptualizat...

250:16 251:13

concerns 116:16

conclu 224:24

concluded 280:8

280:9,23 283:8

concludes 281:2

281:12

concluding

149:22

conclusion 67:12

124:25 125:9

136:6 138:9

146:7,11 147:4

148:9,16,17

150:5 165:17

172:17,22 174:5

174:21,24 176:6

177:6,8,17,24

178:4 192:25

195:9,20 196:16

197:7,20 205:18

221:4 224:25

225:1,3,20

232:11 239:1

conclusions

65:11 66:2 67:5

67:6 70:22

93:10 163:5,17

165:19 169:22

222:12 229:3

231:6 267:20,24

268:2 270:17

concur 280:7

conditions 111:7

conduct 87:12

135:18 182:21

182:24 183:8,9

183:18,19

184:13 186:23

187:23 189:12

189:16 192:11

219:25 228:5,15

228:21 230:14

275:16

conducted 4:7

59:18 192:12

193:1 209:12

232:13 247:12

271:10

confidence 169:7

confident 94:2

confidential 1:6

281:5,9

confirm 132:8

156:18 266:10

confirmed

103:22

confirming

266:24

confused 31:21

92:15 104:2,10

104:15 105:7,7

105:10,18 106:2

106:16 117:11

139:9 205:16

confusing

209:19

confusion

105:22 117:7

129:18 252:12

conjunction

80:10

connected

285:16

connection 4:10

conservative

234:23 250:1,3

262:22 263:14

268:19

consider 72:21

238:6,10 268:14

276:24 280:22

considered 9:4

9:18 10:3,6,8

13:5 196:4

243:15 260:22

271:1 276:13

considering

24:14

consistent 85:1

165:4,12 211:6

consistently

193:9 215:14

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CONFIDENTIAL

constraint 80:4

consultants

16:15

consulting 16:18

84:19

consumer

184:22 185:1,4,7

185:14 186:4,6,8

212:2,11

consumers

117:11 133:10

148:11,19 164:5

164:20 185:20

185:23,25

207:24 211:7

212:5,8 278:14

contact 28:7

78:19 81:4,22

134:7 142:22

249:12

contacted 106:6

106:22 119:6,11

134:9,11,16

contacting

119:15

contacts 80:19

80:25 81:5,18

contained 213:2

content 27:25

52:10 111:5

contents 68:17

context 180:23

continue 4:13

73:23 152:19

154:18 175:9

194:19,21 225:9

227:13 229:19

279:2 280:11

continued

193:21,23

194:17

continues 205:1

205:6 227:10,12

continuing 53:13

59:7 193:11

195:8,11

contract 77:16

91:10 110:14,20

110:22,24 111:5

111:8,8 113:10

114:18 129:10

130:6,25 131:4

contracts 96:9

112:8,10,20

113:5,7

contradict 79:21

contrarian 71:15

contrary 27:23

71:16 84:13

85:2

contributed

177:6

conventional

235:4,6 267:6

conversation

24:24 32:13

128:15 266:22

266:25

conveyed 266:11

convinced 25:4

163:12 196:22

coordinated

253:19

copies 22:10,13

30:2 31:19

32:16 49:3,5,11

51:15,25 53:21

53:24 112:8,18

113:4 158:10,20

158:21 257:3

268:6 278:23

287:14

copy 10:19,22,23

11:2,6 47:17

55:10,12 77:16

108:23 110:24

144:14 256:21

282:3,9,15,16,18

cornerstone

20:13,16,22

corp 1:7 9:12

corporate 8:6

corporation 8:13

8:16

correct 11:2

15:19 18:7 26:9

31:15 37:22

38:24 43:1,4,13

43:14,21 44:25

55:14 58:18,22

59:8 64:1,4,5,8,9

65:5,6,12 66:3

66:18 69:10,25

70:3 71:22 78:5

78:6 83:7,24

84:22 85:16

86:15,16 87:7

89:4,5 91:16

92:9 99:11

100:13 102:10

102:25 103:1,5

103:20 105:1

108:4,9 110:3

117:4,5 119:23

121:16,20,24

125:2,3,6 127:24

131:21 135:25

136:2,8,19 137:2

137:18 143:23

144:6,10 145:1

151:15,20,21,24

152:6,9,12

154:24 155:19

158:9 163:1,2,23

172:11,19,20

173:2,3,21

175:18,22

180:17,19

181:21 182:23

184:17 186:25

187:1,21 188:12

188:13,22 189:6

189:10,13,25

190:1 194:1,2,10

195:15 199:2

200:8,21 201:10

202:10 206:19

207:19 210:3,11

210:12,15,16,23

211:3,5 212:5

213:3 214:24

215:3,17 216:6

216:16 217:16

218:5,13,14

220:16 221:16

228:23 230:16

231:16,17

232:16,20

233:13 235:10

235:11 236:16

236:17,20,21

242:19 250:9,10

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CONFIDENTIAL

251:17,20

255:22 256:6

257:8 258:2

259:10 261:1,8

262:7,13,14

263:17,18,21

265:11 266:7,8

266:12 267:15

267:16 271:3,4

271:13 280:14

corrected 114:20

185:15 186:9

221:15

correcting 209:9

correction 95:4

286:5

corrections

209:20 286:4

corrective

206:20,24 207:4

207:10,14,16,21

208:2,4,14,22,25

209:22,23 210:1

210:5 224:3

correctly 35:6

43:20 72:4

88:12

correspondence

197:13

corroborate

164:12

cost 133:2

176:20 177:14

177:18 200:11

202:5 203:24

210:14 214:7

235:22 236:3

237:17 250:2,8,9

252:5 267:7

268:18

costs 184:9

188:7 200:13,14

200:18 201:15

202:4 266:1

coughing 118:21

coughs 117:13

counsel 3:15

4:18 5:4,20

10:22,23 17:3

61:5 149:23

158:12,13

159:16 160:16

161:1 244:4

255:18,19 262:1

262:4 285:14,16

287:14

counselor 19:21

57:21 63:2

119:20 216:18

counsels 262:2

count 234:18

259:17 261:14

counterclaim

161:8,11

counterclaima...

