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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LORI WAKEFIELD, ) 

 ) 

Plaintiff, ) 3:15-cv-01857-SI 

 ) 

vs. ) April 8, 2019 

 ) 

VISALUS, INC., ) Portland, Oregon 

 ) 

Defendant. ) 

(Pretrial Conference Hearing) 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE MICHAEL H. SIMON 

UNITED STATES DISTRICT COURT JUDGE 

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 1 of 91
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APPEARANCES 

FOR THE PLAINTIFF: Greg Dovel 

 Simon C. Franzini 

 Julien A. Adams 

 Jonas B. Jacobson 

 Dovel & Luner, LLP 

 201 Santa Monica Boulevard, Suite 600 

 Santa Monica, CA 90401 

FOR THE DEFENDANT: John Maston O'Neal 

 Quarles & Brady LLP 

 Two North Central Avenue 

 Phoenix, AZ 85004 

 Zachary S. Foster 

 Quarles & Brady LLP 

 101 E. Kennedy Boulevard, Suite 3400 

 Tampa, FL 33602 

 Nicholas H. Pyle 

 Miller Nash Graham & Dunn LLP 

 111 SW Fifth Avenue, Suite 3400 

 Portland, OR 97204 

COURT REPORTER: Dennis W. Apodaca, RDR, FCRR, CRR 

 United States District Courthouse 

 1000 SW Third Avenue, Room 301

 Portland, OR 97204

 (503) 326-8182 

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INDEX 

Pretrial conference proceedings 4 

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(April 8, 2019) 

P R O C E E D I N G S 

(Open court:)

THE COURT: Good morning. I was completing my review

of defendant's objections to plaintiff's designations. That's

why it took a little bit longer.

Please, be seated. Relax, please.

All right. One moment.

Let me share with you what's on my agenda and see if

you have any comments on that. Then we will also talk about

anything else that you all want to talk about.

One moment. All right. I do note that I did receive

from Defendant's Exhibit 214 and 215, which were formerly

Plaintiff's Exhibits 23 and 29 respectively.

So I'll allow those to be marked as defendant's

exhibits. Then I've also received and read defendant's

objections to plaintiff's designations. So we should talk

about how we are going to handle the reading of the various

deposition designations. We should talk about whether you all

have any suggested amendments or edits, corrections, or

objections to my voir dire script, to my preliminary jury

instructions, to the final jury instructions that will be

delivered at the close of the case, but before your closing

argument, and to the special verdict form that I have prepared.

We had a little bit of discussion by email over the

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 4 of 91
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weekend about that. So we can talk about that further. So

that's my agenda. Then anything else that anyone wishes to add

to that agenda, you're welcome to do so.

Let's begin with the reading of the deposition

designations. By the way, let me ask this question: Does

Justin Call still work for the defendant?

MR. O'NEAL: He does not, Your Honor.

THE COURT: Does Scott Gidley still work for

defendant?

MR. O'NEAL: He does, Your Honor.

THE COURT: And does John Laun still work for

defendant?

MR. O'NEAL: He does not.

THE COURT: Okay.

All right. So there were some question -- am I

correct -- I'm going to ask plaintiff. These are not

videotaped, correct?

MR. DOVEL: Your Honor, this is Greg Dovel. That is

correct.

THE COURT: So I think the best way to present the

excerpts from depositions to the jury in a way that the jury

will be able to follow is as follows: This is my thinking, but

you can tell me if you have any different approaches or other

objections.

For any given witness, and -- we will just take

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Justin Call first. Whenever plaintiff wants to, if you will,

call Justin Call in lieu of live testimony, but through

deposition, I'll explain to the jury what we are going to see

next. I'll explain to them what a deposition is, consistent

with our model instructions.

Then I'll tell them that the plaintiff is providing a

reader who will essentially play the role of Justin Call. He

will come up to the witness stand. We will swear the reader in

to read the transcript accurately, and then I will invite one

of plaintiff's counsels to be the questioner. The witness will

read the answers.

I think it probably is best for the questioner to

begin with basically a page and line number, so for Mr. Call,

it will go something like this -- I guess we don't necessarily

need to do that on the direct. As long as you worked out that

we are just going to be reading of the entirety of the

deposition except for what I've excluded, it would be a

question and reading.

"Would you state your full name for the record." 

The witness responds, "Justin Call."

Then you go to the next piece of yellow highlighting,

or where I have concluded that blue is appropriate for

cross-designation. That is, under the rule of completeness, it

should be read at the same time. Then that questioner

immediately will continue with the next item of blue that I

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have allowed for cross-examination at the same time and the

witness reads the answer. That will be plaintiff's direct

examination of Justin Call.

Then where the defendant wants to bring out other

information from Justin Call, then you can say, "I have no

further questions." Then I'll tell the jury, even though

Mr. Call is not here, under the equivalent or an analogy to

cross-examination, I will then have the defendant read whatever

questions the defendant wants to read. But that same reader

who was reading Justin Call's role will now continue to read

the answers. So the jury will understand this person is

reading the answers that Justin Call gave. 

The defendant may then inquire and ask the questions

that it wants to that I was not allowing under rule of

completeness, but will now allow the defendant to do under an

analogy cross-examination.

And I'll tell you what, if Justin Call were here, and

the plaintiff wanted to ask direct examination questions, and

the defendant then wanted to go beyond the scope in

cross-examination so that Mr. Call would not need to come back

later in the trial, I normally would allow that. I would let

that be done normally under a theory of efficiency, and I would

make the defense then under those circumstances proceed with

non-leading questions. But these aren't sufficiently

suggestive questions that I'm going to worry about it.

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So to be clear, plaintiff calls the witness, and will

read the yellow portions. Don't skip over the blue portions

that I have designated as appropriate cross-designation under

the rule of completeness, and there is not that much.

Then whenever you tell me you have no further

questions of Mr. Call, I'll then invite defense counsel to ask

any of their blue-designated/cross-designated questions that

they have, except where I have sustained an objection -- and

there is not that much of that. Then you ask all the questions

of Mr. Call that you want or the Mr. Call sit-in, the reader

that you want, and then when we are done. We are done, and

Mr. Call's testimony has now been fully presented to the jury.

It may be better for an appellate record -- well, let

me ask you this: Would you be planning on reading it straight

through so we don't need to have our court reporter take all of

that down because it is all marked in your transcripts that

have been filed? Or are you planning on breaking up portions

of that reading with things such that we really do need live

reporting?

MR. O'NEAL: Judge, I would rather do the latter. As

I was talking -- I am concerned we are going to be realtime

crunched in the trial, and so I think the latter is the better

way to do it.

THE COURT: Normally our court reporter is a superb

reporter, when a lawyer asks a question, the witness gives an

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answer, and our reporter takes that all down. Just remember

that as you are reading a question, read it slowly. If you are

not reading it slow enough, either the reporter or myself will

jump in and ask you to read more slowly. I think we can

proceed that way as long as you read the questions slowly and

the reader reads the answers sufficiently slowly.

Let me ask interrupt and ask our court reporter,

Dennis, is that okay with you? 

THE COURT REPORTER: Yes.

THE COURT: Anything from plaintiff on that issue?

MR. DOVEL: Just a couple of points of clarification,

Your Honor.

There are a couple of additional clips designated in

blue, for completeness, that we did not object to that we agree

should be read for completeness. We will be adding those as

well as the ones Your Honor has ruled on.

Second, Your Honor, for certain topics, particularly

with Mr. Gidley, there are certain sections that are out of

order in the transcript. We want to combine topics into a

logical sequence. What we proposed to do is prepare an actual

script of the questions and answers, provide it to opposing

counsel, and see if they have an objection how we've organized,

and proceed in that manner.

THE COURT: That's fine. Just make sure I get the

script too. If there are any objections, let me know in

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advance. But as you are doing this, you can't designate new

things.

MR. DOVEL: Yes, Your Honor.

MR. O'NEAL: That's fine. If we could also ask that

whatever it was that they are going to be adding in as

completeness, I would like to know what those sections are as

well.

THE COURT: Right. I think that's what I heard

Mr. Dovel say. He is going to give a final script that will

show exactly what he is planning on reading to the witness,

what the witness will be answering, and that will include

everything that you've designated and the order you want to

proceed in. That also includes, when appropriate or when I've

ordered it, as needed, in order to satisfy the rule of

completeness, that's going to go in there too.

Then you can let the plaintiff's counsel know, if and

when you can, what you're planning on doing in cross. And if

you can do it in the same fashion, that will be terrific. If

you can't, we will figure out some way to make it work.

MR. DOVEL: Your Honor, the final thing is, there

will be a few exhibits that we will be displaying during the

reading. I would propose that just for the record that if I'm

reading it, for example, I would say, "We are now displaying or

publishing Exhibit 45, page 1," just so the record is clear on

what's being shown to the jury.

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THE COURT: That's fine. I think at that time you

will need to offer Exhibit 45, as I've indicated in my rulings.

If I'm inclined to accept it, I will then receive it at that

time. Then you can ask me to show it to the jury. I will say,

"Yes." Then you can put it up on the jury's screen or however

else you wish to display it, and then you can resume with the

questions with Mr. Call about Exhibit 45.

Is that how you want to do it?

MR. DOVEL: Yes, Your Honor.

THE COURT: That will work.

MR. O'NEAL: And objections to the exhibits should be

lodged at that time, Judge? I know you've reserved ruling on a

few.

THE COURT: There are a few that I am going to want

to hear some more talk about. There are a few that especially

I'm going to want to hear some foundation about. But where

I've said in my tentative ruling that I anticipate accepting

it, you're welcome to say, "No further objections," and all of

your previous objections are preserved. If you want to say you

still object, I will ask, "Is there anything additional you

want to be heard about?" If you say, "Yes," I'll let you be

heard. If you say, "No," my anticipation is I'll overrule the

objection and receive the exhibit.

MR. O'NEAL: Understood.

THE COURT: But it is fine if you simply want to

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treat all previous objections that have already been ruled on

in the pretrial order, or will be when I finalize it today,

those are all preserved as far as I'm concerned.

MR. O'NEAL: Thank you, Judge.

THE COURT: All right. So that's how we will do the

depositions.

One further thing, Mr. Dovel. I would appreciate it,

once you've figured out how much and in what order you are

going to be asking these deposition questions to folks, I would

like a time estimate. I'm not going to hold you to it, but I

would like a general sense so I can give the jury breaks, as

appropriate, plan the trial days, as appropriate. But I would

like your best sense or estimate as to now that you're going to

give me all of Justin Call's testimony that will be read,

including the portions that must be included for completeness,

how long do you anticipate that will last.

MR. DOVEL: Yes, Your Honor.

THE COURT: Okay. I think that's all we need to talk

about deposition testimony, unless anybody else has any other

issues on deposition testimony.

Seeing none, okay.

Should we turn next to my voir dire script? 

As you can see, I do most of the questioning of the

jury. It is my practice to be very thorough and try to fairly

and evenhandedly find out, not only relevant background

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information about the jurors, but also to explore their

opinions, their attitudes on certain key issues relating to

this case.

Then when I am done, I will invite counsel, first

plaintiff's counsel and then defense counsel, one attorney from

each side, to do appropriate voir dire. You won't be limited

to just following up on any answers. You can ask your own

questions, if you wish. I can't recall whether we discussed

this last week, so at the risk of being redundant, the one

thing I don't allow counsel to do is use voir dire as a

mini-opening statement. You'll have an opportunity soon enough

to do your opening statement. But don't use this to basically

tell them what the case is about and what the evidence will

likely show.

You're welcome to ask about their experiences in

life, their attitudes, their opinions. You will hear me asking

them to make certain commitments to me about not doing

independent research, keeping an open mind and the like, but

you can't ask them to make commitments to you. You can't ask

them if they find the facts that you have proven such and such,

will they vote in favor of the plaintiff. Or if plaintiff

doesn't prove thus and such, will they vote in favor of the

defendant. That, I don't think is proper for voir dire.

Any comments that anyone wants to make on my

voir dire script?

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MR. DOVEL: Your Honor, this is Greg Dovel for the

plaintiff. We have no objection to the Court's voir dire

script.

MR. O'NEAL: No objections; one addition, Judge.

Item No. 6, Blake Mallen.

THE COURT: All right. Do I have a statement of what

Mr. Mallen will be testifying about? I did not see it in the

defendant's witness statement.

MR. O'NEAL: You do not, Judge. That's the witness

that we talked about at the last pretrial conference. I sent

it to the plaintiffs over the weekend. I am happy to send it

to you as well.

THE COURT: Remind me what Mr. Mallen is going to

talk about.

MR. O'NEAL: Mr. Mallen is the president/cofounder of

ViSalus, former CEO. In sum, he is going to be talking about

the other call campaigns associated with ViSalus; that it was

not just limited to Voice Casting and Press One. There is more

to it, Judge, but that's getting to the point.

THE COURT: Please do file a supplemental witness

list with a summary of his testimony. I will add Blake Mallen

to the list for the jury -- if they know him.

What city does he live in?

MR. FOSTER: Los Angeles, I believe, Your Honor.

Los Angeles.

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THE COURT: Okay. Let me explain how I do the jury

selection process. If a juror in responding to me is just

obviously inappropriate for this trial, whether it be for

hardship reasons, can't be with us for more than a day, or

knows one of the witnesses or lawyers or somebody else, or

convinces me that they would otherwise be challengeable for

cause, what I generally do, I just excuse them on my own. We

will then call up someone else, the next person in the line,

and you'll have a full list of all of the probably 30 folks or

so.

We will then call the next person up, and that person

fills the seat of the person that I've just excused. Let's

suppose we call up the first 14 folks. Juror No. 2 can't be

with us if it is more than a one-day trial. I'm satisfied with

her explanation. I excuse them. Then juror No. 15 is called

up and sits in seat No. 2, and that becomes our new juror

No. 2. I will say to that juror, "Can you be with us for the

duration of this trial?" If they said, "Yes," we move on. If

they say, "No," then No. 16 will take seat No. 2. That's how

it will work.

Eventually we will get to a situation where we will

have 14 folks in the jury box that I'm not going to excuse for

hardship. I've not heard anything that prompts me to want to

excuse them for cause, although you may still have that

opportunity to make that argument out of the presence of the

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jury.

I then turn it over to plaintiff's attorney to

question for about 15 minutes, if you wish; defense attorney to

question for about 15 minutes. I'll then ask counsel to see me

over at sidebar. And I will ask, "Do you have any challenges

for cause?" If you do, and if I grant them, we will then

excuse those folks, bring up the new people from the back of

the room, continue with our questions for those folks until

eventually we get to the stage where you tell me you have no

challenge for cause or I tell you I'm overruling your challenge

for cause.

By the way, none of that is going to be on the

record. So I will give you the opportunity later, out of the

presence of the prospective jurors, to put your arguments on

the record that you argue that juror No. 7 should be challenged

for cause. You can say why. I will put on the record that I

have rejected that, and you've made your record.

But eventually we will get to the stage where we have

14 folks where they are clean for cause, either because you

don't have any objections or I've overruled your objections.

Then I'll send everybody in the hallway, and we will close the

doors for you to exercise your peremptory strikes; three

strikes per side.

In case we are running low numbers, in case we have

people that for whatever reason aren't here, that 14 may turn

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into 13. You will always be allowed your three strikes per

side. If we end up with eight people on our juror, that's fine

with me. All eight will deliberate to a unanimous verdict. We

won't have any alternates in a civil trial. If, however, we

are running out of folks, and we only have 13, you can still

can exercise your three peremptories per side, and then we will

have a jury of seven people.

An interesting question is what do we do if you

choose not to exercise all of your peremptories? My

inclination would be to let whoever is remaining be on the

jury. So be it. They decide unanimously. Let me know if you

have any objections to that process. I haven't seen it happen

yet. But usually when you only have three per side, you'll

find three people that you will want to bump off on

peremptories. But let's talk about what to do if you don't.

That is jury selection.

Any questions?

Yes.

MR. O'NEAL: Judge, with the strike-and-replacement

method, which I think we are using, in a hypothetical where a

prospective juror is removed in the middle of your voir dire,

how do you address what that new juror's answers might have

been to all of the previous questions?

THE COURT: Efficiently. I will start by saying, "Is

there anything in particular that you would have raised your

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hand on before?" Then I will go back and ask most of the

questions again for that juror. Since I'll just be talking

with one person, I will do it relatively expedited, but I will

try to cover all of the important points with that juror. To

the extent I've left something out, you can either ask me to

cover something, or you can cover it in your examination.

MR. O'NEAL: Okay.

THE COURT: All right. Any questions about voir

dire?

All right. I think we talked about our scheduling.

We will start at 9:00 a.m. on Wednesday of this week. We will

pick a jury before we end the day on Wednesday. I am

moderately hopeful that we will pick our jury with enough time

left over. I really need to leave by one o'clock. I am

moderately hopeful that we will be able to pick our jury and

actually have me read them preliminary jury instructions before

we end for the day. That way we can start up Thursday morning

first thing with opening statements.

So let's turn next to preliminary jury instructions,

and then I'll ask some questions about opening statements in a

few more moments.

Any comments, issues, suggestions on my draft

preliminary jury instructions, which I sent to you all by

email?

MR. JACOBSON: Plaintiffs have one comment and

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 18 of 91
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suggestion, Your Honor. Your Honor is going to instruct the

jury that ViSalus does not contend that it had express written

consent. But as the instructions stand now, both final and

preliminary, there is no definition of "express written

consent." We don't think we need the whole full-blown

definition that we originally proposed, but we would ask

Your Honor to provide one sentence. I can show Your Honor

where we would suggest inserting that in a slide.

THE COURT: Sure.

MR. JACOBSON: Your Honor, here are your current

tentative preliminary and final jury instructions on express

written consent. Here is the full-blown definition of "prior

express written consent" that we proposed. We would ask

Your Honor to include just this one sentence that I

highlighted.

THE COURT: Let me write it down, and then I'll hear

from the defendant.

MR. O'NEAL: So if I'm understanding correctly, what

the plaintiff is proposing is on the first paragraph on page 4,

last sentence, the clause, "Without having prior express

consent of the called party," that the plaintiff is proposing

to replace that clause with --

THE COURT: What I just said is, "Can I write this

down and then hear from defendant?"

MR. O'NEAL: I apologize.

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 19 of 91
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THE COURT: Let me write it down, and then I'll be

able to focus on what you are saying.

MR. O'NEAL: I apologize, Judge.

THE COURT: All right. I've written down the

sentence.

Mr. O'Neal, you were saying, from the top, please.

MR. O'NEAL: My apologies, Judge.

Maybe I should ask counsel again. Is the highlighted

portion going to be added on, or is it replacing something?

MR. JACOBSON: Added on.

THE COURT: Where does plaintiff's counsel want it

added to? First, on the preliminary instructions.

MR. JACOBSON: Your Honor, let me read this sentence

for the record. The sentence we would like the Court to add

says, "'Prior express written consent' means a signed, written

agreement that clearly authorizes the caller to place

telemarketing calls using an artificial or prerecorded voice."

Where we would suggest adding that is shown here,

Your Honor. Your Honor's instructions first have a sentence

explaining what the TCPA prohibits. That sentence ends by

saying --

THE COURT: One second. What page is that?

MR. JACOBSON: On your proposed preliminary

instructions, Your Honor, this is on page 8.

THE COURT: One moment. Okay.

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MR. JACOBSON: We would propose inserting the

sentence we proposed after the sentence that ends "without the

prior express consent of the party being called." Then insert

the sentence we proposed, and then the instruction continues on

as in Your Honor's tentative.

THE COURT: One moment.

Okay. Then on the final you want it inserted in

Instruction No. 21?

MR. JACOBSON: Yes, Your Honor.

THE COURT: One moment.

MR. JACOBSON: Page 15.

THE COURT: All right. I understand what you are

asking for. First of all, does the defendant have any further

questions about what plaintiff is proposing? 

If not, defendant's position.

MR. O'NEAL: No further questions.

THE COURT: Any objection?

MR. O'NEAL: Yes, Judge. When I was going through

the instructions and also thinking about the case following our

last conference, two issues came up to me. One, when I was

reading the instructions, given that defendant is not asserting

written consent which complies with the TCPA as an affirmative

defense, it struck me that we probably shouldn't be talking

about consent at all in any of the instructions.

So I don't know if you want to get into this in

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depth. I was actually going to address it more for purposes of

final instructions instead of preliminary.

THE COURT: Now is fine.

MR. O'NEAL: Your druthers, Judge.

So my thought is that what we should do is strike

references to consent, both in the instruction "prior express

consent not at issue," or perhaps a more modified instruction,

which gets to a more substantive issue.

I'm concerned that if we don't give some context to

the jury or provide them some part of the story as to why my

client was calling existing or former promoters who were their

sales agents or former or existing customers, that the jury is

going to make a mistake or assume that this was a random cold

calling campaign to a bunch of people it didn't have any

connection with.

My concern candidly got highlighted, Judge. There

was a podcast that came up where someone was talking about that

very issue and said that they had a run-amuck jury and think;

that jurors hate mass calling campaigns, et cetera, et cetera.

And that's when it really crystalized for me. I'm like, "Okay,

that's really a danger for purposes of prejudice."

So that has led me to this. What I would like to do,

and I haven't penciled it out. But I would like to put a

little bit more focus on the concept of consent, which is

something like, "ViSalus is not contending that it had consents

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which meet the requirement of the TCPA," or something like

that.

But I do think that we should be able to tell the

jury as part of the story, "Hey, we did have a prior

relationship with these people of some sort."

THE COURT: Sure.

MR. O'NEAL: "And that's the reason why we are

calling them."

THE COURT: I have no problem with you telling the

jury of a prior relationship. So which witness is going to do

that? Is that going to be Mr. Mallen?

MR. O'NEAL: I believe so, Judge, although I believe

there is some designated deposition testimony both from Call

and Gidley on the point as well.

THE COURT: I think in terms of what the plaintiff is

requesting here, in terms of what is "prior express consent," I

don't see a problem with what they are proposing.

Is it legally incorrect?

MR. O'NEAL: I think it would be better to say that

it is incomplete from a legal definition. It certainly

captures the essence, but there are some other pieces that the

statute contends.

THE COURT: So what should be added in order to not

mislead our jury?

MR. O'NEAL: You know, looking at it, Judge, I think

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if we added the other stuff, it would cause them to be confused

even more. It is like "which has the following language." So

I think to add the full technical definition probably would be

more problematic.

So if I could say this: Right now, Judge, looking at

it, I hear what you are saying, and it may not be a problem.

If I could reserve the possibility to provide some later

comment to it.

THE COURT: Absolutely. Also, what I would suggest,

if you have some good constructive suggestions, run them by

plaintiff first. If plaintiff agrees, I'm not going to stand

in the way in terms of what both sides agree upon in terms of

this type of instruction. If you have some additional

language, run it by the plaintiff. But otherwise, the concept

sounds fine to me. The concept of you making sure that the

jury understands the right context is perfectly fine with me.

If it is already in some of the designated deposition

testimony, fine. If you add it to your witness statement for

Mr. Mallen, fine.

Okay. Anything else on final instructions? Anything

more on preliminary?

MR. JACOBSON: Nothing from the plaintiff,

Your Honor.

MR. O'NEAL: Nothing from the defendant, Your Honor.

THE COURT: Anything more on final?

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MR. JACOBSON: No, Your Honor.

MR. FOSTER: From the defendant, yes, Your Honor.

THE COURT: Okay. Go for it.

MR. FOSTER: Instruction 17, the class TCPA claim, I

think that instruction is generally fine. My concern when I

read this a few times, from the perspective of a juror, there

is a potential that I think they may be confused reading these

elements that they are not necessarily linked for the violative

calls.

For example, if the plaintiff were to prove that some

of the calls were telemarketing messages while another bucket

of calls had a prerecorded voice and a third bucket of calls

were to mobile or landlines, they could confuse it and put them

all together.

