EXHIBIT S

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1120 Filed 07/07/16 Page 1 of 25
Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1121 Filed 07/07/16 Page 2 of 25
·1· · · · · · UNITED STATES DISTRICT COURT

· · · · · · · EASTERN DISTRICT OF MICHIGAN

·2

·3· ·ZIEBART INTERNATIONAL CORPORATION,

·4· ·a Michigan corporation,

·5· · · · · · · · ·Plaintiff/Counterclaim Defendant,

·6· ·-vs-· · · · · Case No. 2:15-cv-11745-JEL-APP

·7· · · · · · · · ·Hon. Judith E. Levy

·8· ·Z TECHNOLOGIES CORPORATION,

·9· ·a Michigan corporation,

10· · · · · · · · ·Defendant/Counterclaim Plaintiff,

11· ·and

12· ·PURE ASPHALT COMPANY,

13· · · · · · · · ·Counterclaim Defendant.

14· ·____________________________________________/

15· ·DEPONENT:· · ·Patricia Lipsky

16· ·DATE:· · · · ·Wednesday, May 25, 2016

17· ·TIME:· · · · ·1:00 p.m.

18· ·LOCATION:· · ·1000 Town Center

19· · · · · · · · ·22nd Floor

20· · · · · · · · ·Southfield, Michigan

21· ·REPORTER:· · ·Quentina Rochelle Snowden,

22· · · · · · · · ·Certified Shorthand Reporter-5519

23· · · · · · · · ·and Notary Public

24· ·JOB NO:· · · ·2807

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Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1122 Filed 07/07/16 Page 3 of 25
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·1· ·APPEARANCES:

·2· ·BROOKS KUSHMAN, PC

·3· ·By:· Mr. Robert Bradenburg

·4· ·1000 Town Center

·5· ·22nd Floor

·6· ·Southfield, Michigan 48075

·7· ·248-358-4400

·8· ·Rbrandenburg@brookskushman.com

·9· · · · · · ·Appearing on behalf of the Plaintiff/

10· · · · · · ·Counterclaim Defendant.

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12· ·JABE LAW FIRM, LLC

13· ·By:· Mr. Daniel N. Jabe

14· ·470 Olde Worthington Road

15· ·Suite 200

16· ·Westerville, Ohio 43082

17· ·614-354-4133

18· ·Djabe@jabelawfirm.com

19· · · · Appearing on behalf of the Defendant/

20· · · · Counterclaim Plaintiff.

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·1· ·APPEARANCES CONTINUED:

·2· ·LEWIS, BRISOIS, BISGAARD & SMITH, LLP

·3· ·By:· Mr. Darrick J. Hooker

·4· ·550 West Adams Street

·5· ·Suite 300

·6· ·Chicago, Illinois 60661

·7· ·312-463-3408

·8· ·Darrick.hooker@lewisbrisbois.com

·9· · · · Appearing on behalf of the Counterclaim

10· · · · Defendant, Pure Asphalt Company

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·1· · · · · · · · ·INDEX PAGE

·2· ·WITNESS:· · · · · · · · · · · · · · · · ·PAGE

·3· ·Patricia Lipsky

·4· ·Examination by Mr. Jabe· · · · · · · · · 05

·5· ·(No further examination.)

·6

·7· · · · · · · · · ·EXHIBITS

·8· ·EXHIBIT· · · ·DESCRIPTION· · · · · · · · MARKED

·9· ·EXHIBIT 13· · CORRESPONDENCE DATED· · · ·34

10· · · · · · · · ·5-19-11

11· ·EXHIBIT 14· · CORRESPONDENCE DATED· · · ·42

12· · · · · · · · ·7-7-11

13· ·EXHIBIT 15· · SETTLEMENT AGREEMENT· · · ·43

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15· · · · · · · · · (Exhibits attached.)

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·1· · · ·Wednesday, May 25, 2016

·2· · · ·Southfield, Michigan

·3· · · ·1:00 p.m.

·4· · · · · · · · · · ·PATRICIA LIPSKY,

·5· · · ·was thereupon called as a witness herein, and

·6· · · ·after having first been duly sworn to testify to

·7· · · ·the truth, the whole truth and nothing but the

·8· · · ·truth was examined and testified as follows:

·9· · · · · · · · · · · ·EXAMINATION

10· BY MR. JABE:

11· Q· ·Please state your name for the record.

12· A· ·Patricia Lipsky.

13· Q· ·And how do you spell your last name?

14· A· ·L-I-P-S-K-Y.

15· Q· ·Have you had your deposition taken before?

16· A· ·No.

17· Q· ·So, the Court Reporter here is going to be recording

18· · · everything that you say and it's important, as a

19· · · result of that, to speak clearly, and to give verbal

20· · · answers to the questions, because she can't pick up

21· · · on, or record, a nod or something like that.

22· · · · · · · · · ·Do you understand?

23· A· ·Yes.

24· Q· ·If you have any questions about -- or let me say

25· · · this:· If any of my questions are unclear, please

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1123 Filed 07/07/16 Page 4 of 25
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·1· · · don't hesitate to tell me that and ask me to

·2· · · rephrase.· I'm happy to do that if you don't

·3· · · understand a question I'm asking.

·4· · · · · · · · · ·Is that okay?

·5· A· ·Okay.

·6· Q· ·Do you hold any academic degrees?

·7· A· ·I have my paralegal certificate, and legal -- it's

·8· · · actually called a legal assistant certificate and

·9· · · legal assistant specialist in litigation.

10· Q· ·And where did you obtain that?

11· A· ·Oakland University.

12· Q· ·And when?

13· A· ·1998.

14· Q· ·Can you tell me the positions that you've held at

15· · · Ziebart and the approximate dates that you've held

16· · · those positions?

17· A· ·License and trademark manager is my title, and I've

18· · · held that same title and position since 2007.

19· Q· ·Is that the only position you've held at Ziebart?

20· A· ·Yes.

21· Q· ·Where did you work before you came to Ziebart?

22· A· ·Wolpoff and Abramson Law Offices, and before that,

23· · · Federated Capital Corporation.

24· Q· ·Did you do trademark-related work at either of those

25· · · places?

Page 7

·1· A· ·No.

·2· Q· ·What does your current position at Ziebart entail?

·3· A· ·Any legal matter comes to me, and I work with our

·4· · · outside attorneys.· I handle franchise issues,

·5· · · registering our franchise disclosure document with

·6· · · the various registration states.· And I work with --

·7· · · if somebody wants to file a trademark, I work with

·8· · · our outside attorneys to file a trademark.

·9· Q· ·You said at the beginning of your answer that a

10· · · legal matter comes to you.· How does that happen?

11· · · Or what did you mean by that?

12· A· ·Any kind of issue that anybody in the building

13· · · doesn't understand, that they think I can help them

14· · · with, be it trademark, copyright, litigation, any --

15· · · anything that would fall under the legal purview, I

16· · · guess I would say.

17· Q· ·Have you taken any courses relating to trademark

18· · · issues?

19· A· ·I've taken one course at the Trademark Office. I

20· · · went for -- I guess you would call it a seminar.· It

21· · · was just an overview of trademark law.

22· Q· ·Do you have a department within Ziebart that you

23· · · work as part of?

24· A· ·I'm just the -- I'm the only person who -- in the

25· · · Legal Department.· I'm it.

Page 8

·1· Q· ·Does Ziebart take steps to protects its trademarks?

·2· A· ·Yes.

·3· Q· ·What does Ziebart do?

·4· A· ·We work with our attorneys who monitor if there's

·5· · · a -- if there's any kind of -- if they -- they -- if

·6· · · they see anything.· I don't know.· They have like a

·7· · · watch service that watches trademarks, you know, if

·8· · · somebody files a trademark, they let me know.· And

·9· · · they watch it.

10· Q· ·Does Ziebart conduct any investigations to determine

11· · · if someone is using its trademarks?

12· A· ·I'm not sure what you mean by "investigation."· You

13· · · mean --

14· Q· ·Do you do any monitoring of the use of names by

15· · · other companies other than the monitoring you

16· · · mentioned that counsel does?

17· A· ·People -- if somebody sees something -- people --

18· · · you know everyone in the building is aware we have a

19· · · name and we have trademarks and if anyone sees

20· · · anything they bring it to my attention or Tom

21· · · Wolfe's attention.

22· · · · · · · · · ·So I guess we're all kind monitoring

23· · · it in that way, we're very aware and if somebody

24· · · doesn't know if we have a trademark, they'll come to

25· · · me and say "Do we have a trademark?· Somebody is

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·1· · · using our trademark."

