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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE POLAROID CORPORATION Plaintiff, v. HEWLETT-PACKARD COMPANY, Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 06-738 (SLR) REDACTED ­ PUBLIC VERSION

POLAROID'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANT HEWLETTPACKARD'S MOTION TO PRECLUDE THE REPORT AND TESTIMONY OF POLAROID'S SURVEY EXPERT WALTER MCCULLOUGH MORRIS, NICHOLS, ARSHT & TUNNELL LLP Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 N. Market Street Wilmington, Delaware 19801 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiff Polaroid Corporation

OF COUNSEL: Russell E. Levine, P.C. G. Courtney Holohan Michelle W. Skinner David W. Higer Maria A. Meginnes KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 Original Filing Date: June 12, 2008 Redacted Filing Date: June 26, 2008

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii NATURE AND STAGE OF PROCEEDINGS ...............................................................................1 SUMMARY OF ARGUMENT .......................................................................................................1 STATEMENT OF FACTS ..............................................................................................................2 ARGUMENT...................................................................................................................................5 A. B. Mr. McCullough's Opinions Are Relevant -- Or "Fit" In This Case. ....................5 Mr. McCullough's Methodology Was Reliable.......................................................8 1. The Survey Questions Are Not Biased And Misleading. ............................8 (a) (b) Mr. McCullough Did Not Suggest An Answer By Focusing Only On The Adaptive Lighting Feature. ........................................8 The Definition of The Adaptive Lighting Feature Provided By Mr. McCullough Did Not Suggest That It Was Valuable. ........................................................................................10 The Questions In The Surveys Did Not Suggest A Higher Value. .............................................................................................12

(c) 2.

Mr. McCullough's Surveys Did Not Cause Respondents To Guess .........15 (a) (b) Mr. McCullough Used A Proper Set of Respondents....................15 Mr. McCullough Asked Respondents A Logical Question To Determine The Value Consumers Place On The Adaptive Lighting Feature. ............................................................16 A Filter Question Would Not Have Made Sense Here. .................16 Respondents Were Not Forced To Answer. ..................................17 Outlandish Responses To The Surveys Were Not Included In The Results. ...............................................................................17

(c) (d) (e) C.

Mr. McCullough Is A Qualified Survey Expert.....................................................18

CONCLUSION..............................................................................................................................20

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TABLE OF AUTHORITIES Page(s) Cases American Home Products Corp. v. Johnson & Johnson, 654 F. Supp. 568 (S.D.N.Y. 1987).................................................................................... 14 Anheuser-Busch, Inc. v. Caught-on-Bleu, Inc., 288 F.Supp.2d 105 (D.N.H. 2003)...................................................................................... 2 C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049 (5th Cir. 1981) ............................................................................................ 7 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)........................................................................................................ 4, 5 Elcock v. Kmart Corp., 233 F.3d 734 (3d. Cir. 2000)............................................................................................... 5 Georgia-Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116 (D.C.N.Y. 1970) .................................................................................... 6 In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994).................................................................................................. 5 Izumi Prods. Co. v. Koninklijke Philips Elecs. N.V., 315 F. Supp. 2d 589 (D. Del. 2004).............................................................................. 5, 18 Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharms., Inc., 19 F.3d 125 (3d Cir. 1994)................................................................................................ 14 Kargo Global, Inc. v. Advance Magazine Publishers, Inc., No. 06 CIV 550, 2007 WL 2258688 (S.D.N.Y. Aug. 6, 2007) .................................... 4, 18 Kumho Tire Co. v. Carmichael, 526 U.S. 150 (1999).......................................................................................................... 19 Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504 (6th Cir. 2007) ........................................................................................ 4, 19 Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000)................................................................................................ 5 Paco Sport, Ltd. v. Paco Rabanne Parfums, 86 F.Supp.2d 305 (S.D.N.Y. 2000)..................................................................................... 2

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Smith v. Wal-Mart Stores, Inc., 537 F.Supp.2d 1302 ( N.D. Ga. 2008) .......................................................................... 4, 19 Starter Corp. v. Converse Inc., 170 F.3d 286 (2d Cir. 1999)................................................................................................ 7 Tivo, Inc. v. Echostar Comm. Corp., Case No. 2:04-CV-1-DF, 2006 WL 5127620 (E.D. Tex. Jan. 26, 2006) ........................... 6 Weight Watchers Int'l, Inc. v. Stouffer Corp., 744 F.Supp. 1259 (S.D.N.Y. 1990)............................................................................... 4, 19 Westchester Media Co. v. PRL USA Holdings, Inc., 103 F.Supp.2d 935 (S.D. Tex. 1999) .................................................................................. 2 Whirlpool Properties, Inc. v. LG Electronics U.S.A., Inc., No. 1:03 CV 414, 2006 WL 62846 (W.D. Mich. Jan. 10, 2006)...................................... 19 Winner Intern. Royalty Corp. v. Wang, 202 F.3d 1340 (Fed. Cir. 2000)........................................................................................... 7 Other Authorities Reference Manual on Scientific Evidence at 229 (2d ed. 2000) ..................................................... 6 Webster's II New College Dictionary 370, 819 (1999 ed.) .......................................................... 13

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NATURE AND STAGE OF PROCEEDINGS On May 23, 2008, Hewlett Packard (HP) filed Defendant Hewlett-Packard's Memorandum In Support Of Motion To Preclude The Report And Testimony of Polaroid's Survey Expert Walter McCullough. (D.I. 165). This is Polaroid's answering brief in opposition to that motion. SUMMARY OF ARGUMENT HP asserts that the opinions of Mr. Walter McCullough are not relevant or reliable. Specifically, HP argues that Mr. McCullough's printer surveys (the "Surveys") are not relevant because they allegedly do not support the analysis submitted by Polaroid's damages expert, Dr. Allyn D. Strickland. D.I. 165 at 3, 9-10. Dr. Strickland, however, relied on the Surveys in connection with his analysis of Georgia-Pacific factor no. 8. HP also argues that the Surveys are not relevant because Dr. Strickland only mentions the Surveys once in his report. Id. at 3. Frequency of citation, however, is not, nor has it ever been, a test for relevancy. HP also argues that the Surveys fail to comply with generally accepted survey standards because they allegedly were biased and asked respondents to guess. Id. at 1. However, none of the survey questions suggested a particular response, therefore, the Surveys were not biased. And, the survey questions asked respondents to estimate the value of the infringing feature -- not to guess -- based on the information provided and the assessments and needs of the respondents. McCullough Dep. at 135:12-136:24, 169:4-170:2, attached hereto as Exhibit 1. There is no reason to believe that the respondents could not do so intelligently. Id. at 169:4170:2. Furthermore, the Surveys followed the guidelines of the Reference Guide on Survey Research. Id. at 124:19-159:17. The fact that HP disagrees with the Survey results and that it may have asked different survey questions is not a basis to preclude Mr. McCullough's opinions