My suggested addition -- now, it is not grammatically

perfect -- but in front of 2 and 3, I would just add: "And

each of those calls" -- or calls -- so it directs the jurors to

understand that if they found that there are a certain bucket

of calls that are telemarketing calls, they must also have

played a prerecorded voice. The same thing with 3. "Each of

those calls were made to a cell phone or landline," just so the

jury understands that each of the elements are linked, and they

can only render a verdict in favor of class members whose calls

meet every single one of those elements.

I'm not necessarily married to that language.

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Candidly last night, Your Honor, I was trying to find a way

that made sense, but that's essentially the concept of what we

want and would like to see.

THE COURT: Well, since No. 1 uses "calls" in the

plural, I think I can strike "the call" and go with plural in 2

and 3.

Would the following serve this purpose: Begin 2 with

"those calls used"; and 3 would be "those calls"?

MR. O'NEAL: Yes, Judge.

MR. FOSTER: Yes, Judge. I believe that would be

fine.

THE COURT: So I would strike "the call or" and

replace it with "those" in both two and three.

Any objection to that from plaintiff?

MR. FRANZINI: No, Your Honor.

THE COURT: I think it is a good change. Anything

else in final jury instructions from defendant?

MR. O'NEAL: One comment, Judge. Instruction No. 18

regarding residential telephone landline defined. It is on

page 14, first paragraph, second line, the clause that says,

"It must be one or the other."

THE COURT: Uh-huh.

MR. O'NEAL: Judge, I don't think that's quite

accurate. It could be both. You could have a residential

line, which the plaintiff held out and used as a business line.

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It could be registered residential, or she could use it as

both. She could take calls from her mother, which I think she

got lots of, but she could also take telephone calls from

people who had children in her daycare. My suggestion on that,

Judge, that sentence should be stricken.

THE COURT: What that would really mean is if they

find it is a residential line, then defendants are going to

have some problems on that call.

MR. O'NEAL: Yes.

THE COURT: All right. Any objection from plaintiff

on that?

MR. FRANZINI: Your Honor, I think it is right that

it has to be one or the other. Unless the defendants can show

that it is used primarily as a business line, then it's a

residential line. Therefore, it is covered by the TCPA. I

think Your Honor's sentence is accurate and should stand.

THE COURT: I want to make sure they understand what

is a residential telephone line.

So the next paragraph is really the key for that. In

deciding this issue -- maybe if I strike that sentence, "It

must be one or the other," and I'll begin the next paragraph:

"In deciding whether a landline telephone is residential or

business, you must give the word 'residential' its usual and

ordinary meaning. You may consider whether Ms. Wakefield's

telephone number was registered as a residential or a business

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number. You also may consider whether that number was

publicized or held out to the general public as a business

telephone number, even if it was registered as a residential

telephone number. The fact that a landline telephone is used

for some business calls does not necessarily make it a business

telephone landline." I think I will put a period after that

and revise the last sentence to read, "The key point is that a

residential landline is used primarily as a residential

telephone."

Will that work for plaintiff?

MR. FRANZINI: Yes, Your Honor.

THE COURT: Any objection to that from defendant? I

will be taking out "it must be one or the other," but I'll be

modifying it as I've just described.

Is that okay for defendant?

MR. O'NEAL: Reserving the prior objections that we

submitted, yes, for purposes of today.

THE COURT: All right. I will make those revisions.

All right. On the special verdict form, I received

an email -- one moment. I received an email from plaintiff's

counsel, Mr. Franzini, over the weekend. I responded. As of

right now, neither the email nor the response is in the

electronic docket for appellate purposes. If either side wants

to file it in the ECF docket for appellate purposes, go ahead.

File your question to me; file my response. But as of right

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now, the appellate courts have no idea what we are talking

about.

So does anybody want to be heard further on it?

MR. FRANZINI: Yes, Your Honor.

THE COURT: Go ahead.

MR. FRANZINI: So as Your Honor recognized in the

jury instructions and your response to my email, to prove a

violation of the TCPA, it is not necessary to prove whether a

call is to a residential as opposed to a mobile telephone

number. If we show it is one or the other, that's sufficient.

The evidence that we're going to present at trial to

the jury is going to consist of a -- we are going to say,

"These numbers." This group of collective telephone numbers

are either mobile or residential, but we don't have it divided

up, "Here are the mobile ones; here are the residential ones."

So my concern is that if we put forward that evidence and the

jury believes it and concludes that we have shown all the

numbers are residential or mobile, then that should be a

finding in favor of the plaintiff. It should be a finding,

assuming that the other requirements are met, ViSalus violated

the TCPA.

But when they turn to Your Honor's proposed verdict

form, they will see a question that says, "How many calls did

plaintiff prove were to mobile telephone numbers?" They may be

able to come up with a number based on common sense or other

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 29 of 91
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things. But because we haven't divided up those numbers into

one or the other, my concern is that the jury is going to say

zero, because you haven't shown us it is mobile as opposed to

residential. Then they get to the next question that asks how

many calls were residential, and then they will look at it

again and say zero, because it is not -- you haven't shown

which it is, residential or mobile. So the result of that is

we will have to put forward persuasive evidence, but we get a

defense verdict because we haven't made a distinction. So

that's the primary objection to the current form.

THE COURT: Thank you, Mr. Franzini.

Defendant's position.

MR. FOSTER: Your Honor, I think your verdict form

got it exactly right, and I'll explain why. First, I think it

is an affirmative element that both of the claims need to show

that it is a residential landline or the landline section and

for the cell phone portion.

I think in this case, especially, given the nature of

the company, this is a multilevel marketing company, the

landline portion is going to be subject to -- at least in part

these were promoters. These were people that were running, to

a certain extent, home-based businesses. I expect the evidence

will show these were promoters who were running businesses, and

I would expect to make the argument that some of these

landlines are business lines.

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I don't think there is any way for the jury to assess

that out, and I think that's a real problem for the plaintiff.

I think candidly, Your Honor, as you noted in your email, you

noted that this is something commonly done in TCPA class

actions. It is something that's very easy to do. In the Dish

Network case and a whole host of other class action cases,

plaintiffs' counsel, either in the class certification stage or

before trial, will designate an expert. That expert will take

the purported call list, and they will go through Lexis. They

will go through Experian. They will do script tracing. They

will do a whole host of analysis to say, "Here are cell phones.

Here are landlines." And even further, "Here are landlines

that are attached to the basis," and then you can make that

presentation to the jury and meet that burden.

That wasn't done in this case, and I think it should

have been done. I think given that we will be presenting

affirmative defenses specifically going to the residential

landline, that lumping them all together would be highly

improper. Especially as Your Honor noted, for purposes of

appeal, I think that's an issue that needs to be broken out so

to make a clear appellate record. I suspect if either side

loses on that issue, that will be something taken up with the

Ninth Circuit.

THE COURT: Plaintiff's response.

MR. FRANZINI: Your Honor, one thing we theoretically

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 31 of 91
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could have done is divided up mobile/residential. If we had

done that, that would have insulated the mobile numbers from

this particular affirmative defense. That's not the way that

we decided to meet our burden. The result of that will be that

they're going to be able to make this argument to the jury and

say, "Hey, you know, this affirmative defense applies not just

to your residential calls, but it infects your mobile calls

potentially," they could say that.

But that doesn't mean -- because we don't have to

prove which it is, if a verdict form is entered that would

require us to make this distinction, that's now part of our

burden of proof, then that would be an error greater than --

that would be error.

THE COURT: Well, how is the jury going to know --

I'm just following up on what Mr. Foster's argument is. How is

the jury going to know, for any telephone line that may be

listed -- by someone who received a call/has a home

telephone -- how are they going to know whether or not that

call or that line satisfies the definition of residential

landline as I instruct the jury?

MR. FRANZINI: Yes, Your Honor. The answer to that

is the same way that the jury makes that determination for

other cases where the mobile lines are split up from the

residential lines. So if you have, for example, in the -- the

evidence we have here, we have evidence that ViSalus collected

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 32 of 91
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numbers that were specifically either home numbers or mobile

numbers.

Then they also collected information that allowed you

to say, "This number is associated with a business." So we

were able to subtract out the numbers that are associated with

a business. What's left are numbers that are home numbers or

mobile numbers.

So the answer to Your Honor's question is the same

way it is always done in TCPA cases for the residential

numbers, which is if we put forward evidence that the number is

residential, which we have, then the defendant can raise an

affirmative defense to that or can challenge the sufficiency of

that evidence, but it is ultimately for the jury to decide is

the evidence we put in sufficient on that issue or not.

I can walk through the evidence more, if Your Honor

wants. This is a question for the jury. It should go to the

jury whether -- our evidence of residential is enough -- and I

think the fact that we didn't separate out the mobile ones

really has nothing to do with that issue because that issue

still exists with respect to the residential lines.

THE COURT: Any response from defendant?

MR. O'NEAL: Judge, do you mind if I jump in?

THE COURT: That's fine. By the way, let me tell you

this, now that you raise this issue. When you're talking with

me, I don't care how many people from any given side jumps in,

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 33 of 91
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as long as only one person speaks at a time. However, when

questioning a witness, especially a live witness in front of

the jury, only one lawyer per side does the questions, and the

person who does the questions is the only one who can do the

objecting.

So let's suppose that Mr. Dovel is questioning a

witness for the plaintiff on direct, and Mr. O'Neal stands up

and makes an objection. Whether I sustain or overrule the

objection, Mr. O'Neal is now doing the cross, even if you all

were planning that Mr. Foster was doing the cross.

Understood?

MR. O'NEAL: Yes, Judge.

THE COURT: And it works in both directions.

MR. DOVEL: Yes, Your Honor. 

MR. O'NEAL: So let me back up and say what the

evidence is and then we can grapple with the problem.

No. 1, to be clear, the part about violating the TCPA

with respect to mobile, is a different statutory section than

the section which is violating for residential. Also,

residential is the only section which has the business

exception, where the business doesn't apply to mobile.

The plaintiffs, as counsel pointed out, did not do

any attempt to divide up those buckets. Further, Judge, they

didn't do any meaningful attempt to define what was or wasn't a

business number. Not only that, but I don't think, and this is

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part of what we set forth, or at least we're hinting as part of

our filings. I don't think they are going to make the burden

of proof in their opening case to show that the numbers dialed

were either mobile or residential. They have got to go from

they collected them; this is was what the quantity of the

numbers were, this is what went into it; them those same

numbers were used and those numbers were dialed. And I don't

think they are going to be able to mark all the way across.

Be that as it may, the concept that somehow they

still don't have to get the jury to divide them up is wrong,

because they do. If you don't divide them up, then we are not

going to ever know or have the ability to talk about, "Well,

this was mobile, and it wasn't the subject of the defense," and

we are not going to be able to determine the residential. How

many of them were determined to be business? 

And I should comment, the issue about the business,

Judge, there has been no objective analysis or expert opinion

about what was or isn't a business. As I understand it, like

literally in like the last 24 hours, they have gone back into

their summary spreadsheets that they used and discovered

something that we knew was there, and we were going to be

pointing out to you, which is they've included in that summary

a number of persons that will have names like Taekwondo Bob,

LLC, or something like that.

Now, after the fact, they are like, "Oh, crud, well,

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 35 of 91
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we know for sure that's there, but we don't know however many

more might be." It just highlights the problem, Judge. If we

don't divvy them up like you suggested, this is going to be one

wicked mess. I think you got it right, and I think the verdict

form should stay as it is.

THE COURT: Am I correct in my assumption that it

really is not that difficult to take a look at any given

telephone number, 10-digit telephone number, and identify which

ones of these are mobile and which is not a mobile?

MR. O'NEAL: Judge, based on my reading of the cases,

it is not hard at all. Not only that, but it is one of those

things that is objectively verifiable. You can go to

independent evidence that doesn't fall into that gray area of,

"I'm a psychologist, and let me know whether I can give my

opinion."

THE COURT: There are a number of databases, whether

it be LexisNexis, Spokeo, or I think even Google will tell you

whether or not a given ten-digit number is or is not mobile.

It won't tell you whether it is residential or business. But

if it is mobile, it will tell you it is mobile.

MR. O'NEAL: Absolutely, Judge.

THE COURT: Any response from plaintiff as to what

Mr. O'Neal just said?

MR. DOVEL: Your Honor, if I could jump in here. If

Your Honor is willing to allow us leave to gather up that

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 36 of 91
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evidence and put it in, we are willing to put the mobile

evidence in. It won't change where we're at. The reason is,

Your Honor, fundamentally, the numbers were gathered up by

ViSalus from applications that said home or mobile. They put

them all into a database. They confounded them. They never

produced to us information that identified which of these had

been collected as home and which was mobile. They didn't make

that available to us.

As a result, we proceeded with, well, we don't need

to know that. All we need to know is it's one or the other.

The jury can tell us how many of those there are. As for their

defense, if they were right about their defense, it would

infect their evidence. It would be good for them. It would

spill over to everything. But the reason their defense is not

going to work, Your Honor, the calls that they are making

primarily are to win back customers. These are former

customers, not actual customers.

And as Your Honor's instruction makes clear, the fact

that somebody may have given their home number to a business

relationship doesn't turn the home number into a business

number. They have the burden of showing it was used primarily

for business and not home. They will not be able to show that.

We have the inference that it is a home number; that

there is no evidence that people used their home number for

ViSalus business during the time they are making those calls,

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and that meets our burden. So we will be able to meet our

burden. They are not going to have evidence to rebut it.

But again, Your Honor, if we can see if we can gather

that evidence in the next three days and have a witness, "Here

is a list of how many mobile numbers there are." I don't think

that advances the ball, Your Honor.

THE COURT: On that issue, if there is a motion to

add a witness to a witness list, the other side will be

entitled to tell me whether they object, whether they are

prejudiced, and then I'll make an appropriate ruling.

But I'm thinking, as I'm hearing this through, it is

going to be a complex question whether or not the evidence

presented is sufficient. There is no need for me to decide

that in advance. The best way to do that is to let both sides

put in their evidence, make their argument, and then whichever

way the jury goes, if the other side wants to make post-trial

motions, make them.

But I think then the best way to frame this might be

to give both sides what you want. Here is what I'm thinking,

and I'll actually have to see if I can make this work. I'll

work on it this afternoon. But I'm thinking I would do the

verdict form at first the way the plaintiff wants, by asking

how many calls were made to either a residential landline or a

mobile phone. Fill in the blank. Then they will put in a

number, presumably, if they are satisfied.

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Then I would follow it up with -- this is a special

verdict. I just want their answers to factual questions. Then

we will figure out post-trial what the legal consequence of all

of this would be. I would then say, "How many of those numbers

are for residential business lines?" Either fill in a blank or

check the box. "Don't know" or "can't tell." How many of

those numbers are from mobile? Fill in the blank or check the

box. "Can't tell."

We will see. Let's suppose the jury finds -- and I'm

just making up these numbers for ease. Let's suppose the jury

finds a total of four calls were made, and it checks the box

one for residential -- and puts in four. "How many were for

residential? One. How many for mobile? Three." All right.

That will send us in one direction when we have our post-trial

discussions.

Let's suppose they say how many were for residential,

and the check a box "can't tell." 

"How many were for mobile?" They put in at least

two, but a total of four. All right. That will send us to

another direction, and we will have some interesting post-trial

discussions.

But that way, if the plaintiff is right, then all I

need to do is ask what's the total of A or B, which, by the

way, I'm skeptical that's the right way to do it. But if you

are right, we will get the answer. If the Ninth Circuit says

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you're right, and the Supreme Court says you are right, more

power to you.

If, however, the jury answers the question the way

that plaintiff wants, and then tell us that they either can't

tell, they don't have enough information on how many were

residential or how many were mobile, then defendant can make

their arguments of what the legal implications, if any -- and

there may not be. Plaintiff may be right.

But we will all be able to sort that out once we

have, No. 1, all the evidence presented to the jury; and No. 2,

the jury's factual determinations, including how many calls

were made, which were mobile, which were residential, and can

you tell how many were mobile? Can you tell how many were

residential?

We will get their answers to all those questions and

sort it out later. I think that's probably the better way to

go now. I'm hearing both sides' arguments, if I could figure

out how to phrase these questions in a way without unreasonably

confusing the jury, and I'll work on it this afternoon.

Any comments from plaintiff?

MR. DOVEL: Your Honor, that approach is acceptable.

In response to your suggestion that the Court would have to

rule on a motion if we were going to add a witness, I will let

the other side know we are going to look into it, and we will

keep them apprised as soon as we can figure out what can be

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done and then we will bring the motion.

THE COURT: Sure. My general approach of late

additions of witnesses or documents or things like that, I

basically make you ask for it. Then I turn to the other side,

"Well, do you have an objection? If so, what's your

prejudice?" Then I look at really is there any unfair

prejudice.

Okay. What's defendant's view on this sort of hybrid

approach to a verdict form as I just described?

MR. O'NEAL: As I'm thinking, Judge, I think it is a

good compromise. I would like to let the gerbil run in the

wheel a little bit to think about it more, but I think we are

on the right track.

THE COURT: Mr. Franzini?

MR. FRANZINI: One suggestion, Your Honor, I guess

the standard is, have we proven by a preponderance of the

evidence? One idea would be to say ask the question for both

and then say: Of those, how many did plaintiff prove by a

preponderance are mobile and how many of those are landlines?

THE COURT: I might put it: Has the plaintiff proven

by a preponderance of the evidence a specific number of mobile?

Yes or no? If yes, what's the number? Has the plaintiff

proven by a preponderance of the evidence how many were

residential? Yes or no? If yes, what's the number?

MR. FRANZINI: I think how many would work. I think

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a specific number is a very specific phrasing.

THE COURT: All right. Well, then I would say: Has

the plaintiff proven by a preponderance of the evidence -- what

should be the end of that question?

MR. FRANZINI: What I would say: Of those calls, in

response to question 4, how many has plaintiff proven by a

preponderance of the evidence are mobile phones or cellular

phones?

THE COURT: I still want to find out from the jury,

though, if they believe they can't tell. You will have my

assessment at some point after the evidence has closed whether

the evidence is sufficient to justify a verdict. But I want to

find out from the jury do they believe they have enough

evidence to tell. So what do we ask them?

Do you have enough evidence to make a determination?

I would want to give them the option of either putting in a

number that they believe the plaintiff's evidence can prove by

a preponderance, or saying, "We can't tell."

MR. FRANZINI: Two ideas, Your Honor. One would

be -- I think the question itself -- if the jury concludes that

we haven't proven any by a preponderance, then the answer would

be zero. But if Your Honor wants to include a specific kind of

"don't know" box, I think that would be fine too.

THE COURT: Okay. I'll work on something, and then

you can all talk about it. My plan is to email it to you this

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afternoon. You can send me email responses either today or

tomorrow. Tomorrow is Tuesday.

On Wednesday, all we are going to do is pick a jury

and hopefully give them preliminary instructions so we can talk

further on Wednesday. Then you will do your opening statements

on Thursday morning and call your witnesses on Thursday. So

there is enough time to try to work this out.

I think that takes me through my agenda.

Is there anything else that any of you would like to

discuss at our pretrial conference?

MR. JACOBSON: Your Honor, plaintiff has two new

exhibits that we would like to address now and get at least a

tentative ruling on, if we can, and then two exhibits that we

addressed previously that Your Honor either had some further

requests on or that Your Honor stated that you would like to

consider it further. I would like to briefly address those

again.

THE COURT: All right. Do I have copies of these

exhibits?

MR. JACOBSON: You do. The first exhibits we are

going to address are P6 and P7.

THE COURT: One moment. I have in my notebook P6 and

P7. I'm not sure what you mean by "new."

MR. JACOBSON: We didn't address them at the last

pretrial conference.

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THE COURT: Understood. Got it.

Give me one moment.

MR. JACOBSON: Of course, Your Honor.

THE COURT: Okay. Ready.

MR. JACOBSON: What P6 and P7 are emails and written

communications between the class representative, Ms. Wakefield,

and her husband, who also briefly signed up as a ViSalus

promoter and ViSalus. What's in here is Ms. Wakefield

requesting that ViSalus cancel out her account. It is a series

of communications that culminate on this email, which is P7-8,

where ViSalus gives her written confirmation that she no longer

has a business relationship with ViSalus. 

As we have been discussing today and as ViSalus has

repeatedly asserted, one issue in this trial is what

relationship these class members had with ViSalus, and the

relevance is to prove, by the time that ViSalus called

Ms. Wakefield, she had no relationship with them. In fact, she

had written confirmation of this. It is not hearsay because

this is a communication written by ViSalus to Ms. Wakefield.

It is offered against ViSalus. It is an admission by a

party-opponent.

THE COURT: All right. There are a number of pages

here on P6 and P7.

Let me hear from defendant, any particular portions

of this that I should look at right now that are particularly

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objectionable in your view?

MR. O'NEAL: Yes. So a couple of things, Judge. The

relevant facts that the plaintiff had ended her role as a

promoter, and I'm looking for it now. If I'm not mistaken,

Judge, that's actually in the stipulation. So to try to put in

evidence about the point that it was ended in 2013 is

duplicative.

The second piece is, if we are just talking about

ending it, maybe that's okay. But the real issue is, if you

look at 6 and the remainder of it, there is all kinds of an

email exchange where either Mr. or Mrs. Wakefield is very upset

with my client because they think that they were charged

incorrectly, or that they had previously told them not to send

them any product. It is that type of stuff, Judge, that is

prejudicial, and it is not relevant.

So if the whole point is that we want to make sure

that the jury knows that the promotership between my client and

the plaintiff was ended back in 2013, I don't think that's

controversial. I think, like I said, it is in the stip. But

we don't need to put in this "ViSalus sucks because you charged

me money that I shouldn't be charged."

THE COURT: Exhibit 6, is this an email that reads

chronologically from back to front? Is that how it reads?

MR. JACOBSON: Let me examine it, Your Honor.

THE COURT: Or front to back.

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MR. JACOBSON: Exhibit 6 appears to read

chronologically from front to back.

THE COURT: Although I see in the middle of page 6-1,

an email from 6:52, and then an earlier email is right below

it, an email from 6:45 p.m. Do you see that?

MR. JACOBSON: I do, Your Honor.

THE COURT: All right. Let me just read the whole

thing.

(Pause.)

THE COURT: I assume that Byron Wakefield is

plaintiff's husband?

MR. JACOBSON: Correct, Your Honor. Ms. Wakefield

also used that email address for herself as well.

THE COURT: All right. Let me turn to defendant. I

have now read the entirety of P6. We will turn to P7 in a few

moments. I don't see anything in here that says "ViSalus

sucks" or words to that effect. Where is it?

MR. O'NEAL: Judge, I may have been getting this one

mixed up with 7.

THE COURT: Okay.

MR. O'NEAL: But in this one, the one that caught my

attention when I was flipping through. "Byron Wakefield:

Please cancel anything we have with this company I requested

months ago in the back office, and I would like my $25 refund

that was charged to my account."

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THE COURT: That doesn't rise to the level of

"ViSalus sucks." That's an overstatement. I would anticipate

admitting Exhibit 6.

MR. O'NEAL: Understood, Judge.

THE COURT: Assuming we have Ms. Wakefield give a

foundation that this was given to her or received from ViSalus.

All right. Let me read 7.

(Pause.)

THE COURT: All right. Let me ask plaintiff's

counsel, I have read all of 7. What does Exhibit 7 add that's

relevant to this case that you don't get with Exhibit 6 when I

receive Exhibit 6?

MR. JACOBSON: Your Honor, I believe Exhibit 7 is the

interactions for ViSalus for Ms. Wakefield's account. Even

though it is the same email account, Exhibit 6 is for her

husband, Byron Wakefield.