·2· Q· ·Once someone identifies a possible trademark

·3· · · infringement, what do you do next?

·4· A· ·I call our attorneys.

·5· Q· ·Does Ziebart itself conduct any inquiries as a

·6· · · result of that information that may have been

·7· · · received by the possible trademark usage?

·8· A· ·Inquiries to?

·9· Q· ·For example, does Ziebart make phone calls itself to

10· · · determine whether somebody is in fact using a

11· · · trademark, or visit a location to make that

12· · · determination?

13· A· ·Yes.

14· Q· ·And who would do that?

15· A· ·Usually me.· Someone will bring that to my

16· · · attention.

17· Q· ·And you might make a phone call to the potential

18· · · infringer --

19· A· ·Yes.

20· Q· ·-- to make a determination?

21· A· ·Yes.

22· Q· ·To visit the potential infringer's location to see

23· · · what they're doing?

24· A· ·I don't visit if we see something.· Sometimes I'll

25· · · call -- sometimes all you have to do is call and

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1124 Filed 07/07/16 Page 5 of 25
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·1· · · I'll call the person infringing and say "Do you know

·2· · · that you're using our mark?"· And they'll say, "No,

·3· · · we weren't aware of it."· I'll say, "Well, you are.

·4· · · Can you remove it?"· They say "Yes."· And that's the

·5· · · end of it.· Or I'll send a letter.

·6· Q· ·Do you ever make calls without revealing your

·7· · · identity?

·8· A· ·No.

·9· Q· ·Do you ever have anyone else make those inquiries,

10· · · counsel or third parties?

11· A· ·Yes.

12· Q· ·Would it include both counsel and third parties?

13· A· ·Just counsel.

14· Q· ·Do you always send a cease and desist letter if you

15· · · believe someone is infringing one of Ziebart's

16· · · trademarks?

17· A· ·No.

18· Q· ·Why would you send one sometimes and not others?

19· · · · · · · · · ·MR. BRADENBURG:· Hold on.· If you can

20· · · answer that without referring to any communications

21· · · you have with your attorneys, you may answer that.

22· · · In other words, if your attorneys tell you to do it

23· · · or not to do it, that's not something he can

24· · · discover.· But if you make the decision yourself, or

25· · · in consultation with non-attorneys, then you can

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·1· · · answer.

·2· · · · · · · · · ·Do you understand the distinction?

·3· · · · · · · · · ·THE WITNESS:· I believe so.

·4· BY MR. JABE:

·5· Q· ·Let me try to ask the question differently.

·6· A· ·Okay.

·7· Q· ·Setting aside any advice you might receive from the

·8· · · attorneys that you're engaging, what types of

·9· · · considerations do you have in mind when you're

10· · · making a decision about whether to send a cease and

11· · · desist letter?

12· A· ·I always have cost in my mind, and for a period of

13· · · time I decided I would be the person to send them

14· · · and I found that it was very ineffective and that --

15· · · so I -- if a cease and desist letter is going to be

16· · · sent, I'm almost always consulting an attorney.· If

17· · · it's something like if somebody sees something on

18· · · the Internet and they say, "You know, our picture is

19· · · on the Internet", you know, "Can you do something

20· · · about it?"· Then I make a judgment call if it's

21· · · something that I think I can easily handle and just

22· · · make a phone call to the person and say "Do you know

23· · · you have our name on the Internet or our picture on

24· · · the Internet?"· And a lot of times it's very

25· · · innocent, they don't know they do.· They'll be

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·1· · · cooperative and say "Yes."· Then I'll make a

·2· · · judgment call if I think I can do it myself, I'll do

·3· · · it.· But for cease and desist letters now I almost

·4· · · always send it or I do always send it to an

·5· · · attorney.

·6· Q· ·Do you ever identify infringements and determine

·7· · · that it's not worth sending a cease and desist

·8· · · letter?

·9· A· ·Yes.

10· Q· ·Since you began working at Ziebart, how many cease

11· · · and desist letters has Ziebart or its counsel sent

12· · · claiming trademark infringement?

13· A· ·I don't know.

14· Q· ·Can you provide a rough estimate?

15· A· ·I don't know.· I'm sorry.· I -- I -- a lot.· I don't

16· · · know.· I mean, I couldn't say for sure.

17· Q· ·Would it be more than 50 since 2007?

18· A· ·I wouldn't say more than 50.

19· Q· ·About 50?

20· A· ·No.· Maybe 30.

21· Q· ·In the past year, can you tell me roughly how many

22· · · cease and desist letters have you sent claiming

23· · · trademark infringement or its counsel has sent on

24· · · Ziebart's behalf?

25· A· ·Maybe four.

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·1· Q· ·You testified earlier that Ziebart will sometimes

·2· · · identify trademark infringement but not send a cease

·3· · · and desist letter; is that correct?

·4· A· ·I don't know if -- I don't know if -- I don't know

·5· · · if you call it trademark infringement.· We have seen

·6· · · pictures that we have shot videos of that somehow

·7· · · get on the Internet, I don't know that they're

·8· · · necessarily trademark infringement.

·9· Q· ·Would it be fair to say you've seen things that you

10· · · would identify as possibly trademark infringement?

11· A· ·Yes.

12· Q· ·And then decide not to send cease and desist

13· · · letters?

14· A· ·Yes.

15· Q· ·Are there circumstances where you send cease and

16· · · desist letters and the person that you send it to

17· · · complies with your requests?

18· A· ·Yes.

19· Q· ·Are there also circumstances where they do not?

20· A· ·Yes.

21· Q· ·When they do not, do you always file a lawsuit?

22· A· ·No.

23· Q· ·Other than the advice of counsel, what would be some

24· · · considerations that Ziebart would have in deciding

25· · · whether to file a lawsuit under those circumstances?

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1125 Filed 07/07/16 Page 6 of 25
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·1· A· ·Could you repeat the question again?

·2· Q· ·Other than advice from counsel --

·3· · · · · · · · · ·MR. JABE:· Actually could you read

·4· · · that back.

·5· · · · · · · · · ·(The indicated portion of the record

·6· · · was read back as follows:

·7· · · · · · · · · ·"Q· · Other than the advice of counsel,

·8· · · what would be some considerations that Ziebart would

·9· · · have in deciding whether to file a lawsuit under

10· · · those circumstances?")

11· BY MR. JABE:

12· Q· ·The circumstances were when the person who received

13· · · the cease and desist letters did not comply, why

14· · · would you decide not to file a lawsuit against

15· · · someone like that, other than --

16· A· ·I don't know that I can say.· It's not my decision.

17· Q· ·Whose decision is that?

18· A· ·It would be probably between Tom Wolfe and our

19· · · attorney.

20· Q· ·Since you began working at Ziebart, how many

21· · · lawsuits has Ziebart filed claiming trademark

22· · · infringement?

23· A· ·I don't know.

24· Q· ·Can you give a rough estimate?

25· A· ·Maybe five.

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·1· Q· ·How many lawsuits in the last year?

·2· A· ·Two or three.

·3· Q· ·But you think it might only be five since 2007?

·4· A· ·Did you say lawsuits that we filed or that we were

·5· · · involved in or --

·6· Q· ·That you filed.· That Ziebart filed.

·7· A· ·I don't know an exact amount because not all of them

·8· · · come directly from us.· Some of them go to -- some

·9· · · of them go to our Collection Department who in turn

10· · · they -- the collection agency hires attorneys to sue

11· · · on our behalf, so I don't -- I don't know that I --

12· · · I would know everybody.

13· Q· ·I'm only talking about trademark infringement suits,

14· · · not collection suits.

15· · · · · · · · · ·MR. BRADENBURG:· I object to your

16· · · question.· It's assuming there's a difference

17· · · between trademark infringement and --

18· · · · · · · · · ·MR. JABE:· I do assume there is a

19· · · difference.· If there isn't one --

20· BY MR. JABE:

21· Q· ·What is a collection suit that Ziebart might

22· · · initiate?

23· A· ·If someone has outstanding royalties, if they're

24· · · terminated or if they voluntarily discontinue being

25· · · a Ziebart franchisee, and they owe us money, usually

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·1· · · a lot of times it's both trademark and collection.

·2· · · They'll owe us money and they'll still have their

·3· · · Ziebart sign still on.· So a lot of times -- a lot

·4· · · of times it will be both.

·5· · · · · · · · · ·So, I mean, I don't know that I know

·6· · · an exact amount, but I -- since I've been there, at

·7· · · least 5, maybe more.

·8· · · · · · · · · ·MR. JABE:· Okay.· Can we go off the

·9· · · record for a minute.