1:15 2:11

counting 218:12

counts 259:7

270:7

county 284:4

285:4

couple 118:24

175:5 215:5

258:13 273:22

279:5

course 12:21

26:19 97:12

147:20 227:25

269:21

court 1:1 4:20,24

5:18,21 6:1 7:3

30:17 38:6

53:15 74:3,5

92:3 106:10,14

124:11,13 126:3

156:1 162:16,18

175:3,8 184:9

196:10,12 207:6

207:9 234:10

281:11,21 282:1

282:5,11,21

283:4 284:14

285:23

cover 11:15

129:14 130:6,25

131:5 133:2

185:18 245:21

covered 197:14

cpi 193:20,25

194:7,16 216:19

create 173:20

231:5 242:23

258:15

created 30:21,22

30:25 31:3

210:9 242:10,14

243:2 245:9,10

252:12 258:5,7

creating 41:24

268:22

creation 242:24

credence 193:10

credibility

176:13

credit 190:4,6,11

190:17

criteria 28:2,17

28:23

3:3 42:20

43:4,13,20 44:10

44:23 46:14,18

89:1,4,7,14 90:6

90:14,16,19,22

90:25 91:2,8,10

91:13 92:8,15,19

92:22 93:1,5,18

94:4,5,6,13,17

94:23 95:5

96:20,21 98:2

99:16,17 100:2

100:14,22,25

101:23,25 102:4

102:5,8,13 103:7

103:12,17 104:2

104:2,10,14

105:7,17 106:2

106:16 128:8,9

128:23 129:4,9

279:8

cs 287:15

cs5384054 1:25

286:25

culpable 148:10

148:18,24

150:15 185:6

cumulative

259:17 260:11

260:14 261:4,9

261:13 270:7

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curious 210:25

current 195:1

curve 260:15

curves 261:9

cust 218:21

customer 13:16

14:13,21 26:18

29:18 32:9

34:25 35:12

36:19 37:16,18

38:8,10,24 39:1

39:3 44:8 45:9

49:16 51:8

52:12 75:10,12

76:18,21,23,23

77:6,6,11 92:15

97:10 98:1,23,25

101:4,14 108:9

112:24 113:1,5,9

113:13,23,23

114:5,9,13,23,24

114:24 115:1,4,8

115:18,18,21,23

120:10,16,19

121:2,4,8,18,19

121:22,23 122:2

122:9 124:20

125:7,13 128:7

129:19 130:14

130:16,22,24

131:11,14

132:12,20,25

133:16,18,19

134:8,22,23

142:20,23 144:6

145:15,21 146:2

146:2,17 147:1,3

147:6,8 150:20

151:23 152:4,13

152:16,21,23

153:8,12,14,16

154:21,23 155:4

155:5,20 156:15

156:19,21

157:24 158:5

159:9,10,15

160:9,10,24,25

161:6,20 162:1,7

163:4 171:20,21

172:14 187:25

222:2,6,19

245:22,25

249:12,12 251:1

251:1,4,5,7,12

251:14 252:23

253:7 254:18

257:14 270:7

274:19 277:7,13

277:23 278:3,9

278:11

customer's

50:15 113:16

144:6 145:10,13

customers 10:11

13:17 25:2

28:22 34:4,7

35:2,9,10,20

36:8,9,13,15

37:5,7,8,10,15

37:15,17,19

38:13,14,16,17

38:20,25 43:16

45:21 50:12

72:3 75:17 76:6

76:20 77:8 98:6

112:1,2,9,14,20

112:20 114:7

117:24,24

119:25 120:13

121:7 122:12,23

123:2,10,13,23

124:1,3,14,23

125:1,5,8,10,19

126:3 132:1,2

134:5 135:17,24

143:3,9,9 149:5

149:17 150:22

151:6 152:25

153:11,23

159:17 160:6

161:17,22

164:14,15,22

173:8 182:16

184:8 187:15

190:15,15,16,20

192:23,24 193:2

199:22 200:8

201:8,11,14

202:1,10,15

203:13,16,25

204:2,5,7 205:15

206:2 214:5,8,22

214:25 216:5,25

218:15 219:6

220:22 221:17

221:22,25

222:13,16,25

223:22 225:11

225:13 234:16

234:19,22,25

235:2,15,17,21

236:16,20

237:10 242:13

242:16 243:5,12

245:21 246:19

247:24 250:20

251:8 259:9,12

259:14 260:14

260:17,21,21,24

261:3,6,12,15,21

262:20 263:7

267:1 269:14

270:9,9,12,13,16

270:19,25,25

271:1,3 272:13

273:3 277:21

279:13,22

customized

246:16 248:15

cut 216:20

248:21 260:24

cv 1:3 4:22

227:25 286:2

cycling 230:7

d

d 3:1 4:1 171:23

daily 261:23

dallas 238:8

damage 97:14

176:21 178:11

178:20,23,25

179:2 196:23

197:1,16 205:6

205:10 206:4

210:8 214:11

224:19,21

225:20,22

226:11 232:14

232:19,23 233:1

233:8,12 236:4,6

236:8,9,11 270:4

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273:25

damaged 164:1

236:3 272:19,20

275:16

damages 19:12

124:22 176:19

178:5 195:21

196:17 200:19

202:9 208:9,9,20

210:18,19 220:1

227:20 239:16

240:11,23

244:14 249:22

256:18

dan 255:3,17,18

255:20 256:2,8

256:11,12,14,16

261:24 262:1

266:5,13,17

dash 18:14

data 212:21

226:8 228:18

229:2,12,13,15

229:19 230:19

230:22,24,25

231:1 232:7

233:17,19,22

237:7 258:9,11

259:22 260:2,3

264:16 266:18

269:4 270:11,12

270:20 271:19

274:7 276:20

date 1:13 92:24

93:5 127:9

157:16 158:4

251:6 255:15

286:3,24

dated 86:15

183:5 256:11

285:19

davenport

170:14,17

davenports

170:20

day 137:23

161:10 179:19

238:16 245:22

246:1 247:25

284:11 285:19

days 118:24

185:23 264:11

264:12,14

287:17

dealer 247:24

248:6

deceived 135:6

136:8,11,14,17

136:18,18 137:1

137:5,8 140:17

140:24 142:3

219:19 225:14

225:17 252:11

253:5 277:23,25

278:3,4,11,12

december

183:20

deception

122:10 129:18

130:11,12 131:6

131:6,13,19,19

131:21,22

132:10,11,11

133:4 188:11

213:17,24 214:2

deceptions

275:20

deceptive 10:10

13:18 25:4 29:1

39:15 103:12

116:23,24 117:2

117:20 119:7,12

121:24 122:3,8

122:23 123:2

125:20 126:4

130:21 132:8,19

132:25 133:1,3,9

133:12 134:14

135:10 138:24

139:16 148:10

148:18 149:4,12

152:19 164:15

166:15 168:6,9

172:4,9,18,22

173:13,18 174:6

174:25 175:22

176:14 182:6

185:1 186:4

189:9,21 191:5

192:12 193:1,5

193:12 194:7,9

194:20 195:8

196:24 200:7

201:7 203:20

205:2,22,23

206:15,16

207:23 209:25

210:21 211:9

212:2,4,17 213:2

213:13,20,24

214:16 215:2

218:2,5,12,16

219:2,4,10,25

220:4,6 221:15

221:19 223:2,23

223:25 225:8

233:9 246:21

248:19 252:25

275:23 277:8,9

277:14,15

279:23

decide 148:3

235:12,14

decided 69:9,12

69:13 159:11

decides 148:2

decision 79:25

80:3,5,8,9,13,16

150:10 236:15

243:21

declare 286:22

decline 275:25

declined 275:11

275:15

decreased 275:8

defend 207:25

defendant 9:18

10:1 16:25 54:8

defendants 1:8

1:15 2:11 3:10

5:9,11,13 9:3,17

10:14 11:12

defense 2:13

4:18

definitely 80:17

98:6 119:3

121:5 133:21,24

134:15 183:11

187:17 219:2

220:13 279:15

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delegated 41:14

deliver 203:25

delivered 116:11

116:12 206:1

214:9,17 216:8,9

216:25 221:13

221:16,18,19

223:21

delivery 205:19

demanded

209:16

demonstrate

190:14

demonstrated

249:3

denver 2:4

department

258:22,24

depend 122:9

depends 4:9

229:21

deploy 263:8

depo 31:25

157:11

deponent 3:16

287:13

deposed 6:16

deposing 287:13

deposition 1:12

3:5,16 4:7,17

6:23 7:2,18 8:19

10:13,20,21

11:10 12:6

42:24 47:4

53:19 54:3,8,10

55:1,6 56:1,5,9

56:15 58:8,17

60:18 61:11,24

63:8 71:22 72:2

73:25 74:17

81:4,8 83:6

90:13 107:20

108:3,8 109:6

118:10,15,19,23

143:18,20

154:12,19 156:8

158:1,7 164:14

166:14 170:2

174:7 179:7,8

198:13,20

216:13,14

217:15 223:17

242:1 249:1

254:25 257:13

278:21 279:3

280:7,11,23

281:2,9,24 283:8

285:1,9

depositions 25:2

53:18 54:14,15

55:16,20 56:18

57:12 71:8

148:8 149:21

154:22,23 155:5

155:6,20,21

156:13,15,19,21

157:10,13,15,25

158:2,3,6,11,22

158:24 159:9,10

159:15,17,23

160:6,10,10,13

160:17,20,24

161:1,6,15,16,20

161:21 162:1,3,7

162:8,10,13,14

163:4,7 171:21

172:14,24

174:15 175:14

215:12 217:6

deputy 255:19

262:3

describe 119:8

119:13,22 166:9

176:18 177:1

198:21 199:5

228:2

described

131:18 145:8

155:17 165:19

166:4 172:8

183:8 204:15

205:9 209:13

222:22 231:19

234:3,4 251:18

271:11

describing 92:25

150:21 151:2

description

68:24 238:3

257:21,24

design 267:2,14

268:22

designate 281:8

designs 268:14

detail 145:25

148:7 153:22

169:4,6,16

173:15 250:14

detailed 166:24

169:9,19

details 19:16

161:11 184:16

determination

26:3 66:22

235:17 237:8

determine 23:18

28:17 29:5

101:12 120:18

121:2,14,15,19

121:23 122:2

148:23 150:6

159:14 169:14

176:17 178:17

183:14 204:10