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under the standards of Daubert. At most, HP raises issues that can and should be addressed during the cross examination of Mr. McCullough at trial. STATEMENT OF FACTS Mr. Walter McCullough is a survey expert who has conducted thousands of surveys in the 40 years he has worked in the survey research field. Id. at 57:18-20; 27:12-28:9; 29:13-24; 94:10-24; McCullough Dec. at ¶6, attached hereto as Exhibit 2. Some of those surveys have sought to determine the value consumers place on a particular product, as he was asked to do in this matter. Ex. 1, McCullough Dep. at 94:2-9; Ex. 2, McCullough Dec. at ¶6. Hundreds of the surveys Mr. McCullough has conducted have been for litigation purposes, and courts have regularly accepted his opinions. Ex. 1, McCullough Dep. at 57:21-23; Ex. 2, McCullough Dec. at ¶6. See, e.g. Westchester Media Co. v. PRL USA Holdings, Inc., 103 F.Supp.2d 935, 968 (S.D. Tex. 1999) ("Because of the many concerns raised by Dr. Cogan's survey procedure, this court credits instead the findings in Mr. McCullough's survey evidence, which shows a confusion rate of 31%."); Anheuser-Busch, Inc. v. Caught-on-Bleu, Inc., 288 F.Supp.2d 105, 127 (D.N.H. 2003) (where court found that "McCullough's study constitutes undisputed circumstantial proof of actual confusion"); Paco Sport, Ltd. v. Paco Rabanne Parfums, 86 F.Supp.2d 305, 323 (S.D.N.Y. 2000) ("In contrast to the Weiss survey, the McCullough survey's universe does not suffer from the flaws described above and is consistent with the established requirements.") Although there are some courts that have opted to not rely upon his opinions, Mr. McCullough does not believe that he has ever been disqualified nor that his surveys or opinions were ever stricken. Ex. 1, McCullough Dep. at 68:12-21. Mr. McCullough was retained to determine the extent to which consumers valued the Adaptive Lighting feature -- the feature which is at issue in this lawsuit. Ex. 1, McCullough Dep. at 6:4-7:11, 11:3-11:8, 87:5-10; 88:6-25, 89:12-15; D.I. 166 at Ex. A (McCullough Report) 2

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at 3. Initially, Mr. McCullough was asked to survey an HP camera, the Photosmart C6180 Allin-One printer, and the Officejet 5610 All-in-One printer, which are examples of HP products that have the Adaptive Lighting feature. Ex. 1, McCullough Dep. at 6:23-7:11, 11:3-11:8, 42:2143:13. But subsequently, Polaroid opted to not go forward with the camera survey. Id. at 14:1419, 22:11-23:14. Polaroid did not ask for or receive the camera questionnaire responses prior to the submission of Mr. McCullough's report. Id. at 21:9-25. Mr. McCullough conducted the initial phase of the survey of the Photosmart C6180 printer and the HP camera in January 2008. Id. at 45:22-47:7, D.I. 166 at Ex. A (McCullough Report) at Ex. B at 3; see also Ex. 1, McCullough Dep. at 14:25-15:5. Although the surveys of those products were conducted simultaneously, they were completely separate surveys and not part of the same survey as HP suggests. Ex. 1, McCullough Dep. at 16:4-13; 17:25-18:18; Ex. 2 McCullough Dec. at ¶5; D.I. 165 at 5 n. 3. Mr. McCullough did not have the camera survey "in [] mind" as he went forward with the two printer surveys. Ex. 1, McCullough Dep. at 16:4-13. Mr. McCullough did not go to the mall to conduct or witness the survey taking place. Id. at 114:2-7. Nor were the results for the camera survey "in mind" (or even a "conscious

awareness") as Mr. McCullough wrote the report on the printer surveys because the results of the camera survey had nothing to do with the printer surveys. Id. at 17:9-18:18. Mr. McCullough did not compare the results of the camera survey with the results of the printer surveys. Id. at 44:3-13. The results of the Surveys showed that consumers believed, on the average, that the Adaptive Lighting feature was worth approximately $50.00 per printer in the HP Photosmart C6180 printer and about $20.00 in the HP Officejet 5610 printer. D.I. 166 at Ex. A (McCullough Report) at 8.

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HP submitted a rebuttal report and its own survey from Dr. Jacob Jacoby. See D.I. 166 at Ex. B (Jacoby Rebuttal); Jacoby Report, excerpts attached hereto as Exhibit 3. Dr. Jacoby defined his survey as a behavioral study and stated that this was the first time he had ever looked at the behavior of individuals to determine the information to which they pay attention. Jacoby Dep. at 7:25-9:4, excerpts attached hereto as Exhibit 4. Although Dr. Jacoby's opinions have been praised by some courts, other courts have criticized his opinions. Kargo Global, Inc. v. Advance Magazine Publishers, Inc., No. 06 CIV. 550, 2007 WL 2258688, at * 12 (S.D.N.Y. Aug. 6, 2007) (finding that Rule 403 was clearly warranted because "[t]he live testimony of Kargo's highly seasoned and impressively credentialed consumer confusion expert, regarding the results of the deeply flawed Jacoby Survey, would prove to be `both powerful and quite misleading'"); Smith v. Wal-Mart Stores, Inc.,537 F.Supp.2d 1302, 1334 ( N.D. Ga. 2008) ("Jacoby surveyed an overbroad universe, failed to adequately replicate the shopping experience and asked leading questions. He also surveyed a non-random sample that in any case was too small to allow the results to be projected upon the general market. Thus, the Court finds that the Jacoby survey is so flawed that it does not establish a genuine issue of material fact with regard to actual confusion, much less prove actual confusion."); Weight Watchers Int'l, Inc. v. Stouffer Corp., 744 F.Supp. 1259, 1272 (S.D.N.Y. 1990) (finding that Dr. Jacoby failed to identify the proper universe); Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 518 (6th Cir. 2007) (finding that Dr. Jacoby had identified an overbroad universe and declining to follow his opinions).