THE COURT: Let me call your attention to the first

page of Exhibit 7 at 7-1. "Hi, my name is Lori Wakefield, and

we have the Vi Net Pro 39.99. Me and my husband, Byron, my

husband, both two different accounts we didn't sign up for. I

canceled it within two weeks, and I just saw it there again.

We have both been billed for it and a startup fee, and I want

my money back."

Is that relevant to this case?

MR. JACOBSON: It is, Your Honor.

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THE COURT: How?

MR. JACOBSON: And I'll explain how. Ms. Wakefield

will testify that she first canceled her account with ViSalus

in the spring of 2011. The way she did that is she went on

their website to a portal they called a back office, and she

clicked "cancel." They didn't cancel her out. They kept

shipping her stuff. So she had a series of these email

interactions with them that finally in 2013, almost a year

later, resulted in her getting written confirmation from them

that "we canceled."

These emails show both that she got her written

confirmation, and we need all of them, because if we just show

the written confirmation in 2013, the jury is not going to

understand why it took a year for that to happen. ViSalus

hasn't pointed out anything inflammatory that is going to

inflame the jury in here, and we are not going to dwell on the

shipping problem. We just need to show why it took a year to

cancel.

THE COURT: I'm speaking to defendant now: I don't

see anything in here that says "ViSalus sucks" or words to that

effect. Am I missing it?

MR. O'NEAL: No. If I may respond --

THE COURT: You may.

MR. O'NEAL: -- to this point.

I don't understand what the relevance is between the

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 48 of 91
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time of saying that I want to cancel and the ultimate

cancellation of the promotership. The telephone calls that are

at issue, Judge, didn't take place within that time period.

The telephone calls which are at issue occurred two years later

in April of 2015.

We did stipulate that Plaintiff Wakefield briefly

signed up to be a ViSalus promoter in February of 2012.

Plaintiff Wakefield subsequently ended her affiliation with the

company.

So I hear what counsel said. They sure would like to

get into the jury and say, "Look, ViSalus took a year to cancel

the account," but I don't know why that's relevant to issues of

whether or not violative calls were made two years later.

THE COURT: Response by plaintiff.

MR. JACOBSON: Your Honor, the timing is relevant,

because as we discussed, it is relevant what relationship these

promoters had with ViSalus. ViSalus didn't call Ms. Wakefield

a day after she canceled. They didn't call her a year after.

It was three years since she had anything to do with them.

This is relevant to showing that, and there is nothing

inflammatory here that would substantially outweigh that

relevance.

THE COURT: All right. I would expect to allow in

Exhibit 7 also as a business record of ViSalus and non-hearsay

by Ms. Wakefield because it shows the context for the response.

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So I would expect to allow in both 6 and 7.

That's not what this case is really going to be

about. There is going to be plenty of reasons why jurors don't

like telemarketers who make robo call. Another statement like

this is not going to make a difference.

Anything else anybody wants to talk about?

MR. FRANZINI: May I be heard on one more exhibit,

Your Honor? 

THE COURT: Of course.

MR. FRANZINI: I have got a couple of slides here.

The exhibit is Exhibit P34A. This is the manual that describes

the operation of the POM machine that was used to place the

calls. 34A is an excerpt of that manual that was shown to

Mr. Gidley at his deposition. He authenticated it at his

deposition. He said, "It's the POM user manual. This appears

to be the user manual. It is an excerpt of what you considered

to be the user manual."

First of all, it is not a document created by

ViSalus, but it is a document that ViSalus had and used to

understand how the POM system worked. So it is a business

record of ViSalus in that sense. There is also some hearsay

exceptions I can go into, to the extent Your Honor is concerned

about that.

THE COURT: What's the objection from defendant?

MR. O'NEAL: Judge, this is something that ties into

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what I'm waiting to hear what the plaintiffs say. It is

correct. This is the manual for Progressive Outreach Manager.

It is correct that Mr. Gidley testified in that way. It is

correct in Chapter 12 there is a listing of completion codes,

which discuss how certain calls were disposed of.

If you look at the summary that the plaintiff has

prepared, it has got an excess of 1 million calls, which they

have identified as not having disposition codes on them. I

don't know whether they are going to be contending whether

those are violative calls or not, and there is nothing in this

manual that talks about what happens on a call that has no

disposition code.

So if plaintiff is going to say, "My case is limited

only to those calls for which there is a disposition code,"

then I'm backing up pretty good. But on the other hand, if

they say, "Oh, no. It is a hybrid. I've got some other

stuff," then I need to see how it is going to unfold.

THE COURT: You are raising interesting questions. I

assume that these are the sort of questions that you would want

answered, whether in discovery or motion practice. My question

to you is, what's objectionable about Exhibit 34A?

MR. O'NEAL: Looking at Mr. Gidley's testimony,

Judge, I don't believe he had sufficient foundation to

authorize it. He said it looked like a manual -- to

authenticate it, he said it "appeared to be a manual."

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THE COURT: As an officer of the court, can you tell

me that this is not the manual?

MR. O'NEAL: I cannot.

THE COURT: Okay. By the way, since it is only

excerpts, if you want to introduce other excerpts or other

portions of the manual, I'll allow you to do that. If you want

that done, just give the plaintiff a copy, and maybe we will

mark it 34B or something, if they've selectively excerpted from

the manual.

MR. O'NEAL: Actually, Judge, if I could do this: I

think they have marked the whole manual as Exhibit 34. This

section is marked 34A.

THE COURT: Got it.

MR. O'NEAL: So while I'm giving Your Honor some

thoughts, what I would like to do is just say let's move in 34

and not make a 34A.

THE COURT: No. When you have a really big, thick

manual, it is not fair to the jury to make them look through a

100-page manual. But if you want the jury to look at certain

pages they haven't marked in 34A, you're welcome to do it

either by showing it to the jury obviously in 34 or marking

something as 34B. So that way, we will tell the jury, "34 is a

big, thick manual" -- and by the way, you are going to offer

the full 34, right?

MR. FRANZINI: We are offering 34A, Your Honor.

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THE COURT: All right. Well, if the defendant

chooses to offer the full 34, I assume plaintiff does not

object, correct?

MR. FRANZINI: I haven't looked through the whole

thing, Your Honor. I'm currently not aware of any objections.

If they point to a particular part that's objectionable for

some reason -- 

THE COURT: I just don't want there to be a big,

thick manual, and you get to cherrypick the portions you want

from it, but they don't get to point out other aspects of it.

If you want to introduce 34A, I'm going to let you do that. If

there are other pieces of it that defendant wants to also

introduce that's also in the manual, I'm going to give the

defendant the option of either introducing other portions that

weren't part of 34A. They could call it 34B, or they can

introduce the whole 34, and tell the jury, "Well, the plaintiff

only give you certain cherrypicked portions of it. Here is the

rest of the manual. Now take a look at this one page they

didn't give you." 

I want fairness. That's how we are going to do it.

That said, now, if you want to offer 34, I'll receive it, and

then you can offer 34A, even though it is a little bit

cumulative. It is going to be easier for the jury. I'll let

you decide what to do.

MR. FRANZINI: Thank you, Your Honor.

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THE COURT: Anything else we should talk about?

MR. JACOBSON: Your Honor, I have an additional

relevance basis for P45. This was one of the customer

complaint emails that Your Honor reserved ruling on.

THE COURT: One moment. P45?

MR. JACOBSON: Yes, Your Honor.

THE COURT: The Canadian?

MR. JACOBSON: The Canadian, Your Honor.

Bree Schappert. Your Honor, the previous relevance of this

email, as we discussed, this shows that the WinBack campaign in

the POM system was delivering prerecorded messages, which is a

disputed issue. That's relevant --

THE COURT: To the people in Canada?

MR. JACOBSON: That's correct. And that's relevant

regardless because that's how the POM system worked for people

in the U.S. too.

We have an additional basis for relevance,

Your Honor, that certainly gets this over the 403 hurdle. I've

put on the board what Mr. Gidley, ViSalus's business analyst,

said when he was confronted with this email. What he said was

this was a promoter who was actually terminated for a violation

of policies and procedures. I'm not sure which one -- most

likely promoting another MLM -- who had subscribed to a daily

text message service.

Then it goes on to say that the reason she was

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getting all of these cases was because we were not aware that

"we used a separate service." That appears to be a lie,

Your Honor. When you look at this Bree Schappert email, it is

not about text messages. She doesn't mention text messages.

It is about recorded phone calls. This is relevant to the

credibility of ViSalus's compliance analyst, Mr. Gidley, who,

when confronted with this, instead of saying the truth, "Oh,

this looks like someone who was getting recorded calls," he

tried to suggest this was some kind of separate system that

wasn't the POM system. There is no unfair prejudice that

substantially outweighs that relevance. Credibility is

paramount, Your Honor.

THE COURT: Defendant's response.

MR. O'NEAL: I think we are talking about text

messages here, Judge. I come back to -- she then subscribed to

a daily text message service. "Why did it take so many

attempts for her to get removed from the contact list? At that

time we were not aware that we used a separate service."

I don't know what that means. It seems like

Mr. Gidley is testifying about text. Then I come right back to

the issue of what happened to somebody in Canada. It can't be

relevant. They can't even be a member of the class.

THE COURT: I think we are going too far afield. It

is not clear to me how this relates to Mr. Gidley's

credibility. I am especially concerned since Mr. Gidley is not

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a live witness here, so he can't explain how it is or is not

relevant.

MR. JACOBSON: Your Honor, Mr. Gidley is on the

ViSalus's witness list as a "may call."

THE COURT: All right. Then here is what we will do:

I don't anticipate letting this in during plaintiff's

case-in-chief. If Mr. Gidley testifies live for defendant,

then it will be much more significant that you be entitled to

explore his credibility.

However, remember that you can't attack credibility

with extrinsic evidence. So we will explore that when we are

talking with Mr. Gidley live. For right now I'm going to say

ruling is reserved. I'll see how things develop.

MR. JACOBSON: Understood, Your Honor.

THE COURT: Anything else we should talk about?

MR. JACOBSON: Yes, Your Honor. On Exhibit P47, we

addressed this at the last pretrial conference, and Your Honor

suggested some redactions to this.

THE COURT: Uh-huh.

MR. JACOBSON: This is the Better Business Bureau

complaint by a class member.

THE COURT: Right.

MR. JACOBSON: Your Honor suggested that we redact

reference to the complaint or to the "DNC" or "Do Not Call"

list. We proposed some redactions to ViSalus. They would not

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agree on them. They proposed some counter-redactions. They

would not agree. 

So let me propose to Your Honor our latest proposal

about how we handled this. I've shown this to the other side.

What I have here, Your Honor, I have taken this exhibit, and I

have highlighted what I think we should keep in. If it is

highlighted, then I suggest we keep it. I have also created a

clean-up copy, that if we do the redactions this way, it will

show Your Honor what the jury would see.

May I approach?

THE COURT: Please do.

MR. JACOBSON: When Your Honor is ready, I can

explain the rationale for these.

THE COURT: I'm ready.

MR. JACOBSON: Your Honor, there are three parts.

The first part is this woman made a complaint to the Better

Business Bureau. That's the part that Your Honor wanted

redacted.

The second part is what happened after that, which is

that Mr. Gidley, ViSalus's compliance analyst, looked into it

and confirmed that two messages were left on her voice mail as

part of the WinBack campaign. That's the part that's relevant.

And then the third part is ViSalus's response to the

Better Business Bureau complaint, when they said, "Put her on

our 'Do Not Call' list," and they told the Better Business

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Bureau that she had been removed.

You can't just redact the Better Business Bureau

complaint and leave the response, because then it appears to

the jury that ViSalus is just being super diligent, when in

reality they only did this because there were two complaints to

the Better Business Bureau.

So what I suggest we do is redact it down to the part

that's relevant, which is there was a phone call. We looked

into it. Two voice mails were left on the machine as part of a

WinBack campaign. That's it. The jury doesn't know it was a

complaint. The jury doesn't know what ViSalus did in response

to that complaint. They just know what Mr. Gidley found out

about these messages.

THE COURT: All right. What's the defendant's

objection?

MR. O'NEAL: Two or three points, Judge. One, if you

note, there is no reference in here that the messages that are

being referred to are in fact recorded.

Then, second, that's really the hook. Unfortunately,

the underlying complaint wasn't attached to the version that

the plaintiff has shown you. But what the underlying complaint

was, Judge, included a reference by the person that she had

been recorded. What the real complaint about the recorded part

is, is the part that we wanted to put in, any incoming phone

calls are informed by recording; that the call may be recorded

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for quality assurance purposes.

THE COURT: Is the part you wanted to put in in the

original 47?

MR. O'NEAL: Yes, Judge, it was.

THE COURT: Okay. It sounds like the easiest thing

to do is to go back to the original and let in all of 47.

MR. JACOBSON: That works for us, Your Honor.

MR. O'NEAL: That's fine, Judge.

THE COURT: Okay. Mary, will you give this back to

them.

At the risk of getting a positive response, anything

further we should talk about?

MR. DOVEL: Your Honor, we have -- in response to the

objections to the Exhibit 36, that was the summary of call

outcomes. We created a revised Exhibit 36A, which we provided

to defense counsel.

Your Honor has reserved ruling on this until trial.

I don't think there is anything to be done on it now unless

defendants want to talk about it further. If you would like,

Your Honor, I can provide you right now with a paper copy of

the 36A.

THE COURT: Yes, please.

MR. DOVEL: For the record I'm providing His Honor a

black-and-white version and a color version. The color version

is a little hard to read.

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THE COURT: All right. So my plan still on 36A,

which is being offered as a summary of voluminous records, does

the defendant know now whether or not they will have any

objection to this as a summary?

MR. O'NEAL: I fully expect we will, but I just got

it yesterday, Judge, and I haven't scrubbed it.

THE COURT: I think what we will need to do is wait

and hear the foundation at trial. I assume the plaintiff will

offer it. If the defendant wants to ask questions in aid of an

objection, I'll allow that. If you don't have questions and

you want to make your argument, we will do that. That, we will

probably take out of the presence of the jury, and then we will

see if an adequate foundation has been a laid under 1006.

MR. O'NEAL: One item I would like to preserve for

the record, Judge, the summary or the data that they are

summarizing is 4 million horizontal lines with five vertical

columns, which is 20 million data points to be summarized.

Apparently they are using some sort of very powerful computer

to create this, which we don't have.

I'm two or three days away from trial with the new

summary that seems to have some new information, which I

haven't been able to vet. So as part of my objections, Judge,

I'm certainly going to argue timeliness and prejudice.

THE COURT: Understood. What I don't understand, and

I'm speaking and thinking out loud, with a summary of something

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this voluminous, why it wasn't a request for admission back

when discovery was open, that's where I normally see a request

for admission to the other side to admit this is an accurate

summary. Then things get fleshed out probably by a joint

interrogatory. If it is not an accurate summary, what's

inaccurate about it? Then if the defendant objects too much or

the respondent objects too much, then there is a motion to the

Court to either deem it admitted or to make them respond. All

this gets sorted out back in the middle of discovery.

Why that wasn't done here, I'm not going to waste my

time speculating.

MR. O'NEAL: One point, Judge. I don't think this

summary -- and I can give you the exact dates -- I don't think

this summary was presented except as part of the pretrial

process where the parties were exchanging exhibits.

THE COURT: I understand what you are saying.

MR. O'NEAL: Thank you, Judge.

THE COURT: I just don't understand why those types

of issues weren't battened down back during discovery. I'm not

asking for any explanation.

Anything else we should discuss right now?

MR. FRANZINI: One more quick thing. There are a

couple of exhibits that are business records of ViSalus that

Your Honor reserved rulings on.

THE COURT: Part of it now, I want to see some

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foundation of the business records. Present them with a

witness, offer them, and I'll hear if there is an objection.

If it is a business record, it is going to come in, assuming it

is relevant.

MR. FRANZINI: That's fine then, Your Honor.

Thank you.

THE COURT: Okay. All right. Anything else?

MR. O'NEAL: Yes. Just to reconfirm, same thing,

unless it is admitted, no reference to an exhibit in opening

statement? Correct, Judge? We can still say, "The evidence is

going to show" --

THE COURT: I don't think anything has been admitted

right now.

MR. O'NEAL: Right.

THE COURT: But both sides are welcome to tell the

jury what they believe the evidence will show. By the way,

speaking of which, will either side be using some type of

demonstrative exhibit besides just their spoken words during

opening statement?

MR. JACOBSON: I intend to have a few slides,

Your Honor.

THE COURT: What about defendant?

MR. O'NEAL: I'm a simple man, Judge. I'll probably

have some old boards.

THE COURT: Let me ask, Mr. Jacobson, will you

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present to defendant no long later than 5:00 p.m. tomorrow,

Tuesday, the slides you are planning on using in opening. That

way, when we are all together from Wednesday, I will hear from

defendant do they have any objections to it.

MR. JACOBSON: Yes, Your Honor.

THE COURT: Keep in mind that my general rule on

demonstratives during opening, and even during closing, if you

can say it, you can show it. But if you can't say it, you

can't show it.

So given that an opening statement is to summarize

what you believe the evidence will show and not to make

argument, then if you can't say it in opening statement, you

won't be allowed to show it by putting it in a demonstrative.

But if you want to tell me, "In this demonstrative I'm sure I

would be allowed to say it out loud; I just want to put it in a

multimedia context," if you are correct, I'll allow it.

MR. JACOBSON: Understood, Your Honor.

MR. O'NEAL: Judge, what's your view of saying, "For

example, the judge has just instructed you that the elements of

the claim are A, B" --

THE COURT: That's closing argument.

MR. O'NEAL: Got it.

THE COURT: That, go for it. That's why I instruct

them before your closing argument. I will give you, and if

anybody wants this, you can have it in PDF or Word or whatever

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you want. You will have my final instructions. You are more

than welcome to take the final instructions and the verdict

form that I will have just shown to the jury before you begin

your closing arguments and show them how the evidence applies

to the law. You are welcome to use my instructions and verdict

form however you wish in closing arguments, with the sole

exception, you can't tell the jury that the jury got the law

wrong. You are stuck with the law. You can't embellish the

law. But by all means, show them the law that I just told them

and then show them how the facts do or do not fit into that

legal framework. That's closing, not opening.

MR. O'NEAL: Some administrative stuff, Judge. I

would like to add two impeachment exhibits. It is nothing

controversial. I will disclose what they are. It is the

complaint that was filed by the plaintiff and then the first

amended complaint. So I move that be allowed.

Second issue, Judge, the stipulation issue,

Mr. Franzini and I were working on that, and we exchanged a

draft. I think it was filed with Your Honor. But we weren't

entirely clear whether Your Honor intended to both read or

submit written or to do both. I think now it looks like we are

just going to give them a written version.

THE COURT: I would just rather give them a written

version.

Any objection to that procedure?

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MR. DOVEL: No objection, Your Honor.

MR. O'NEAL: No objection, if that's your ruling. I

will have some revisions, because when I was doing it, I was

expecting that Your Honor was going to read it.

THE COURT: So why don't the two sides work together

and then give me something that you both agree is clean and can

be handed to the jury.

MR. O'NEAL: Okay. Just to make a clear record, I

think you said this at the last pretrial conference. When it

comes time for both sides to move for judgment as a matter of

law, as I understand the process that Your Honor is putting

into place, once we say that we move for judgment as a matter

of law, having done so, we now have preserved all factual and

legal bases to be argued to Your Honor.

THE COURT: Yes and no. I don't want to take up too

much jury time. But what I'm going to do, I'm going to wait

until the end of the case, when all evidence is in, and then

let both sides make their specific arguments to me for judgment

as a matter of law. You don't need to make a two-hour

argument. But if you want to make five points, make your five

points, A, B, C, D, and E. I really do expect to reserve

ruling on that.

MR. O'NEAL: I was just thinking about when I move at

the close of the plaintiff's case.

THE COURT: I don't think it matters anymore. It

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used to matter in the olden days. I don't think it matters, if

you don't move at the close of the plaintiff's case, as long as

you move before the matter is submitted to the jury. That's my

understanding.

MR. O'NEAL: Old habits die hard, Judge.

THE COURT: I know. I will give you the opportunity

to move, before the matter is submitted to the jury, tell me

specifically what your arguments are. Let's say you make five

points, A, B, C, D, and E. I'll probably reserve ruling on it.

Then depending on how things turn out, we will deal with it in

post-trial motions. But I would not plan on you then thinking

of a new argument post-trial, Argument F, and being allowed to

make that as part of a renewed motion as a matter of law.

MR. O'NEAL: Understood.

Judge, on scheduling, I think your most recent said

that we are going to be here on Monday.

THE COURT: Here is the thing: I'm going to tell the

jury that we may be done with this trial by Friday; otherwise,

it may go into Monday, just in case a juror has purchased plane

tickets on Sunday. I'm moderately hopeful we can get this case

to the jury on Friday.

Do you think I'm wrong?

MR. O'NEAL: No, Judge. I think both sides are going

to be pretty darn judicious with the limited time we have. I'm

scheduling it so this thing is done at 5:00 on Friday. That's

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when closings will be finished.

THE COURT: Well, if the closings are finished at

5:00 on Friday, when will the jury deliberate?

MR. O'NEAL: I don't know.

THE COURT: Yes, you do. The answer is Monday. They

are not going to be deliberating Friday night, and they are not

going to be deliberating on Saturday or Sunday. I was

moderately hopeful closings would be Friday morning. Is that

totally unrealistic?

MR. O'NEAL: I don't think so, Judge.

THE COURT: Let's see if we can try to get all the

evidence in on Thursday. Then you do your closings Thursday

morning. My instructions -- by the way, it typically takes

about 30 minutes to read closing instructions. If we start at

nine o'clock or even 8:30 on Friday, I read the instructions to

the jury. We go straight into closing. They have the case.

We might get a decision by Friday.

But I am going to have to warn them and find out in

voir dire, if it does go into Monday, is there anybody here

unable to come back.

MR. O'NEAL: Last issue, Judge. In the email last

night -- I think you suggested that you might want to give the

plaintiff the opportunity to respond to my designations -- my

objections to designations. I don't know if you want to do

that.

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THE COURT: I have looked at them all. I'm prepared

to overrule all of them. Would you like to be heard on that

and try to wrestle defeat from the jaws of victory?

MR. DOVEL: No, Your Honor.

THE COURT: I looked at every one of them.

MR. O'NEAL: Thank you.

THE COURT: Thank you.

MR. JACOBSON: Your Honor, I apologize. A few

logistical items that the paralegals asked me to ask you about.

First, jury notebooks. One thing we suggest to

include in those are the stipulations --

THE COURT: What else would it be? We will have

stipulations for every juror.

MR. JACOBSON: Anything else Your Honor wants us to

include in those notebooks?

THE COURT: You don't need to give them notebooks.

Here is what they are going to get: They are not going to get

my preliminary instructions in writing. Feel free, when both

sides agree, to bring enough copies of the stipulations for all

our actual jurors, eight copies and one for me, please, and one

for my law clerk.

Then we will pass out to them, right before I do

final instructions, the final written instructions and verdict

form. What else are they going to need? I don't think

anything else.

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MR. JACOBSON: Sounds good.

THE COURT: Anything else from the paralegals?

MR. JACOBSON: Your Honor, giving exhibits back to

the jury, Your Honor knows we have that collection of

spreadsheets that are native. One suggestion, we have a laptop

that is scrubbed of anything except those exhibits. So after

they come into evidence, we could send that back with the jury,

and if they wanted to actually open up spreadsheets and look at

them, they could. I don't know how else to get them the

spreadsheets in a way they could use them.

THE COURT: Mary, they probably won't fit on our JERS

system, correct?

THE CLERK: I don't think so.

THE COURT: Any objection to that?

MR. O'NEAL: No, Judge.

MR. JACOBSON: We checked.

THE COURT: All right. That will be fine.

MR. JACOBSON: Lastly, Your Honor, and we can discuss

this later if it makes sense. For closing argument, we would

like to use a projector screen in the well with the jury.