204:20 210:21

212:16 226:9

243:6 254:12

261:13 275:3

determined

41:16 175:21

determining

113:17

develop 66:7

176:20 197:15

197:24 205:3

217:24 234:21

267:10 276:19

276:22

developed 208:9

235:2 238:24

256:24

developing

197:4

diane 1:17 4:25

283:7 284:6,14

285:6,23

difference

214:23

different 9:23

17:24 21:4 34:3

34:25 36:23

51:2 81:10 87:5

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94:25 95:2,18

99:3 103:4

110:1 117:9,25

133:15 153:17

166:10 184:19

209:11 212:8

213:9,18,19,19

213:22 214:22

214:23 215:5,7

216:21 231:14

231:23 233:24

234:1,25 239:25

240:7,9 243:16

248:5,7 253:3,7

264:3 269:22

274:13

differently 63:21

64:11

difficult 168:16

digits 226:2

diminished

138:1,15

direct 3:3 6:6

30:1 31:3 40:17

56:8 65:19

69:16 139:25

160:16 178:8,10

178:14 180:7

181:17 189:22

197:13 202:17

216:3 224:15

226:1,1 235:7

245:15 253:25

254:24

directed 27:5

29:25 39:9,11

65:22 66:1 69:2

69:5 70:11

141:8 147:12,22

167:3,6,25

188:16 242:15

directing 28:24

43:3,11 242:23

direction 71:10

87:11 197:24

198:1 242:12

243:4 245:18,19

directions 87:9

directly 127:22

disagree 238:4

discern 141:23

disclose 188:7

disclosed 72:3

discovered

176:11 278:4

discovery 16:3

discuss 68:18

118:5,6

discussed 50:17

117:20 143:23

150:4 173:14

181:20 189:16

190:23 191:20

197:19

discusses 108:9

discussing 69:3

69:6 178:17

195:19 196:15

197:7 199:18

243:17 246:23

discussion 119:8

119:13 122:7

187:10 243:15

243:17 246:5

251:16

discussions

80:11

dismissed

247:15

dissemination

267:13

distinct 109:13

distinction 8:15

8:24 9:23 10:4

10:15 36:11

174:19 277:20

distinguish

98:19 114:6

152:25 169:15

183:16 274:19

277:6,12,22

278:9

distributed

211:10

distribution

234:24 237:10

district 1:1,1

4:20,21 250:23

263:9

division 1:2 4:21

245:24

doctor 211:15

document 47:6

152:19 164:19

258:5 286:22

documentation

257:18

documents 48:4

49:15,25 50:5

53:15 59:1

63:19 91:12

258:13,15

doing 6:8 7:2,17

21:7 41:17

54:12 67:8

101:2 113:14

118:7 124:20,20

131:13 143:4

144:22 206:20

207:23 210:24

228:24 231:7,10

235:22 246:13

248:13 249:16

249:25 273:20

276:24 277:1

donald 76:16,16

77:10,14,16,20

78:25 80:19

81:1

door 96:6 124:25

124:25 125:10

125:10 126:16

152:17,17 164:1

164:1 216:5,5

221:14,14

247:16 249:16

249:16 250:12

250:12 253:21

253:21 263:7,7

263:11,11 267:6

267:6,13,13,15

267:15 268:15

268:15,23,23

270:18,18

doorbell 50:16

144:9 151:3,5

247:16

doors 215:10

216:25

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doorstep 151:14

double 263:20

doubt 115:10,21

117:2,6,10,18,19

117:22,25

129:18

doubts 116:16

116:17

download 55:10

55:12

dozen 67:1,4,5

88:23

dr 1:12 3:2 4:17

6:3,8,15 32:2

57:12,18 58:10

58:14 61:14

63:17 73:2 74:6

99:23 107:14,22

108:2 118:1

154:5,14,20

155:4 156:12

157:24 198:6,15

198:21 214:12

216:20 217:20

217:22 227:24

241:7 242:3,7

279:6 281:13

282:23 283:3,6

284:7 285:9

286:3,4,24

draw 9:23 10:15

64:14 231:5

275:24 277:20

drawing 194:24

229:3,23

drawn 15:2

59:25 60:4,22

67:6

drew 191:8

drink 27:3

117:15

drive 49:7,7

driver's 284:17

drives 22:13

due 138:7

139:16 142:5

190:16 210:15

270:5

duly 6:4 284:9

duped 94:23

95:6,16,25 96:2

96:6 97:1,18

102:10,15 103:3

duplicative

33:16,18,21,22

e

e 2:1,1 3:1,9 4:1

4:1 6:14 10:22

10:23 11:2 16:9

18:9,13,14 22:6

49:12 158:20

159:2,3 199:14

226:1 227:1

235:7 253:25

255:2,20 256:2

256:11,19,21,22

261:24 262:16

266:2,9,16

268:10 282:6,8

earlier 27:24

28:6,20 34:20

35:4 42:12

45:15 59:18

70:7 75:6 76:2

81:3 84:12

86:12 89:2,12

105:10 113:15

117:20 143:21

159:22 181:19

197:13 210:5

221:1 222:1,18

243:15 246:20

248:25 256:19

256:21 259:7

261:25 273:19

273:22 274:22

281:23

early 124:19

205:21 206:17

easier 47:18

easily 206:6

eastern 1:14 4:5

57:19 58:6,12

107:15,24 154:6

154:16 198:8,17

241:8 242:5

281:18

easy 261:12

eblen 244:5

262:10

educate 143:3

207:24

educated 274:9

educating

203:19 219:5,6

educational

208:1

effect 220:12

222:21 229:8,9

229:25 230:1

236:8 272:11,24

effective 131:25

153:18 205:13

225:24 226:3

228:13

effectiveness

204:11,20 228:5

effects 228:6,7

efficient 32:12

effort 25:13

204:13 267:17

efforts 198:22,25

199:5,16 204:11

204:14,16,17,20

204:23 205:5,8

224:19 225:4,7

225:20 226:10

227:16 232:12

232:18,22

257:20,22,25

ehobbs 2:4 287:2

eight 16:23 20:1

21:3 245:22,25

246:4 248:4

either 78:4 144:1

199:17 244:5

258:20 268:3

elaborate 156:25

157:5

elapsed 60:17

electronic 22:19

22:22 23:1,15,20

54:22,24,25 55:7

55:13 158:20,21

159:7,11

else's 115:19

empirical 228:20

230:18,25

231:10,19

employ 205:2

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employee 126:16

126:23 127:6,13

127:20 252:6

266:7 285:14,15

employees 20:9

20:13,20 103:13

249:17 250:12

encounter

111:18 118:19

118:23 206:8

encounters

216:8 217:11

engaged 165:5

218:5

enlarge 74:20

ensure 87:23

88:2

enter 114:18

286:1

entered 113:10

281:8

entire 24:23

45:23 46:8

55:10,15,20

73:10 87:7 88:3

191:11

entirely 73:15

212:7

entirety 53:1

69:24 70:6,10

75:8 83:13

92:10 110:4

119:19 145:2

entities 8:1,8

9:17,23 10:5,16

entitled 255:1

entity 8:7,10,11

8:25 9:4,6 10:3

10:7,7

entry 50:9

environment

114:20

equal 6:24

equipment

126:18 137:12

137:22,24

138:13 153:9

213:21 219:20

247:19 249:8

equity 137:25

164:5 272:15

274:2

eric 2:2 5:16

35:24 73:12

118:11 157:4

170:5 244:5

262:12 283:7

287:1

errata 3:6 286:1

287:11,13,17

erratas 287:15

errors 12:10,11

esq 287:1

esquire 2:2,7,8

essentially

167:17 168:18

173:16

establish 178:23

273:6

established

196:25 197:11

273:13

establishes

150:14 196:20

establishment

192:1

estimate 87:2

138:6 139:14

208:9 212:20,21

220:11 236:4

239:16 240:11

255:23,24

268:13,20

269:21 272:17

estimated 248:1

248:4

estimates 200:12

200:14 274:2

estimating

269:22

estimation

249:22

et 1:4,7 4:18,19

12:18 42:21

135:2 149:21

225:6 286:2

287:4,4

evening 126:16

127:1 283:5

eventually

150:24

everybody 120:3

154:10 283:5

everyday 128:15

evidence 14:20

24:11,25 28:21

65:13,14,14 66:1

66:5,6,10 67:8

70:22 71:7,17

148:17,23 149:3

149:11,15 150:4

150:14,18

164:12 165:14

165:18,23 166:3

168:25 171:3,4,6

171:12,18

174:20,21,22,23

175:21 176:11

177:4,6 183:22

191:15,21 193:5

193:21,23

194:24 202:17

215:16,24

exact 8:11 19:24

32:19 33:19,20

62:23 86:25

104:17 128:1,19

129:3 139:13

219:13 220:3

221:1 246:5

250:15 255:15

exactly 14:8 16:2

45:16 46:5,11

60:4,20,21 64:23

86:10,24 90:2

92:11 120:15

128:4,8 173:3

190:18,18

210:24 211:2

212:2,4 216:3

218:3,10 235:24

243:20,25

263:11

examination 3:3

3:3 6:6 279:8

examined 6:5

example 92:14

100:8 101:23

186:23 188:5

232:2

examples 42:20

67:5 69:14,16

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70:20 184:20

187:19 190:14

231:14 269:23

excellent 271:22

exchange 261:24

266:2

exclusively

231:11

excruciating

148:7

excuse 10:20

27:3 29:7 32:2

83:17 117:13,15

122:20 132:25

165:10 170:8

217:14 223:7

237:24 259:12

execute 224:14

executing 191:5

exercise 170:12

exhibit 3:10,11

11:10,12,25 13:4

42:23 47:4,6

49:18 53:9

58:16,16 65:17

69:17 71:20,21

71:25 72:2,7

74:17,18,19 75:8

75:22 76:12,14

81:8,8,16,17

82:4,4 83:6 89:8

90:9,12 91:19

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f