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ARGUMENT The Supreme Court has "assign[ed] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993); see also Izumi Prods. Co. v. Koninklijke Philips Elecs. N.V., 315 F. Supp.2d 589, 600 (D. Del. 2004). The Third Circuit has interpreted Rule 702 to include "three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." Id. at 600 (quoting Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d. Cir. 2000)). An expert's opinion is considered to be reliable if it is based on valid scientific knowledge. Daubert, 509 U.S. at 589­90. There needs to be a "valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at 591-92. "This standard, nevertheless, is not intended to be a high one or to be applied in a manner that requires the plaintiffs `to prove their case twice -- they do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of the expert are correct, they only have to demonstrate by a preponderance of the evidence that their opinions are reliable.'" Izumi Prods. Co., 315

F.Supp.2d at 601 (citing Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000) (citing In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994)). As the survey experts in this case agreed, the Reference Guide on Survey Research, which is a chapter from the Reference Manual on Scientific Evidence, provided by the Federal Judicial Center, is a basic guideline for putting together surveys. Reference Manual on Scientific Evidence at 229 (2d ed. 2000); see also Ex. 1, McCullough Dep. 124:19-125:15; D.I. 166 Ex. B (Jacoby Rebuttal Report) at 3-4; see also D.I. 166 at Ex. G. A. MR. MCCULLOUGH'S OPINIONS ARE RELEVANT -- OR "FIT" IN THIS CASE. HP says that the Surveys are not relevant in this case because they do not support Polaroid's damages theory. D.I. 165 at § 2(A). 5

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Strickland's Report at ¶ 118, attached hereto as Exhibit 5. And certainly, survey results of the infringing feature are relevant to at least factor no. 8 of the Georgia Pacific factors: "[t]he established profitability of the product made under the patent; its commercial success; and its current popularity." Georgia-Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116, 1120 (D.C.N.Y. 1970). Respondents were asked to place a value on the Adaptive Lighting feature as consumers, and the results of the Surveys provide information about the popularity of the feature and its commercial success.1 D.I. 166 at Ex. A (McCullough Report) at Ex. A (Main Questionnaire); see also Tivo, Inc. v. Echostar Comm. Corp., Case No. 2:04-CV-1-DF, 2006 WL 5127620, at *3-4 (E.D. Tex. Jan. 26, 2006) (denying Echostar's motion to preclude Tivo's survey expert and accepting Tivo's argument that courts are allowed "a fair amount of temporal leeway in their analysis of the hypothetical negotiation" where Tivo used the survey results in connection with Georgia-Pacific factors nos. 6, 8, 10, 11, 14, and 15).

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(Ex. 5, Dr. Strickland's Report at pages 59-63), Id. at ¶¶ 138, 143.

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2

By no means does

this make Mr. McCullough's survey results irrelevant or unreliable. Tellingly, the results of HP's own survey expert, Dr. Jacoby, were not even reviewed by HP's damages expert. See Wallace Report at 1-2 and App. C, excerpts attached hereto as Exhibit 6. This indicates that surveys geared towards showing how consumers perceive the Adaptive Lighting feature are independently relevant even if not cited by and relied upon by a party's damages expert. See e.g., Winner Intern. Royalty Corp. v. Wang, 202 F.3d 1340, 1350-51 (Fed. Cir. 2000) (in analyzing commercial success of the patented feature, the district court did not err in finding that a survey showed the nexus between the patented features and the reasons consumers bought the products). The cases HP cites in support of the theory that the McCullough Surveys are not relevant are not even patent infringement cases, and the courts excluded the surveys at issue there based on serious flaws. Starter Corp. v. Converse Inc., 170 F.3d 286, 296-97 (2d Cir. 1999)

(trademark case where Starter's survey evidence was excluded because it was found to be "little more than a memory test, testing the ability of the participants to remember the names of the shoes they had just been shown and gave no indication of whether there was a likelihood of confusion in the marketplace"); C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1052 (5th Cir. 1981) (wrongful dealership termination case where court excluded a

2

See Ex. 5, Strickland Report generally. Dr. Strickland applied the Georgia-Pacific factors in arriving at his opinion. His damages figures were not "derived from speculative assumptions," and notably, Dr. Strickland's Report is not the subject of this motion or of any other motion to preclude raised by HP.

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customer survey because "customer opinion on the merits of the termination was irrelevant" and would not be useful to calculate lost future profits as May Marine contended). B. MR. MCCULLOUGH'S METHODOLOGY WAS RELIABLE HP also asserts that the methodology employed by Mr. McCullough in this case was not reliable. D.I. 165 at Argument §§ 2(B) and 2(C). 1. The Survey Questions Are Not Biased And Misleading.

HP asserts that the Surveys were biased and misleading. Id. at § 2(B). Specifically, HP claims that Mr. McCullough's Surveys were not objective because 1) consumers were only asked to value the Adaptive Lighting feature, 2) the description of the Adaptive Lighting feature was "laudatory," and 3) the manner in which Mr. McCullough asked respondents to provide a dollar amount for the feature was allegedly misleading. Id. Surveys must be objective. Mr. McCullough maintained objectivity through his survey questions. Mr. McCullough ensured objectivity by using stimulus information that is available from HP's own website, asking non-leading questions, and relying on answers from respondents that were mainly volunteered. Ex. 1, McCullough Dep. at 128:2-23. The survey questions were not leading because they did not suggest a particular answer, and therefore, the respondents were able to answer based on their own beliefs. Id. at 128:24-129:12. (a) Mr. McCullough Did Not Suggest An Answer By Focusing Only On The Adaptive Lighting Feature.