THE COURT: Mary can show you what our options are,

but I'll give you my two cents, and then you can do anything

you want.

You have seen the display monitors in the jury box,

right?

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MR. JACOBSON: Yes.

THE COURT: Anything we put up there, they can see

there.

We also have the ability -- Mary, would you lower the

screen. We have the ability to set up a projector in the well

and a display on that screen. Now in my opinion, unless you

are showing a photograph -- if you're showing a document, it is

better for them to see it on their screens in the jury box.

But if you want to use a projector from the well and project it

on that screen, you're welcome to. But I don't think that's a

good idea for anything other than photographs, and you don't

have photographs. I think if you want to show them documents,

the better thing to do is to set it up through the court system

so it displays on their monitors.

MR. JACOBSON: Understood. We also have our own

screen that can be set up freestanding in the well. Is that

something we could potentially use?

THE COURT: Well, the problem with that is I want to

see it too. I want to see it on my monitor. If it is hooked

up so I can see it on my monitor, I guess that's fine. If we

use that screen, then everybody in the courtroom can see it.

If you put up your own screen, where Mr. Franzini is right now,

then defense counsel can't see it. They are blocked from

seeing the jury's reaction to various things.

I think the best way to do it, and that's why the

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 70 of 91
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building was built with a screen up there, is so everybody can

see what everybody is looking at and nobody's view of the jury

is obstructed. That said, those screens work beautifully for

videotaped depositions, for photographs, and they work

miserably for documents.

MR. JACOBSON: Understood, Your Honor.

THE COURT: But they are really good for videotaped

depositions.

MR. O'NEAL: One last question, and I can move it if

Your Honor is inclined to. This goes back to the summary.

Laying the foundation and doing a voir dire on that, I think,

is going to be pretty lengthy, and let me give you a couple of

heads-up. For example, at last running count, the voir dire

has in excess of 30,000 --

THE COURT: You say "voir dire." When you say

"voir dire," I think of my discussion/our discussion with the

jurors.

MR. O'NEAL: I'm sorry, Judge. The classic expert --

do you mind if I ask the expert some questions before you allow

it?

THE COURT: All right. So basically your

foundational questions for this summary witness.

MR. O'NEAL: Yes, Judge.

THE COURT: Got it.

MR. O'NEAL: And some of them don't go to foundation.

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 71 of 91
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Some of them go to whether the summary is appropriate in the

first place. For example, we have been doing some running

numbers, and there are a lot of fake numbers in there. There

is a lot of 1-800 numbers. There looks to me in excess of

30,000 Canadian telephone numbers, which don't qualify under

the TCPA. There are a lot of issues.

Going through that, Judge, is going to take a lot of

time that I'm not sure we want to do in front of the jury. So

Mr. Foster and I were batting around, is this something we want

to do in a preliminary hearing with Your Honor? Is this

something we want to do in front of the jury? I recognize

these issues we are talking about, Judge, they also go to cross

and us demonstrating the problems associated with the exhibit

and the testimony, but at the same time some of them are bases

where you might say that this thing is unreliable and it can't

come in.

THE COURT: Plaintiff's position.

MR. DOVEL: Your Honor, this is the first time

they've raised an issue with the presence of Canadian numbers

or fake numbers. So I'm glad they've raised that. We will

look at this. If we can identify those, we will take them out

of that. We are willing to deal with any objection they have,

but they haven't told us what their objections are. This is a

brand-new one, and we will take care of it. If they have

another objection, we will take care of that. I think they are

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 72 of 91
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trying to sandbag us, Your Honor. I wish they would tell us

what their objections are.

MR. O'NEAL: Judge, I gave them my objections, but

I'm certainly not going to script out my cross for them.

THE COURT: Let me give some thought to it. We will

talk about it some more.

MR. O'NEAL: Thank you, Judge.

THE COURT: Thanks. I am going to send you the final

on the order on pretrial motions and objections probably within

an hour or so. I have got a sentencing this afternoon, but I

will try to get you something by email on the verdict form also

by the end of today.

(Recess.)

MR. DOVEL: Thank you, Your Honor.

MR. FOSTER: Thank you, Your Honor.

THE COURT: 

(Recess.)

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 --oOo-- 

I certify, by signing below, that the foregoing is a

correct transcript of the record of proceedings in the

above-entitled cause. A transcript without an original

signature, conformed signature, or digitally signed signature

is not certified.

/s/ Dennis W. Apodaca April 26, 2019 

DENNIS W. APODACA, RDR, RMR, FCRR, CRR DATE 

Official Court Reporter 

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Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 74 of 91
 MR. DOVEL: [16] 5/17 9/10 10/2 10/19 11/8 12/16 13/25 34/13

 36/23 40/20 59/12 59/22 64/25 68/3 72/17 73/13

 MR. FOSTER: [6] 14/23 25/1 25/3 26/9 30/12 73/14

 MR. FRANZINI: [18] 26/14 27/11 28/10 29/3 29/5 31/24 32/20

 41/14 41/24 42/4 42/18 50/6 50/9 52/24 53/3 53/24 61/21 62/4

 MR. JACOBSON: [47] 18/24 19/9 20/9 20/12 20/22 20/25 21/8

 21/10 24/21 24/25 43/10 43/19 43/23 44/2 44/4 45/23 45/25

 46/5 46/11 47/12 47/24 48/1 49/14 54/1 54/5 54/7 54/13 56/2

 56/13 56/15 56/19 56/22 57/11 57/14 59/6 62/19 63/4 63/16

 68/7 68/13 68/25 69/2 69/15 69/17 69/25 70/14 71/5

 MR. O'NEAL: [78] 

 THE CLERK: [1] 69/12

 THE COURT REPORTER: [1] 9/8

 THE COURT: [157] 

$

$25 [1] 46/24

'

'Do [1] 57/25

'Prior [1] 20/15

'residential' [1] 27/23

-

--oOo [1] 74/4

/

/s [1] 74/11

1

1 million [1] 51/7

1-800 [1] 72/4

10-digit [1] 36/8

100-page [1] 52/19

1000 [1] 2/23

1006 [1] 60/13

101 [1] 2/11

111 [1] 2/14

12 [1] 51/4

13 [2] 17/1 17/5

14 [5] 15/13 15/22 16/19 16/25 26/20

15 [4] 15/15 16/3 16/4 21/11

16 [1] 15/19

17 [1] 25/4

18 [1] 26/18

2

20 million [1] 60/17

201 [1] 2/5

2011 [1] 48/4

2012 [1] 49/7

2013 [4] 45/6 45/18 48/8 48/13

2015 [1] 49/5

2019 [3] 1/6 4/1 74/11

21 [1] 21/8

214 [1] 4/13

215 [1] 4/13

23 [1] 4/14

24 [1] 35/19

26 [1] 74/11

29 [1] 4/14

3

30 [2] 15/9 67/14

30,000 [2] 71/14 72/5

301 [1] 2/23

326-8182 [1] 2/24

33602 [1] 2/11

34 [8] 52/11 52/15 52/21 52/22 52/24 53/2 53/16 53/21

3400 [2] 2/11 2/14

34A [9] 50/13 51/21 52/12 52/16 52/20 52/25 53/11 53/15 53/22

34B [3] 52/8 52/22 53/15

36 [1] 59/14

36A [3] 59/15 59/21 60/1

39.99 [1] 47/19

3:15-cv-01857-SI [1] 1/5

4

4 million [1] 60/16

403 [1] 54/18

45 [3] 10/24 11/2 11/7

47 [2] 59/3 59/6

5

503 [1] 2/24

5:00 [3] 63/1 66/25 67/3

6

6-1 [1] 46/3

600 [1] 2/5

6:45 [1] 46/5

6:52 [1] 46/4

7

7-1 [1] 47/18

8

800 [1] 72/4

8182 [1] 2/24

85004 [1] 2/8

8:30 [1] 67/15

9

90401 [1] 2/5

97204 [2] 2/14 2/23

9:00 a.m [1] 18/11

A

a.m [1] 18/11

ability [3] 35/12 70/4 70/5

able [13] 5/22 18/15 20/2 23/3 29/25 32/5 33/5 35/8 35/14 37/22

 38/1 40/9 60/22

about [63] 4/10 4/11 4/18 4/19 5/1 5/1 7/25 11/7 11/15 11/16

 11/21 12/19 13/1 13/13 13/15 13/17 14/7 14/10 14/14 14/16

 16/3 16/4 17/15 18/8 18/10 18/20 21/14 21/19 21/24 22/17 29/2

 34/17 35/12 35/16 35/18 37/12 41/12 42/25 45/6 45/8 50/3 50/6

 50/23 51/11 51/21 54/1 55/4 55/5 55/14 55/20 56/15 57/4 58/13

 58/23 59/12 59/19 61/6 62/22 65/23 67/14 68/9 72/12 73/6

above [1] 74/8

above-entitled [1] 74/8

Absolutely [2] 24/9 36/21

accept [1] 11/3

acceptable [1] 40/21

accepting [1] 11/17

account [6] 44/9 46/25 47/14 47/15 48/3 49/12

accounts [1] 47/20

accurate [4] 26/24 27/16 61/3 61/5

accurately [1] 6/9

across [1] 35/8

action [1] 31/6

actions [1] 31/5

actual [3] 9/20 37/17 68/20

actually [7] 18/16 22/1 38/20 45/5 52/10 54/21 69/8

Adams [1] 2/3

add [10] 5/2 14/21 20/14 24/3 24/18 25/16 38/8 40/23 47/10

 64/13

added [5] 20/9 20/10 20/12 23/23 24/1

adding [3] 9/15 10/5 20/18

addition [2] 14/4 25/15

additional [5] 9/13 11/20 24/13 54/2 54/17

additions [1] 41/3

address [7] 17/22 22/1 43/12 43/16 43/21 43/24 46/13

addressed [2] 43/14 56/17

adequate [1] 60/13

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 75 of 91
A

administrative [1] 64/12

admission [3] 44/20 61/1 61/3

admit [1] 61/3

admitted [3] 61/8 62/9 62/12

admitting [1] 47/3

advance [2] 10/1 38/14

advances [1] 38/6

affiliation [1] 49/8

affirmative [6] 21/22 30/15 31/17 32/3 32/6 33/12

afield [1] 55/23

after [8] 21/2 28/6 35/25 42/11 49/18 49/18 57/19 69/6

afternoon [4] 38/21 40/19 43/1 73/10

again [6] 18/2 20/8 30/6 38/3 43/17 47/21

against [1] 44/20

agenda [4] 4/9 5/2 5/3 43/8

agents [1] 22/12

ago [1] 46/24

agree [6] 9/14 24/12 57/1 57/2 65/6 68/19

agreement [1] 20/16

agrees [1] 24/11

ahead [2] 28/24 29/5

aid [1] 60/9

all [78] 

allow [11] 4/15 7/15 7/21 13/10 36/25 49/23 50/1 52/6 60/10

 63/16 71/19

allowed [7] 7/1 17/1 33/3 63/13 63/15 64/16 66/12

allowing [1] 7/14

almost [1] 48/8

already [2] 12/1 24/17

also [23] 4/10 4/16 10/4 10/13 13/1 21/19 24/9 25/19 27/3 28/1

 33/3 34/19 44/7 46/13 49/24 50/21 53/12 53/13 57/7 70/4 70/15

 72/12 73/11

alternates [1] 17/4

although [3] 15/24 23/12 46/3

always [2] 17/1 33/9

am [12] 5/15 8/21 11/14 13/4 14/11 18/12 18/14 36/6 48/21

 55/25 67/18 73/8

amended [1] 64/16

amendments [1] 4/20

amuck [1] 22/18

analogy [2] 7/7 7/16

analysis [2] 31/11 35/17

analyst [3] 54/19 55/6 57/20

Angeles [2] 14/24 14/25

another [5] 25/11 39/20 50/4 54/23 72/25

answer [7] 7/2 9/1 32/21 33/8 39/25 42/21 67/5

answered [1] 51/20

answering [1] 10/11

answers [10] 6/11 7/11 7/12 9/6 9/21 13/7 17/22 39/2 40/3

 40/15

anticipate [4] 11/17 12/16 47/2 56/6

anticipation [1] 11/22

any [46] 4/10 4/20 5/23 5/25 8/7 9/25 12/19 13/7 13/24 16/5

 16/20 17/4 17/12 17/17 18/8 18/22 21/13 21/17 21/24 22/14

 26/14 27/10 28/12 31/1 32/16 33/21 33/25 34/23 34/24 36/7

 36/22 40/7 40/20 41/6 42/21 43/9 44/24 45/14 53/5 58/24 60/3

 61/20 63/4 64/25 69/14 72/22

anybody [5] 12/19 29/3 50/6 63/25 67/19

anymore [1] 65/25

anyone [2] 5/2 13/24

anything [31] 4/11 5/2 9/10 11/20 15/23 17/25 24/20 24/20

 24/25 26/16 43/9 46/16 46/23 48/15 48/20 49/19 50/6 54/1

 56/15 59/11 59/18 61/21 62/7 62/12 68/14 68/25 69/2 69/6

 69/22 70/2 70/11

Apodaca [3] 2/22 74/11 74/12

apologies [1] 20/7

apologize [3] 19/25 20/3 68/8

Apparently [1] 60/18

appeal [1] 31/20

APPEARANCES [1] 2/1

appeared [1] 51/25

appears [4] 46/1 50/15 55/2 58/3

appellate [5] 8/13 28/23 28/24 29/1 31/21

applications [1] 37/4

applies [2] 32/6 64/4

apply [1] 34/21

appreciate [1] 12/7

apprised [1] 40/25

approach [4] 40/21 41/2 41/9 57/10

approaches [1] 5/23

appropriate [8] 6/22 8/3 10/13 12/12 12/12 13/6 38/10 72/1

April [4] 1/6 4/1 49/5 74/11

are [145] 

area [1] 36/13

aren't [2] 7/24 16/25

argue [2] 16/15 60/23

argued [1] 65/14

argument [14] 4/24 15/25 30/24 32/5 32/15 38/15 60/11 63/12

 63/21 63/24 65/20 66/12 66/12 69/19

arguments [7] 16/14 40/7 40/17 64/4 64/6 65/18 66/8

around [1] 72/9

artificial [1] 20/17

as [90] 

ask [34] 5/5 5/16 7/13 7/18 8/6 8/9 8/14 9/4 9/7 9/7 10/4 11/4

 11/20 13/7 13/15 13/19 13/19 16/4 16/5 18/1 18/5 18/20 19/6

 19/13 20/8 39/23 41/4 41/17 42/14 47/9 60/9 62/25 68/9 71/19

asked [1] 68/9

asking [5] 12/9 13/16 21/13 38/22 61/20

asks [2] 8/25 30/4

aspects [1] 53/10

asserted [1] 44/14

asserting [1] 21/21

assess [1] 31/1

assessment [1] 42/11

associated [4] 14/17 33/4 33/5 72/13

assume [5] 22/13 46/10 51/19 53/2 60/8

assuming [3] 29/20 47/5 62/3

assumption [1] 36/6

assurance [1] 59/1

attached [2] 31/13 58/20

attack [1] 56/10

attempt [2] 34/23 34/24

attempts [1] 55/17

attention [2] 46/22 47/17

attitudes [2] 13/2 13/16

attorney [3] 13/5 16/2 16/3

authenticate [1] 51/25

authenticated [1] 50/14

authorize [1] 51/24

authorizes [1] 20/16

available [1] 37/8

Avenue [3] 2/8 2/14 2/23

aware [3] 53/5 55/1 55/18

away [1] 60/20

AZ [1] 2/8

B

back [24] 7/20 16/7 18/1 34/15 35/19 37/16 45/18 45/23 45/25

 46/2 46/24 47/23 48/5 55/15 55/20 59/6 59/9 61/1 61/9 61/19

 67/20 69/3 69/7 71/10

background [1] 12/25

backing [1] 51/15

ball [1] 38/6

based [3] 29/25 30/22 36/10

bases [2] 65/14 72/14

basically [4] 6/13 13/12 41/4 71/21

basis [3] 31/13 54/3 54/17

battened [1] 61/19

batting [1] 72/9

be [143] 