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forward 114:18

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given 25:3 96:22

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gives 87:1

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h

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282:3,4,9,14,15

283:2 287:1

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hold 45:3 99:19

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246:3

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238:7

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hum 47:8,22

75:2,5,6 206:12

236:13

hundred 15:2

59:24

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140:12

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267:11

hypotheses

24:13 229:3

231:24 232:21

233:15,16 234:6

hypothesis

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229:9,11,13,16

229:17,18,20

230:11,15,24

232:15,17,20,24

233:1,4,6,7

hypothesized

231:2

hypothetical

100:7 125:25

133:23 142:25

186:13 218:18

i

idea 20:10,25

25:16 124:5

134:12 139:15

203:1 217:9

242:13 248:13

255:11 260:19

267:3,5,9,11

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177:14

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273:12

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168:18 169:3

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168:20

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164:13 191:11

201:21 270:8

included 14:9,10

34:7 63:20

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64:25 68:24

76:4 200:20

260:10 270:8,15

includes 175:16

200:15

including 5:4

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222:5

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4:19 9:9,11

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95:17

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190:5

index 49:16

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237:25

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213:25 234:22

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274:13

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194:8

inference 96:1

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25:5 26:4 27:22

29:20 30:8

33:20 37:18,21

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44:8 48:25

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98:25 99:1

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185:15 186:10

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188:1,16 189:18

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195:18 196:14

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200:10,15 202:2

202:10,21

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218:20,21

219:15,22

220:21,25 221:9

221:12,21 222:4

222:20 223:21

225:8,11,19

226:7,9 227:5,23

230:25 233:24

237:2,14 242:20

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268:15,23

269:10 272:15

279:12,18,25

informational

116:12 248:14

informed 25:8

132:3 134:23

161:4 237:19

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initial 6:13

initially 40:19

52:3

initiatives

257:14 258:24

injuries 19:9

inoculate 135:11

135:17 142:13

274:23

inoculated 253:1

253:3

inoculation

134:12,20 135:3

135:4 153:4

185:19 222:21

249:1 251:19

252:18 253:4

input 80:13,16

244:7,9

inputs 262:18

insecure 115:16

insert 202:6,13

226:25

inserted 200:7

201:7,7,25

inserting 202:2

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201:16,22

202:18 203:13

instagram 200:3

instance 122:15

122:16 151:18

152:4 208:21

insufficient

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intake 78:8,8,9

78:14

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143:2

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interaction

50:12 51:3

52:12,14 92:25

96:16 105:19

109:14 115:2,3

116:18 129:20

130:2,11,13

136:7 141:12

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interactions

29:18 52:16

65:24 67:8,23

68:13 76:6

81:25 82:2,10,24

89:3 94:5

108:12 115:22

254:15

interested

124:22 139:13

156:17 194:23

270:14 285:17

internal 26:17

164:15

internet 4:10

interpretation

96:3

interpreted

99:21

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129:1

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211:23

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254:5

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224:11,11,13

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206:17 209:6

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173:1 191:13

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184:9

investment

128:16

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19:2 25:12,16

28:15 41:24

92:14 105:13

122:21 189:15

223:15 231:15

231:21 243:14

243:17 266:14

266:15 268:22

269:2

involvement

20:5 242:24

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230:19

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138:4 203:6,8

issue 18:20

105:11 114:15

137:18 165:8

182:6 282:10

issues 122:17

190:16 246:11

j

j 2:2

jackie 81:11,12

82:16

jacksonville

237:25

job 1:25 147:20

149:25 150:3

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243:21

josh 31:21 43:6

56:21 63:11

73:11 156:25

joshua 2:7 5:8

60:25

jot 250:22

judgment

225:23 237:5,6

237:15,18,19

june 200:6 201:1

jury 88:15 148:2

148:22 149:9,16

149:22 150:3,14

k

k 1:7 18:9,13

kansas 188:6

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keep 46:25 49:21

53:7 73:17

280:18

keeping 237:17

key 213:23 214:8

214:10

kind 19:8,17

25:4 29:20

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132:3 133:9

134:12,13,24

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163:10 169:1

172:7 177:12

187:14 192:4

194:16 196:21

209:18,20

215:13 223:15

227:14 229:21

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knew 114:9

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7:11,22 8:7,9,9

8:25 9:5 10:16

13:3,10 15:14

17:15 18:25

20:14,15,16,17

21:8,9,12,20

22:7,9 23:3,6,10

23:24 24:15

25:6,11,12,15,18

25:19 26:2,3,18

26:24 27:9,23,24

28:7,10,17 29:13

30:14,17,21 31:2

31:12 33:17,17

33:21,21 34:1

35:1,12,14,15,16

36:10,11,16 37:6

37:16 38:14,18

38:25 39:4,5

41:1,11,16,19,22

41:23 42:1,8

43:19,22 44:18

44:20 46:7,13,23

47:15 48:9 49:2

49:8 52:15

53:16 55:18,25

56:14 62:15

64:6,7,23 65:22

67:1,7,9,22 68:4

70:10,14,17,21

75:20,25 76:1,2

76:4,8,16,18

78:8,17,20,22,23

78:25 79:3,24

80:3,18,24 81:15

81:17,23,24 82:1

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83:1,9,14 84:5

84:17,22,25 85:9

85:11,12,13,22

86:8,18 87:13,19

87:21 88:9,23

90:20,21 91:4

93:7,8,9,12,17

95:5,22 96:10,14

98:21,21,23

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104:18,21,22,24

105:5 107:2

109:12 111:13

112:11 113:1,25

114:1,6,14,17

115:8,12 116:12

116:13,15,21

120:2,6,12,15,18

121:1,5,6,6,9,25

121:25 122:5,6

122:14 123:12

123:23 124:14

127:8,9,19 128:1

128:4,8,19 129:2

133:9,17 134:6

137:7 138:23

141:15,17,21

144:19 145:12

145:23 149:17

155:25 159:2

160:5,8,9,12,25

161:1,11,14,16

161:19 167:21

167:22 169:12

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180:16,21,22

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190:13,17,18,21

191:7 199:3,7,20

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217:25 218:1,3,4

218:23 219:13

219:18 220:3,5,9

220:12,13,14