First, HP complains that even though Mr. McCullough handed out the HP fact sheet for the surveyed printer showing many attributes, he did not ask the consumers to place any value on any attribute other than the Adaptive Lighting feature. D.I. 165 at 11-12. HP asserts that the focus on this one feature communicated to respondents that they should view this particular feature as valuable. Id. at 12. But as HP admits, Mr. McCullough did inform consumers through 8

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the fact sheet that the printers have many attributes. Id. at 11; Ex. 1, McCullough Dep. at 111:17-24. Respondents did not know that Mr. McCullough would only ask about Adaptive Lighting -- that is, respondents did not know at the time that they were asked to value the Adaptive Lighting feature that they would not be asked to do the same for other features of the printer. Therefore, there is no suggestion in the survey questions that Adaptive Lighting has great value. Specifically, respondents were first told: I'd like you to look at this description of a color ink jet printer and review the information as if you were considering whether or not to buy it. After you have reviewed the product description, I will ask you a few questions. If you don't know the answer to any of my questions, please don't hesitate to say that. D.I. 166 at Ex. A (McCullough Report) at Ex. A (Main Questionnaire) at 1. Respondents were then handed the fact sheet and allowed time to review the facts before more questions were asked. Id. The respondents were provided a description of the Adaptive Lighting feature and then asked if this printer "contained all of the features of the printer whose description I just showed you, but it did not have the Adaptive Lighting Technology" would that printer cost less or the same. Id. (emphasis in original). The fact sheets made it clear that the printer had other attributes, and the respondents were free to decide on their own whether the printer would cost the same or less without the Adaptive Lighting feature (or to say they did not know). Id. There was no indication to the respondents that they would not be asked similar questions about other features. Ex. 2, McCullough Dec. ¶10. Therefore, the survey questions did not suggest any specific answers from the respondents. Id. Asking about the remaining attributes was Id. Furthermore, it would be

unnecessary because they are not at issue in this case.

overwhelming and unreasonable to ask a consumer to place a value on each of the twenty or so attributes (or some portion thereof), and doing so is meaningless since the objective of the survey was to determine the consumers' perceived value of the patented feature -- not to figure out the 9

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value of each feature. Id.; Ex. 1, McCullough Dep. at 107:19-108:7; 166 at Ex. A (McCullough Report) at Ex. C. (b) The Definition of The Adaptive Lighting Feature Provided By Mr. McCullough Did Not Suggest That It Was Valuable.

Second, HP complains that the description of the Adaptive Lighting feature Mr. McCullough provided misled respondents into thinking this feature was valuable. D.I. 165 at 1213. The description Mr. McCullough provided was: This particular color ink jet contains a feature called "Adaptive Lighting Technology." Adaptive Lighting Technology is a breakthrough technology that enables printers to produce photos that look more like what people see with their own eyes. It accomplishes this by balancing relationships between bright and dark areas in a photo, preserving gentle contrasts by smoothing out harsh contrasts. D.I. 166 at Ex. A (McCullough Report) at 6. HP claims that Mr. McCullough crafted this definition through "different websites" and used words (such as "breakthrough technology," "enables," "what people see with their own eyes," "accomplishes," "preserving gentle contrasts by smoothing out harsh contrasts") that made the feature appear valuable. D.I. 165 at 12-13. HP further complains that Mr. McCullough should have let respondents know that this feature has "limited use." Id. at 12. HP's website offers numerous definitions of Adaptive Lighting: See e.g. POL 7522306; POL 7539353; POL 7522307-13; P L 7539345-352;

http://h10025.www1.hp.com/ewfrf/wc/genericDocument?docname=c01066451&cc=us&dlc=en &lc=en&jumpid=reg_R1002_USEN; http://h41257.www4.hp.com/cda/hpec/display/main/hpec_ content.jsp?zn=hho&cp=2-705-706-712%5E19166_4022_19_ Attached hereto as Group Exhibit 7. The fact sheets for the two different printers do not contain a definition for Adaptive Lighting. D.I. 166 at Ex. A (McCullough Report) at Ex. C. All of the definitions generally show that 10

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Adaptive Lighting is an image enhancing feature to fix lighting in pictures. Id. Mr. McCullough developed the definition he used from different pages of HP's own website and not from random places on the Internet as HP's motion suggests. Ex. 1,

McCullough Dep. at 147:16-150:25; Ex. 2, McCullough Dec. at ¶8; D.I. 165 at 12-13. The main portion of the definition comes from a page on HP's website that incorporates most of the very words HP complains about and deems suggestive: HP Adaptive Lighting Technology is a breakthrough technology that permits digital cameras to produce photos that look more like what we see with our own eyes. It balances brightness relationships between bright and dark areas in a photo, preserving gentle contrasts but compressing harsh contrasts. Ex. 7, POL 7522306 (emphases added). Another page from HP's website shows the exact wording Mr. McCullough used for the last phrase of the description: "preserving gentle

contrasts by smoothing out harsh contrasts." Id. at POL 7539353 (emphasis added). Mr. McCullough only made a few adjustments beyond these two pages. First, he

replaced "permits digital cameras" with the phrase "enables printers" because the Surveys focused on printers and not cameras. "Enable" means "to make possible" and "permit" means "to afford possibility" or "allow." WEBSTER'S II NEW COLLEGE DICTIONARY 370, 819 (1999 ed.). While "enable" and "permit" do not mean the exact same thing, they are arguably similar terms -- one no more suggestive than the other. Second, Mr. McCullough slightly changed the words of the second sentence to read, "It accomplishes this by balancing relationships," rather than HP's words, "It balances relationships," which inherently would mean that the balancing is "accomplished" in this manner. Again, there is nothing suggestive or complimentary about this minor change. The only other change made was from "we" to "people." Therefore, Mr. McCullough either used HP's own words or made slight neutral adjustments. The definition Mr. McCullough used did not suggest any value. The goal was to articulate a generalized description 11