beautifully [1] 71/3

because [20] 8/16 16/19 30/1 30/3 30/6 30/9 32/9 33/19 35/11

 44/18 45/12 45/20 48/12 49/16 49/25 54/15 55/1 58/3 58/5 65/3

becomes [1] 15/16

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 76 of 91
B

been [16] 8/12 8/17 12/1 17/23 31/16 35/17 37/7 44/13 46/18

 47/22 58/1 58/23 60/13 60/22 62/12 72/2

before [12] 1/13 4/23 18/1 18/12 18/16 31/8 63/24 64/3 66/3

 66/7 68/22 71/19

begin [5] 5/4 6/13 26/7 27/21 64/3

being [7] 10/25 13/9 21/3 58/4 58/18 60/2 66/12

believe [11] 14/24 23/12 23/12 26/10 42/10 42/13 42/17 47/13

 51/23 62/16 63/11

believes [1] 29/17

below [2] 46/4 74/6

besides [1] 62/18

best [6] 5/20 6/12 12/13 38/14 38/18 70/25

better [12] 8/13 8/22 23/19 40/16 56/20 57/16 57/24 57/25 58/2

 58/6 70/8 70/13

between [3] 44/6 45/17 48/25

beyond [1] 7/19

big [3] 52/17 52/23 53/8

billed [1] 47/22

bit [5] 4/6 4/25 22/24 41/12 53/22

black [1] 59/24

black-and-white [1] 59/24

Blake [2] 14/5 14/21

blank [3] 38/24 39/5 39/7

blocked [1] 70/23

blown [2] 19/5 19/12

blue [5] 6/22 6/25 8/2 8/7 9/14

blue-designated/cross-designated [1] 8/7

board [1] 54/19

boards [1] 62/24

Bob [1] 35/23

both [25] 19/3 22/6 23/13 24/12 26/13 26/24 27/2 30/15 34/13

 38/14 38/19 40/17 41/17 47/20 47/22 48/11 50/1 62/15 64/20

 64/21 65/6 65/10 65/18 66/23 68/18

Boulevard [2] 2/5 2/11

box [8] 15/22 39/6 39/8 39/11 39/17 42/23 69/24 70/8

Brady [2] 2/7 2/10

brand [1] 72/24

brand-new [1] 72/24

breaking [1] 8/17

breaks [1] 12/11

Bree [2] 54/9 55/3

Bree Schappert [1] 54/9

briefly [3] 43/16 44/7 49/6

bring [4] 7/4 16/7 41/1 68/19

broken [1] 31/20

bucket [3] 25/11 25/12 25/18

buckets [1] 34/23

building [1] 71/1

built [1] 71/1

bump [1] 17/14

bunch [1] 22/14

burden [7] 31/14 32/4 32/12 35/2 37/21 38/1 38/2

Bureau [6] 56/20 57/17 57/24 58/1 58/2 58/6

business [35] 26/25 27/14 27/23 27/25 28/2 28/5 28/5 30/25

 33/4 33/6 34/20 34/21 34/25 35/15 35/16 35/18 36/19 37/19

 37/20 37/22 37/25 39/5 44/12 49/24 50/20 54/19 56/20 57/17

 57/24 57/25 58/2 58/6 61/23 62/1 62/3

businesses [2] 30/22 30/23

Byron [4] 46/10 46/22 47/16 47/19

C

CA [1] 2/5

call [41] 5/6 6/1 6/2 6/2 6/7 6/13 6/20 7/3 7/5 7/7 7/12 7/17 7/20

 8/6 8/10 8/10 11/7 14/17 15/8 15/11 15/13 23/13 26/5 26/12

 27/8 29/9 31/9 32/17 32/19 43/6 47/17 49/17 49/18 50/4 51/11

 53/15 56/4 56/24 58/8 58/25 59/14

Call' [1] 57/25

Call's [3] 7/10 8/12 12/14

call/has [1] 32/17

called [5] 15/15 19/21 21/3 44/16 48/5

caller [1] 20/16

calling [4] 22/11 22/14 22/19 23/8

calls [39] 8/1 20/17 25/9 25/11 25/12 25/12 25/17 25/17 25/19

 25/19 25/21 25/23 26/4 26/8 26/8 27/2 27/3 28/5 29/23 30/5

 32/7 32/7 37/15 37/25 38/23 39/11 40/11 42/5 49/2 49/4 49/13

 50/13 51/5 51/7 51/10 51/14 55/5 55/8 58/25

came [2] 21/20 22/17

campaign [4] 22/14 54/10 57/22 58/10

campaigns [2] 14/17 22/19

can [71] 5/1 5/23 7/5 9/4 10/16 10/17 10/18 11/4 11/5 11/6

 12/11 12/23 13/7 15/17 16/16 17/5 17/6 18/5 18/6 18/17 19/7

 19/23 25/23 26/5 27/13 31/13 33/11 33/12 33/15 34/4 34/16

 36/12 36/14 37/11 38/3 38/3 38/20 40/6 40/12 40/13 40/25

 40/25 42/17 42/25 43/1 43/4 43/13 50/22 52/1 53/15 53/22

 57/12 59/20 61/13 62/10 63/8 63/8 63/25 65/6 66/20 67/11

 69/18 69/21 69/22 70/2 70/16 70/20 70/21 71/1 71/9 72/21

can't [25] 10/1 10/19 13/8 13/19 13/19 15/4 15/13 39/6 39/8

 39/17 40/4 42/10 42/18 55/21 55/22 56/1 56/10 58/2 63/8 63/9

 63/12 64/7 64/8 70/23 72/15

Canada [2] 54/13 55/21

Canadian [4] 54/7 54/8 72/5 72/19

cancel [7] 44/9 46/23 48/6 48/6 48/18 49/1 49/11

canceled [4] 47/21 48/3 48/10 49/18

cancellation [1] 49/2

candidly [3] 22/16 26/1 31/3

cannot [1] 52/3

captures [1] 23/21

care [3] 33/25 72/24 72/25

case [21] 4/23 13/3 13/13 16/24 16/24 21/19 30/18 31/6 31/15

 35/3 47/11 47/24 50/2 51/13 56/7 65/17 65/24 66/2 66/19 66/20

 67/16

case-in-chief [1] 56/7

cases [5] 31/6 32/23 33/9 36/10 55/1

Casting [1] 14/18

caught [1] 46/21

cause [9] 15/7 15/24 16/6 16/10 16/11 16/16 16/19 24/1 74/8

cell [3] 25/21 30/17 31/11

cellular [1] 42/7

Central [1] 2/8

cents [1] 69/22

CEO [1] 14/16

certain [9] 9/17 9/18 13/2 13/17 25/18 30/22 51/5 52/19 53/17

certainly [4] 23/20 54/18 60/23 73/4

certification [1] 31/7

certified [1] 74/10

certify [1] 74/6

cetera [2] 22/19 22/19

challenge [3] 16/10 16/10 33/12

challengeable [1] 15/6

challenged [1] 16/15

challenges [1] 16/5

change [2] 26/16 37/2

Chapter [1] 51/4

charged [4] 45/12 45/20 45/21 46/25

check [3] 39/6 39/7 39/17

checked [1] 69/16

checks [1] 39/11

cherrypick [1] 53/9

cherrypicked [1] 53/17

chief [1] 56/7

children [1] 27/4

choose [1] 17/9

chooses [1] 53/2

chronologically [2] 45/23 46/2

Circuit [2] 31/23 39/25

circumstances [1] 7/23

city [1] 14/23

civil [1] 17/4

claim [2] 25/4 63/20

claims [1] 30/15

clarification [1] 9/11

class [9] 25/4 25/23 31/4 31/6 31/7 44/6 44/15 55/22 56/21

classic [1] 71/18

clause [3] 19/20 19/22 26/20

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 77 of 91
C

clean [3] 16/19 57/8 65/6

clean-up [1] 57/8

clear [8] 8/1 10/24 31/21 34/17 37/18 55/24 64/20 65/8

clearly [1] 20/16

clerk [1] 68/21

clicked [1] 48/6

client [3] 22/11 45/12 45/17

clips [1] 9/13

close [4] 4/23 16/21 65/24 66/2

closed [1] 42/11

closing [10] 4/23 63/7 63/21 63/24 64/4 64/6 64/11 67/14 67/16

 69/19

closings [4] 67/1 67/2 67/8 67/12

code [2] 51/12 51/14

codes [2] 51/4 51/8

cofounder [1] 14/15

cold [1] 22/13

collected [4] 32/25 33/3 35/5 37/7

collection [1] 69/4

collective [1] 29/13

color [2] 59/24 59/24

columns [1] 60/17

combine [1] 9/19

come [9] 6/8 7/20 29/25 55/15 55/20 62/3 67/20 69/7 72/16

comes [1] 65/10

comment [4] 18/25 24/8 26/18 35/16

comments [4] 4/10 13/24 18/22 40/20

commitments [2] 13/17 13/19

common [1] 29/25

commonly [1] 31/4

communication [1] 44/19

communications [2] 44/6 44/10

company [4] 30/19 30/19 46/23 49/9

complaint [13] 54/4 56/21 56/24 57/16 57/24 58/3 58/11 58/12

 58/20 58/21 58/23 64/15 64/16

complaints [1] 58/5

completeness [8] 6/23 7/15 8/4 9/14 9/15 10/6 10/15 12/15

completing [1] 4/4

completion [1] 51/4

complex [1] 38/12

compliance [2] 55/6 57/20

complies [1] 21/22

compromise [1] 41/11

computer [1] 60/18

concept [5] 22/24 24/14 24/15 26/2 35/9

concern [4] 22/16 25/5 29/16 30/2

concerned [5] 8/21 12/3 22/9 50/22 55/25

concluded [1] 6/22

concludes [2] 29/17 42/20

conference [8] 1/11 3/2 14/10 21/20 43/10 43/25 56/17 65/9

confirmation [5] 44/11 44/18 48/9 48/12 48/13

confirmed [1] 57/21

conformed [1] 74/9

confounded [1] 37/5

confronted [2] 54/20 55/7

confuse [1] 25/13

confused [2] 24/1 25/7

confusing [1] 40/19

connection [1] 22/15

consent [12] 19/3 19/5 19/12 19/13 19/21 21/3 21/22 21/24

 22/6 22/7 22/24 23/16

consent' [1] 20/15

consents [1] 22/25

consequence [1] 39/3

consider [3] 27/24 28/1 43/16

considered [1] 50/16

consist [1] 29/12

consistent [1] 6/4

constructive [1] 24/10

contact [1] 55/17

contend [1] 19/2

contending [2] 22/25 51/9

contends [1] 23/22

context [4] 22/9 24/16 49/25 63/16

continue [3] 6/25 7/10 16/8

continues [1] 21/4

controversial [2] 45/19 64/14

convinces [1] 15/6

copies [3] 43/18 68/19 68/20

copy [3] 52/7 57/8 59/20

correct [14] 5/16 5/17 5/19 36/6 46/12 51/2 51/3 51/4 53/3

 54/14 62/10 63/16 69/12 74/7

corrections [1] 4/20

correctly [1] 19/18

could [20] 10/4 24/5 24/7 25/13 26/24 26/24 27/1 27/1 27/2

 27/3 32/1 32/8 36/24 40/17 52/10 53/15 69/7 69/9 69/10 70/17

counsel [17] 8/6 9/22 10/16 13/4 13/5 13/5 13/10 16/4 20/8

 20/11 28/21 31/7 34/22 47/10 49/10 59/16 70/23

counsels [1] 6/10

count [1] 71/13

counter [1] 57/1

counter-redactions [1] 57/1

couple [6] 9/11 9/13 45/2 50/10 61/23 71/12

course [2] 44/3 50/9

court [14] 1/1 1/14 2/22 4/3 8/15 8/24 9/7 20/14 40/1 40/22 52/1

 61/8 70/13 74/12

Court's [1] 14/2

Courthouse [1] 2/22

courtroom [1] 70/21

courts [1] 29/1

cover [3] 18/4 18/6 18/6

covered [1] 27/15

create [1] 60/19

created [3] 50/18 57/7 59/15

credibility [5] 55/6 55/11 55/25 56/9 56/10

cross [12] 6/23 7/1 7/8 7/16 7/20 8/3 8/7 10/17 34/9 34/10

 72/12 73/4

cross-designation [2] 6/23 8/3

cross-examination [4] 7/1 7/8 7/16 7/20

CRR [2] 2/22 74/12

crud [1] 35/25

crunched [1] 8/22

crystalized [1] 22/20

culminate [1] 44/10

cumulative [1] 53/23

current [2] 19/10 30/10

currently [1] 53/5

customer [1] 54/3

customers [4] 22/12 37/16 37/17 37/17

cv [1] 1/5

D

daily [2] 54/23 55/16

danger [1] 22/21

darn [1] 66/24

data [2] 60/15 60/17

database [1] 37/5

databases [1] 36/16

DATE [1] 74/12

dates [1] 61/13

day [5] 15/4 15/14 18/12 18/17 49/18

daycare [1] 27/4

days [4] 12/12 38/4 60/20 66/1

deal [2] 66/10 72/22

decide [4] 17/11 33/13 38/13 53/24

decided [1] 32/4

deciding [2] 27/20 27/22

decision [1] 67/17

deem [1] 61/8

defeat [1] 68/3

defendant [38] 1/8 2/7 5/6 5/9 5/12 7/4 7/8 7/9 7/13 7/15 7/19

 13/23 19/17 19/24 21/13 21/21 24/24 25/2 26/17 28/12 28/15

 33/11 33/21 40/6 44/24 46/14 48/19 50/24 53/1 53/12 53/14

 56/7 60/3 60/9 61/6 62/22 63/1 63/4

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 78 of 91
D

defendant's [10] 4/5 4/13 4/15 4/16 14/8 21/15 30/12 41/8

 55/13 58/14

defendants [3] 27/7 27/13 59/19

defense [15] 7/23 8/6 13/5 16/3 21/23 30/9 32/3 32/6 33/12

 35/13 37/12 37/12 37/14 59/16 70/23

defenses [1] 31/17

define [1] 34/24

defined [1] 26/19

definition [6] 19/4 19/6 19/12 23/20 24/3 32/19

deliberate [2] 17/3 67/3

deliberating [2] 67/6 67/7

delivered [1] 4/23

delivering [1] 54/11

demonstrating [1] 72/13

demonstrative [3] 62/18 63/13 63/14

demonstratives [1] 63/7

Dennis [4] 2/22 9/8 74/11 74/12

depending [1] 66/10

deposition [12] 4/19 5/4 6/3 6/4 6/17 12/9 12/19 12/20 23/13

 24/17 50/14 50/15

depositions [4] 5/21 12/6 71/4 71/8

depth [1] 22/1

described [2] 28/14 41/9

describes [1] 50/11

designate [2] 10/1 31/8

designated [7] 8/3 8/7 8/7 9/13 10/12 23/13 24/17

designation [2] 6/23 8/3

designations [6] 4/5 4/17 4/19 5/5 67/23 67/24

determination [2] 32/22 42/15

determinations [1] 40/11

determine [1] 35/14

determined [1] 35/15

develop [1] 56/13

dialed [2] 35/3 35/7

did [12] 4/12 9/14 14/7 23/4 29/23 34/22 41/18 48/4 49/6 55/16

 58/5 58/11

didn't [11] 22/14 33/18 34/24 37/7 43/24 47/20 48/6 49/3 49/17

 49/18 53/19

die [1] 66/5

difference [1] 50/5

different [3] 5/23 34/18 47/20

difficult [1] 36/7

digit [2] 36/8 36/18

digitally [1] 74/9

diligent [1] 58/4

dire [14] 4/21 12/22 13/6 13/10 13/23 13/25 14/2 17/21 18/9

 67/19 71/11 71/13 71/15 71/16

direct [4] 6/15 7/2 7/18 34/7

direction [2] 39/14 39/20

directions [1] 34/13

directs [1] 25/17

disclose [1] 64/14

discovered [1] 35/20

discovery [4] 51/20 61/2 61/9 61/19

discuss [4] 43/10 51/5 61/21 69/18

discussed [3] 13/8 49/16 54/10

discussing [1] 44/13

discussion [3] 4/25 71/16 71/16

discussion/our [1] 71/16

discussions [2] 39/15 39/21

Dish [1] 31/5

display [3] 11/6 69/24 70/6

displaying [2] 10/21 10/23

displays [1] 70/14

disposed [1] 51/5

disposition [3] 51/8 51/12 51/14

disputed [1] 54/12

distinction [2] 30/9 32/11

DISTRICT [4] 1/1 1/2 1/14 2/22

divide [3] 34/23 35/10 35/11

divided [3] 29/14 30/1 32/1

divvy [1] 36/3

DNC [1] 56/24

do [89] 

docket [2] 28/23 28/24

document [3] 50/18 50/19 70/7

documents [3] 41/3 70/12 71/5

does [18] 5/5 5/7 5/8 5/10 5/11 5/13 14/23 19/2 20/11 21/13

 28/5 29/3 34/3 34/4 47/10 53/2 60/2 67/19

doesn't [9] 13/22 32/9 34/21 36/13 37/20 47/1 55/4 58/10 58/11

doing [8] 10/1 10/17 13/17 34/9 34/10 65/3 71/11 72/2

don't [68] 6/14 8/2 8/15 13/10 13/12 13/23 16/20 17/15 19/5

 21/25 22/9 23/17 26/23 29/14 31/1 32/9 33/25 34/25 35/2 35/7

 35/10 35/11 36/1 36/3 37/9 38/5 39/6 40/5 42/23 45/18 45/20

 46/16 47/11 48/19 48/25 49/12 50/3 51/9 51/23 53/8 53/10

 55/19 56/6 59/18 60/10 60/19 60/24 61/12 61/13 61/18 62/12

 65/5 65/15 65/19 65/25 66/1 66/2 67/4 67/10 67/24 68/16 68/24

 69/9 69/13 70/10 70/11 71/25 72/5

done [17] 7/22 8/11 8/11 13/4 31/4 31/15 31/16 32/1 32/2 33/9

 41/1 52/7 59/18 61/10 65/13 66/18 66/25

doors [1] 16/22

Dovel [7] 2/2 2/4 5/18 10/9 12/7 14/1 34/6

down [8] 8/16 9/1 19/16 19/24 20/1 20/4 58/7 61/19

draft [2] 18/22 64/19

druthers [1] 22/4

Dunn [1] 2/13

duplicative [1] 45/7

duration [1] 15/18

during [7] 10/21 37/25 56/6 61/19 62/18 63/7 63/7

dwell [1] 48/16

E

each [4] 13/6 25/17 25/20 25/22

earlier [1] 46/4

ease [1] 39/10

easier [1] 53/23

easiest [1] 59/5

easy [1] 31/5

ECF [1] 28/24

edits [1] 4/20

effect [2] 46/17 48/21

efficiency [1] 7/22

Efficiently [1] 17/24

eight [3] 17/2 17/3 68/20

either [20] 9/3 16/19 18/5 28/23 29/14 31/7 31/21 33/1 35/4

 38/23 39/5 40/4 42/16 43/1 43/14 45/11 52/21 53/14 61/8 62/17

electronic [1] 28/23

element [1] 30/15

elements [4] 25/8 25/22 25/24 63/19

else [20] 4/11 5/2 11/6 12/19 15/5 15/8 24/20 26/17 43/9 50/6

 54/1 56/15 61/21 62/7 68/12 68/14 68/24 68/25 69/2 69/9

email [23] 4/25 18/24 28/20 28/20 28/22 29/7 31/3 42/25 43/1

 44/10 45/11 45/22 46/4 46/4 46/5 46/13 47/15 48/7 54/10 54/20

 55/3 67/21 73/11

emails [3] 44/5 48/11 54/4

embellish [1] 64/8

end [6] 17/2 18/12 18/17 42/4 65/17 73/12

ended [4] 45/3 45/6 45/18 49/8

ending [1] 45/9

ends [2] 20/20 21/2

enough [9] 9/3 13/11 18/13 33/17 40/5 42/13 42/15 43/7 68/19

entered [1] 32/10

entirely [1] 64/20

entirety [2] 6/16 46/15

entitled [3] 38/9 56/8 74/8

equivalent [1] 7/7

error [2] 32/12 32/13

especially [5] 11/15 30/18 31/19 34/2 55/25

essence [1] 23/21

essentially [2] 6/7 26/2

estimate [2] 12/10 12/13

et [2] 22/19 22/19

et cetera [2] 22/19 22/19

even [11] 7/6 24/2 28/3 31/12 34/9 36/17 47/14 53/22 55/22

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 79 of 91
E

even... [2] 63/7 67/15

evenhandedly [1] 12/25

eventually [3] 15/21 16/9 16/18

ever [1] 35/12

every [3] 25/24 68/5 68/13

everybody [4] 16/21 70/21 71/1 71/2

everything [2] 10/12 37/14

evidence [42] 13/13 29/11 29/16 30/8 30/22 32/25 32/25 33/10

 33/13 33/14 33/15 33/17 34/16 36/13 37/1 37/2 37/13 37/24

 38/2 38/4 38/12 38/15 40/10 41/17 41/21 41/23 42/3 42/7 42/11

 42/12 42/14 42/15 42/17 45/6 56/11 62/10 62/16 63/11 64/4

 65/17 67/12 69/7

exact [1] 61/13

exactly [2] 10/10 30/14

examination [7] 7/1 7/3 7/8 7/16 7/18 7/20 18/6

examine [1] 45/24

example [6] 10/23 25/10 32/24 63/19 71/13 72/2

except [4] 6/17 8/8 61/14 69/6

exception [2] 34/21 64/7

exceptions [1] 50/22

excerpt [2] 50/13 50/16

excerpted [1] 52/8

excerpts [3] 5/21 52/5 52/5

excess [3] 51/7 71/14 72/4

exchange [1] 45/11

exchanged [1] 64/18

exchanging [1] 61/15

excluded [1] 6/17

excuse [5] 15/7 15/15 15/22 15/24 16/7

excused [1] 15/12

exercise [3] 16/22 17/6 17/9

exhibit [27] 4/13 10/24 11/2 11/7 11/23 45/22 46/1 47/3 47/10

 47/11 47/12 47/13 47/15 47/18 49/24 50/7 50/11 50/11 51/21

 52/11 56/16 57/5 59/14 59/15 62/9 62/18 72/13

exhibits [13] 4/14 4/16 10/21 11/11 43/12 43/13 43/19 43/20

 61/15 61/23 64/13 69/3 69/6

existing [2] 22/11 22/12

exists [1] 33/20

expect [6] 30/22 30/24 49/23 50/1 60/5 65/21

expecting [1] 65/4

expedited [1] 18/3

Experian [1] 31/10

experiences [1] 13/15

expert [5] 31/8 31/8 35/17 71/18 71/19

explain [7] 6/3 6/4 15/1 30/14 48/2 56/1 57/13

explaining [1] 20/20

explanation [2] 15/15 61/20

explore [3] 13/1 56/9 56/11

express [9] 19/2 19/4 19/11 19/13 19/20 20/15 21/3 22/6 23/16

extent [3] 18/5 30/22 50/22

extrinsic [1] 56/11

F

fact [6] 28/4 33/18 35/25 37/18 44/17 58/18

facts [3] 13/20 45/3 64/10

factual [3] 39/2 40/11 65/13

fair [1] 52/18

fairly [1] 12/24

fairness [1] 53/20

fake [2] 72/3 72/20

fall [1] 36/13

far [2] 12/3 55/23

fashion [1] 10/18

favor [4] 13/21 13/22 25/23 29/19

FCRR [2] 2/22 74/12

February [1] 49/7

fee [1] 47/22

Feel [1] 68/18

few [9] 10/21 11/13 11/14 11/15 18/21 25/6 46/15 62/20 68/8

Fifth [1] 2/14

figure [4] 10/19 39/3 40/17 40/25

figured [1] 12/8

file [4] 14/20 28/24 28/25 28/25

filed [3] 8/17 64/15 64/19

filings [1] 35/2

fill [3] 38/24 39/5 39/7

fills [1] 15/12

final [15] 4/22 10/9 10/20 19/3 19/11 21/7 22/2 24/20 24/25

 26/17 64/1 64/2 68/23 68/23 73/8

finalize [1] 12/2

finally [1] 48/8

find [8] 12/25 13/20 17/14 26/1 27/7 42/9 42/13 67/18

finding [2] 29/19 29/19

finds [2] 39/9 39/11

fine [18] 9/24 10/4 11/1 11/25 17/2 22/3 24/15 24/16 24/18

 24/19 25/5 26/11 33/23 42/23 59/8 62/5 69/17 70/20

finished [2] 67/1 67/2

first [21] 6/1 13/4 15/13 18/18 19/19 20/12 20/19 21/13 24/11

 26/20 30/14 38/22 43/20 47/17 48/3 50/18 57/16 64/15 68/10

 72/2 72/18

fit [2] 64/10 69/11

five [4] 60/16 65/20 65/20 66/8

FL [1] 2/11

fleshed [1] 61/4

flipping [1] 46/22

focus [2] 20/2 22/24

folks [8] 12/9 15/9 15/13 15/22 16/7 16/8 16/19 17/5

follow [2] 5/22 39/1

following [5] 13/7 21/19 24/2 26/7 32/15

follows [1] 5/22

foregoing [1] 74/6

form [13] 4/24 28/19 29/23 30/10 30/13 32/10 36/5 38/22 41/9

 64/3 64/6 68/24 73/11

former [4] 14/16 22/11 22/12 37/16

formerly [1] 4/13

forth [1] 35/1

forward [3] 29/16 30/8 33/10

Foster [3] 2/10 34/10 72/9

Foster's [1] 32/15

found [2] 25/18 58/12

foundation [8] 11/16 47/6 51/23 60/8 60/13 62/1 71/11 71/25

foundational [1] 71/22

four [3] 39/11 39/12 39/19

frame [1] 38/18

framework [1] 64/11

Franzini [6] 2/3 28/21 30/11 41/14 64/18 70/22

free [1] 68/18

freestanding [1] 70/16

Friday [8] 66/18 66/21 66/25 67/3 67/6 67/8 67/15 67/17

front [7] 25/16 34/2 45/23 45/25 46/2 72/8 72/11

full [7] 6/19 15/9 19/5 19/12 24/3 52/24 53/2

full-blown [2] 19/5 19/12

fully [2] 8/12 60/5

fundamentally [1] 37/3

further [15] 5/1 7/6 8/5 11/18 12/7 21/13 21/16 29/3 31/12

 34/23 43/5 43/14 43/16 59/12 59/19

G

gather [2] 36/25 38/3

gathered [1] 37/3

gave [2] 7/12 73/3

general [4] 12/11 28/2 41/2 63/6

generally [2] 15/7 25/5

gerbil [1] 41/11

get [24] 9/24 15/21 16/9 16/18 21/25 30/4 30/8 35/10 39/25

 40/15 43/12 47/11 49/11 53/9 53/10 55/17 61/4 66/20 67/11

 67/17 68/17 68/17 69/9 73/11

gets [3] 22/8 54/18 61/9

getting [6] 14/19 46/18 48/9 55/1 55/8 59/11

Gidley [14] 5/8 9/18 23/14 50/14 51/3 54/19 55/6 55/20 55/25

 56/3 56/7 56/12 57/20 58/12

Gidley's [2] 51/22 55/24

give [28] 10/9 12/11 12/14 16/13 22/9 27/23 36/14 38/19 42/16

 43/4 44/2 47/5 52/7 53/13 53/17 53/19 59/9 61/13 63/24 64/22

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 80 of 91
G

give... [8] 64/23 65/6 66/6 67/22 68/16 69/22 71/12 73/5

given [10] 5/25 21/21 30/18 31/16 33/25 36/7 36/18 37/19 47/6

 63/10

gives [2] 8/25 44/11

giving [2] 52/14 69/3

glad [1] 72/20

go [24] 6/14 6/21 7/19 10/15 18/1 25/3 26/5 28/24 29/5 31/9

 31/10 33/16 35/4 36/12 40/17 50/22 59/6 63/23 66/19 67/16

 67/19 71/25 72/1 72/12

goes [3] 38/16 54/25 71/10

going [88] 

gone [1] 35/19

good [9] 4/4 24/10 26/16 37/13 41/11 51/15 69/1 70/11 71/7

Google [1] 36/17

got [16] 22/16 27/3 30/14 35/4 36/4 44/1 48/11 50/10 51/7

 51/16 52/13 60/5 63/22 64/7 71/24 73/10

Graham [1] 2/13

grammatically [1] 25/15

grant [1] 16/6

grapple [1] 34/16

gray [1] 36/13

greater [1] 32/12

greater than [1] 32/12

Greg [3] 2/2 5/18 14/1

group [1] 29/13

guess [3] 6/14 41/15 70/20

H

habits [1] 66/5

had [22] 4/25 19/2 22/18 22/25 25/12 27/4 32/1 37/6 43/14

 44/15 44/17 44/18 45/3 45/13 48/7 49/17 49/19 50/19 51/23

 54/23 58/1 58/22

hallway [1] 16/21

hand [2] 18/1 51/15

handed [1] 65/7

handle [1] 4/18

handled [1] 57/4

happen [2] 17/12 48/14

happened [2] 55/21 57/19

happens [1] 51/11

happy [1] 14/11

hard [3] 36/11 59/25 66/5

hardship [2] 15/4 15/23

has [28] 8/12 9/16 12/19 22/22 24/2 27/13 32/17 33/19 34/20

 35/17 41/20 41/22 42/2 42/6 42/11 43/11 44/12 44/13 51/6 51/7

 51/11 58/21 59/17 60/13 62/12 63/19 66/19 71/14

hasn't [1] 48/15

hate [1] 22/19

have [130] 

haven't [12] 17/12 22/23 30/1 30/3 30/6 30/9 42/21 52/20 53/4

 60/6 60/22 72/23

having [3] 19/20 51/8 65/13

he [17] 5/7 5/10 5/13 6/7 10/9 10/10 14/16 14/23 50/14 50/15

 51/23 51/24 51/25 54/20 54/20 55/8 56/1

heads [1] 71/13

heads-up [1] 71/13

hear [12] 11/15 11/16 13/16 19/16 19/24 24/6 44/24 49/10 51/1

 60/8 62/2 63/3

heard [7] 10/8 11/21 11/22 15/23 29/3 50/7 68/2

hearing [4] 1/11 38/11 40/17 72/10

hearsay [3] 44/18 49/24 50/21

held [2] 26/25 28/2

her [19] 15/15 27/2 27/4 44/7 44/9 44/11 45/3 47/6 47/15 48/3

 48/6 48/7 48/9 48/11 49/8 49/18 55/17 57/21 57/24

here [34] 7/7 7/17 16/25 19/10 19/12 20/18 23/16 29/15 29/15

 31/11 31/12 31/12 32/25 36/24 38/4 38/19 44/8 44/23 46/16

 48/16 48/20 49/21 50/10 53/17 55/15 56/1 56/5 57/5 58/17

 61/10 66/16 66/17 67/19 68/17

herself [1] 46/13

Hey [2] 23/4 32/6

Hi [1] 47/18

highlighted [5] 19/15 20/8 22/16 57/6 57/7

highlighting [1] 6/21

highlights [1] 36/2

highly [1] 31/18

him [1] 14/22

hinting [1] 35/1

his [5] 14/21 50/14 50/14 56/9 59/23

His Honor [1] 59/23

hold [1] 12/10

home [11] 30/22 32/17 33/1 33/6 37/4 37/7 37/19 37/20 37/22

 37/23 37/24

home-based [1] 30/22

Honor [113] 