10· · · · · · · · · ·(Off the record at 1:21 p.m.)

11· · · · · · · · · ·(Back on the record at 1:21 p.m.)

12· BY MR. JABE:

13· Q· ·What investigations has Ziebart done since you began

14· · · working, to determine if Z Tech is using its

15· · · trademarks?

16· · · · · · · · · ·Let me first ask you, are you familiar

17· · · with Z Technologies Corporation?

18· A· ·Yes.

19· Q· ·And that's my client, you understand?

20· A· ·Yes.

21· Q· ·So the question is:· What investigation has Ziebart

22· · · done since you began working there to determine if Z

23· · · Tech is using its trademarks?

24· A· ·When you say "Z Tech" you mean Z Technologies?

25· Q· ·Yes.

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·1· A· ·Because there are other Z Techs --

·2· Q· ·My client, Z Technologies.

·3· · · · · · · · · ·MR. BRADENBURG:· All of this is to the

·4· · · extent it involves communications with attorneys, he

·5· · · is not entitled to know what those discussions are,

·6· · · what you did as a result of instructions from your

·7· · · attorneys.

·8· · · · · · · · · ·But to the extent you did it

·9· · · independent of the attorneys, you can answer those

10· · · questions.

11· · · · · · · · · ·Do you understand the distinction

12· · · there?

13· · · · · · · · · ·THE WITNESS:· Yes.

14· · · · · · · · · ·MR. JABE:· Are you instructing her not

15· · · to answer and disclose any investigations that

16· · · involved attorneys?

17· · · · · · · · · ·MR. BRADENBURG:· If she undertook any

18· · · investigation at the direction of an attorney,

19· · · that's work product and is not discoverable, at

20· · · least not the details of it.· If you ask "Have you

21· · · done investigations", but now you're asking what

22· · · type of investigations, which is your next step.

23· BY MR. JABE:

24· Q· ·Have you done any investigations since you began

25· · · working at Ziebart, to determine whether Z

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1126 Filed 07/07/16 Page 7 of 25
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·1· · · Technologies is violating Ziebart's trademarks?

·2· A· ·Yes.

·3· Q· ·When was the first time that you learned that Z Tech

·4· · · might be using one of Ziebart's trademarks?

·5· · · · · · · · · ·MR. BRADENBURG:· Again, you can answer

·6· · · that -- well, this is -- you can answer when.

·7· · · · · · · · · ·THE WITNESS:· 2011.

·8· BY MR. JABE:

·9· Q· ·And what was the trademark at issue?

10· A· ·There were, as I recall, three, the Ziebart name, Z

11· · · Guard and Z Shield.

12· Q· ·Prior to 2011, did you have any information

13· · · suggesting that Z Tech was violating any of

14· · · Ziebart's trademarks?

15· A· ·I didn't personally.· I don't know if anyone else

16· · · did.

17· Q· ·After learning the information you described about

18· · · the three names -- and what were those names again?

19· A· ·Ziebart, Z Guard and Z Shield.

20· Q· ·Can you spell those?

21· A· ·The way they spelled it -- the way Z Technologies

22· · · spelled it was Z, space, Guard.· I can't remember if

23· · · they -- if they -- I think they spelled it

24· · · G-U-A-R-D.· I know it was spelled differently than

25· · · ours, but we had a trademark called Z-GARD also and

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·1· · · I don't recall how they spelled Z Shield, how they

·2· · · did it exactly, but it was different than ours.

·3· Q· ·What did Ziebart do after learning this information?

·4· A· ·I believe I sent a cease and desist letter. I

·5· · · believe that -- that I did.

·6· Q· ·Was this something that you determined yourself from

·7· · · Google searches?

·8· A· ·No.

·9· Q· ·Did somebody else in the company determine that?

10· A· ·Yes.

11· Q· ·Who was that?

12· A· ·I believe it was our former employee, Mike Pino.

13· Q· ·Former employee contacted Ziebart --

14· A· ·He was employed at the time.· He's a former employee

15· · · now.· At the time he was employed and I believe he

16· · · was the one who brought it to my attention.

17· Q· ·So he saw Ziebart's -- sorry, he saw Z Tech's

18· · · website and brought to it your attention?

19· A· ·Yes.

20· Q· ·What was Mike Pino's job responsibilities at the

21· · · time?

22· A· ·I believe he was senior vice president.

23· Q· ·Was he senior vice president over any particular

24· · · subject matter?

25· A· ·No.· I believe he was senior vice president of the

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·1· · · corporation -- of Ziebart International.· But I

·2· · · think he primarily was selling franchise salesman.

·3· Q· ·Okay.· Can you recall any other instances where you

·4· · · learned that Z Tech might be using one of Ziebart's

·5· · · trademarks?

·6· A· ·Yes.

·7· Q· ·And what other instances can you recall?

·8· A· ·Formula Q.

·9· Q· ·And when did you learn that?

10· A· ·2014.

11· Q· ·And what did you learn about Z Tech's use of the

12· · · name Formula Q?

13· A· ·That there were some stickers with the name on it at

14· · · a facility in Indiana.

15· Q· ·And did you discover that personally?

16· A· ·No.

17· Q· ·Did someone else at Ziebart discover that?

18· A· ·Yes.

19· Q· ·And who was that?

20· A· ·I believe it was Thomas Wolfe Jr.· Someone had

21· · · brought it to his attention.

22· Q· ·Do you know who that was?

23· A· ·I believe it was somebody from Pure Asphalt.

24· Q· ·Do you know where in Indiana?

25· A· ·No.

Page 21

·1· Q· ·Do you know the business in Indiana or what the

·2· · · circumstances were?

·3· A· ·I don't recall.

·4· Q· ·Was this a Ziebart customer?

·5· A· ·I don't know.

·6· Q· ·And to make sure that I understand, what's your

·7· · · understanding of what the use of the name Formula Q

·8· · · was that you learned about at that time in 2014?

·9· · · What was happening with the name that you learned?

10· A· ·That they had the name on a -- there was a sticker

11· · · on a -- I can't remember if it was a barrel or if it

12· · · was some -- it was on something, there were two or

13· · · three of them at a -- at a place in Indiana.· That's

14· · · all I know.

15· Q· ·Had you ever heard about Z Tech using the name

16· · · "Formula Q" before then?

17· A· ·I hadn't personally.

18· Q· ·You hadn't personally heard?

19· A· ·I don't know if anybody else did, but I hadn't

20· · · myself.

21· Q· ·Sure.· Nobody said anything to you about it prior to

22· · · them?

23· A· ·Right.

24· Q· ·So you had no awareness that they were using the

25· · · name?

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Page 22

·1· A· ·Right.

·2· Q· ·Can you recall any other instances where you learned

·3· · · that Z Tech might be using one of Ziebart's

·4· · · trademarks?

·5· A· ·No.

·6· Q· ·Did you ever have any discussions with anyone at

·7· · · Ziebart about Z Tech using any of Ziebart's

·8· · · trademarks prior to the time you began working

·9· · · there?· And what I mean by that is, not before you

10· · · started working there did you have discussions, but

11· · · after you started working there, did you have any

12· · · discussions about the use of trademarks by Z Tech

13· · · before you had started?

14· · · · · · · · · ·MR. BRADENBURG:· Let me interject

15· · · here.· She is part of the litigation team, so

16· · · obviously throughout the litigation that has been

17· · · discussed.· And are you trying to confirm that

18· · · she -- you know, that that's been discussed

19· · · repeatedly during the litigation?

20· · · · · · · · · ·MR. JABE:· No.

21· · · · · · · · · ·MR. BRADENBURG:· Okay.· So, can you

22· · · limit it to some time frame before they talked to

23· · · attorneys or -- I don't know how you want to phrase

24· · · it.

25· BY MR. JABE:

Page 23

·1· Q· ·Outside of the context of this dispute, when you

·2· · · were working at Ziebart, did you have any

·3· · · discussions with people about Z Tech using Ziebart's

·4· · · trademarks in the past, other than the instances we

·5· · · just discussed?

·6· A· ·I -- I didn't -- I don't think so.· I -- I knew that

·7· · · we had been in a dispute with some -- some Z Tech

·8· · · people and that was -- they were dealers.· So if

·9· · · they did, that's who I thought they were talking

10· · · about.· I didn't know anything about Z Technologies

11· · · itself.

12· Q· ·So you didn't know there had been a prior to lawsuit

13· · · between Ziebart and Z Technologies?