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since this infringing feature is available in a significant number of both cameras and printers. Ex. 2, McCullough Dec. ¶8. There would be no benefit to limiting the definition to one used for the specific printers that were surveyed since the infringing feature is in many different HP cameras and printers. Id. Mr. McCullough wanted to use a "constructive, cohesive" definition that "consumers would understand." See Ex. 1, McCullough Dep. at 150:10-25. HP further complains that the definition Mr. McCullough used did not show that the Adaptive Lighting feature has "limited use." D.I. 165 at 12. But on HP's website, it says only that there are a "few types" of scenes for which Adaptive Lighting "may" not be desirable: when one wants a dramatic contrast such as a silhouette, and low contrast scenes such as "delicate outlines of objects in a fog bank." Ex. 7, POL 7522309. HP claims that the infringing feature is "usually" turned off in "many" models (D.I. 165 at 2), but that suggests this feature is sometimes turned on in those models, and that there are other models embodying the infringing feature where the feature is indeed turned on. In any event, even if the feature is turned off, the feature can certainly be turned on. Whether the product comes with the feature turned on or off and the few instances where purchasers may not want to use this feature do not suggest that the feature has "limited use" as HP claims.3 (c) The Questions In The Surveys Did Not Suggest A Higher Value.

Next, HP complains that the survey questions misled respondents to place a higher value on the Adaptive Lighting feature first, because respondents were not asked to value the feature
3

Interestingly, HP cites Dr. Jacoby's Rebuttal Report to also claim that "when this feature is turned on, it evaluates an image to determine whether to apply the accused algorithm and in a minority of instances will apply the algorithm." D.I. 165 at 2 citing Jacoby Rebuttal Report at 8. Certainly Dr. Jacoby does not hold himself out to be an expert in algorithms, and there is no evidence, in Dr. Jacoby's Rebuttal Report or elsewhere in this case, that actually quantifies how often the accused algorithm is used.

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keeping the other features in mind (i.e. respondents had no frame of reference), and second, because the respondents who answered that they did not know the value of the feature were provided with a card that showed a series of ranges of prices from which to select. D.I. 165 at 13-14. Again, as mentioned above, it would have been overwhelming, and unnecessary, to ask respondents about the value of the other features. Ex. 1, McCullough Dep. at 107:19-108:7; Ex. 2, McCullough Dec. at ¶10. Notably, Mr. McCullough did not hide the fact that the printers had other attributes; as HP admits, he provided respondents with fact sheets about the printers which listed the other attributes. Id. at 111:17-24. Respondents who said they did not know how much less the printer would be without the Adaptive Lighting feature were provided with a card showing various price ranges for them to select from. D.I. 166 Ex. A (McCullough Report) at Ex. A (Main Questionnaire) at M2. HP believes that the potential choices were misleading because the scale communicated a high value. D.I. 165 at 14. First, as shown above, the first question of the survey made it clear that the respondent could answer "don't know" at any time. D.I. 166 Ex. A (McCullough Report) at Ex. A (Main Questionnaire) at M1; Ex. 1, McCullough Dep. at 145:24-146:15. Next, there is no evidence to support HP's inference that the Adaptive Lighting feature only cost a few cents. In fact, during discovery, Polaroid sought cost figures from HP but HP refused to produce that information. See e.g. Polaroid's First Set of Document Requests at No. 6; 10/22/07 Holohan Ltr. to Coburn; 10/30/07 Coburn Ltr. to Holohan, attached hereto as Group Exhibit 8. In any event, Mr. McCullough was not trying to measure the actual cost of the Adaptive Lighting feature. Ex. 1, McCullough Dep. at 140:18-141:3; Ex. 2, McCullough Dec. ¶¶4, 7, 10,13.

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Furthermore, it was appropriate for Mr. McCullough to offer a closed-ended choice once a respondent was unable to decide how much less the printer would be without the Adaptive Lighting feature. Ex. 2, McCullough Dec. at ¶11. Every experienced survey researcher knows that some respondents are reluctant to answer an open-ended question and would prefer a list of choices. Id. at ¶11; Ex. 1, McCullough Dep. at 138:8-139:8. Moreover, the range provided by Mr. McCullough, if anything, suggested numbers too low since the median for the Photosmart C6180 was $50.00 and $20.00 for the Officejet 5610 printer, and the highest range respondents could choose from for either printer was "$20.00 or more." D.I. 166 at Ex. A (McCullough Report) at Ex. C; Ex. 1, McCullough Dep. at 139:9-140:17; McCullough Dec. ¶11. This is not an instance where only a closed-set of responses were provided and the choices did not provide a full range of options. See American Home Products Corp. v. Johnson & Johnson, 654 F. Supp. 568, 581-82 (S.D.N.Y. 1987) (where the court found the survey unreliable where the "list of choices was incomplete, inexplicably omitting to include, as one of its options, the literal meaning of the advertisement!" and "the list of choices were seriously slanted in another way: among the four positive choices, the latter two were so obviously false that they could almost as well have been omitted"). Respondents in this case were only asked the closed-ended question with a full range of potential options if they decided the printer

cost less without the Adaptive Lighting feature, but they did not know what value to place on it. Ex. 1, McCullough Dep. at 138:8-139:8; Ex. 2, McCullough Dec. at ¶ 11. Moreover, even if Mr. McCullough, instead, did not include any answers to his closed-ended questions, it would have very little impact on the results. Specifically, the survey results would show that the medians of $50.00 and $20.00 would not change at all, and the means would actually increase to $55.96 and $24.89. Ex. __, McCullough Dec. ¶12; see Johnson & Johnson-Merck Consumer Pharm. Co. v.

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Rhone-Poulenc Rorer Pharms., Inc., 19 F.3d 125, 134-35 (3d Cir. 1994) (where court affirmed refusal to consider survey questions that were leading but agreed to credit the answers to the nonleading questions). 2. Mr. McCullough's Surveys Did Not Cause Respondents To Guess.