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234:8 235:24,24

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243:24 244:18

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248:17 249:13

250:14 252:1,12

252:22 253:9

254:6 255:15

256:1,23 257:2,3

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260:5,10,20,24

261:15 262:8

263:8,9,11

264:13,22,25

265:22,23

266:15,20

267:19 268:1

269:1,4,7 270:10

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270:11,18

271:22 273:10

274:9,14 275:9

275:19 279:6

280:20

knowing 86:3

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26:8,11 29:24

30:12 33:14

72:6 75:11 77:7

119:24 170:16

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258:5,7 271:2

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87:9 168:21

273:7

knows 257:1,6

kreitzer 2:8 5:10

kritika 262:8

266:6

kuppuswami

262:8 266:6

l

l 3:13 18:9,13

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171:24 181:22

248:12

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219:14

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272:17

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215:25

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183:12

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185:6,7,13,14,22

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220:22

leaves 120:9

121:2 122:3

131:11

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121:15,16,18,22

122:13 123:10

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lecture 215:24

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178:11,12

245:25

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123:23 124:2,3

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125:19 126:3

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legacy 9:12 10:1

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215:20,25

281:16 287:23

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98:25

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273:10

liability 19:9

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211:18 225:25

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286:5

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107:4 114:16

141:1,7

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275:24

list 12:20 13:1,6

13:9 22:16,18,19

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89:10 156:14

162:15,16,20

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listed 13:13

46:22 47:13,23

47:25 48:4

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53:10,16,18

54:14 55:6

56:15,17 75:22

76:15 90:13

156:22 157:25

162:2

listen 24:6,22

32:4,14,15 45:10

45:13 70:3,15,18

70:24 79:25

84:6,10,11 86:9

89:22 111:16

249:8

listened 24:4,7

24:17 27:6 32:9

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32:10,15 35:17

45:11,16,17,20

45:23 46:3,4,8

46:12 65:1 70:8

70:10,12 79:23

83:12,24 89:19

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111:21

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228:24 229:23

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16:18 17:6

26:20 141:15

175:15,16

181:20 182:12

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231:15,20,22

232:2,10

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175:17

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171:21 230:3,3

278:5

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53:25

location 1:16

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214:10

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33:1 35:13

57:21 118:13

248:1 255:7,10

264:12

longer 106:3,18

136:17,18 137:8

246:22 247:10

247:19 251:1

278:4

look 9:10 23:18

24:3 42:18

46:23 50:14

54:17 64:16

65:22 67:1

77:24 95:7,11,11

110:15,18

111:13 119:4

142:1 161:3

169:4 171:17

183:4,24 195:5

197:24 208:17

209:4,8 226:24

232:11 237:9,13

237:22 243:8,9

250:19 260:12

264:5

looked 25:1

31:11 39:14

54:16,19 56:12

66:4,9 67:11

144:23,25

166:16 183:21

201:14 217:5

234:24 238:11

238:11 239:1

260:16

looking 28:20

55:18 67:7

76:12 81:9

109:6 112:16

170:7,9 179:10

206:15 226:25

243:5 254:25

272:18 274:1

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119:11 203:23

loretta 42:20

43:4,13,20 44:10

44:23 46:14

89:1,4,7,14

90:14,16,22,25

91:2 92:15 93:5

los 238:7

losing 121:7

lost 124:20,23

lot 12:17 20:21

20:23 55:25

60:16,17 75:15

84:12,19 102:18

117:10 120:16

170:20 208:10

210:5 226:18

227:11 228:6,7

231:11 268:18

272:14

loud 7:19,23

low 202:19 226:2

254:16

lower 209:15

247:21

lowercase

208:11

lowest 262:23

lunch 118:11

248:3

m

macro 272:17

mail 10:23 11:2

22:6 49:12

159:2 205:12

206:7 226:1,1

235:7,7 253:25

255:2,20 256:2

256:11,19,21

261:24 262:16

266:2,9,16

268:10 282:6,8

mailed 10:22

16:9 200:8

201:8 203:13

mailing 200:11

200:16 202:1,9

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mails 159:3

199:14 226:1

227:1 253:25

256:22

main 28:6 93:15

168:25 171:3,6

171:11 174:20

174:20,22,23

177:5

major 19:2

173:17 206:16

making 130:8

170:6 186:18

187:7 190:17

194:24,25 195:4

229:5 250:18

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malpractices

28:21

management

77:7 269:21

managers

149:17 174:15

224:13

mandated 190:3

manner 41:20

56:8 279:23

manufacturer

19:3

marbles 209:3

mark 18:9,15

19:22 20:3 21:6

21:14 28:7 85:5

85:10,12,14,14

99:24 118:3

243:19,23

261:25,25 262:5

266:5

marked 11:7

108:3

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19:20 189:21

191:5 193:5

201:17 202:17

223:24 224:6,9

224:13 225:23

255:4,5,9 256:25

258:21,23 266:1

266:10,18

267:17 269:20

marketplace

113:16 114:17

132:4 133:11

134:24 143:4

146:14 272:16

match 229:18

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231:1

material 56:1

70:13,14

materials 13:5

matter 4:18 5:14

50:15 96:10,20

96:21 98:11,12

117:6,14,18

139:5,6,7,18,19

139:21,22

140:16 187:3

278:2

matters 138:13

140:2,7,17

mcgrath 255:3

255:17,18,20

256:11,12,14,16

261:24 262:1

266:5,13,17

mcgrath's 256:2

mean 9:21 16:4

22:18 26:17

27:17 33:19,19

51:9 54:5 56:11

63:23 66:9,15

69:12 72:10

75:16 79:14,17

85:14 89:18

92:24 93:12

98:3,7 100:23

105:9 112:7

113:25 114:1

115:9 117:9,10

117:10 120:24

121:5 123:4

130:1 131:12

133:7 134:20

137:21 138:9

141:11,11

142:15 155:12

156:13 157:18

157:18 158:13

167:10 168:16

176:19 185:23

187:12 188:23

189:1 201:24

208:16,25

209:22,23 212:8

217:5 220:10

223:24 224:5,11

225:24 230:19

245:1 247:14

248:25 251:24

254:15 256:3

275:22 279:11

meaning 215:25

means 33:21

78:14 180:22

209:24 215:21

meant 67:4 75:6

89:15 93:2 96:5

101:17 102:9

measure 138:21

197:1,16 219:16

measures 204:13

measuring 138:5

media 4:16 25:3

57:17 58:10

71:9 107:9,13,21

116:13 154:1,4

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167:23

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nodding 7:20

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39:7 51:6 73:5

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144:11 158:10

233:19,23

278:23

obtained 15:25

16:2

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obtaining

282:16

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146:21

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remotely 4:8 5:4

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96:17 98:22

108:1,2,4,7

109:5 110:18

113:8,18 115:12

116:3,21 123:21