14· A· ·They might have told me, but I didn't -- I didn't

15· · · understand what -- that it was this company. I

16· · · thought it was the Z Tech dealers.· So they might

17· · · have mentioned it, but I didn't -- I didn't -- I

18· · · didn't know until 2011 who they were, who your

19· · · client was.

20· Q· ·Did you know that at the time of the 2011 issues we

21· · · discussed, that Z Technologies was formed from a

22· · · part of Ziebart?

23· A· ·No.· I might have been told that, but I didn't

24· · · understand it.· I didn't understand it.· I still

25· · · thought it was the Z Tech dealers.

Page 24

·1· Q· ·What about by the time you got to the 2014 issue

·2· · · with respect to Formula Q you just mentioned, did

·3· · · you have that understanding then?

·4· A· ·Yeah, then I understood it.

·5· Q· ·Did you know that they had acquired the product

·6· · · Formula Q from Ziebart?

·7· · · · · · · · · ·MR. BRADENBURG:· Objection.· Are you

·8· · · asking hearsay?· If she -- she wasn't around in 2019

·9· · · (sic) so are you asking for hearsay?· That's what

10· · · I'm asking.· Because I'll object to hearsay.

11· · · · · · · · · ·MR. JABE:· This is a speaking

12· · · objection, and I don't even fully understand it.

13· BY MR. JABE:

14· Q· ·But, my question is:· In 2014, when you learned that

15· · · Z Tech was using the name "Formula Q", did you have

16· · · any understanding that Z Tech had purchased the

17· · · formula for Formula Q from Ziebart's Products Group

18· · · in the 1990s?

19· A· ·When it was initially brought to me, no.· As --

20· · · · · · · · · ·MR. BRADENBURG:· Well, objection.· If

21· · · you're going past the initial time, you have -- I

22· · · would object to the extent you're talking about any

23· · · attorney/client privileges.· Answer -- well, you can

24· · · answer his question.

25· · · · · · · · · ·Do you want to ask after the initial

Page 25

·1· · · period, which I think is what she's leaning towards?

·2· BY MR. JABE:

·3· Q· ·Without revealing any attorney/client

·4· · · communications, you eventually came to learn that Z

·5· · · Tech acquired the product formula --

·6· · · · · · · · · ·MR. BRADENBURG:· Objection.

·7· BY MR. JABE:

·8· Q· ·-- is that right?

·9· · · · · · · · · ·MR. BRADENBURG:· There's no testimony

10· · · to that effect.· Lacks personal knowledge.

11· · · · · · · · · ·MR. JABE:· I'm sorry, Bob, every

12· · · objection you're making is a speaking objection. I

13· · · don't mind cutting you some latitude with respect to

14· · · that from time to time, but these are not

15· · · appropriate objections.· You can object to form, and

16· · · if I have a question about what that objection is,

17· · · I'll ask.

18· · · · · · · · · ·But I would appreciate it if you would

19· · · refrain from objecting and speaking at length about

20· · · the issues and coaching the witness about the

21· · · answers.

22· · · · · · · · · ·I respect the privilege issues, and

23· · · I'm trying very hard to avoid them, and I have no

24· · · issues with the objections on that front.· But with

25· · · respect to the other issues, I would appreciate it

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1128 Filed 07/07/16 Page 9 of 25
Page 26

·1· ·if you would keep them shorter.

·2· · · · · · · · MR. HOOKER:· He can object to the form

·3· ·of the question like you said, but I don't think

·4· ·that his speaking objections are coaching the

·5· ·witness.· I think that he's making sure the witness

·6· ·is cautious or not invading or violating the

·7· ·attorney/client and work product privilege doctrine

·8· ·to privilege --

·9· · · · · · · · MR. BRADENBURG:· Mr. Jabe, maybe it's

10· ·because I have knowledge you don't have, but I know

11· ·that the attorneys were involved in this case almost

12· ·immediately.· And you can confirm that with her.

13· · · · · · · · So every time you're asking anything

14· ·beyond that initial moment, I'm getting very

15· ·uncomfortable.

16· · · · · · · · MR. JABE:· I understand that.

17· · · · · · · · MR. BRADENBURG:· So, you know, if you

18· ·want to confirm that the attorneys were involved

19· ·almost immediately afterwards, then you'll have a

20· ·better context for, you know, why I'm, as you say,

21· ·uncomfortable, and, you know, on edge here.

22· · · · · · · · MR. JABE:· I appreciate the privilege

23· ·issues.· I really do.· I have no problem whatsoever

24· ·with that.· I thought that some of the objections

25· ·were about other topics that you were talking about

Page 27

·1· · · some other things in addition to privilege.· That's

·2· · · the part I'm talking about.· Let's just continue

·3· · · and, you know, we -- I will continue to try to be

·4· · · mindful of privilege issues, and you should feel

·5· · · free to object with respect to those, and help me

·6· · · avoid asking questions that will reveal privilege

·7· · · information.

·8· · · · · · · · · ·MR. HOOKER:· I was just going to say,

·9· · · to the extent that no attorneys were involved, maybe

10· · · preface the questions like that.

11· · · · · · · · · ·MR. JABE:· Sure.· Sure.

12· BY MR. JABE:

13· Q· ·Let me ask you a question on a different topic.

14· · · · · · · · · ·Well, you became aware that Z Tech was

15· · · using the name Formula Q in 2014 because somebody

16· · · reported to you that they saw drums with a label on

17· · · it in Indiana?

18· A· ·Yes.

19· Q· ·Do you recall what month of the year that was?

20· A· ·July.

21· Q· ·Did anyone inform Z Technologies about that at the

22· · · time?

23· · · · · · · · · ·MR. BRADENBURG:· Again, to the extent

24· · · you can answer without referring to communications

25· · · with counsel, you may do so.

Page 28

·1· BY MR. JABE:

·2· Q· ·Did you notify anyone at Z Tech about that at the

·3· · · time?

·4· A· ·No.

·5· Q· ·Did you instruct anyone to notify Z Tech about that?

·6· · · · · · · · · ·MR. BRADENBURG:· To the extent you can

·7· · · answer that question without referring to

·8· · · communications with counsel, you may do so.

·9· · · · · · · · · ·THE WITNESS:· I don't think I can

10· · · answer it without what I talked about with our

11· · · attorney.

12· BY MR. JABE:

13· Q· ·Okay.· When did someone from Ziebart notify Z Tech

14· · · that it was using the name Formula Q, allegedly in

15· · · violation of Ziebart's trademarks?

16· · · · · · · · · ·MR. BRADENBURG:· If you can answer

17· · · that question without reference to communications

18· · · with counsel, you may do so.· Otherwise I'm going to

19· · · instruct you not to answer.

20· · · · · · · · · ·THE WITNESS:· I can't answer that

21· · · without talking about with the attorney.

22· BY MR. JABE:

23· Q· ·You can't tell me when Ziebart told Z Tech that it

24· · · was violating its trademarks?

25· A· ·We didn't contact Z Tech.· Our attorneys did.

Page 29

·1· Q· ·Do you know when that happened?

·2· · · · · · · · · ·MR. BRADENBURG:· If you can answer

·3· · · that without communications with counsel, you may do

·4· · · so.· Otherwise I'd instruct you not to answer.

·5· · · · · · · · · ·THE WITNESS:· I can't answer without

·6· · · talking about what I talked about with our attorney.

·7· · · · · · · · · ·MR. JABE:· Can we go off the record

·8· · · for a minute?

·9· · · · · · · · · ·(Off the record at 1:40 p.m.)

10· · · · · · · · · ·(Back on the record at 1:43 p.m.)

11· BY MR. JABE:

12· Q· ·Why did Ziebart apply for trademark registration for

13· · · Formula Q in 2014?

14· · · · · · · · · ·MR. BRADENBURG:· I instruct the

15· · · witness, if she can answer that without reference to

16· · · attorney/client communication, you may answer.

17· · · Otherwise, I'd instruct you not to answer.

18· · · · · · · · · ·THE WITNESS:· It was something our

19· · · attorney --

20· · · · · · · · · ·MR. BRADENBURG:· If it's a

21· · · communication with counsel, I'd instruct you not to

22· · · answer.

23· · · · · · · · · ·THE WITNESS:· Oh, I'm sorry.

24· · · · · · · · · ·MR. BRADENBURG:· So I'm instructing

25· · · her not to answer.

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1129 Filed 07/07/16 Page 10 of 25
Page 30

·1· BY MR. JABE:

·2· Q· ·Do you know who made the decision to apply for

·3· · · trademark registration at Ziebart?

·4· · · · · · · · · ·MR. BRADENBURG:· If that was part of a

·5· · · communication with counsel in anticipation of

·6· · · litigation, I would instruct the witness not to

·7· · · answer.· If it's done for another reason not

·8· · · involving counsel, you may answer.