Honor's [6] 20/19 21/5 27/16 29/22 33/8 37/18

HONORABLE [1] 1/13

hook [1] 58/19

hooked [1] 70/19

hopeful [4] 18/13 18/15 66/20 67/8

hopefully [1] 43/4

horizontal [1] 60/16

host [2] 31/6 31/11

hour [2] 65/19 73/10

hours [1] 35/19

how [52] 4/18 9/22 11/8 12/5 12/8 12/16 15/1 15/19 17/22 29/23

 30/4 32/14 32/15 32/18 33/25 35/14 37/11 38/5 38/23 39/4 39/6

 39/12 39/13 39/16 39/18 40/5 40/6 40/11 40/13 40/13 40/18

 41/18 41/19 41/23 41/25 42/6 45/23 48/1 48/2 50/20 51/5 51/17

 53/20 54/15 55/24 56/1 56/13 57/4 64/4 64/10 66/10 69/9

however [7] 11/5 17/4 34/1 36/1 40/3 56/10 64/6

huh [2] 26/22 56/19

hurdle [1] 54/18

husband [5] 44/7 46/11 47/16 47/19 47/20

hybrid [2] 41/8 51/16

hypothetical [1] 17/20

I

I'll [34] 4/15 6/3 6/4 6/6 7/6 7/17 8/6 11/21 11/22 16/4 16/21

 18/2 18/20 19/16 20/1 27/21 28/13 30/14 38/10 38/20 38/20

 40/19 42/24 48/2 52/6 53/21 53/23 56/13 60/10 62/2 62/23

 63/16 66/9 69/22

I'm [57] 5/16 7/25 10/22 11/3 11/16 12/3 12/10 15/14 15/22

 16/10 19/18 22/9 22/20 24/11 25/25 32/15 36/14 38/11 38/11

 38/19 38/21 39/9 39/24 40/17 41/10 43/23 45/4 45/4 48/19 51/1

 51/15 52/14 53/5 53/11 53/13 54/22 56/12 57/14 59/23 60/20

 60/23 60/25 61/10 61/19 62/23 63/14 65/16 65/16 66/17 66/20

 66/22 66/24 68/1 71/18 72/8 72/20 73/4

I've [14] 4/16 6/17 10/13 11/2 11/17 15/12 15/23 16/20 18/5

 20/4 28/14 51/16 54/18 57/4

idea [3] 29/1 41/17 70/11

ideas [1] 42/19

identified [2] 37/6 51/8

identify [2] 36/8 72/21

immediately [1] 6/25

impeachment [1] 64/13

implications [1] 40/7

important [1] 18/4

improper [1] 31/19

inaccurate [1] 61/6

inappropriate [1] 15/3

INC [1] 1/7

inclination [1] 17/10

inclined [2] 11/3 71/10

include [5] 10/11 19/14 42/22 68/11 68/15

included [3] 12/15 35/22 58/22

includes [1] 10/13

including [2] 12/15 40/11

incoming [1] 58/24

incomplete [1] 23/20

incorrect [1] 23/18

incorrectly [1] 45/13

independent [2] 13/18 36/13

INDEX [1] 3/1

indicated [1] 11/2

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 81 of 91
I

infect [1] 37/13

infects [1] 32/7

inference [1] 37/23

inflame [1] 48/16

inflammatory [2] 48/15 49/21

information [6] 7/5 13/1 33/3 37/6 40/5 60/21

informed [1] 58/25

inquire [1] 7/13

insert [1] 21/3

inserted [1] 21/7

inserting [2] 19/8 21/1

instead [2] 22/2 55/7

instruct [3] 19/1 32/20 63/23

instructed [1] 63/19

instruction [9] 21/4 21/8 22/6 22/7 24/13 25/4 25/5 26/18 37/18

instructions [28] 4/22 4/22 6/5 18/16 18/19 18/23 19/3 19/11

 20/12 20/19 20/24 21/19 21/21 21/24 22/2 24/20 26/17 29/7

 43/4 64/1 64/2 64/5 67/13 67/14 67/15 68/18 68/23 68/23

insulated [1] 32/2

intend [1] 62/20

intended [1] 64/20

interactions [2] 47/14 48/8

interesting [3] 17/8 39/20 51/18

interrogatory [1] 61/5

interrupt [1] 9/7

introduce [4] 52/5 53/11 53/13 53/16

introducing [1] 53/14

invite [3] 6/9 8/6 13/4

is [330] 

isn't [1] 35/18

issue [23] 9/10 22/7 22/8 22/18 27/20 31/20 31/22 33/14 33/19

 33/19 33/24 35/16 38/7 44/14 45/9 49/3 49/4 54/12 55/21 64/17

 64/17 67/21 72/19

issues [8] 12/20 13/2 18/22 21/20 49/12 61/19 72/6 72/12

it [293] 

it's [3] 27/14 37/10 50/15

item [3] 6/25 14/5 60/14

items [1] 68/9

its [1] 27/23

itself [1] 42/20

J

Jacobson [2] 2/4 62/25

jaws [1] 68/3

JERS [1] 69/11

John [2] 2/7 5/11

joint [1] 61/4

Jonas [1] 2/4

judge [66] 1/14 8/20 11/12 12/4 14/4 14/9 14/19 17/19 20/3

 20/7 21/18 22/4 22/16 23/12 23/25 24/5 26/9 26/10 26/18 26/23

 27/5 33/22 34/12 34/23 35/17 36/2 36/10 36/21 41/10 45/2 45/5

 45/14 46/18 47/4 49/3 50/25 51/23 52/10 55/15 58/16 58/22

 59/4 59/8 60/6 60/15 60/22 61/12 61/17 62/10 62/23 63/18

 63/19 64/12 64/17 66/5 66/15 66/23 67/10 67/21 69/15 71/18

 71/23 72/7 72/12 73/3 73/7

judgment [3] 65/10 65/12 65/18

judicious [1] 66/24

Julien [1] 2/3

jump [3] 9/4 33/22 36/24

jumps [1] 33/25

juror [13] 15/2 15/13 15/15 15/16 15/17 16/15 17/2 17/21 18/2

 18/4 25/6 66/19 68/13

juror's [1] 17/22

jurors [7] 13/1 16/14 22/19 25/17 50/3 68/20 71/17

jury [99] 

jury's [3] 11/5 40/11 70/24

just [49] 5/25 6/16 9/1 9/11 9/24 10/22 10/24 13/7 14/18 15/2

 15/7 15/12 18/2 19/14 19/23 25/16 25/21 28/14 32/6 32/15 36/2

 36/23 39/2 39/10 41/9 45/8 46/7 47/21 48/12 48/17 52/7 52/15

 53/8 58/2 58/4 58/12 60/5 61/18 62/8 62/18 63/15 63/19 64/3

 64/9 64/22 64/23 65/8 65/23 66/19

justify [1] 42/12

Justin [11] 5/6 6/1 6/2 6/7 6/20 7/3 7/5 7/10 7/12 7/17 12/14

Justin Call [1] 7/3

K

keep [4] 40/25 57/6 57/7 63/6

keeping [1] 13/18

Kennedy [1] 2/11

kept [1] 48/6

key [3] 13/2 27/19 28/7

kind [2] 42/22 55/9

kinds [1] 45/10

knew [1] 35/21

know [32] 9/25 10/6 10/16 11/12 14/22 17/11 21/25 23/25 32/6

 32/14 32/16 32/18 35/12 36/1 36/1 36/14 37/10 37/10 39/6

 40/24 42/23 49/12 51/9 55/19 58/10 58/11 58/12 60/3 66/6 67/4

 67/24 69/9

knows [3] 15/5 45/17 69/4

L

laid [1] 60/13

landline [12] 25/21 26/19 27/22 28/4 28/6 28/8 30/16 30/16

 30/20 31/18 32/20 38/23

landlines [5] 25/13 30/25 31/12 31/12 41/19

language [3] 24/2 24/14 25/25

laptop [1] 69/5

last [15] 12/16 13/9 14/10 19/20 21/20 26/1 28/7 35/19 43/24

 56/17 65/9 67/21 67/21 71/9 71/13

Lastly [1] 69/18

late [1] 41/2

later [9] 7/21 16/13 24/7 40/16 48/9 49/4 49/13 63/1 69/19

latest [1] 57/3

latter [2] 8/20 8/22

Laun [1] 5/11

law [10] 64/5 64/7 64/8 64/9 64/9 65/11 65/13 65/19 66/13

 68/21

lawyer [2] 8/25 34/3

lawyers [1] 15/5

Laying [1] 71/11

leading [1] 7/24

least [4] 30/20 35/1 39/18 43/12

leave [3] 18/14 36/25 58/3

led [1] 22/22

left [5] 18/5 18/14 33/6 57/21 58/9

legal [5] 23/20 39/3 40/7 64/11 65/14

legally [1] 23/18

lengthy [1] 71/12

let [35] 4/9 5/5 7/21 8/13 9/7 9/25 10/16 11/21 15/1 17/10 17/11

 19/16 20/1 20/13 33/23 34/15 36/14 38/14 40/23 41/11 44/24

 45/24 46/7 46/14 47/7 47/9 47/17 53/11 53/23 57/3 59/6 62/25

 65/18 71/12 73/5

let's [11] 5/4 15/12 17/15 18/19 34/6 39/9 39/10 39/16 52/15

 66/8 67/11

letting [1] 56/6

level [1] 47/1

Lexis [1] 31/9

LexisNexis [1] 36/17

lie [1] 55/2

lieu [1] 6/2

life [1] 13/16

like [42] 6/14 10/6 12/10 12/11 12/13 13/18 20/14 22/20 22/22

 22/23 22/25 23/1 24/2 26/3 35/18 35/19 35/23 35/24 35/25 36/3

 41/3 41/11 43/9 43/12 43/15 43/16 45/19 46/24 49/10 50/4 50/4

 51/24 52/15 55/8 55/19 59/5 59/19 60/14 64/13 64/21 68/2

 69/20

like a [1] 51/24

likely [2] 13/14 54/23

limited [4] 13/6 14/18 51/13 66/24

line [11] 6/13 15/8 26/20 26/25 26/25 27/7 27/14 27/15 27/18

 32/16 32/19

lines [6] 30/25 32/23 32/24 33/20 39/5 60/16

linked [2] 25/8 25/22

list [10] 14/21 14/22 15/9 31/9 38/5 38/8 55/17 56/4 56/25 57/25

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 82 of 91
L

listed [1] 32/17

listing [1] 51/4

literally [1] 35/19

little [6] 4/6 4/25 22/24 41/12 53/22 59/25

live [7] 6/2 8/18 14/23 34/2 56/1 56/7 56/12

LLC [1] 35/24

LLP [4] 2/4 2/7 2/10 2/13

lodged [1] 11/12

logical [1] 9/20

logistical [1] 68/9

long [6] 6/15 9/5 12/16 34/1 63/1 66/2

longer [2] 4/6 44/11

look [14] 30/5 36/7 40/24 41/6 44/25 45/10 49/11 51/6 52/18

 52/19 53/18 55/3 69/8 72/21

looked [6] 51/24 53/4 57/20 58/8 68/1 68/5

looking [5] 23/25 24/5 45/4 51/22 71/2

looks [3] 55/8 64/21 72/4

LORI [2] 1/4 47/18

Los [2] 14/24 14/25

Los Angeles [2] 14/24 14/25

loses [1] 31/22

lot [4] 72/3 72/4 72/6 72/7

lots [1] 27/3

loud [2] 60/25 63/15

low [1] 16/24

lower [1] 70/4

lumping [1] 31/18

Luner [1] 2/4

M

machine [2] 50/12 58/9

made [9] 16/17 25/21 26/2 30/9 38/23 39/11 40/12 49/13 57/16

mail [1] 57/21

mails [1] 58/9

make [41] 7/23 9/24 10/19 13/17 13/19 13/24 15/25 22/13 27/17

 28/5 28/18 30/24 31/13 31/21 32/5 32/11 35/2 37/7 38/10 38/15

 38/16 38/17 38/20 40/6 41/4 42/15 45/16 50/4 50/5 52/16 52/18

 60/11 61/8 63/11 65/8 65/18 65/19 65/20 65/20 66/8 66/13

makes [4] 32/22 34/8 37/18 69/19

making [4] 24/15 37/15 37/25 39/10

Mallen [7] 14/5 14/7 14/13 14/15 14/21 23/11 24/19

man [1] 62/23

Manager [1] 51/2

manner [1] 9/23

manual [19] 50/11 50/13 50/15 50/16 50/17 51/2 51/11 51/24

 51/25 52/2 52/6 52/9 52/11 52/18 52/19 52/23 53/9 53/13 53/18

many [25] 29/23 30/5 33/25 35/15 36/1 37/11 38/5 38/23 39/4

 39/6 39/12 39/13 39/16 39/18 40/5 40/6 40/11 40/13 40/13

 41/18 41/19 41/23 41/25 42/6 55/16

mark [2] 35/8 52/8

marked [5] 4/15 8/16 52/11 52/12 52/20

marketing [1] 30/19

marking [1] 52/21

married [1] 25/25

Mary [4] 59/9 69/11 69/21 70/4

mass [1] 22/19

Maston [1] 2/7

matter [7] 65/10 65/12 65/19 66/1 66/3 66/7 66/13

matters [2] 65/25 66/1

may [23] 7/13 8/13 15/24 16/25 24/6 25/7 27/24 28/1 29/24

 32/16 35/9 37/19 40/8 40/8 46/18 48/22 48/23 50/7 56/4 57/10

 58/25 66/18 66/19

maybe [4] 20/8 27/20 45/9 52/7

me [63] 4/9 5/5 5/23 8/5 8/14 9/7 9/25 11/4 12/14 13/16 13/17

 14/13 15/1 15/2 15/6 15/23 16/4 16/9 17/3 17/11 18/5 18/16

 19/16 20/1 20/13 21/20 21/23 22/20 22/22 24/15 24/16 28/25

 33/23 33/25 34/15 36/14 38/9 38/13 43/1 43/8 44/2 44/24 45/21

 45/24 46/7 46/14 47/7 47/9 47/17 47/19 52/2 55/24 57/3 62/25

 63/14 65/6 65/18 66/7 68/9 68/20 71/12 72/4 73/5

mean [3] 27/6 32/9 43/23

meaning [1] 27/24

meaningful [1] 34/24

means [3] 20/15 55/19 64/9

meet [5] 23/1 25/24 31/14 32/4 38/1

meets [1] 38/1

member [2] 55/22 56/21

members [2] 25/23 44/15

mention [1] 55/4

mess [1] 36/4

message [2] 54/24 55/16

messages [8] 25/11 54/11 55/4 55/4 55/15 57/21 58/13 58/17

met [1] 29/20

method [1] 17/20

MICHAEL [1] 1/13

middle [3] 17/21 46/3 61/9

might [7] 17/22 36/2 38/18 41/20 67/17 67/22 72/15

Miller [1] 2/13

million [3] 51/7 60/16 60/17

mind [4] 13/18 33/22 63/6 71/19

mini [1] 13/11

mini-opening [1] 13/11

minutes [3] 16/3 16/4 67/14

miserably [1] 71/5

mislead [1] 23/24

missing [1] 48/21

mistake [1] 22/13

mistaken [1] 45/4

mixed [1] 46/19

MLM [1] 54/23

mobile [38] 25/13 29/9 29/14 29/15 29/18 29/24 30/3 30/7 32/1

 32/2 32/7 32/23 33/1 33/7 33/18 34/18 34/21 35/4 35/13 36/9

 36/9 36/18 36/20 36/20 37/1 37/4 37/7 38/5 38/24 39/7 39/13

 39/18 40/6 40/12 40/13 41/19 41/21 42/7

mobile/residential [1] 32/1

model [1] 6/5

moderately [4] 18/13 18/15 66/20 67/8

modified [1] 22/7

modifying [1] 28/14

moment [9] 4/8 4/12 20/25 21/6 21/10 28/20 43/22 44/2 54/5

moments [2] 18/21 46/16

Monday [4] 66/16 66/19 67/5 67/19

money [2] 45/21 47/23

Monica [2] 2/5 2/5

monitor [2] 70/19 70/20

monitors [2] 69/24 70/14

months [1] 46/24

more [23] 9/4 11/15 14/18 15/4 15/14 18/21 22/1 22/7 22/8

 22/24 24/2 24/4 24/21 24/25 33/15 36/2 40/1 41/12 50/7 56/8

 61/22 64/1 73/6

morning [5] 4/4 18/17 43/6 67/8 67/13

most [4] 12/23 18/1 54/22 66/15

mother [1] 27/2

motion [6] 38/7 40/23 41/1 51/20 61/7 66/13

motions [3] 38/17 66/11 73/9

move [10] 15/18 52/15 64/16 65/10 65/12 65/23 66/2 66/3 66/7

 71/9

Mr [6] 14/13 14/15 23/11 24/19 45/11 55/25

Mr. [38] 6/13 7/7 7/20 8/6 8/10 8/10 8/12 9/18 10/9 11/7 12/7

 14/7 20/6 28/21 30/11 32/15 34/6 34/7 34/9 34/10 36/23 41/14

 50/14 51/3 51/22 54/19 55/6 55/20 55/24 56/3 56/7 56/12 57/20

 58/12 62/25 64/18 70/22 72/9

Mr. Call [7] 6/13 7/7 7/20 8/6 8/10 8/10 11/7

Mr. Call's [1] 8/12

Mr. Dovel [3] 10/9 12/7 34/6

Mr. Foster [2] 34/10 72/9

Mr. Foster's [1] 32/15

Mr. Franzini [5] 28/21 30/11 41/14 64/18 70/22

Mr. Gidley [11] 9/18 50/14 51/3 54/19 55/6 55/20 56/3 56/7

 56/12 57/20 58/12

Mr. Gidley's [2] 51/22 55/24

Mr. Jacobson [1] 62/25

Mr. Mallen [1] 14/7

Mr. O'Neal [4] 20/6 34/7 34/9 36/23

Mrs. [1] 45/11

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 83 of 91
M

Mrs. Wakefield [1] 45/11

Ms [2] 47/14 49/17

Ms. [9] 27/24 44/6 44/8 44/17 44/19 46/12 47/5 48/2 49/25

Ms. Wakefield [8] 44/6 44/8 44/17 44/19 46/12 47/5 48/2 49/25

Ms. Wakefield's [1] 27/24

much [7] 8/4 8/9 12/8 56/8 61/6 61/7 65/16

multilevel [1] 30/19

multimedia [1] 63/16

must [6] 12/15 25/19 26/21 27/21 27/23 28/13

my [64] 4/4 4/9 4/21 4/21 5/2 5/22 11/2 11/17 11/22 12/22 12/24

 13/24 15/7 17/9 18/22 20/7 22/5 22/10 22/16 25/5 25/15 27/4

 28/25 29/7 29/16 30/2 36/6 36/10 36/14 41/2 42/10 42/25 43/8

 43/22 45/12 45/17 46/21 46/24 46/25 47/18 47/19 47/19 47/23

 51/13 51/20 60/1 60/22 61/10 63/6 64/1 64/5 66/3 67/13 67/23

 67/23 68/18 68/21 69/22 70/6 70/19 70/20 71/16 73/3 73/4

myself [1] 9/3

N

name [2] 6/19 47/18

names [1] 35/23

Nash [1] 2/13

native [1] 69/5

nature [1] 30/18

necessarily [4] 6/14 25/8 25/25 28/5

necessary [1] 29/8

need [21] 6/15 7/20 8/15 8/18 11/2 12/18 18/14 19/5 30/15 37/9

 37/10 38/13 39/23 45/20 48/12 48/17 51/17 60/7 65/19 68/16

 68/24

needed [1] 10/14

needs [1] 31/20

neither [1] 28/22

Net [1] 47/19

Network [1] 31/6

never [1] 37/5

new [10] 10/1 15/16 16/7 17/22 43/11 43/23 60/20 60/21 66/12

 72/24

next [11] 6/4 6/21 6/25 12/22 15/8 15/11 18/19 27/19 27/21 30/4

 38/4

Nicholas [1] 2/13

night [3] 26/1 67/6 67/22

nine [1] 67/15

nine o'clock [1] 67/15

Ninth [2] 31/23 39/25

Ninth Circuit [2] 31/23 39/25

no [35] 7/5 8/5 11/18 11/22 14/2 14/4 15/19 16/9 19/4 21/16

 23/9 25/1 26/15 29/1 35/17 37/24 38/13 41/22 41/24 44/11

 44/17 48/22 51/11 51/16 52/17 55/10 58/17 62/9 63/1 65/1 65/2

 65/15 66/23 68/4 69/15

No. [14] 14/5 15/13 15/15 15/16 15/17 15/19 15/19 16/15 21/8

 26/4 26/18 34/17 40/10 40/10

No. 1 [3] 26/4 34/17 40/10

No. 15 [1] 15/15

No. 16 [1] 15/19

No. 18 [1] 26/18

No. 2 [5] 15/13 15/16 15/17 15/19 40/10

No. 21 [1] 21/8

No. 6 [1] 14/5

No. 7 [1] 16/15

nobody's [1] 71/2

non [2] 7/24 49/24

non-hearsay [1] 49/24

non-leading [1] 7/24

none [2] 12/21 16/12

normally [4] 7/21 7/22 8/24 61/2

North [1] 2/8

not [97] 