124:19 138:6

140:14 143:17

143:25 149:16

150:5 154:20,21

155:16,18,25

156:5 157:12,16

157:17,20 158:4

160:7 163:16

164:20 166:19

167:15,16,19

169:1,20 171:16

172:5 173:17

174:17 176:2

177:1 181:18

191:18 198:21

199:6 204:16

205:9 207:1

216:9 218:23,24

223:8,13,20

224:16 234:4

242:8,10,11

244:21 246:24

253:10 254:4

256:17 259:24

263:19 266:23

271:5,7,9,18

273:5 281:4,7

285:8

reported 1:17

126:15 128:10

145:17 146:3

reporter 1:17

4:24 5:19,21 6:1

7:3 30:17 38:6

74:4,5 92:3

106:10,14

124:11,13 126:3

156:1 162:16,18

175:3,8 196:10

196:12 207:6,9

234:10 281:11

281:21 282:1,5

282:11,21 283:4

284:14 285:23

reporting 119:7

119:12 190:7,11

reports 80:5

86:25 89:17

137:4 164:15

166:15

repository 55:3

represent 4:23

11:5 51:2 81:17

89:25 112:25

180:25 215:23

264:20 281:23

representation

129:21 153:15

representative

29:4,6 87:7,24

88:3,7 92:16,20

92:23 93:6,18

94:7,14 95:21

96:23 98:13

99:15 100:1,15

100:21 101:13

103:9,11,21,23

104:6,14 106:5

106:20 115:4

128:2,9,20 129:3

129:4,9,13 130:8

130:14,22 131:4

132:9,18,24

136:11,14,19

137:1,5,9 144:5

145:9,20,24

146:11,13 147:5

151:7,11 152:8

152:11 153:5,7

153:17 159:23

186:3,5 187:4

222:3 245:24

246:3 247:25

248:9 249:18,23

274:20,21

277:24

representatives

125:5 135:24

143:10 150:23

151:18,19,22

152:1 216:4

221:23 248:11

262:19 263:23

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264:1 265:16

represented 19:4

34:1,3,22 36:7

36:13 37:5

39:15 76:7

81:16 85:19

112:25 114:3

242:17

representing

4:25 5:9,11

17:23,24 262:13

represents 30:9

189:20 260:15

reprimanding

184:17

reproduce

111:17

reps 265:8,10

reputable

271:20

reputation 164:5

request 31:20,22

110:24 111:14

111:23 112:1,18

113:3 259:1

271:16 282:18

282:18

requested

285:10

require 187:24

217:25

required 125:1

125:15,22 126:7

178:5 200:20

202:21 205:19

254:13 264:5

requirement

113:18

requires 163:13

172:5

requiring 184:8

research 20:13

169:11 227:24

228:3,5,10,10,12

228:15,21 230:3

230:18,18,20,23

231:4,8,10,19

271:21 276:17

resend 63:11

reserve 278:24

279:2 280:10,16

reserved 3:17

resi 265:8

residences

246:19

residential 265:9

265:10 270:9,11

270:13,15,20,25

271:1,3

residents 188:21

189:5,9 203:19

residual 107:4

respect 155:24

156:4

respective 3:15

respond 215:4

247:7

responded

273:22

response 7:18,19

7:24 45:2 47:24

104:7 192:19

199:20 254:16

responses

169:19

rest 27:17

restate 43:10

74:1 78:19

178:7 278:5

restitution 184:8

result 125:20

126:4 235:22

resulted 189:24

197:17 235:1

results 244:12

271:11,13

resume 11:22

resumed 58:8

107:20 154:12

198:13 242:1

retained 5:14

281:15

return 198:19

287:13,17

review 12:5 14:7

15:8,20 25:19

26:7,13,20 28:18

29:12,16 32:23

39:25 40:4,10,15

40:18 42:14

46:16 54:3,13

55:15 56:19

57:13 64:24

65:20 66:12

69:24 72:12

77:19,22 78:3,5

81:11 82:2,3,6

82:15 83:20

85:18 86:18,22

89:6,13 90:18

91:10,12 108:11

108:16 110:4,7

110:10 119:17

158:11 159:12

159:15 160:17

160:21 166:11

166:12 167:23

172:23 173:6

174:7 179:11,23

180:3 190:6

228:24 230:21

282:23 285:9

287:7

reviewed 12:10

13:16 14:6,14

15:2,7 22:2 25:6

25:8,10,23 26:1

26:11,22,25

27:11 28:8,11

31:14 32:3

36:18,22 39:21

41:9 42:13 48:8

48:13 53:19

54:2,3,9,10

55:13 56:16

59:24 66:14,17

72:23 73:7

74:11 83:21

85:8,12 89:2,13

89:15,18 90:2,15

90:24 92:2,4,6

92:12 102:24

109:9 111:25

119:18 127:5

150:14 152:15

154:23 155:5,10

155:11,21 156:8

156:9,14,16,20

157:9,14,19,20

158:1,5,6 163:4

164:11 165:14

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165:18 166:17

166:19,20

167:15,24

172:21 179:18

215:17 216:13

216:15,16

217:15,16

reviewing 14:4

28:15 175:20

riddell 19:3,5

ridiculous

170:12 238:16

right 5:21 9:14

14:3,23 15:4,7

15:18 34:23

43:17 44:3

49:13,14 50:4

57:6,16 63:14

65:17 71:19

72:24 74:16

75:21 83:2

86:13 87:11

90:11 92:17

94:20 95:1

98:18,20 100:24

101:5,6 103:15

103:19,24,25

104:25 105:2

107:12 109:2,4,7

111:20 115:14

117:10,12

119:22 125:7

126:19 127:17

129:11,16

131:12,24

134:12 137:19

138:21,22 139:1

139:16 140:5,8

140:16,18

143:16 146:19

150:25 163:17

163:19 164:7,25

165:15 169:1

178:12 180:13

184:2,10,23

186:21 190:8

195:13 196:20

196:22,25

197:15 198:5,23

201:9 203:22

205:11 210:17

210:17 211:11

212:24 214:1,18

221:10 224:22

227:25 230:8,12

230:15,18 231:2

232:17 234:17

234:19 239:21

239:22 241:5,17

246:25 249:2,19

249:25 252:18

253:12 259:9

261:22 263:4

272:16 278:24

281:1,12 282:24

rights 280:11

ring 50:9,16

143:22 144:1,2,8

144:9 151:3,5

152:15 247:15

rise 211:13,13

river 20:22

roberts 1:17

4:25 282:9

284:6,14 285:6

285:23

rolling 265:2,6

265:12

room 243:22,25

244:2

roughly 75:17

80:6 84:10

rows 81:9,16

rule 239:18

rules 184:7

rulings 206:18

run 261:15

russell 1:12 3:2

4:17 6:3,13

57:18 58:10

107:14,22 154:5

154:14 198:6,15

241:7 242:3

281:13 284:7

285:9 286:3,4,24

287:5

s

s 1:12 2:1,9 3:2,9

3:13,13 4:1,17

6:3,13 17:17,21

18:9,13,14,14

284:7 285:9

286:3,4,24 287:5

salary 249:23

250:7,9 262:25

sales 10:10 13:18

28:22 29:1

65:24 66:5

92:16,20,23 93:2

93:6,13,18 94:7

94:14 96:23

98:7,10 103:8,12

106:5,19 115:3

119:7,12 121:24

122:4,24 123:3

125:4,20 126:5

130:23 132:9,25

133:3 134:4

135:10,23

136:11,14,16,19

137:1,5,9 138:7

142:14,18

146:15 149:5,12

164:15 166:15

168:9 172:9,18

172:22 173:13

173:19 174:6,25

175:22 176:14

182:6 184:6,16

185:1,3,21 186:3

187:11 189:9

192:12 193:1

194:9 195:8

200:7 201:7

203:20 205:18

217:11 221:22

222:2 245:23

246:6,22,24

247:3,5,8,10,13

247:14,22,24

248:5,6,7,9,10

248:18 249:18

249:23 250:13

250:18,24

252:25 263:8,23

263:25 265:10

277:8,8,9,14,15

salesmen 188:6

salespeople

134:15 152:20

164:1 191:1

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215:6 216:10

218:22 245:20

250:4 264:2

salesperson

50:13 52:12

94:3 96:4 97:3,8

98:22 112:23

117:23 146:8

248:17,18,23

250:2,9,21

252:16 254:17

263:2 277:19

salesperson's

117:12

salespersons

263:6

sample 29:18

40:20,23,25 41:2

41:4,6,10,11,13

41:13,17,24 42:5

42:9 59:19,20

60:21 61:16,17

62:2,5,12,16,19

62:24 63:4,17,20

64:4,7,10,14,15

64:17,22,25

65:21 66:13

67:15 68:18,25

71:12 72:25

77:24 78:3 79:8

79:13,17 80:6

83:22 86:24

87:6,15,20,24

88:2,6 159:24

160:1 163:11

167:17

samples 215:11

215:16

sampling 86:24

87:1,8,12,22,25

88:19

san 238:7

sandra 90:19

satisfy 172:2,2

saved 49:6

saw 104:25

151:2 156:14

209:15 216:18

247:15

saying 20:18

32:9 33:4 45:23

75:6 93:20

99:18 101:4,4

117:21,23 156:2

194:11,13 195:5

209:8 215:8

219:8 221:11

233:3 239:24

248:19 252:20

276:3,6

says 14:19 15:11

43:15 47:21

49:15 59:22

78:20 94:22

95:20 98:11

101:13 102:18

103:2,3 110:23

130:24 131:4

132:18 137:12

140:4,6 141:20

142:1 153:8

163:23,25 165:3

184:4 188:6

191:6 201:5

207:18 221:14

248:22 250:20

252:15,23

256:16 265:8

266:13

scale 272:17

scamming 98:5

scares 185:22

scenario 132:23

132:24

scheme 248:15

schutt 17:17,23

19:5

science 231:25

232:9

scientific 163:11

228:16,22 230:9

231:3,7,18,25

232:3,4,9

scope 125:21

126:6 254:13

scratch 147:11

screen 4:12

10:19 54:11,11

54:15 58:15

71:20 74:16

144:22

script 250:15

251:21,23 252:7

253:8

scroll 53:15

71:24 75:1,4

81:7

scrolled 75:7

scrolling 53:12

83:4

sean 170:14,17

170:17,20

search 90:11

168:8