·9· BY MR. JABE:

10· Q· ·So the question is:· Who at Ziebart made the

11· · · decision to seek trademark registration for Formula

12· · · Q?

13· A· ·It was between our -- our attorney, both of us.· Our

14· · · attorney and us.

15· Q· ·Would you be the person at Ziebart who was making

16· · · that decision?

17· · · · · · · · · ·MR. BRADENBURG:· Objection.· She just

18· · · said it was involving counsel.

19· · · · · · · · · ·MR. JABE:· I'm not asking about

20· · · counsel.· I'm not asking about that part of it.· I'm

21· · · asking who the Ziebart person is that is directing

22· · · counsel.

23· · · · · · · · · ·MR. BRADENBURG:· Are you saying who

24· · · was involved in the decision?· You can find out

25· · · names.· You can't find out substance.· You're asking

Page 31

·1· ·who made the decision.

·2· · · · · · · · MR. JABE:· Who made it?

·3· · · · · · · · MR. BRADENBURG:· And a decision was

·4· ·made in conjunction with counsel, that involves

·5· ·communications.· You can ask if she was involved in

·6· ·the process, if she was involved in discussions with

·7· ·counsel regarding that subject matter.

·8· · · · · · · · You know, and -- but you can't go into

·9· ·what the substance was.

10· · · · · · · · MR. JABE:· I'm not going into the

11· ·substance.

12· · · · · · · · MR. BRADENBURG:· Yes, you are.· You're

13· ·saying who made a decision?· That's substantive.

14· ·The decision is substantive.

15· · · · · · · · MR. JABE:· The privilege doesn't

16· ·protect that.· The question is:· Who made the

17· ·decision to seek trademark registration; was it Ms.

18· ·Lipsky, was it Tom Wolfe, who did that?

19· · · · · · · · MR. HOOKER:· The issue is that's a

20· ·legal decision to seek --

21· · · · · · · · MR. JABE:· I'm not asking about the

22· ·legal connection.· I'm just asking who within the

23· ·company --

24· · · · · · · · MR. HOOKER:· The decision itself

25· ·involves legal expertise.

Page 32

·1· · · · · · · · MR. JABE:· I'm not asking about it.

·2· ·I'm asking who --

·3· · · · · · · · MR. BRADENBURG:· But she's already

·4· ·told you it was a joint decision between counsel and

·5· ·her.· So you can't go into what decisions, what

·6· ·occurred within that purview.

·7· · · · · · · · MR. JABE:· Counsel provide advice.

·8· ·They don't make decisions.· Clients make decisions.

·9· ·And I'm asking who at the client made the decision.

10· ·It's not a privileged communication.· I'm not

11· ·asking --

12· · · · · · · · MR. BRADENBURG:· You're assuming that

13· ·attorneys don't make decisions.· I know in many

14· ·cases that client -- attorneys do make decisions.

15· ·And in this case, she said attorneys were involved

16· ·in, you know, the decision-making process.· So I'm

17· ·trying not to get you into what discussions were

18· ·had.

19· · · · · · · · MR. HOOKER:· Your answer assumes that

20· ·in-house counsel at a client did not make the

21· ·decision.· They're still part of the client.

22· ·They're still attorneys as well.

23· · · · · · · · MR. JABE:· I still don't think that's

24· ·privilege.

25· · · · · · · · MR. BRADENBURG:· I obviously know you

Page 33

·1· · · don't think it.· But I am very hesitant to let her

·2· · · testify on communications with counsel.

·3· · · · · · · · · ·MR. JABE:· Okay.

·4· · · · · · · · · ·MR. BRADENBURG:· Now you've seen what

·5· · · was filed.· You can ask her things like "Did you

·6· · · sign the application?"· I don't know if she did or

·7· · · not.· You know, factual-based, things like that.

·8· · · But -- you can ask if the application was filed.

·9· · · That's factual.· But you can't ask why or who

10· · · decided if it was, you know, work product-related.

11· BY MR. JABE:

12· Q· ·Did anyone at Ziebart tell Z Tech that it was

13· · · applying for trademark registration for Formula Q?

14· A· ·A notice goes out from the Trademark Office, but

15· · · ourselves, I don't believe we did.

16· Q· ·Did anybody write a letter?

17· A· ·I don't think so, no.

18· Q· ·Are you aware of anybody making a phone call?

19· A· ·I don't know that.· I don't know if anyone did.

20· Q· ·But you didn't?

21· A· ·I didn't.

22· Q· ·And you were not aware at the time that Z Tech had

23· · · been using the name for 20 years?

24· · · · · · · · · ·MR. BRADENBURG:· Objection. I

25· · · instruct the witness not to answer to the extent it

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1130 Filed 07/07/16 Page 11 of 25
Page 34

·1· · · involves communications with counsel.· If you can

·2· · · answer not based upon communications involving

·3· · · counsel, you may do so.

·4· · · · · · · · · ·THE WITNESS:· Can you repeat the

·5· · · question.

·6· · · · · · · · · ·MR. JABE:· Can you read it back.

·7· · · · · · · · · ·(The indicated portion of the record

·8· · · was read back as follows:

·9· · · · · · · · · ·"Q· · And you were not aware at the

10· · · time that Z Tech had been using the name for 20

11· · · years?")

12· · · · · · · · · ·MR. BRADENBURG:· Why don't you clarify

13· · · what time you're referring to "At the time."

14· BY MR. JABE:

15· Q· ·When the trademark registration application was

16· · · filed in 2014, were you aware that Z Tech had been

17· · · using the name for 20 years?

18· · · · · · · · · ·MR. BRADENBURG:· I will instruct the

19· · · witness not to answer to the extent it involves

20· · · communications with counsel.· If you can answer

21· · · without reference to communications with counsel,

22· · · you may do so.

23· · · · · · · · · ·THE WITNESS:· No.

24· BY MR. JABE:

25· Q· ·Let me show you an Exhibit.

Page 35

·1· · · · · · · · · ·(Deposition Exhibit No. 13 was marked

·2· · · for identification.)

·3· · · · · · · · · ·MR. BRADENBURG:· This is 13?

·4· · · · · · · · · ·THE COURT REPORTER:· Yes.

·5· BY MR. JABE:

·6· Q· ·Thisdocument is Bates stamped ZIE 272 to ZIE 274.

·7· · · And lawyers refer to Bates stamping as the serial

·8· · · numbers at the bottom corners, pages.

·9· · · · · · · · · ·Did I read that correctly, 272 through

10· · · 274?

11· A· ·Yes.

12· Q· ·This document has your signature on it, correct?

13· A· ·Yes.

14· Q· ·And this is a letter you sent to Ellis Breskman of Z

15· · · Tech on May 19th of 2011, correct?

16· A· ·Yes.

17· Q· ·What caused you to write this letter?

18· A· ·I believe this is when Mike Pino brought to my

19· · · attention that our names were being used on -- on

20· · · the website home page of Z Technologies.

21· Q· ·And you say that Z Tech is infringing Ziebart's

22· · · trademarks by using the names Z Shield and Z Guard,

23· · · correct?

24· A· ·Correct.

25· Q· ·And here, Z Shield is spelled Z, space, S-H-I-E-L-D?

Page 36

·1· A· ·Correct.

·2· Q· ·And it's spelled that way at this time by Z Tech and

·3· · · Ziebart?

·4· A· ·We have the dash.

·5· Q· ·You have a dash between the Z and the S?

·6· A· ·Right.

·7· Q· ·And Z Tech is using the name Z Guard, capital Z,

·8· · · capital G-U-A-R-D with a space between the Z and G,

·9· · · correct?

10· A· ·Correct.

11· Q· ·And Ziebart's version is capital Z-E-E-G-A-R-D,

12· · · right?

13· A· ·Correct.

14· Q· ·And you say that Z Tech is infringing Ziebart's

15· · · trademarks by using the name Z Shield and Z Guard,

16· · · right?

17· A· ·Right.

18· Q· ·And you say in your letter that Ziebart owns those

19· · · names, correct?

20· A· ·Right.· Yep.

21· Q· ·What was the basis for the allegation that Z Tech

22· · · was infringing the trademarks of Ziebart?

23· A· ·What was the basis?· It was they had

24· · · their -- they're the same name.· They're the same

25· · · sounding name.· They're just spelled slightly

Page 37

·1· · · differently.

·2· Q· ·Before you sent the letter, did you make any

·3· · · inquiries as to whether Z Tech had the right to use

·4· · · those names?