HP also accuses Mr. McCullough's Surveys of directing respondents to make guesses. Specifically, HP claims that 1) Mr. McCullough did not properly choose respondents based on their skill in valuing printer features; 2) Mr. McCullough did not ask a logical question to determine how consumers value the Adaptive Lighting feature; 3) Mr. McCullough failed to use a filter question asking potential respondents if they felt qualified to make such estimates; 4) Mr. McCullough's Surveys forced respondents to answer after they said they did not know the value of the printer without the Adaptive Lighting feature; and 5) because the Surveys called for guessing, Mr. McCullough's Surveys "led to preposterous results." D.I. 165 at 16-18. Mr. McCullough did not ask respondents to guess. The survey questions asked

respondents to estimate based on their own assessment of the value of the feature to them -- not to guess -- in the context of the information provided and their own experience and needs. Ex. 1, McCullough Dep. at 135:12-136:24, 169:4-170:2. respondents could not do so intelligently. Id. (a) Mr. McCullough Used A Proper Set of Respondents. There is no reason to believe that

HP criticizes Mr. McCullough for failing to seek out skilled respondents to value the Adaptive Lighting feature. D.I. 165 at 15-16. But this was not intended to be a survey among experts, nor a survey "of randomly selected retail shoppers." D.I. 165 at 16; Ex. 2, McCullough Dec. at ¶7. Mr. McCullough's respondents were people who had purchased a color inkjet printer in the past year or who thought they might buy one in the next year. D.I. 166 at Ex. A (McCullough Report) at Ex. A (screener questionnaire) at S2; Ex. 1, McCullough Dep. at 130:415

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10; Ex. 2, McCullough Dec. ¶7. These respondents were selected from a representative pool of consumers who mirrored the gender and age makeup reflective of the population as determined by the US Census Bureau. Ex. 1, McCullough Dep. at 118:13-119:21; Ex. 2, McCullough Dec. at ¶7; D.I. 166 at Ex. A (McCullough Report) at 5. Notably, Dr. Jacoby used the exact same universe in his survey. Ex. 3, Dr. Jacoby Report at 7. Because the Surveys were focused on consumer perception of the value of the feature and not on estimating manufacturing or wholesale cost, there was no reason to have greater skills or knowledge as a respondent. Ex. 2, McCullough Dec.¶ 7. (b) Mr. McCullough Asked Respondents A Logical Question To Determine The Value Consumers Place On The Adaptive Lighting Feature.

HP says that Mr. McCullough should have framed the operative question as "How much are you willing to pay for such a feature" instead of the question asked: "About how much less do you think the model without the Adaptive Lighting feature would cost?" D.I. 165 at 16. As Mr. McCullough explained in his deposition, because there already exists a printer (or printers) with the Adaptive Lighting feature, it only makes sense to introduce the product with the feature and to ask then how much the unit would cost without it. Ex. 1, McCullough Dep. at 98:1599:18. Because the question Mr. McCullough did ask was reasonable and logical, it does not matter that HP's expert would have chosen to ask different questions. (c) A Filter Question Would Not Have Made Sense Here.

HP claims Mr. McCullough should have at least used a filter question to weed out any respondents who did not feel qualified or capable to place a value on the Adaptive Lighting feature. D.I. 165 at 16. Again, respondents were permitted to say "Don't Know" to any question in the Surveys. D.I. 166 at Ex. A (McCullough Report) at Ex. A (Main Questionnaire) at M1. Given that choice, a filter question was not needed here, particularly because the Surveys were 16

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attempting to measure consumer perceived value and not actual cost. Ex. 1, McCullough Dep. at 107:19-108:7, 135:2-11, 137:5-24; Ex. 2, McCullough Dec. ¶7. (d) Respondents Were Not Forced To Answer. who said they did not know how much less to pick from a range of prices, Mr.

HP contends that by asking respondents

the printer would be without the Adaptive Lighting feature

McCullough encouraged guessing. D.I. 165 at 16-17. Again, even once the respondents were given pricing options, they could still say they did not know the answers to any question in the survey. D.I. 166 at Ex. A (McCullough Report) at Ex. A (Main Questionnaire) at M1; Ex. 2, McCullough Dec. ¶11. And even if Mr. McCullough, instead, did not include any of the answers where a pricing range was selected, it would have very little impact on the results. Specifically, the survey results would show that the medians of $50.00 and $20.00 would not change at all, and the means would actually increase to $55.96 and $24.89. Ex. 2, McCullough Dec. ¶12. (e) Outlandish Responses To The Surveys Were Not Included In The Results.

HP points out that some of the responses in the Surveys were unreasonable. D.I. 165 at 17-18. In virtually all surveys, there are some respondents who either do not understand the task at hand or who provide unreasonable answers for some unknown reason. Ex. 2, McCullough Dec. ¶14. Survey experts, such as Mr. McCullough, take this fact into account by excluding the outlandish responses from the calculation of the means and median values. Id.; see e.g. Ex. 1, McCullough Dep. at 100:23-103:22. For instance, in the Officejet 5610 printer survey, two respondents said the Adaptive Lighting feature was worth $200 even though the price of the printer was only $99.99. D.I. 166 at Ex. A (McCullough Report) at Ex. E (second to last page of Officejet 5610 verbatim response chart). Naturally, Mr. McCullough excluded those results from his calculations, as he did with other unreasonable responses. Id. (last page of Photosmart C6180 verbatim response chart and last two pages of Officejet 5610 verbatim response chart 17

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where it is indicated which responses are not included in the mean/median); Ex. 2 McCullough Dec. ¶ 14; see also Ex. 1, McCullough Dep. at 100:23-103:22. And to further minimize the influence of some particularly high values, Mr. McCullough calculated the median value (i.e. the middle most value) together with the mean. Ex. 2, McCullough Dec. ¶14. Some survey experts may have chosen to exclude more or less responses, but regardless, this would not alter the underlying fact that consumers believe that Adaptive Lighting has significant value. Id.4 C. MR. MCCULLOUGH IS A QUALIFIED SURVEY EXPERT. While HP does not specifically claim that Mr. McCullough is unqualified, it nevertheless focuses on times in which Mr. McCullough's opinions were not used by a court, points to the fact that Mr. McCullough has not written an academic paper or taught at a university,5 and (wrongly) notes that Mr. McCullough has never done a consumer perception survey before. D.I. 165 at 3-6. At the same time, HP touts its own survey expert, Dr. Jacoby, as "a nationally recognized expert on consumer research." D.I. 165 at 6. This puffery is unnecessary and misleading. As noted above, Mr. McCullough has 40 years of experience in surveys. Ex. 1,