second 78:7

104:22 105:3

117:16 119:15

136:16 173:19

176:16,18 177:2

177:9 191:22

192:3 233:1,4,5

233:7 259:13

264:19,20

secondly 24:24

193:7 218:22

254:16

seconds 175:5

246:25 247:3,6

secretary 282:2

section 14:12

42:18,19,19,25

43:7 47:20,20,25

48:3 49:25 50:5

53:8,10,14 58:25

59:3,6,8 154:21

155:15,17

157:17 163:19

166:22 171:15

171:19,23 173:1

181:19 191:11

191:18 198:21

199:5 204:15,16

238:2

sections 58:25

178:14

sector 270:14

secure 137:23

security 8:13,16

93:25 95:8,14,17

95:19,21,23

97:17 115:11,14

115:15,16

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128:13 152:23

184:1 273:8,11

274:16 275:1

see 11:20 24:23

33:3 39:14

42:17 46:13

47:12 49:16,24

50:2,20 53:9,16

53:18 59:3 69:9

72:18 76:13

77:25 81:10

89:10 90:9

91:21,22 92:13

93:15 95:12

108:19 110:19

111:3 122:23

145:15 154:10

161:4 167:7

171:18 179:16

180:9,12,14

181:22 182:7

194:19 199:13

200:1 222:5

224:23 229:16

230:25 237:11

237:11 247:5

254:6 261:4

262:21 268:6

272:4 274:14

seed 115:10

seeing 151:6

229:12

seek 105:21

279:2 280:11,23

seeks 105:16

122:11

seemingly 238:5

seen 4:11 120:17

121:5 144:17

150:18 181:2,6

202:18 216:18

227:25

segment 273:2

select 42:9

selected 15:9

24:10 25:25

26:6 27:14

28:25 42:5 64:3

64:6,7 68:18

69:24 71:13

75:20,25 78:5

79:13 83:10,16

83:17 160:9,13

sell 152:8 251:2

selling 116:9,14

159:19 184:1

193:12 248:13

249:21

send 30:2 40:18

66:25 68:6,23

69:16 125:4

200:20 201:16

223:9 283:2

sending 255:21

256:8,12

sends 202:15

sense 8:21 32:8

223:24 224:2,7,8

277:2

sensitivity

238:21

sent 16:1 51:9,18

52:3,7,9 54:19

60:3,19 144:13

201:11 203:15

203:19 204:5,7

287:14

sentence 64:19

140:3 184:3

190:2 224:18

232:22

separate 34:1

50:21 51:1

80:25 81:17,21

104:19 109:13

109:16 110:2

179:15 194:1

separately 23:13

september 183:5

284:11 285:19

287:3

series 276:20

service 26:18

37:18 76:21,24

77:6 98:23

120:4,9,16,21

121:4 188:8

249:12

services 114:15

119:25 183:10

194:1,7 274:5

servicing 117:24

session 269:21

set 14:20 15:3

59:25 64:1

73:10 75:9

83:10,17 87:7

160:10 177:2

222:7 248:15

sets 89:15

settled 183:12

193:9

settlement 184:5

189:24 191:13

193:7

settlements

184:12

seven 14:8 15:7

22:2 23:12,18

24:4,6 25:25

26:6 27:5,11

28:25 29:6,10,12

30:1 31:14 32:3

32:14,16,21,22

36:17,21 38:2

39:12,21 41:8

48:11,13,15 65:2

65:4,8 66:14,17

66:23,25 69:3,5

69:9,9,23,25

70:11,24 72:22

73:6 74:10 78:4

79:14 89:13,15

89:16,23 111:24

112:1,2,9,20

149:20 183:22

188:25 216:15

217:5,6,14

236:22 238:7,9

239:13 241:14

shade 242:15

shaking 7:20

shannon 255:2,3

255:21 256:7,8

256:13,16,20,23

258:4,21 266:3,4

266:11,19,20,24

267:14 268:24

269:2

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shannon's 267:3

shape 237:19

share 10:19,19

54:11,15 58:15

58:15 71:20

74:16 144:22

154:18 244:12

271:6

shares 227:2

sharing 11:6

65:16 71:21

108:2 271:7

shb.com 2:4

287:2

she'll 102:9

111:11

sheet 3:6 286:1

287:11

shocked 120:7

274:15

shook 2:3 5:16

17:3 26:24

34:16 37:12

80:15 112:7

158:13 244:9,19

262:11

short 164:21

195:24 247:17

shorthand 1:17

show 7:21 264:6

showed 29:1

89:9 145:24

shown 82:3

145:10 147:4

180:1

shows 98:22

194:17

shut 73:24

sic 101:12

170:17 188:19

sign 96:8 110:22

282:24,25

287:12

signature 11:18

11:19 12:1,1

284:13 285:22

signed 110:13,20

111:5,7 284:11

287:20

significant 67:22

218:25 224:20

225:1,4 232:23

233:2,8

significantly

275:11

signing 3:16

12:3

signs 274:14

similar 27:22

144:22 159:22

187:9 201:1

211:25 246:21

268:4

simple 229:25

245:24

single 212:11

226:2

sir 57:4 72:4

77:1 216:20

282:20

sit 70:9 102:2

site 22:7 209:16

sitting 28:16

situation 141:18

situations 134:8

six 14:8 15:7

20:1 22:2 23:12

23:18 24:3,6

25:25 26:6 27:5

27:11 28:25

29:5,10,11,25

31:13 32:3,14,16

32:21,22 36:17

36:21 38:2

39:11,21 41:8

48:10,11,12,15

66:23,25 67:4

69:2,5,23,25

70:11,24 72:22

73:6 74:10

75:17 78:4

79:14 89:13,15

89:16,23 111:24

111:25 112:2,9

112:19 154:23

155:4,5,10,11,12

155:13,15,17,20

156:16 157:24

158:22 159:14

159:23 161:20

162:1 163:4

183:22 214:4

216:14,14,15

217:6,14,15

234:20,21

235:21 265:2

281:15

size 41:11 61:16

sized 74:23

skeptical 150:22

151:6,10

skimmed 55:17

55:25

skip 186:17

skipping 164:9

slash 180:14,22

181:7

slow 47:14

slowly 47:14

53:15

small 29:18

45:19 200:23

smaller 239:3

81:11,12

81:18,25 82:10

82:16,18

smart 1:7 4:19

9:8,11,12,13,22

10:1,2 286:2

287:4

snippets 14:13

social 25:2 71:8

163:7,7 164:16

166:16,17,20,23

167:4,5,18,25

168:1,2,4,5,8,11

168:15 170:10

171:22 172:15

172:25 174:8

175:14 179:11

180:1,3,5,8

199:13,24 217:7

217:14 225:6

227:1 235:7

253:25

software 23:7

sold 153:6

solemnly 5:22

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solidifies 97:2

solutions 4:24

5:1 281:16

287:23

somebody 38:15

115:19 118:20

134:25 146:22

168:17 169:17

244:16,18

245:13 247:14

someone's

121:15

soon 13:3

sorry 18:10

22:24 27:8,21

29:13 33:10

35:23 39:10

44:6,19 49:9,19

51:9 54:5 68:6

69:4 77:5 83:3

89:16 92:21

95:4 106:21

109:21 126:14

128:22,24

139:22 156:3

162:11,23

174:13 175:3

176:10 179:9

188:24 196:11

201:23 207:18

256:9 259:20

261:18 264:6

265:3 271:24

sort 97:2 128:14

169:16 171:3

194:14 248:14

248:14

sorted 259:8

sought 183:25

sound 246:22

sounds 7:9

128:17 230:6

soup 209:3,4,6,8

209:10

source 51:7

168:25 223:18

258:12,15 269:4

276:8

sources 22:17

23:14 55:3

117:9 156:14

162:15,17,20

164:11,13

166:10,11

171:14 174:14

175:1,10 176:11

176:12 178:9,10

216:12 278:21

278:23,25

southern 1:1

4:21

speak 77:13

82:18 91:8

110:7 255:12,14

speaking 73:13

73:24 157:2

specific 12:19

42:19 67:17

93:22 169:25

176:23 226:7,8

228:12 272:12

specifically

12:23 13:15

28:8 29:14

61:17 62:13

156:19 174:16

183:12 270:5

specificity 170:8

170:10

specify 56:21

279:22

specifying 156:5

spell 17:19 18:10

spelled 43:19

spelling 43:16,23

43:25 44:1,13,14

44:15,20

spend 118:12

246:10 255:2,24

255:25

spends 255:22

spent 179:1

199:7 201:18

211:14 212:22

split 17:11

spoke 60:10

spot 126:14

spreading 237:2

237:4

spreadsheet 60:3

60:19 61:3,7,13

62:11,24 63:1

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spreadsheets

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stated 76:2

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t

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technically

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tell 7:13 28:2

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traurig 2:8 5:8

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understanding

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understated

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views 212:20,22

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violated 184:7

violations

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virtual 4:8

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94:7,13 125:10

126:22 127:6

133:17,18

152:17 212:17

216:11 218:22

221:22 222:2,8

222:19 248:22

251:6,15 252:10

252:15,24

274:20,21

277:18

visiting 249:16

252:16,19,19

260:18

visits 116:9

125:1 200:24

243:6 245:22

246:1,9,18 247:8

249:16 253:18

253:19,21

274:24

vivid 146:23

vivint 1:7 4:19

5:9,11,13 9:4,6,7

9:8,11,12,13,19

9:20,22 10:1,2,4

10:7,14,16 16:5