·5· A· ·I might have looked on the trademark -- the U.S.

·6· · · Trademark Office website to see if they had a

·7· · · registered trademark for them.

·8· Q· ·Did you ask anybody at Ziebart whether they knew if

·9· · · Z Tech had been using those names before?

10· A· ·No.

11· Q· ·Do you have any awareness of whether they had been

12· · · using those names for many years prior to you

13· · · signing the letter?

14· A· ·No.

15· Q· ·You also reference a 2009 opinion by the Trademark

16· · · Trial and Appeal Board on the letter, it's on the

17· · · first page; is that right?

18· A· ·Yes.

19· Q· ·Why did you quote that opinion?

20· A· ·I believe that decision had just -- maybe not. I

21· · · thought maybe it had just come down.· I think I was

22· · · trying to show that -- that they were saying that

23· · · the Z Shield name was ours, Z-Liner name was ours,

24· · · that there was something unique about the fact that

25· · · -- that we used -- the way -- the way we spelled it;

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1131 Filed 07/07/16 Page 12 of 25
Page 38

·1· · · and that they were close to violating that.

·2· Q· ·And this opinion, as I understand this paragraph, is

·3· · · essentially concluding that the name Z Tech used by

·4· · · another party, is violating Ziebart's trademark

·5· · · rights; is that understanding correct?

·6· A· ·Yes.

·7· Q· ·That's how you understood it?

·8· A· ·Yes.

·9· Q· ·And it appears from this portion quoted that Ziebart

10· · · was taking a position in that dispute that the name

11· · · Z Tech used by someone else violated Ziebart's

12· · · trademarks; is that your understanding?

13· A· ·Yes.

14· Q· ·To your knowledge, has Ziebart ever claimed that my

15· · · client, Z Tech, cannot use the name Z Tech?

16· · · · · · · · · ·MR. JABE:· Objection to the extent it

17· · · requires discussions with counsel.· If it doesn't

18· · · involve discussions with counsel, you may answer.

19· · · · · · · · · ·THE WITNESS:· Can you say that one

20· · · more time.

21· · · · · · · · · ·MR. JABE:· Can you read the question

22· · · back, please.

23· · · · · · · · · ·(The indicated portion of the record

24· · · was read back as follows:

25· · · · · · · · · ·"Q· · To your knowledge, has Ziebart

Page 39

·1· · · ever claimed that my client, Z Tech, cannot use the

·2· · · name Z Tech?")

·3· · · · · · · · · ·THE WITNESS:· No.

·4· BY MR. JABE:

·5· Q· ·Did Ziebart tell the Trademark Trial and Appeal

·6· · · Board that my client Z Tech has been using that name

·7· · · since 1996 without objection from Ziebart?

·8· · · · · · · · · ·MR. BRADENBURG:· What date was that?

·9· · · · · · · · · ·MR. JABE:· 1996.

10· · · · · · · · · ·THE WITNESS:· I'm sorry, can you

11· · · repeat the question?

12· BY MR. JABE:

13· Q· ·Did Ziebart tell the Trademark Trial and Appeal

14· · · Board that my client, Z Tech, has been using the

15· · · name Z Tech since 1996 without objection from

16· · · Ziebart?

17· A· ·I don't know.

18· Q· ·Why would Ziebart have the right to control a third

19· · · party's use of my client's name?

20· · · · · · · · · ·MR. BRADENBURG:· Excuse me, can you

21· · · repeat that?

22· · · · · · · · · ·(The indicated portion of the record

23· · · was read back as follows:

24· · · · · · · · · ·"Q· · Why would Ziebart have the right

25· · · to control a third party's use of my client's

Page 40

·1· · · name?")

·2· · · · · · · · · ·MR. BRADENBURG:· Same objection.· If

·3· · · it involves communications with counsel, you're not

·4· · · to answer.· If you can answer it otherwise, you may

·5· · · do so.

·6· · · · · · · · · ·THE WITNESS:· I'm sorry, can you

·7· · · repeat that question one more time?

·8· · · · · · · · · ·(The indicated portion of the record

·9· · · was read back as follows:

10· · · · · · · · · ·"Q· · Why would Ziebart have the right

11· · · to control a third party's use of my client's

12· · · name?")

13· · · · · · · · · ·MR. BRADENBURG:· I object.· You're

14· · · asking for a legal conclusion.

15· · · · · · · · · ·MR. JABE:· I appreciate the objection.

16· · · · · · · · · ·THE WITNESS:· I don't know.

17· BY MR. JABE:

18· Q· ·Do you believe that my client is not allowed to use

19· · · the name Z Tech?

20· · · · · · · · · ·MR. BRADENBURG:· Mr. Jabe, this is far

21· · · afield from any issue here.· It has no relevance.

22· · · We've been going on about use by Z Tech, which is

23· · · not an issue in this litigation.· If there's some

24· · · relationship -- but you're asking her for legal

25· · · conclusions, and she's a non-attorney, and you know,

Page 41

·1· ·I don't see what relevance this has to it.· And I'm

·2· ·inclined to ask a court to restrict the issues to

·3· ·this case, because I don't want legal admissions

·4· ·being made by a non-attorney on behalf of Ziebart.

·5· · · · · · · · But if -- I just don't understand

·6· ·where we're going with this, is my bottom line.

·7· · · · · · · · MR. JABE:· It's in the letter and I'm

·8· ·trying to understand why, and --

·9· · · · · · · · MR. BRADENBURG:· Yes, but that letter

10· ·doesn't relate to this lawsuit.

11· · · · · · · · MR. JABE:· Well, sure it does.

12· · · · · · · · MR. BRADENBURG:· No, it doesn't.

13· · · · · · · · MR. JABE:· Yes, it does.

14· · · · · · · · MR. BRADENBURG:· Are you saying we're

15· ·preventing you from using Z Tech in this lawsuit?

16· · · · · · · · MR. JABE:· This is a letter --

17· · · · · · · · MR. BRADENBURG:· Yes.

18· · · · · · · · MR. JABE:· -- that leads up to the

19· ·2012 settlement agreement which is an issue in the

20· ·case.

21· · · · · · · · MR. BRADENBURG:· Then ask about the

22· ·letter.· Yes, but not as to whether we can sue you

23· ·on Z Tech, which is not an issue to this case, and

24· ·is not a subject matter of this letter or any other

25· ·letter or document in this litigation.

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1132 Filed 07/07/16 Page 13 of 25
Page 42

·1· · · · · · · · · ·I mean, if you ask factual questions,

·2· · · she can try to answer.· But asking her legal

·3· · · opinions on something that's not relevant to this

·4· · · litigation is very worrisome to me as an attorney.

·5· · · · · · · · · ·MR. JABE:· I have another Exhibit for

·6· · · you, that is 14.

·7· · · · · · · · · ·(Deposition Exhibit No. 14 was marked

·8· · · for identification.)

·9· BY MR. JABE:

10· Q· ·So you've been handed Z Tech's Exhibit Number 14.

11· · · This document is Bates stamped ZIE 994 to ZIE 997;

12· · · is that right?

13· A· ·Yes.

14· Q· ·And this document has your signature on it; is that

15· · · right?

16· A· ·Yes.

17· Q· ·And this is a letter that you sent to Ellis Breskman

18· · · of Z Tech on July 7th, 2011; is that right?

19· A· ·Yes.

20· Q· ·And what caused you to write this letter?

21· · · · · · · · · ·MR. BRADENBURG:· Let me interject here

22· · · that if you can answer that without referring to

23· · · advice from counsel, you may do so.· Otherwise, I

24· · · will instruct you you're not to answer.

25· · · · · · · · · ·THE WITNESS:· (Reviewing.)· I -- I

Page 43

·1· · · don't know.· I don't remember.

·2· BY MR. JABE:

·3· Q· ·In the letter, you identify specific alleged

·4· · · trademark violations on Z Tech's website to which

·5· · · Ziebart is objecting; is that correct?

·6· A· ·Yes.

·7· Q· ·The alleged trademark violations occur in several

·8· · · places on the website; is that right?

·9· A· ·Yes.

10· Q· ·And you quote those portions of the website,

11· · · correct?

12· A· ·Yes.

13· Q· ·And you were quoting those to show Z Tech where the

14· · · problems on the website were, right?

15· A· ·Right.

16· Q· ·Did you ever tell Z Tech about any other specific

17· · · portions of Z Tech's website to which Ziebart

18· · · objected?

19· A· ·Did I ever or at this --

20· Q· ·Ever?

21· A· ·No.

22· · · · · · · · · ·MR. JABE:· I'm handing you Z Tech's

23· · · Exhibit 15.