McCullough Dep. at 57:18-20; 27:12-28:9; 29:13-24; 94:10-24; Ex. 2, McCullough Dec. at ¶6. His company, Ipsos Mendehlson Inc. (formerly Monroe Mendehlson Research Inc.), is a member

4

HP points out that one respondent stated that he was "taking a stab in the dark." D.I. 165 at 17 n. 4. As Mr. McCullough stated during his deposition, such responses do not mean that respondents are actually guessing or arriving at their answer arbitrarily. Rather, this is just the way people sometimes speak. Ex. 1, McCullough Dep. at 169:18-170:23. As stated in Izumi, the specialized knowledge required by Rule 702 is interpreted liberally to include practical experience, academic training, and credentials. Izumi Prods. Co., 315 F.Supp.2d at 600. A proffered expert need only have skills greater than the average layman. Id.

5

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of CASRO (Council of American Survey Research Organizations) and CMOR (Council for Marketing and Opinion Research), trade associations for the marketing research business, and he is personally a member of the American Marketing Association, American Statistical Association, and the American Association of Public Opinion Research (APOR). McCullough Dep. at 64:8-65:20; Ex. 2, McCullough Dec. at ¶3. It is important to note that courts have not always praised HP's expert Dr. Jacoby and his work. For instance, in his deposition, Dr. Jacoby noted three instances where the court did not agree with his opinions, and there are a number of courts that declined to follow his opinions. Ex. 4, Jacoby Dep. at 9:8-13:22; see e.g. Kargo Global, Inc. 2007 WL 2258688, at * 12 (where the court stated that Rule 403 was clearly warranted in this case stating "[t]he live testimony of Kargo's highly seasoned and impressively credentialed consumer confusion expert, regarding the results of the deeply flawed Jacoby Survey, would prove to be `both powerful and quite misleading'"); Smith, 537 F.Supp.2d at 1334 ("Jacoby surveyed an overbroad universe, failed to adequately replicate the shopping experience and asked leading questions. He also surveyed a non-random sample that in any case was too small to allow the results to be projected upon the general market. Thus, the Court finds that the Jacoby survey is so flawed that it does not establish a genuine issue of material fact with regard to actual confusion, much less prove actual confusion."); Weight Watchers Int'l, Inc., 744 F.Supp. at 1272 (where court found that Dr. Jacoby failed to identify the proper universe); Leelanau Wine Cellars, Ltd., 502 F.3d at 518 (where the court found that Dr. Jacoby had identified an overbroad universe and declined to follow his opinions). Nonetheless, given the experience of both Dr. Jacoby and Mr. McCullough, "the fact that their work has been criticized in some cases and lauded in others is not surprising. Criticisms or Ex. 1,

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praise regarding surveys in other cases is not a basis for exclusion. The court's gatekeeping inquiry must be "tied to the facts of a particular case." Whirlpool Properties, Inc. v. LG Electronics U.S.A., Inc., No. 1:03 CV 414, 2006 WL 62846, at * 3 (W.D. Mich. Jan. 10, 2006) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 150, 152 (1999)). CONCLUSION Mr. McCullough's Surveys satisfy Daubert. His surveys are relevant here, and his methodology was not biased nor did it require guessing. HP's complaints, at most, go to the weight to afford Mr. McCullough's opinions at trial and can be handled through crossexamination. HP's motion should be denied.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Julia Heaney
OF COUNSEL: Russell E. Levine, P.C. G. Courtney Holohan Michelle W. Skinner David W. Higer Maria A. Meginnes KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 June 12, 2008
2367607

Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 N. Market Street Wilmington, Delaware 19801 (302) 658-9200 [email protected] Attorneys for Plaintiff, Polaroid Corporation

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on June 26, 2008, I electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send notification of such filing(s) to the following: William J. Marsden, Jr. FISH & RICHARDSON P.C. I also certify that copies were caused to be served on June 26, 2008 upon the following in the manner indicated: BY E-MAIL William J. Marsden, Jr. FISH & RICHARDSON P.C. 919 N. Market Street, Suite 1100 Wilmington, DE 19801 Matthew Bernstein John E. Giust MINTZ LEVIN COHN FERRIS GLOVSKY AND
POPEO PC

Bradley Coburn FISH & RICHARDSON P.C. One Congress Plaza, Suite 810 111 Congress Avenue Austin, TX 78701 Daniel Winston CHOATE HALL & STEWARD, LLP Two International Place Boston, MA 02110

5355 Mira Sorrento Place Suite 600 San Diego, CA 92121-3039 /s/ Julia Heaney __________________________ Julia Heaney (#3052)

-1-

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Exhibit 1

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Walter McCullough
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE POLAROID CORPORATION, Plaintiff, vs. HEWLETT-PACKARD COMPANY, Defendant. ------------------------) No. 6-738 (SLR)

VIDEOTAPED DEPOSITION OF WALTER J. McCULLOUGH New York, New York Tuesday, May 6, 2008

Reported by: SHAUNA STOLTZ-LAURIE CSR NO. 810490 JOB NO. 202738

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Walter McCullough
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May 1, 2008 9:08 a.m. Videotaped deposition of WALTER J. McCULLOUGH, held at the offices of Kirkland & Ellis LLP, 153 East 53rd Street, New York, New York, pursuant to notice, before Shauna Stoltz-Laurie, a Notary Public of the State of New York.