16:25 28:21

29:18 37:19

39:16 50:13

52:12 54:8

65:23 66:6 67:8

67:23 69:18

78:21 79:1

82:25 84:2

85:20 92:16,20

92:23 93:6,18,23

93:24 94:3,7,14

94:18,19 95:8,13

95:21,22 96:4,9

96:11,12,13,18

96:19,23 97:3,4

97:8,9,16 98:2,9

98:10,13 99:15

100:1,9,15,21

103:8,13,18

104:3,11 105:8

106:3,5,17,19

110:14,20,22

111:6 112:14,23

113:4,6,10 114:8

114:10 115:3,19

115:22 116:18

117:7,22 120:3

122:17 123:5,14

123:23,25 124:1

124:2,3,6,15

125:9,14,19,21

126:4,5,16,17,22

127:6,13,14,19

128:2,8,10,11,11

128:20 129:2,4,9

129:13,20 130:3

130:8,9,13,15,16

130:22 131:3,12

131:19,19,22

132:8,9,10,11,13

132:18,19,20,24

133:1,2,10,17,18

134:4,9,11,15,16

134:23 135:1,10

135:13,18,23

136:11,14,19

137:1,5,9 138:3

138:11,18

139:11 140:25

141:8,13,14,23

142:7,14,16,21

143:4,10 144:5

145:9,14,20,24

146:6,8,11,13,16

146:22 147:5,17

147:18,22 148:9

148:14,18,24

149:4,11 150:6

150:15,23 151:7

151:10,17,18,22

152:1,5,7,11,20

153:5,6,17,23

161:6,8,10,14,17

164:3 165:5

167:8 168:12

171:24 172:3

173:7,18 174:6

174:10,24

175:17,21

176:13 181:20

181:23 182:1,11

182:21 183:12

183:25 184:6,8

184:17 185:6,13

185:22 186:3,5,7

187:4,9 189:25

190:3 191:5,12

192:8,12,22,25

193:5 194:6

199:1 205:1,24

207:17 215:6

216:4,10 218:6

218:21,22

219:10 220:23

221:7,22 222:2

222:19 224:20

224:21 225:10

225:14,21

227:10 232:14

232:19,23

233:22 246:15

248:17,18,22

249:2,7,10 251:1

251:7,8,15 252:9

252:10,13,15,17

252:19,24 253:5

254:17 270:4

273:9 274:1,20

274:21,24

275:19,24,25

277:8,10,14,15

277:19,24 278:3

278:10,12

279:12,19,21,23

280:1 286:2

287:4

vivint's 14:20

69:15 70:20

71:9 116:23

117:1 138:7

142:5 143:6

149:24 159:19

163:8 164:1,16

164:17,21 165:3

165:8,9 168:6

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CONFIDENTIAL

171:18 173:13

187:11 190:6,10

191:1,9 192:1

193:21 194:14

194:19,25 195:2

195:10 196:23

199:12 219:19

219:25 233:9

246:12,13 258:1

270:6 272:8,24

275:16 276:5,9

vivinthome

180:9,13

voluntary 184:5

vs 4:19 208:6,8

209:12 211:13

211:21 214:19

214:19,24 218:9

286:2

vulnerable

221:25 273:9

w

w 6:14 18:14

wait 7:7 57:20

99:20 107:16

175:4 281:3,3

waive 282:24

walk 248:24

251:12

wall 128:3

want 10:9 12:19

32:8 33:9 57:21

67:11 71:19

84:22,25 108:6

110:18 121:5,6

132:7 139:25

156:24 157:1

177:2 184:2

188:19 211:15

211:15 214:14

242:7 246:5

249:25 261:14

271:7 278:23

279:10 282:13

282:14,15

wanted 60:14

65:3,9,11 67:3,4

70:21 146:17

159:15 160:17

236:24 240:3

261:2 270:11

warn 133:10

134:25 142:17

warned 185:25

warning 153:4

188:20 189:4,8

246:12,12

warnings 200:7

201:6

warns 187:15

washington

240:15,15,16

261:5

watch 52:23

53:1 134:13,14

145:2

watched 53:4

145:6

water 27:4

wav 15:16,19,23

16:14 23:21

30:4 33:12

35:14 44:24

45:5 46:20 51:7

60:21 62:11,13

63:3 72:8 75:9

78:20 79:1,3,4

79:21 80:25

81:10,15 91:23

91:24 144:13

159:25 242:14

way 22:21 78:11

86:3 88:6,9

114:11 159:4

165:11 169:14

190:12 193:15

203:10 212:23

214:6 217:25

229:14 235:23

239:14 245:2

248:12 261:12

269:13 279:7

ways 164:2

195:11 201:1

we've 31:19 57:6

58:24 60:16

69:3,6 84:19

107:10 115:6

118:24 166:13

171:20,23

172:23 177:5

178:17 181:6

191:19,20 192:3

195:18 196:14

197:6,14,19

199:18 211:11

213:8,8 216:18

231:14 233:22

234:14 242:18

252:20,21

257:10 266:5

279:18,25

280:10

web 210:10,16

210:22 211:2,5

211:11 212:3,17

218:12

website 164:17

208:11,18

209:17,19 212:9

212:11 213:16

websites 59:10

215:1

weight 6:24 71:7

165:14,23 166:3

welcome 47:16

47:17 73:19

110:18

went 24:9 71:10

114:7,8,10,10,14

202:6 212:11

225:5 257:19,23

267:14 268:18

272:23 275:21

wesson 18:14,16

19:23 20:4

widespread

164:23

win 120:3,10,13

120:17 122:7

winer 1:12 3:2

4:17 6:3,8,14,15

32:2 57:12,18

58:11,14 63:17

73:2 74:6 99:23

107:14,22 108:2

118:1 154:5,15

154:20 155:4

156:12 157:24

175:5 198:7,16

198:21 214:12

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216:20 217:20

217:22 227:24

241:7 242:3,7

279:6 281:13

282:23 283:3,6

284:7 285:9

286:3,4,24 287:5

wish 261:19

286:4

wishes 261:20,21

witness 4:11

5:13,19,25 6:4

13:21 26:16

27:14,21 30:19

35:24 36:1,3

37:24 38:7 40:7

46:2 52:21

56:25 57:6,21

69:8,21 70:3

71:2 74:1,12,14

75:15 77:5,22

79:7 80:22 81:3

84:9 85:22 86:8

88:5,18,22 91:4

92:5 96:25

98:16 100:8,20

101:19 102:6,8

105:25 106:8,24

107:10,17 112:4

117:12 124:16

124:18 126:1,8

126:10 129:6

130:1,20 131:24

133:7,24 134:4

136:2,21 137:11

139:21 140:10

140:20 141:4,11

142:1,11 143:1

143:13 149:2,14

150:10 153:21

155:1,8 162:6,17

165:23 166:6

173:25 175:10

175:24 176:10

177:11 178:2,22

185:9,18 186:14

191:24 192:17

193:4 195:22,24

196:8,20 197:10

197:23 198:11

207:10 208:8

212:7 215:19

217:4 218:19

219:13 226:14

234:11,13

235:20 240:6

241:2 275:18

278:18,19,21,24

279:4,15 280:7

282:21,25 286:3

287:8,10,12,19

witnesses 112:12

161:2

42:20 108:9

108:12,17 109:6

109:10,17,20,23

110:8,11,19

111:5,15 119:5,6

119:9,10,11,21

126:14,15,22,25

127:2,6,15,20,23

128:2 136:7,7,10

136:25 138:15

woman 43:4

89:1

wondering

54:13

word 55:22,24

96:3 106:11

135:3 158:17

219:16 237:2

245:12 268:11

words 36:23

67:15 102:16

128:1,19 129:3

233:12

wordsmithing

233:3

work 16:15 17:5

20:3 60:18

74:24 77:8

153:15 159:4

208:4 228:6,7

243:24,24 250:5

263:10

worked 16:19,20

16:24 17:2,9,14

18:15 20:8,12

21:4,5,6,12

84:19 239:14

working 17:10

18:2,4 21:9 28:3

28:5 250:6

251:3

works 57:24

58:2 154:2

198:10 262:9

world 229:6

worn 182:11

worse 113:13

115:13

worst 115:17

wrapping

256:17

write 45:12 67:9

84:21 119:6

244:21 253:9

286:1

writing 250:15

256:16

written 245:3

wrong 98:5

195:4 222:9

230:4

wrote 24:25

32:19 44:7,9

86:13 160:7

x

x 3:1,9

y

y 18:9,13

yeah 11:23 13:22

33:10 45:4

74:25 93:3

102:11 134:22

140:10 154:2

156:17 157:18

159:8 162:25

166:16 167:1

189:1 196:2

198:10 204:14

216:17 238:21

241:13,24

247:11 248:12

250:4 258:12

261:18 265:8

year 12:4,16

19:24 32:18

45:15 86:13,17

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184:13 190:7

193:2 250:2

255:25 262:24

263:3,17,21

264:10

years 12:22

17:10 18:18

20:1 183:1,1

194:18 276:21

youtube 199:13

200:4,5

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Case 1:20-cv-23391-JG Document 119-13 Entered on FLSD Docket 01/09/2023 Page 350 of

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Federal Rules of Civil Procedure

Rule 30

(e) Review By the Witness; Changes.

(1) Review; Statement of Changes. On request by the 

deponent or a party before the deposition is 

completed, the deponent must be allowed 30 days 

after being notified by the officer that the 

transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to 

sign a statement listing the changes and the 

reasons for making them.

(2) Changes Indicated in the Officer's Certificate. 

The officer must note in the certificate prescribed 

by Rule 30(f)(1) whether a review was requested 

and, if so, must attach any changes the deponent 

makes during the 30-day period.

DISCLAIMER: THE FOREGOING FEDERAL PROCEDURE RULES 

ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. 

THE ABOVE RULES ARE CURRENT AS OF APRIL 1, 

2019. PLEASE REFER TO THE APPLICABLE FEDERAL RULES 

OF CIVIL PROCEDURE FOR UP-TO-DATE INFORMATION. 

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