24· · · · · · · · · ·(Deposition Exhibit No. 15 was marked

25· · · for identification.)

Page 44

·1· BY MR. JABE:

·2· Q· ·And this document is Bates stamped ZIE 280 to ZIE

·3· · · 282; is that right?

·4· A· ·Yes.

·5· Q· ·Have you seen this document before?

·6· A· ·Yes.

·7· Q· ·And it's a 2012 settlement agreement between Ziebart

·8· · · and Z Tech, correct?

·9· A· ·Yes.

10· Q· ·Okay.· And this relates to the dispute that was

11· · · subject of your letters of May 19th and July 7th,

12· · · right?

13· A· ·Yes.

14· Q· ·In the middle of the page, five paragraphs down, it

15· · · says that Z Technologies is the owner of the mark Z

16· · · Shield in certain context; is that correct?

17· A· ·Correct.

18· Q· ·And then it says in the next paragraph, Z

19· · · Technologies is the owner of Z Guard, the mark Z

20· · · Guard in certain context also; is that correct?

21· A· ·Correct.

22· Q· ·Now, in your May 19th, 2011 letter, you said that

23· · · Ziebart owned those names and that Z Tech was

24· · · infringing by using them; is that correct?

25· A· ·Yes.

Page 45

·1· Q· ·And in the letter you didn't acknowledge that Z Tech

·2· · · had any right to the names; is that right?

·3· A· ·I didn't say that.· I just -- I said they were

·4· · · infringing on ours.· I didn't say they -- I

·5· · · guess -- I guess -- I don't know if that infers they

·6· · · didn't have a right.· I was just saying they were

·7· · · infringing on ours.

·8· Q· ·Was your letter on May 19th, 2011 mistaken?

·9· · · · · · · · · ·MR. BRADENBURG:· Objection.· That's

10· · · getting into all kinds of legal questions.

11· · · · · · · · · ·You're -- the way you've done it is

12· · · there's a legal document that you know was

13· · · negotiated by counsel, and now you're using that to

14· · · suggest -- go back in time.· You know, you're

15· · · impacting all kinds of attorney communications that

16· · · occurred during that time period.· And I would

17· · · instruct her not to answer.· There's just no way

18· · · that can be answered without impacting

19· · · attorney/client communications.

20· BY MR. JABE:

21· Q· ·Section 5 of the settlement agreement on page ZIE

22· · · 281, states that Z Tech will remove the name

23· · · Ziebart, Z Guard and Z Shield from its website

24· · · within 30 days; is that right?

25· A· ·Yes.

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1133 Filed 07/07/16 Page 14 of 25
Page 46

·1· Q· ·Now, in this lawsuit, Ziebart is claiming that Z

·2· · · Tech has breached this agreement by using Ziebart's

·3· · · name in meta tags on Ziebart's website; is that

·4· · · right?

·5· A· ·Yes.

·6· Q· ·Ziebart is claiming that Z Tech should have removed

·7· · · Ziebart's name from the meta tags on the website; is

·8· · · that right?

·9· A· ·Yes.

10· Q· ·What is meta tag?

11· A· ·I don't know.· I didn't draft the lawsuit.· Our

12· · · attorneys drafted it.

13· Q· ·So you don't know what a meta tag is?

14· A· ·I know it's something that identifies you on the

15· · · website.

16· Q· ·You never told Z Tech in your 2011 letters that

17· · · Ziebart objected to Z Tech's use of meta tags; is

18· · · that right?

19· A· ·Correct.

20· Q· ·Why not?

21· A· ·I didn't know what they were.· I never -- I -- I

22· · · didn't know what they were.· That wasn't until

23· · · counsel drafted the Complaint.

24· · · · · · · · · ·MR. BRADENBURG:· You don't want to go

25· · · into discussions with counsel.· So the answer is

Page 47

·1· · · what happened at the time you wrote the letter.

·2· BY MR. JABE:

·3· Q· ·Yeah, just stick to that.

·4· A· ·I didn't know what they were.

·5· Q· ·You didn't know that they were there?

·6· A· ·Right.

·7· Q· ·If Z Tech thought that the parts of the website it

·8· · · was supposed to change were the parts you mentioned

·9· · · specifically in your letters, wouldn't that be

10· · · reasonable of Z Tech?

11· · · · · · · · · ·MR. BRADENBURG:· Objection.· You're

12· · · asking what someone else thought.

13· · · · · · · · · ·MR. JABE:· Bob --

14· · · · · · · · · ·MR. BRADENBURG:· You're asking her --

15· · · · · · · · · ·MR. JABE:· I understand, but it's a

16· · · speaking objection.· You can object and I note your

17· · · objection.

18· · · · · · · · · ·MR. BRADENBURG:· That's what I said,

19· · · then you started talking to me, so I started talking

20· · · back.· All I said was, it's asking what someone

21· · · else --

22· · · · · · · · · ·MR. JABE:· I didn't start talking back

23· · · to you.· I asked a question and you started

24· · · providing a --

25· · · · · · · · · ·MR. BRADENBURG:· I think your record

Page 48

·1· · · would indicate you started talking to me, but be

·2· · · that as it may.

·3· BY MR. JABE:

·4· Q· ·Let me restate the question.

·5· · · · · · · · · ·If Z Tech thought the parts of its

·6· · · website it was supposed to change were the parts you

·7· · · specifically mentioned in your letters, wouldn't

·8· · · that be reasonable of Z Tech?

·9· A· ·I don't know.

10· Q· ·Why don't you know?

11· A· ·I don't know what they know about computers and

12· · · how -- who their computer person is and what he

13· · · would have removed.· I don't know if --

14· Q· ·I'd like to understand why the meta tags were

15· · · discovered prior to this case, but not in 2011 when

16· · · you were writing the letters.· Can you explain that?

17· · · · · · · · · ·MR. BRADENBURG:· I think it's been

18· · · asked and answered, but you may answer.

19· BY MR. JABE:

20· Q· ·I understand that in 2011 you didn't know what meta

21· · · tags were; is that right?

22· A· ·(Shook head in an affirmative manner.)

23· Q· ·You didn't think to look for them; is that right?

24· A· ·Yes.

25· Q· ·What was different in 2014 or 2015, I should say?

Page 49

·1· · · What was different?

·2· · · · · · · · · ·MR. BRADENBURG:· There's all kinds of

·3· · · assumptions in that.

·4· BY MR. JABE:

·5· Q· ·How was it discovered in 2015?

·6· · · · · · · · · ·MR. BRADENBURG:· If you can answer

·7· · · that without discussions with counsel, you may do

·8· · · so.· If your knowledge of how it was discovered

·9· · · relies upon communications with counsel, I'd

10· · · instruct you not to answer.

11· BY MR. JABE:

12· Q· ·Did you have assistance of counsel in checking the

13· · · website?· Who -- who did that?· Who checked the

14· · · website in 2015 to make that determination of what

15· · · terms were there?

16· · · · · · · · · ·MR. BRADENBURG:· If you can answer

17· · · that based upon your own knowledge, you may do so.

18· · · If it involves communications with counsel, I'd

19· · · instruct you not to answer.

20· · · · · · · · · ·THE WITNESS:· I can't answer without

21· · · counsel --

22· BY MR. JABE:

23· Q· ·You can't tell me how it was discovered?

24· · · · · · · · · ·MR. BRADENBURG:· I'd instruct her not

25· · · to answer.· She just said it was based on

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1134 Filed 07/07/16 Page 15 of 25
Page 50

·1· · · communications with counsel.

·2· · · · · · · · · ·MR. JABE:· Okay.

·3· · · · · · · · · ·MR. BRADENBURG:· Let me interject

·4· · · here.· We're in phase one, which is a very limited

·5· · · area of discovery, that is discovery related to

·6· · · contract interpretation, agreements from the 1996

·7· · · and 2001 litigation settlement, and pleadings in the

·8· · · 2001 litigation and discovery related to when the

·9· · · parties knew or should have known of the asserted

10· · · claims.· I'm not sure how your discovery is related

11· · · to those topics.

12· · · · · · · · · ·MR. JABE:· It is.

13· · · · · · · · · ·MR. BRADENBURG:· Okay.

14· · · · · · · · · ·MR. JABE:· Plus I'm almost finished,

15· · · but --

16· · · · · · · · · ·MR. BRADENBURG:· I've been giving you

17· · · some latitude, but I don't see it.· But if you're

18· · · almost finished, we'll carry through.