note [2] 4/12 58/17

notebook [1] 43/22

notebooks [3] 68/10 68/15 68/16

noted [3] 31/3 31/4 31/19

nothing [6] 24/22 24/24 33/19 49/20 51/10 64/13

now [34] 7/10 7/15 8/12 10/23 12/13 19/3 22/3 24/5 25/15 28/22

 29/1 32/11 33/24 34/9 35/25 40/17 43/12 44/25 45/4 46/15

 48/19 53/18 53/21 56/12 59/18 59/20 60/3 61/21 61/25 62/13

 64/21 65/13 70/6 70/22

number [28] 6/13 27/25 28/1 28/1 28/3 28/4 29/10 29/25 33/4

 33/10 34/25 35/23 36/8 36/8 36/16 36/18 37/19 37/20 37/21

 37/23 37/24 38/25 41/21 41/22 41/24 42/1 42/17 44/22

numbers [30] 16/24 29/13 29/13 29/18 29/24 30/1 32/2 33/1

 33/1 33/2 33/5 33/6 33/6 33/7 33/10 35/3 35/6 35/7 35/7 37/3

 38/5 39/4 39/7 39/10 72/3 72/3 72/4 72/5 72/19 72/20

O

o'clock [2] 18/14 67/15

O'Neal [5] 2/7 20/6 34/7 34/9 36/23

object [4] 9/14 11/20 38/9 53/3

objecting [1] 34/5

objection [23] 8/8 9/22 11/23 14/2 21/17 26/14 27/10 28/12

 30/10 34/8 34/9 41/5 50/24 58/15 60/4 60/10 62/2 64/25 65/1

 65/2 69/14 72/22 72/25

objectionable [3] 45/1 51/21 53/6

objections [23] 4/5 4/17 4/21 5/24 9/25 11/11 11/18 11/19 12/1

 14/4 16/20 16/20 17/12 28/16 53/5 59/14 60/22 63/4 67/24

 72/23 73/2 73/3 73/9

objective [1] 35/17

objectively [1] 36/12

objects [2] 61/6 61/7

obstructed [1] 71/3

obviously [2] 15/3 52/21

occurred [1] 49/4

off [1] 17/14

offer [7] 11/2 52/23 53/2 53/21 53/22 60/9 62/2

offered [2] 44/20 60/2

offering [1] 52/25

office [2] 46/24 48/5

officer [1] 52/1

Official [1] 74/12

Oh [3] 35/25 51/16 55/7

okay [22] 5/14 9/8 12/18 12/21 15/1 18/7 20/25 21/7 22/20

 24/20 25/3 28/15 41/8 42/24 44/4 45/9 46/20 52/4 59/5 59/9

 62/7 65/8

old [2] 62/24 66/5

olden [1] 66/1

once [3] 12/8 40/9 65/12

one [64] 4/8 4/12 6/9 12/7 13/5 13/9 14/4 14/18 15/5 15/14 18/3

 18/14 18/25 19/7 19/14 20/22 20/25 21/6 21/10 21/20 25/24

 26/18 26/21 27/13 27/21 28/13 28/20 29/10 30/2 31/25 34/1

 34/3 34/4 36/3 36/11 37/10 39/12 39/13 39/14 41/15 41/17

 42/19 43/22 44/2 44/14 46/18 46/21 46/21 50/7 53/18 54/3 54/5

 54/22 58/16 60/14 61/12 61/22 68/5 68/10 68/20 68/20 69/5

 71/9 72/24

one-day [1] 15/14

ones [5] 9/16 29/15 29/15 33/18 36/9

only [14] 12/25 17/5 17/13 25/23 34/1 34/3 34/4 34/20 34/25

 36/11 51/14 52/4 53/17 58/5

oOo [1] 74/4

open [4] 4/3 13/18 61/2 69/8

opening [13] 13/11 13/12 18/18 18/20 35/3 43/5 62/9 62/19

 63/2 63/7 63/10 63/12 64/11

operation [1] 50/12

opinion [3] 35/17 36/15 70/6

opinions [2] 13/2 13/16

opponent [1] 44/21

opportunity [5] 13/11 15/25 16/13 66/6 67/23

opposed [2] 29/9 30/3

opposing [1] 9/21

option [2] 42/16 53/14

options [1] 69/21

order [7] 9/19 10/12 10/14 12/2 12/8 23/23 73/9

ordered [1] 10/14

ordinary [1] 27/24

OREGON [2] 1/2 1/7

organized [1] 9/22

original [3] 59/3 59/6 74/8

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 84 of 91
O

originally [1] 19/6

other [31] 5/23 7/4 12/19 14/17 23/21 24/1 26/21 27/13 27/21

 28/13 29/10 29/20 29/25 30/2 31/6 32/23 37/10 38/8 38/16

 40/24 41/4 51/15 51/16 52/5 52/5 53/10 53/12 53/14 57/4 61/3

 70/11

otherwise [3] 15/6 24/14 66/18

our [28] 6/5 8/15 8/24 9/1 9/7 15/16 16/8 17/2 18/10 18/13

 18/15 21/19 23/24 32/4 32/11 33/17 35/2 38/1 38/1 39/14 43/10

 57/3 57/25 68/20 69/11 69/21 70/15 71/16

out [43] 6/15 7/4 9/18 10/19 12/8 12/25 15/25 16/13 17/5 18/5

 22/23 26/25 28/2 28/13 31/2 31/20 33/5 33/18 34/22 35/22 39/3

 40/9 40/16 40/18 40/25 42/9 42/13 43/7 44/9 48/6 48/15 53/10

 58/12 60/12 60/25 61/4 61/9 63/15 66/10 67/18 68/22 72/21

 73/4

outcomes [1] 59/15

Outreach [1] 51/2

outweigh [1] 49/21

outweighs [1] 55/11

over [9] 4/25 8/2 14/11 16/2 16/5 18/14 28/21 37/14 54/18

overrule [3] 11/22 34/8 68/2

overruled [1] 16/20

overruling [1] 16/10

overstatement [1] 47/2

own [4] 13/7 15/7 70/15 70/22

P

p.m [2] 46/5 63/1

P34A [1] 50/11

P45 [2] 54/3 54/5

P47 [1] 56/16

P6 [5] 43/21 43/22 44/5 44/23 46/15

P7 [6] 43/21 43/23 44/5 44/10 44/23 46/15

P7-8 [1] 44/10

page [11] 6/13 10/24 19/19 20/22 20/24 21/11 26/20 46/3 47/18

 52/19 53/18

pages [2] 44/22 52/20

paper [1] 59/20

paragraph [4] 19/19 26/20 27/19 27/21

paralegals [2] 68/9 69/2

paramount [1] 55/12

part [24] 22/10 23/4 30/20 32/11 34/17 35/1 35/1 53/6 53/15

 57/16 57/17 57/19 57/22 57/22 57/23 58/7 58/9 58/23 58/24

 59/2 60/22 61/14 61/25 66/13

particular [4] 17/25 32/3 44/24 53/6

particularly [2] 9/17 44/25

parties [1] 61/15

parts [1] 57/15

party [3] 19/21 21/3 44/21

party-opponent [1] 44/21

pass [1] 68/22

Pause [2] 46/9 47/8

PDF [1] 63/25

penciled [1] 22/23

people [13] 16/7 16/25 17/2 17/7 17/14 22/14 23/5 27/4 30/21

 33/25 37/24 54/13 54/15

per [5] 16/23 17/1 17/6 17/13 34/3

peremptories [3] 17/6 17/9 17/15

peremptory [1] 16/22

perfect [1] 25/16

perfectly [1] 24/16

perhaps [1] 22/7

period [2] 28/6 49/3

person [9] 7/11 15/8 15/11 15/11 15/12 18/3 34/1 34/4 58/22

persons [1] 35/23

perspective [1] 25/6

persuasive [1] 30/8

Phoenix [1] 2/8

phone [6] 25/21 30/17 38/24 55/5 58/8 58/24

phones [3] 31/11 42/7 42/8

photograph [1] 70/7

photographs [3] 70/11 70/12 71/4

phrase [1] 40/18

phrasing [1] 42/1

pick [4] 18/12 18/13 18/15 43/3

piece [2] 6/21 45/8

pieces [2] 23/21 53/12

place [5] 20/16 49/3 50/12 65/12 72/2

plaintiff [54] 1/5 2/2 5/16 6/1 6/6 7/18 8/1 9/10 13/21 13/21 14/2

 19/19 19/21 21/14 23/15 24/11 24/11 24/14 24/22 25/10 26/14

 26/25 27/10 28/10 29/19 29/24 31/2 34/7 36/22 38/22 39/22

 40/4 40/8 40/20 41/18 41/20 41/22 42/3 42/6 43/11 45/3 45/18

 49/6 49/8 49/14 51/6 51/13 52/7 53/2 53/16 58/21 60/8 64/15

 67/23

plaintiff's [18] 4/5 4/14 4/17 6/10 7/2 10/16 13/5 16/2 20/11

 28/20 31/24 42/17 46/11 47/9 56/6 65/24 66/2 72/17

plaintiffs [4] 14/11 18/25 34/22 51/1

plaintiffs' [1] 31/7

plan [4] 12/12 42/25 60/1 66/11

plane [1] 66/19

planning [6] 8/14 8/17 10/10 10/17 34/10 63/2

play [1] 6/7

played [1] 25/20

please [8] 4/7 4/7 14/20 20/6 46/23 57/11 59/22 68/20

plenty [1] 50/3

plural [2] 26/5 26/5

podcast [1] 22/17

point [10] 14/19 23/14 28/7 42/11 45/6 45/16 48/24 53/6 53/10

 61/12

pointed [2] 34/22 48/15

pointing [1] 35/22

points [7] 9/11 18/4 58/16 60/17 65/20 65/21 66/9

policies [1] 54/22

POM [6] 50/12 50/15 50/20 54/11 54/15 55/10

portal [1] 48/5

portion [3] 20/9 30/17 30/20

portions [9] 8/2 8/2 8/17 12/15 44/24 52/6 53/9 53/14 53/17

Portland [3] 1/7 2/14 2/23

position [3] 21/15 30/12 72/17

positive [1] 59/11

possibility [1] 24/7

post [6] 38/16 39/3 39/14 39/20 66/11 66/12

post-trial [6] 38/16 39/3 39/14 39/20 66/11 66/12

potential [1] 25/7

potentially [2] 32/8 70/17

power [1] 40/2

powerful [1] 60/18

practice [2] 12/24 51/20

prejudice [5] 22/21 41/6 41/7 55/10 60/23

prejudiced [1] 38/10

prejudicial [1] 45/15

preliminary [13] 4/21 18/16 18/19 18/23 19/4 19/11 20/12 20/23

 22/2 24/21 43/4 68/18 72/10

prepare [1] 9/20

prepared [3] 4/24 51/7 68/1

preponderance [8] 41/16 41/19 41/21 41/23 42/3 42/7 42/18

 42/21

prerecorded [4] 20/17 25/12 25/20 54/11

presence [4] 15/25 16/14 60/12 72/19

present [4] 5/20 29/11 62/1 63/1

presentation [1] 31/14

presented [4] 8/12 38/13 40/10 61/14

presenting [1] 31/16

preserve [1] 60/14

preserved [3] 11/19 12/3 65/13

president [1] 14/15

president/cofounder [1] 14/15

Press [1] 14/18

presumably [1] 38/25

pretrial [10] 1/11 3/2 12/2 14/10 43/10 43/25 56/17 61/14 65/9

 73/9

pretty [3] 51/15 66/24 71/12

previous [4] 11/19 12/1 17/23 54/9

previously [2] 43/14 45/13

primarily [4] 27/14 28/8 37/16 37/21

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 85 of 91
P

primary [1] 30/10

prior [8] 19/12 19/20 21/3 22/6 23/4 23/10 23/16 28/16

Pro [1] 47/19

probably [11] 6/12 15/9 21/23 24/3 40/16 60/12 61/4 62/23 66/9

 69/11 73/9

problem [8] 23/9 23/17 24/6 31/2 34/16 36/2 48/17 70/18

problematic [1] 24/4

problems [2] 27/8 72/13

procedure [1] 64/25

procedures [1] 54/22

proceed [4] 7/23 9/5 9/23 10/13

proceeded [1] 37/9

proceedings [3] 1/12 3/2 74/7

process [4] 15/2 17/12 61/15 65/11

produced [1] 37/6

product [1] 45/14

Progressive [1] 51/2

prohibits [1] 20/20

project [1] 70/9

projector [3] 69/20 70/5 70/9

promoter [4] 44/8 45/4 49/7 54/21

promoters [4] 22/11 30/21 30/23 49/17

promotership [2] 45/17 49/2

promoting [1] 54/23

prompts [1] 15/23

proof [2] 32/12 35/3

proper [1] 13/23

proposal [1] 57/3

propose [3] 10/22 21/1 57/3

proposed [9] 9/20 19/6 19/13 20/23 21/2 21/4 29/22 56/25 57/1

proposing [4] 19/19 19/21 21/14 23/17

prospective [2] 16/14 17/21

prove [9] 13/22 25/10 29/7 29/8 29/24 32/10 41/18 42/17 44/16

proven [7] 13/20 41/16 41/20 41/23 42/3 42/6 42/21

provide [5] 9/21 19/7 22/10 24/7 59/20

provided [1] 59/15

providing [2] 6/6 59/23

psychologist [1] 36/14

public [1] 28/2

publicized [1] 28/2

publishing [1] 10/24

purchased [1] 66/19

purported [1] 31/9

purpose [1] 26/7

purposes [7] 22/1 22/21 28/17 28/23 28/24 31/19 59/1

put [26] 11/5 16/14 16/16 22/23 25/13 28/6 29/16 30/8 33/10

 33/14 37/1 37/1 37/4 38/15 38/24 39/18 41/20 45/5 45/20 54/19

 57/24 58/24 59/2 63/15 70/2 70/22

puts [1] 39/12

putting [3] 42/16 63/13 65/11

Pyle [1] 2/13

Q

qualify [1] 72/5

quality [1] 59/1

quantity [1] 35/5

Quarles [2] 2/7 2/10

question [21] 5/5 5/15 6/18 8/25 9/2 16/3 16/4 17/8 28/25 29/23

 30/4 33/8 33/16 38/12 40/3 41/17 42/4 42/6 42/20 51/20 71/9

questioner [3] 6/10 6/12 6/24

questioning [3] 12/23 34/2 34/6

questions [33] 7/6 7/9 7/13 7/18 7/24 7/25 8/6 8/7 8/9 9/5 9/21

 11/7 12/9 13/8 16/8 17/17 17/23 18/2 18/8 18/20 21/14 21/16

 34/3 34/4 39/2 40/15 40/18 51/18 51/19 60/9 60/10 71/19 71/22

quick [1] 61/22

quite [1] 26/23

R

raise [2] 33/11 33/24

raised [3] 17/25 72/19 72/20

raising [1] 51/18

random [1] 22/13

rather [2] 8/20 64/23

rationale [1] 57/13

RDR [2] 2/22 74/12

reaction [1] 70/24

read [27] 4/16 6/9 6/11 6/24 7/8 7/9 7/10 8/2 9/2 9/4 9/5 9/15

 12/14 18/16 20/13 25/6 28/7 46/1 46/7 46/15 47/7 47/10 59/25

 64/20 65/4 67/14 67/15

reader [5] 6/7 6/8 7/9 8/10 9/6

reading [16] 4/18 5/4 6/16 6/18 7/10 7/12 8/14 8/18 9/2 9/3

 10/10 10/22 10/23 21/21 25/7 36/10

reads [4] 7/2 9/6 45/22 45/23

ready [3] 44/4 57/12 57/14

real [3] 31/2 45/9 58/23

reality [1] 58/5

really [14] 8/18 18/14 22/20 22/21 27/6 27/19 33/19 36/7 41/6

 50/2 52/17 58/19 65/21 71/7

realtime [1] 8/21

reason [6] 16/25 23/7 37/2 37/14 53/7 54/25

reasons [2] 15/4 50/3

rebut [1] 38/2

recall [1] 13/8

receive [5] 4/12 11/3 11/23 47/12 53/21

received [5] 4/16 28/19 28/20 32/17 47/6

recent [1] 66/15

Recess [2] 73/13 73/17

recognize [1] 72/11

recognized [1] 29/6

reconfirm [1] 62/8

record [17] 6/19 8/13 10/22 10/24 16/13 16/15 16/16 16/17

 20/14 31/21 49/24 50/21 59/23 60/15 62/3 65/8 74/7

recorded [6] 55/5 55/8 58/18 58/23 58/23 58/25

recording [1] 58/25

records [3] 60/2 61/23 62/1

redact [3] 56/23 58/2 58/7

redacted [1] 57/18

redactions [4] 56/18 56/25 57/1 57/8

redundant [1] 13/9

reference [4] 56/24 58/17 58/22 62/9

references [1] 22/6

referred [1] 58/18

refund [1] 46/24

regarding [1] 26/19

regardless [1] 54/15

registered [3] 27/1 27/25 28/3

rejected [1] 16/17

relates [1] 55/24

relating [1] 13/2

relationship [7] 23/5 23/10 37/20 44/12 44/15 44/17 49/16

relatively [1] 18/3

Relax [1] 4/7

relevance [7] 44/16 48/25 49/22 54/3 54/9 54/17 55/11

relevant [17] 12/25 45/3 45/15 47/11 47/24 49/12 49/15 49/16

 49/20 54/12 54/14 55/5 55/22 56/2 57/22 58/8 62/4

remainder [1] 45/10

remaining [1] 17/10

remember [2] 9/1 56/10

Remind [1] 14/13

removed [3] 17/21 55/17 58/1

render [1] 25/23

renewed [1] 66/13

repeatedly [1] 44/14

replace [2] 19/22 26/13

replacement [1] 17/19

replacing [1] 20/9

reporter [8] 2/22 8/15 8/24 8/25 9/1 9/3 9/7 74/12

reporting [1] 8/19

representative [1] 44/6

request [2] 61/1 61/2

requested [1] 46/23

requesting [2] 23/16 44/9

requests [1] 43/15

require [1] 32/11

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 86 of 91
R

requirement [1] 23/1

requirements [1] 29/20

research [1] 13/18

reserve [3] 24/7 65/21 66/9

reserved [5] 11/12 54/4 56/13 59/17 61/24

Reserving [1] 28/16

residential [42] 26/19 26/24 27/1 27/7 27/15 27/18 27/22 27/25

 28/3 28/8 28/8 29/9 29/14 29/15 29/18 30/4 30/5 30/7 30/16

 31/17 32/1 32/7 32/19 32/24 33/9 33/11 33/17 33/20 34/19

 34/20 35/4 35/14 36/19 38/23 39/5 39/12 39/13 39/16 40/6

 40/12 40/14 41/24

respect [2] 33/20 34/18

respectively [1] 4/14

respond [3] 48/22 61/8 67/23

responded [1] 28/21

respondent [1] 61/7

responding [1] 15/2

responds [1] 6/20

response [16] 28/22 28/25 29/7 31/24 33/21 36/22 40/22 42/6

 49/14 49/25 55/13 57/23 58/3 58/11 59/11 59/13

responses [1] 43/1

rest [1] 53/18

result [3] 30/7 32/4 37/9

resulted [1] 48/9

resume [1] 11/6

review [1] 4/4

revise [1] 28/7

revised [1] 59/15

revisions [2] 28/18 65/3

right [58] 4/8 4/12 5/15 10/8 12/5 14/6 18/8 18/10 20/4 21/12

 24/5 24/16 27/10 27/12 28/18 28/19 28/22 28/25 30/14 36/4

 37/12 39/13 39/19 39/22 39/24 39/25 40/1 40/1 40/8 41/13 42/2

 43/18 44/22 44/25 46/4 46/7 46/14 47/7 47/9 49/23 52/24 53/1

 55/20 56/5 56/12 56/22 58/14 59/20 60/1 61/21 62/7 62/13

 62/14 68/22 69/17 69/25 70/22 71/21

rise [1] 47/1

risk [2] 13/9 59/11

RMR [1] 74/12

robo [1] 50/4

role [3] 6/7 7/10 45/3

room [2] 2/23 16/8

rule [6] 6/23 7/14 8/4 10/14 40/23 63/6

ruled [2] 9/16 12/1

ruling [10] 11/12 11/17 38/10 43/13 54/4 56/13 59/17 65/2

 65/22 66/9

rulings [2] 11/2 61/24

run [4] 22/18 24/10 24/14 41/11

run-amuck [1] 22/18

running [6] 16/24 17/5 30/21 30/23 71/13 72/2

S

said [18] 11/17 15/18 19/23 22/18 36/23 37/4 45/19 49/10 50/15

 51/24 51/25 53/21 54/20 54/20 57/24 65/9 66/15 71/3

sales [1] 22/12

same [11] 6/24 7/1 7/9 10/18 25/20 32/22 33/8 35/6 47/15 62/8

 72/14

sandbag [1] 73/1

Santa [2] 2/5 2/5

satisfied [2] 15/14 38/25

satisfies [1] 32/19

satisfy [1] 10/14

Saturday [1] 67/7

saw [1] 47/21

say [44] 7/5 10/9 10/23 11/4 11/18 11/19 11/21 11/22 15/17

 15/19 16/16 23/19 24/5 29/12 30/2 30/6 31/11 32/6 32/8 33/4

 34/15 39/4 39/16 41/17 41/18 42/2 42/5 49/11 51/1 51/13 51/16

 52/15 54/25 56/12 62/10 63/8 63/8 63/12 63/15 65/12 66/8

 71/15 71/15 72/15

saying [10] 17/24 20/2 20/6 20/21 24/6 42/18 49/1 55/7 61/16

 63/18

says [7] 20/15 26/20 29/23 39/25 40/1 46/16 48/20

Schappert [2] 54/9 55/3

scheduling [3] 18/10 66/15 66/25

scope [1] 7/19

Scott [1] 5/8

screen [9] 11/5 69/20 70/5 70/6 70/10 70/16 70/21 70/22 71/1

screens [2] 70/8 71/3

script [9] 4/21 9/21 9/25 10/9 12/22 13/25 14/3 31/10 73/4

scrubbed [2] 60/6 69/6

seat [3] 15/12 15/16 15/19

seated [1] 4/7

second [7] 9/17 20/22 26/20 45/8 57/19 58/19 64/17

section [5] 30/16 34/18 34/19 34/20 52/12

sections [2] 9/18 10/6

see [31] 4/9 6/3 9/22 12/23 14/7 16/4 23/17 26/3 29/23 38/3

 38/20 39/9 46/3 46/5 46/16 48/20 51/17 56/13 57/9 60/13 61/2

 61/25 67/11 70/2 70/8 70/19 70/19 70/20 70/21 70/23 71/2

seeing [2] 12/21 70/24

seems [2] 55/19 60/21

seen [2] 17/12 69/24

selection [2] 15/2 17/16

selectively [1] 52/8

send [8] 14/11 16/21 39/14 39/19 43/1 45/13 69/7 73/8

sense [6] 12/11 12/13 26/2 29/25 50/21 69/19

sent [2] 14/10 18/23

sentence [15] 19/7 19/14 19/20 20/5 20/13 20/14 20/19 20/20

 21/2 21/2 21/4 27/5 27/16 27/20 28/7

sentencing [1] 73/10

separate [4] 33/18 55/2 55/9 55/18

sequence [1] 9/20

series [2] 44/9 48/7

serve [1] 26/7

service [4] 54/24 55/2 55/16 55/18

set [4] 35/1 70/5 70/13 70/16

seven [1] 17/7

share [1] 4/9

she [20] 27/1 27/2 27/2 27/3 44/11 44/17 44/17 48/3 48/4 48/4

 48/5 48/7 48/11 49/18 49/19 54/25 55/4 55/15 58/1 58/22

shipping [2] 48/7 48/17

should [26] 4/17 4/19 6/24 9/15 11/11 12/22 16/15 20/8 22/5

 23/3 23/23 27/5 27/16 29/18 29/19 31/15 33/16 35/16 36/5 42/4

 44/25 54/1 56/15 57/6 59/12 61/21

shouldn't [2] 21/23 45/21

show [25] 10/10 11/4 13/14 19/7 27/13 29/10 30/15 30/23 35/3

 37/22 48/11 48/12 48/17 57/9 62/11 62/16 63/8 63/9 63/11

 63/13 64/4 64/9 64/10 69/21 70/12

showing [5] 37/21 49/20 52/21 70/7 70/7

shown [9] 10/25 20/18 29/17 30/3 30/6 50/13 57/4 58/21 64/3

shows [2] 49/25 54/10

SI [1] 1/5

side [16] 13/6 16/23 17/2 17/6 17/13 28/23 31/21 33/25 34/3

 38/8 38/16 40/24 41/4 57/4 61/3 62/17

sidebar [1] 16/5

sides [9] 24/12 38/14 38/19 62/15 65/5 65/10 65/18 66/23 68/19

sides' [1] 40/17

sign [1] 47/20

signature [3] 74/9 74/9 74/9

signed [4] 20/15 44/7 49/7 74/9

significant [1] 56/8

signing [1] 74/6

SIMON [2] 1/13 2/3

simple [1] 62/23

simply [1] 11/25

since [5] 18/2 26/4 49/19 52/4 55/25

single [1] 25/24

sit [1] 8/10

sit-in [1] 8/10

sits [1] 15/16

situation [1] 15/21

skeptical [1] 39/24

skip [1] 8/2

slide [1] 19/8

slides [3] 50/10 62/20 63/2

slow [1] 9/3

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 87 of 91
S

slowly [4] 9/2 9/4 9/5 9/6

so [82] 

sole [1] 64/6

some [43] 5/15 10/19 11/15 11/16 18/20 22/9 22/10 23/5 23/13

 23/21 24/7 24/10 24/13 24/17 25/10 27/8 28/5 30/24 39/20

 42/11 43/14 50/21 51/16 52/14 53/7 55/9 56/18 56/25 57/1

 60/18 60/21 61/25 62/17 62/24 64/12 65/3 71/19 71/25 72/1

 72/2 72/14 73/5 73/6

somebody [3] 15/5 37/19 55/21

somehow [1] 35/9

someone [4] 15/8 22/17 32/17 55/8

something [21] 6/14 18/5 18/6 20/9 22/25 23/1 31/4 31/5 31/22

 35/21 35/24 42/24 50/25 52/8 52/22 60/25 65/6 70/17 72/9

 72/11 73/11

soon [2] 13/11 40/25

sorry [1] 71/18

sort [6] 23/5 40/9 40/16 41/8 51/19 60/18

sorted [1] 61/9

sounds [3] 24/15 59/5 69/1

speaking [3] 48/19 60/25 62/17

speaks [1] 34/1

special [3] 4/24 28/19 39/1

specific [5] 41/21 42/1 42/1 42/22 65/18

specifically [3] 31/17 33/1 66/8

speculating [1] 61/11

spill [1] 37/14

split [1] 32/23

spoken [1] 62/18

Spokeo [1] 36/17

spreadsheets [4] 35/20 69/5 69/8 69/10

spring [1] 48/4

stage [3] 16/9 16/18 31/7

stand [4] 6/8 19/3 24/11 27/16

standard [1] 41/16

stands [1] 34/7

start [4] 17/24 18/11 18/17 67/14

startup [1] 47/22

state [1] 6/19

stated [1] 43/15

statement [10] 13/11 13/12 14/6 14/8 24/18 50/4 62/10 62/19

 63/10 63/12

statements [3] 18/18 18/20 43/5

STATES [3] 1/1 1/14 2/22

statute [1] 23/22

statutory [1] 34/18

stay [1] 36/5

still [11] 5/6 5/8 5/11 11/20 15/24 17/5 33/20 35/10 42/9 60/1

 62/10

stip [1] 45/19

stipulate [1] 49/6

stipulation [2] 45/5 64/17

stipulations [3] 68/11 68/13 68/19

story [2] 22/10 23/4

straight [2] 8/14 67/16

stricken [1] 27/5

strike [5] 17/19 22/5 26/5 26/12 27/20

strike-and-replacement [1] 17/19

strikes [3] 16/22 16/23 17/1

struck [1] 21/23

stuck [1] 64/8

stuff [5] 24/1 45/14 48/7 51/17 64/12

subject [2] 30/20 35/13

submit [1] 64/21

submitted [3] 28/17 66/3 66/7

subscribed [2] 54/23 55/15

subsequently [1] 49/8

substantially [2] 49/21 55/11

substantive [1] 22/8

subtract [1] 33/5

such [4] 8/18 13/20 13/20 13/22

sucks [4] 45/20 46/17 47/2 48/20

sufficiency [1] 33/12

sufficient [5] 29/10 33/14 38/13 42/12 51/23

sufficiently [2] 7/24 9/6

suggest [7] 19/8 20/18 24/9 55/9 57/7 58/7 68/10

suggested [6] 4/20 25/15 36/3 56/18 56/23 67/22

suggestion [5] 19/1 27/4 40/22 41/15 69/5

suggestions [2] 18/22 24/10

suggestive [1] 7/25

Suite [3] 2/5 2/11 2/14

sum [1] 14/16

summarize [1] 63/10

summarized [1] 60/17

summarizing [1] 60/16

summary [17] 14/21 35/20 35/22 51/6 59/14 60/2 60/4 60/15

 60/21 60/25 61/4 61/5 61/13 61/14 71/10 71/22 72/1

Sunday [2] 66/20 67/7

super [1] 58/4

superb [1] 8/24

supplemental [1] 14/20

suppose [5] 15/13 34/6 39/9 39/10 39/16

Supreme [1] 40/1

sure [13] 9/24 19/9 23/6 24/15 27/17 36/1 41/2 43/23 45/16

 49/10 54/22 63/14 72/8

suspect [1] 31/21

sustain [1] 34/8

sustained [1] 8/8

SW [2] 2/14 2/23

swear [1] 6/8

system [7] 50/20 54/11 54/15 55/9 55/10 69/12 70/13

T

Taekwondo [1] 35/23

take [17] 5/25 8/15 15/19 27/2 27/3 31/8 36/7 49/3 53/18 55/16

 60/12 64/2 65/15 72/7 72/21 72/24 72/25

taken [2] 31/22 57/5

takes [3] 9/1 43/8 67/13

taking [1] 28/13

talk [18] 4/10 4/11 4/17 4/19 5/1 11/15 12/18 14/14 17/15 35/12

 42/25 43/4 50/6 54/1 56/15 59/12 59/19 73/6

talked [2] 14/10 18/10

talking [11] 8/21 14/16 18/2 21/23 22/17 29/1 33/24 45/8 55/14

 56/12 72/12

talks [1] 51/11

Tampa [1] 2/11

TCPA [11] 20/20 21/22 23/1 25/4 27/15 29/8 29/21 31/4 33/9

 34/17 72/6

technical [1] 24/3

telemarketers [1] 50/4

telemarketing [3] 20/17 25/11 25/19

telephone [20] 26/19 27/3 27/18 27/22 27/25 28/3 28/4 28/4

 28/6 28/9 29/9 29/13 29/24 32/16 32/18 36/8 36/8 49/2 49/4

 72/5

tell [34] 5/23 6/6 7/6 7/17 8/5 13/13 16/9 16/10 23/3 33/23 36/17

 36/19 36/20 37/11 38/9 39/6 39/8 39/17 40/4 40/5 40/13 40/13

 42/10 42/14 42/18 52/1 52/22 53/16 62/15 63/14 64/7 66/7

 66/17 73/1

telling [1] 23/9

ten [1] 36/18

ten-digit [1] 36/18

tentative [4] 11/17 19/11 21/5 43/13

terminated [1] 54/21

terms [4] 23/15 23/16 24/12 24/12

terrific [1] 10/18

testified [1] 51/3

testifies [1] 56/7

testify [1] 48/3

testifying [2] 14/7 55/20

testimony [10] 6/2 8/12 12/14 12/19 12/20 14/21 23/13 24/18

 51/22 72/14

text [6] 54/24 55/4 55/4 55/14 55/16 55/20

than [7] 15/4 15/14 32/12 34/18 63/1 64/2 70/11

Thank [10] 12/4 30/11 53/25 61/17 62/6 68/6 68/7 73/7 73/14

 73/15

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 88 of 91
T

Thanks [1] 73/8

that [427] 

that's [61] 4/5 5/2 9/24 10/4 10/8 10/15 11/1 12/5 12/18 14/9

 14/19 15/19 17/2 22/20 22/21 23/7 26/2 26/23 29/10 30/10 31/2

 31/5 31/20 32/3 32/11 33/23 36/1 39/24 40/16 45/5 45/9 45/18

 47/2 47/10 49/12 50/2 53/6 53/13 53/20 54/12 54/14 54/14

 54/15 57/17 57/22 57/22 58/8 58/10 58/19 59/8 61/2 62/5 63/21

 63/23 64/11 65/2 66/3 66/25 70/10 70/20 70/25

their [27] 8/7 13/1 13/2 13/15 13/16 13/16 22/11 35/3 35/20

 37/11 37/12 37/13 37/14 37/19 37/24 38/15 38/15 39/2 40/7

 40/15 48/5 62/18 65/18 70/8 70/14 72/23 73/2

them [70] 6/4 6/6 13/13 13/17 13/19 13/20 15/7 15/15 15/24

 16/6 18/16 22/10 23/8 24/1 24/10 25/13 31/18 35/5 35/6 35/10

 35/11 35/15 36/3 37/5 37/5 37/13 38/17 40/25 42/14 42/16 43/4

 43/24 44/17 45/13 45/14 48/8 48/9 48/12 49/19 51/8 52/18 57/1

 59/10 61/8 62/1 62/2 63/24 64/4 64/9 64/9 64/10 64/22 64/23

 67/18 68/1 68/2 68/5 68/16 68/22 69/9 69/9 69/10 70/8 70/12

 71/25 72/1 72/14 72/21 73/3 73/4

then [102] 

theoretically [1] 31/25

theory [1] 7/22

there [62] 5/15 8/4 8/9 9/13 9/18 9/25 10/15 10/20 11/14 11/15

 11/20 14/18 17/25 19/4 22/16 23/13 23/21 25/6 25/18 31/1

 35/17 35/21 36/1 36/16 37/11 37/24 38/5 38/7 38/13 40/8 41/6

 43/7 43/9 44/22 45/10 47/21 49/20 50/3 50/21 51/4 51/10 51/14

 53/8 53/12 55/10 57/15 58/5 58/8 58/17 59/18 61/7 61/22 62/2

 67/19 70/2 70/3 71/1 72/3 72/3 72/3 72/4 72/6

Therefore [1] 27/15

these [25] 5/16 7/24 12/9 23/5 25/7 29/13 30/21 30/21 30/23

 30/24 36/9 37/6 37/16 39/10 40/18 43/18 44/15 48/7 48/11

 49/16 51/19 55/1 57/13 58/13 72/12

they [120] 

they're [1] 32/5

they've [4] 35/22 52/8 72/19 72/20

thick [3] 52/17 52/23 53/9

thing [16] 10/20 12/7 13/10 18/18 25/20 31/25 46/8 53/5 59/5

 61/22 62/8 66/17 66/25 68/10 70/13 72/15

things [10] 8/18 10/2 30/1 36/12 41/3 45/2 56/13 61/4 66/10

 70/24

think [83] 

thinking [9] 5/22 21/19 38/11 38/19 38/21 41/10 60/25 65/23

 66/11

third [3] 2/23 25/12 57/23

this [127] 

thorough [1] 12/24

those [36] 4/15 7/23 9/15 10/6 12/3 16/7 16/8 25/17 25/21

 25/24 26/8 26/8 26/13 28/18 30/1 34/23 35/6 35/7 36/11 37/11

 37/25 39/4 39/7 40/15 41/18 41/19 42/5 43/16 51/10 51/14

 61/18 68/11 68/15 69/6 71/3 72/21

though [4] 7/6 42/10 47/15 53/22

thought [2] 22/5 73/5

thoughts [1] 52/15

three [12] 16/22 17/1 17/6 17/13 17/14 26/13 38/4 39/13 49/19

 57/15 58/16 60/20

through [13] 6/2 8/15 21/18 31/9 31/10 33/15 38/11 43/8 46/22

 52/18 53/4 70/13 72/7

Thursday [5] 18/17 43/6 43/6 67/12 67/12

thus [1] 13/22

tickets [1] 66/20

ties [1] 50/25

time [21] 6/24 7/1 11/1 11/4 11/12 12/10 18/13 34/1 37/25 43/7

 44/16 49/1 49/3 55/18 61/11 65/10 65/16 66/24 72/8 72/14

 72/18

timeliness [1] 60/23

times [1] 25/6

timing [1] 49/15

today [5] 12/2 28/17 43/1 44/13 73/12

together [4] 25/14 31/18 63/3 65/5

told [4] 45/13 57/25 64/9 72/23

tomorrow [3] 43/2 43/2 63/1

too [9] 9/25 10/15 42/23 54/16 55/23 61/6 61/7 65/15 70/19

took [4] 4/6 48/14 48/17 49/11

top [1] 20/6

topics [2] 9/17 9/19

total [3] 39/11 39/19 39/23

totally [1] 67/9

tracing [1] 31/10

track [1] 41/13

transcript [5] 1/12 6/9 9/19 74/7 74/8

transcripts [1] 8/16

treat [1] 12/1

trial [20] 7/21 8/22 12/12 15/3 15/14 15/18 17/4 29/11 31/8

 38/16 39/3 39/14 39/20 44/14 59/17 60/8 60/20 66/11 66/12

 66/18

tried [1] 55/9

truth [1] 55/7

try [7] 12/24 18/4 43/7 45/5 67/11 68/3 73/11

trying [2] 26/1 73/1

Tuesday [2] 43/2 63/2

turn [10] 12/22 16/2 16/25 18/19 29/22 37/20 41/4 46/14 46/15

 66/10

two [20] 2/8 21/20 26/13 39/19 42/19 43/11 43/13 47/20 47/21

 49/4 49/13 57/21 58/5 58/9 58/16 60/20 64/13 65/5 65/19 69/22

two-hour [1] 65/19

type [3] 24/13 45/14 62/17

types [1] 61/18

typically [1] 67/13

U

U.S [1] 54/16

Uh [2] 26/22 56/19

Uh-huh [2] 26/22 56/19

ultimate [1] 49/1

ultimately [1] 33/13

unable [1] 67/20

unanimous [1] 17/3

unanimously [1] 17/11

under [9] 6/23 7/7 7/14 7/15 7/22 7/23 8/3 60/13 72/5

underlying [2] 58/20 58/21

understand [12] 7/11 21/12 25/18 27/17 35/18 48/14 48/25

 50/20 60/24 61/16 61/18 65/11

understanding [2] 19/18 66/4

understands [2] 24/16 25/22

Understood [10] 11/24 34/11 44/1 47/4 56/14 60/24 63/17

 66/14 70/15 71/6

unfair [2] 41/6 55/10

unfold [1] 51/17

Unfortunately [1] 58/19

UNITED [3] 1/1 1/14 2/22

unless [5] 12/19 27/13 59/18 62/9 70/6

unrealistic [1] 67/9

unreasonably [1] 40/18

unreliable [1] 72/15

until [3] 16/8 59/17 65/17

up [46] 6/8 8/17 11/5 13/7 15/8 15/11 15/13 15/16 16/7 17/2

 18/17 21/20 22/17 29/15 29/25 30/1 31/22 32/1 32/15 32/23

 34/7 34/15 34/23 35/10 35/11 36/3 36/25 37/3 39/1 39/10 44/7

 46/19 47/20 49/7 51/15 57/8 65/15 69/8 70/2 70/5 70/13 70/16

 70/20 70/22 71/1 71/13

upon [1] 24/12

upset [1] 45/11

us [18] 15/4 15/14 15/17 30/3 32/11 36/25 37/6 37/8 37/11

 39/14 39/19 40/4 59/7 68/14 72/13 72/23 73/1 73/1

use [9] 13/10 13/12 27/1 64/5 69/10 69/20 70/9 70/17 70/21

used [15] 26/8 26/25 27/14 28/4 28/8 35/7 35/20 37/21 37/24

 46/13 50/12 50/19 55/2 55/18 66/1

user [3] 50/15 50/16 50/17

uses [1] 26/4

using [5] 17/20 20/17 60/18 62/17 63/2

usual [1] 27/23

usually [1] 17/13

V

various [2] 4/18 70/24

Case 3:15-cv-01857-SI Document 300 Filed 05/15/19 Page 89 of 91
V

verdict [17] 4/24 17/3 25/23 28/19 29/22 30/9 30/13 32/10 36/4

 38/22 39/2 41/9 42/12 64/2 64/5 68/23 73/11

verifiable [1] 36/12

version [6] 58/20 59/24 59/24 59/24 64/22 64/24

vertical [1] 60/16

very [6] 12/24 22/18 31/5 42/1 45/11 60/18

vet [1] 60/22

Vi [1] 47/19

victory [1] 68/3

videotaped [3] 5/17 71/4 71/7

view [4] 41/8 45/1 63/18 71/2

violated [1] 29/20

violating [2] 34/17 34/19

violation [2] 29/8 54/21

violative [3] 25/8 49/13 51/10

VISALUS [39] 1/7 14/16 14/17 19/2 22/25 29/20 32/25 37/4

 37/25 44/7 44/8 44/9 44/11 44/12 44/13 44/15 44/16 44/19

 44/20 45/20 46/16 47/2 47/6 47/14 48/3 48/14 48/20 49/7 49/11

 49/17 49/17 49/24 50/19 50/19 50/21 56/25 58/4 58/11 61/23

ViSalus's [5] 54/19 55/6 56/4 57/20 57/23

voice [6] 14/18 20/17 25/12 25/20 57/21 58/9

voir [14] 4/21 12/22 13/6 13/10 13/23 13/25 14/2 17/21 18/8

 67/19 71/11 71/13 71/15 71/16

voir dire [3] 13/25 67/19 71/16

voluminous [2] 60/2 61/1

vote [2] 13/21 13/22

W

wait [2] 60/7 65/16

waiting [1] 51/1

WAKEFIELD [17] 1/4 44/6 44/8 44/17 44/19 45/11 46/10 46/12

 46/22 47/5 47/16 47/18 48/2 49/6 49/8 49/17 49/25

Wakefield's [2] 27/24 47/14

walk [1] 33/15

want [54] 4/11 8/10 8/11 9/19 10/12 11/8 11/14 11/16 11/19

 11/21 11/25 15/23 17/14 20/11 21/7 21/25 26/3 27/17 29/3

 38/19 39/2 42/9 42/12 42/16 45/16 47/22 49/1 51/19 52/5 52/6

 52/19 53/8 53/9 53/11 53/20 53/21 59/19 60/11 61/25 63/14

 63/15 64/1 65/15 65/20 67/22 67/24 69/23 70/9 70/12 70/18

 70/19 72/8 72/9 72/11

wanted [6] 7/18 7/19 57/17 58/24 59/2 69/8

wants [16] 6/1 7/4 7/9 7/14 13/24 28/23 33/16 38/16 38/22 40/4

 42/22 50/6 53/12 60/9 63/25 68/14

warn [1] 67/18

was [58] 4/4 7/10 7/14 8/21 10/5 14/17 21/18 21/20 22/1 22/11

 22/13 22/17 22/17 26/1 27/25 28/1 28/3 34/10 34/24 35/5 35/13

 35/18 35/21 37/7 37/21 45/6 45/18 46/22 46/25 47/6 49/19

 50/12 50/13 54/3 54/11 54/20 54/20 54/21 54/21 54/25 55/1

 55/8 55/9 58/8 58/10 58/22 59/4 59/14 61/2 61/14 64/15 64/19

 65/3 65/3 65/4 65/23 67/7 71/1

wasn't [7] 31/15 34/24 35/13 55/10 58/20 61/1 61/10

waste [1] 61/10

way [37] 5/5 5/20 5/21 8/23 9/5 10/19 16/12 18/17 24/12 26/1

 31/1 32/3 32/22 33/9 33/23 35/8 38/14 38/16 38/18 38/22 39/22

 39/24 39/24 40/3 40/16 40/18 48/4 51/3 52/4 52/22 52/23 57/8

 62/16 63/3 67/13 69/10 70/25

we [244] 

we're [3] 29/11 35/1 37/2

we've [1] 9/22

website [1] 48/5

Wednesday [5] 18/11 18/12 43/3 43/5 63/3

week [2] 13/9 18/11

weekend [3] 5/1 14/11 28/21

weeks [1] 47/21

welcome [8] 5/3 11/18 13/15 52/20 62/15 64/2 64/5 70/10

well [21] 8/13 9/16 10/7 14/12 23/14 26/4 32/14 35/12 35/25

 37/9 41/5 42/2 46/13 53/1 53/16 67/2 69/20 70/5 70/9 70/16

 70/18

went [2] 35/6 48/4

were [52] 4/13 5/15 7/17 20/6 22/11 25/10 25/11 25/13 25/21

 29/24 30/5 30/21 30/21 30/21 30/23 30/23 33/1 33/5 34/10 35/4

 35/6 35/7 35/7 35/15 35/21 37/3 37/12 38/23 39/11 39/12 39/16

 39/18 40/5 40/6 40/12 40/12 40/12 40/13 40/13 40/23 41/23

 45/12 49/13 51/5 55/1 55/18 57/21 58/5 58/9 61/15 64/18 72/9

weren't [3] 53/15 61/19 64/19

what [100] 

what's [14] 4/9 10/25 33/6 39/23 41/5 41/8 41/22 41/24 44/8

 50/24 51/21 58/14 61/5 63/18

whatever [4] 7/8 10/5 16/25 63/25

wheel [1] 41/12

when [36] 8/11 8/25 10/13 10/13 10/17 12/2 13/4 17/13 21/18

 21/20 22/20 25/5 29/22 33/24 34/1 39/14 46/22 47/11 52/17

 54/20 55/3 55/7 56/11 57/12 57/24 58/4 61/2 63/3 65/3 65/9

 65/17 65/23 67/1 67/3 68/18 71/15

whenever [2] 6/1 8/5

where [23] 6/22 7/4 8/8 11/16 15/21 16/9 16/18 16/19 17/20

 19/8 20/11 20/18 22/17 32/23 34/21 37/2 44/11 45/11 46/17

 61/2 61/15 70/22 72/15

whether [25] 4/19 13/8 15/3 27/22 27/24 28/1 29/8 32/18 33/17

 34/8 36/14 36/16 36/18 36/19 38/9 38/9 38/12 42/11 49/13 51/9

 51/9 51/20 60/3 64/20 72/1

which [41] 4/13 17/20 18/23 21/22 22/8 22/24 23/1 23/10 24/2

 26/25 27/2 30/7 32/10 33/10 33/11 34/19 34/20 35/22 36/8 36/9

 37/6 37/7 39/23 40/12 40/12 44/10 49/4 51/5 51/7 51/14 54/11

 54/22 57/19 58/8 59/15 60/2 60/17 60/19 60/21 62/17 72/5

whichever [1] 38/15

while [2] 25/11 52/14

white [1] 59/24

who [14] 6/7 7/10 22/11 27/4 30/23 32/17 34/4 34/4 44/7 50/4

 54/21 54/23 55/6 55/8

whoever [1] 17/10

whole [8] 19/5 31/6 31/11 45/16 46/7 52/11 53/4 53/16

whose [1] 25/23

why [16] 4/6 16/16 22/10 23/7 30/14 48/14 48/17 49/12 50/3

 55/16 61/1 61/10 61/18 63/23 65/5 70/25

wicked [1] 36/4

will [144] 

willing [3] 36/25 37/1 72/22

win [1] 37/16

WinBack [3] 54/10 57/22 58/10

wish [5] 11/6 13/8 16/3 64/6 73/1

wishes [1] 5/2

within [3] 47/21 49/3 73/9

without [4] 19/20 21/2 40/18 74/8

witness [25] 5/25 6/8 6/10 6/20 7/2 8/1 8/25 10/10 10/11 14/8

 14/9 14/20 23/10 24/18 34/2 34/2 34/7 38/4 38/8 38/8 40/23

 56/1 56/4 62/2 71/22

witnesses [3] 15/5 41/3 43/6

woman [1] 57/16

won't [6] 13/6 17/4 36/19 37/2 63/13 69/11

word [2] 27/23 63/25

words [3] 46/17 48/20 62/18

work [17] 5/6 5/8 5/11 10/19 11/10 15/20 28/10 37/15 38/20

 38/21 40/19 41/25 42/24 43/7 65/5 71/3 71/4

worked [3] 6/15 50/20 54/15

working [1] 64/18

works [2] 34/13 59/7

worry [1] 7/25

would [87] 

wrestle [1] 68/3

write [3] 19/16 19/23 20/1

writing [1] 68/18

written [19] 19/2 19/4 19/12 19/13 20/4 20/15 20/15 21/22 44/5

 44/11 44/18 44/19 48/9 48/11 48/13 64/21 64/22 64/23 68/23

wrong [3] 35/10 64/8 66/22

Y

year [5] 48/8 48/14 48/17 49/11 49/18

years [3] 49/4 49/13 49/19

yellow [2] 6/21 8/2

yes [35] 9/9 10/3 11/5 11/9 11/21 12/17 15/18 17/18 21/9 21/18

 25/2 26/9 26/10 27/9 28/11 28/17 29/4 32/21 34/12 34/14 41/22

 41/22 41/24 41/24 45/2 54/6 56/16 59/4 59/22 62/8 63/5 65/15

 67/5 70/1 71/23

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Y

yesterday [1] 60/6

yet [1] 17/13

you [248] 

you'll [3] 13/11 15/9 17/13

you're [10] 5/3 10/17 11/18 12/13 13/15 33/24 40/1 52/20 70/7

 70/10

you've [4] 10/12 11/12 12/8 16/17

your [163] 

Your Honor [92] 

Your Honor's [6] 20/19 21/5 27/16 29/22 33/8 37/18

Z

Zachary [1] 2/10

zero [3] 30/3 30/6 42/22

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