19· BY MR. JABE:

20· Q· ·Well, I would like to understand how or why the meta

21· · · tags were discovered in 2015 but not before. I

22· · · understand part of that, I think, which is that you

23· · · weren't aware of them and didn't know what they were

24· · · in 2011.· Is that part correct?

25· A· ·Yes.

Page 51

·1· Q· ·And then in 2015, others may have been involved,

·2· · · counsel and others, it was discovered; is that

·3· · · correct?· It wasn't just you in 2015?

·4· · · · · · · · · ·MR. BRADENBURG:· You're asking a

·5· · · factual question, it was discovered in 2014?

·6· · · · · · · · · ·MR. JABE:· '14.· Okay.

·7· · · · · · · · · ·MR. BRADENBURG:· So that's a "yes" or

·8· · · "no" answer.

·9· BY MR. JABE:

10· Q· ·I'm sorry, I don't know if I covered that.

11· · · · · · · · · ·When was the use of the meta tags

12· · · discovered?· Because I thought it was 2015, because

13· · · that's the first time Mr. Brandenburg mentioned it

14· · · to me.· So if it was before that, I'm interested to

15· · · know that.· When was that?

16· · · · · · · · · ·MR. BRADENBURG:· Hold on.· There's

17· · · attorneys all over at that point, so I'm trying to

18· · · figure out where we are.

19· · · · · · · · · ·What's the question right now?

20· BY MR. JABE:

21· Q· ·The question is:· When did Ziebart discover that the

22· · · word "Ziebart" was in meta tags on Z Tech's website?

23· · · · · · · · · ·MR. BRADENBURG:· I'm going to instruct

24· · · her not to answer to the extent it involves

25· · · communications with counsel.

Page 52

·1· · · · · · · · · ·If you want to ask her when she found

·2· · · out, that's a different question.

·3· BY MR. JABE:

·4· Q· ·When did you find out?

·5· A· ·I don't know if it was 2014 or 2015.· Some time

·6· · · between 2014 and 2015.

·7· Q· ·You didn't personally discover it --

·8· A· ·Correct.

·9· Q· ·-- by searching on the website?

10· A· ·Correct.

11· Q· ·You had assistance of some kind?

12· A· ·Correct.

13· Q· ·Why did you have assistance then, but not in 2011?

14· A· ·Well, we did in 2011.· We had attorneys involved.

15· Q· ·So --

16· A· ·Maybe not initially when I sent the first letter,

17· · · but shortly thereafter.

18· Q· ·So even though you had the assistance of attorneys

19· · · involved in 2011, the meta tags were not discovered?

20· · · · · · · · · ·MR. BRADENBURG:· Hold on.· You can ask

21· · · her what her knowledge is.· You're asking more

22· · · generally when things occurred or how they occurred,

23· · · and there were attorneys all over in that time.· And

24· · · so I'm trying to let you get the information you're

25· · · entitled to, but I think you're asking, based on my

Page 53

·1· ·knowing of the situation, things she got from

·2· ·counsel.· Can you sharpen that a little bit or -- to

·3· ·the extent you can answer that without referring to

·4· ·counsel as -- you can answer that, but if it

·5· ·involves the involvement of counsel, I'd instruct

·6· ·you not to answer.

·7· · · · · · · · THE WITNESS:· Can you repeat the

·8· ·question?

·9· · · · · · · · MR. JABE:· Sure.· What was the last

10· ·question pending?

11· · · · · · · · (The indicated portion of the record

12· ·was read back as follows:

13· · · · · · · · "Q· · So even though you had the

14· ·assistance of attorneys involved in 2011, the meta

15· ·tags were not discovered?")

16· · · · · · · · MR. BRADENBURG:· And that's assuming

17· ·some facts in (sic) evidence.

18· · · · · · · · MR. JABE:· All of these are speaking

19· ·objections, you're aware of that.

20· · · · · · · · MR. BRADENBURG:· No, it's assuming --

21· ·you're assuming they weren't discovered at that

22· ·time.

23· · · · · · · · MR. JABE:· The word is "objection."

24· · · · · · · · MR. BRADENBURG:· Yes.

25· · · · · · · · MR. JABE:· And then you say "As to

Case 5:15-cv-11745-JEL-APP ECF No. 56-20, PageID.1135 Filed 07/07/16 Page 16 of 25
Page 54

·1· ·form."

·2· · · · · · · · MR. BRADENBURG:· Well, there's a

·3· ·predication.· You're asking why they weren't

·4· ·discovered there.

·5· · · · · · · · MR. JABE:· I appreciate --

·6· · · · · · · · MR. BRADENBURG:· The question is were

·7· ·they discovered at that time or not; and then you

·8· ·can ask why they weren't.

·9· · · · · · · · MR. JABE:· I think I tried that and it

10· ·got derailed --

11· · · · · · · · MR. BRADENBURG:· I think it --

12· · · · · · · · MR. JABE:· -- by a bunch of other

13· ·objections.

14· · · · · · · · MR. BRADENBURG:· Yeah, and I think it

15· ·will get derailed this time too, but you're making

16· ·an assumption that has no predicate.

17· · · · · · · · MR. JABE:· Let's take a break for a

18· ·minute.

19· · · · · · · · (Off the record at 2:19 p.m.)

20· · · · · · · · (Back on the record at 2:32 p.m.)

21· · · · · · · · MR. JABE:· So, for the record, I do

22· ·not agree with Mr. Brandenburg's invocation of the

23· ·privilege in all of the circumstances where he has

24· ·done so.· But I think we can take that up at another

25· ·time if necessary.· I understand he's instructed the

Page 55

·1· · · witness not to answer a number of questions because

·2· · · of privilege concerns, which I appreciate, and

·3· · · there's nothing I can actually do about that under

·4· · · these circumstances.

·5· · · · · · · · · ·So I will move on and I have only a

·6· · · few questions remaining relating to the things we

·7· · · were just discussing, and hopefully framed in a way

·8· · · that doesn't come even close to implicating

·9· · · privilege issues.

10· BY MR. JABE:

11· Q· ·In 2011, did anyone make an effort to determine

12· · · whether Z Tech was using Ziebart's name and meta

13· · · tags?

14· · · · · · · · · ·MR. BRADENBURG:· To the extent you can

15· · · answer that question based upon information not

16· · · provided by counsel, you may do so.· Otherwise I'm

17· · · instructing you not to answer.

18· · · · · · · · · ·THE WITNESS:· I don't know.

19· BY MR. JABE:

20· Q· ·In 2014, Ziebart did make an effort to determine

21· · · whether Z Tech was using Ziebart's name in meta

22· · · tags, right?

23· · · · · · · · · ·MR. BRADENBURG:· Again, to the extent

24· · · you can answer that question based upon your

25· · · knowledge, you may do so.· To the extent it is based

Page 56

·1· ·upon communications with counsel, I'd instruct you

·2· ·not to answer.

·3· · · · · · · · THE WITNESS:· It's based on

·4· ·discussions with counsel.· I can't answer.

·5· · · · · · · · MR. BRADENBURG:· I'd instruct her not

·6· ·to answer.

·7· · · · · · · · MR. JABE:· I have no further

·8· ·questions.

·9· · · · · · · · MR. BRADENBURG:· I have no questions.

10· · · · · · · · MR. HOOKER:· I have no questions.

11· · · · · · · · (The deposition of Patricia Lipsky

12· ·concluded at or about the hour of 2:34 p.m.)

13

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Page 57

·1· · · · · · · · · · CERTIFICATE OF NOTARY

·2· · · STATE OF MICHIGAN· )

· · · · · · · · · · · · · ·) SS

·3· · · COUNTY OF GENESEE· )

·4· · · · · · · · I, Quentina Rochelle Snowden, a Notary

·5· · · Public in and for the above county and state, do

·6· · · hereby certify that the above deposition was

·7· · · taken before me at the time and place

·8· · · hereinbefore set forth; that the witness was by

·9· · · me first duly sworn to testify to the truth, and

10· · · nothing but the truth; that the foregoing

11· · · questions asked and answers made by the witness

12· · · were duly recorded by me stenographically and

13· · · reduced to computer transcription; that this is a

14· · · true, full and correct transcript of my

15· · · stenographic notes so taken; and that I am not

16· · · related to, nor of counsel to either party nor

17· · · interested in the event of this cause.

18

19· ·Dated:· May 31, 2016

20

21· · · · · · · · · · · · ·___________________________

· · · · · · · · · · · · · ·Quentina Rochelle Snowden

22· · · · · · · · · · · · ·CSR-5519, Notary Public

· · · · · · · · · · · · · ·Genesee County, Michigan

23· · · · · ·My Commission expires:· 1-04-18

24

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