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THE VIDEOGRAPHER: This is tape number one of the videotaped deposition of Walter J. McCullough in the matter of Polaroid Corporation versus Hewlett-Packard Company, in the United States District Court for the District of Delaware, CA number 6-738 (SLR). This deposition is being held at Kirkland & Ellis LLP, 153 East 53rd Street, New York, New York on May 6, 2008. The time on the video screen is 9:09 a.m. My name is Lee Bowry, I am the legal videographer with Shari Moss & Associates. The court reporter is Shauna Stoltz-Laurie. Will counsel please introduce themselves for the record. MR. BUCHANAN: Good morning. My name is Robert Buchanan from Choate Hall & Stewart. I represent Hewlett-Packard Company, and I'll be conducting the deposition. MS. KINGSBURY: Good morning. My
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1 2 A P P E A R A N C E S: 3 4 Kirkland & Ellis LLP 5 Attorneys for Plaintiff 6 200 East Randolph Drive 7 Chicago, Illinois 60601 8 BY: COLBY ANNE KINGSBURY, ESQ. 9 10 CHOATE HALL & STEWART LLP 11 Attorneys for Defendant 12 Two International Place 13 Boston, Massachusetts 02110 14 BY: ROBERT M. BUCHANAN, JR., ESQ. 15 16 ALSO PRESENT: 17 LEE BOWRY, Videographer 18 19 20 21 22 23 24 25

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McCullough name is Colby Anne Kingsbury. I'm from Kirkland & Ellis, and I represent Polaroid, and I'm here on behalf of Mr. McCullough as well. THE VIDEOGRAPHER: Will the court reporter please swear in the witness. WALTER J. McCULLOUGH , called as a witness, having been duly sworn by a Notary Public, was examined and testified as follows: EXAMINATION BY MR. BUCHANAN: Q. Good morning, Mr. McCullough. A. Good morning, Mr. Buchanan. Q. We met earlier. Would you spell your last name in full, please? A. Yes. M-c capital C-u-l-l-o-u-g-h. Q. And have you been retained on behalf of Polaroid in this case? A. Yes, I have. Q. And have you been retained by the firm of Kirkland & Ellis on behalf of Polaroid?

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Walter McCullough
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McCullough A. That's correct. Q. And when were you retained? A. I think the initial contact was sometime in October of '07. Q. Who contacted you in October? A. Courtney Holohan was my initial contact person. Q. Courtney Holohan from the Kirkland & Ellis firm? A. That's correct. Q. And in that first contact were you engaged to do something? A. I was -- well, we had some initial discussions. I'm not sure exactly when the approval came, but there were initial discussions about what the case was about and about what they wanted me to do. Q. So in that first contact in October was there discussion of a potential engagement? A. Yes. Q. And as you understood it at that time, what were you potentially engaged to do?
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McCullough when you had the word yes, go ahead with the engagement? A. I'm sure there was, but I don't recall when that was. Q. Do you recall whether that was before New Year's, so it was during '07, or after New Years, so it was in '08? A. It was probably '07, but I don't recall specifically. Q. Do you remember whether it was Courtney Holohan who called to tell you that the word was yes, or was it somebody else? A. I think it was her. Q. Had you heard of adaptive lighting before you had the initial contact in this case? A. Not -- not by that time, no. Q. Had you heard of the feature that you later learned was called adaptive lighting? A. I was not aware of that specific feature, no. Q. All right. And were you -- the information that you just told me about in
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McCullough A. I was -- there was a feature called adaptive lighting technology that Polaroid had maintained had a patent that was infringed by Hewlett-Packard, and this was a feature that was involved in both cameras and printers, and initially my assignment was to survey the relevant consumers and find out the extent to which that feature had a value in both cameras and printers that were put out by Hewlett-Packard. Q. And what you've just told me about, was all of that discussed in your initial contact with Ms. Holohan in October? A. I can't remember the exact conversation -- it was too far back -- but within a series of conversations, that was what was made known to me. Q. And in -- the series of conversations ran through October and on into when? A. Probably on until -- in different degrees until I started doing the study, which I believe was in January. Q. All right. Did there come a time

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McCullough your first series of phone calls, did all of that information come to you orally, or did some of it come in the form of documents or other things? A. It was orally, is I recall. Q. And did you speak with anyone else besides Courtney Holohan? A. Initially that's the only person I spoke to. I think she went on trial at some point in time, and she then had a Maria Meginnes talk to me from time to time, but that was much later than the initial conversations. MR. BUCHANAN: Okay. Let me ask if we can mark as [McCullough] Exhibit 1. ([McCullough] Exhibit 1, Monroe Mendelsohn Research, Inc. 2/1/08 invoice to Kirkland & Ellis, marked for identification, as of this date.) Q. Is this a copy of an invoice from your firm to Courtney Holohan at Kirkland & Ellis? A. Yes.

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McCullough Q. Do you recognize this to be your firm's invoice? A. This was my firm's invoice, yes. Q. And is it the -- to your recollection, is this the first invoice for your engagement in this case? A. I believe so. Q. Does this accurately reflect the initial engagement that you had? A. I believe so, yes. Q. I see that it's dated February 1. At that time the survey work had begun; is that correct? A. According to the bill here, the initial phase of the interviewing had been completed. Q. I see that the title of this project is "Adaptive Lighting Technology Consumer Value Survey." What does consumer value survey mean? A. It was just a term that I put on -I made up the title for this -- to indicate the type of information I was trying to
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McCullough about interviews conducted in various shopping malls. When you say "conduct the first phase of interviewing," does that refer to that same type of interviewing in the shopping malls? A. Yes. It's basically -- what I try to do, when time permits, is set up basically two replicates that represent half of the survey being done as the initial phase and the other half being done as the completion phase, so then they're done identically. Q. The initial phase that -- did you conduct an initial phase here in this engagement? A. Yes. Q. And is that reflected in the report that you provided to us later? A. I don't break it out separately, because I don't consider it really to be a separate study. It's really just part of the total study. Q. So that I'm clear, the interviews that were conducted in the initial phase,
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McCullough obtain. Q. And what type of information were you trying to obtain? A. The extent to which consumers valued this feature when it was part of either a camera in one case or a printer in another case. Q. And did you go forward with interviews -MR. BUCHANAN: Strike that. Q. What do you mean by initial phase of interviewing? A. My standard practice, when I do work in this litigation context, is to strongly recommend that approximately half the interviews are done; then we look at the top line results of that, and if those results are going to be helpful to the client, then we'll continue and do the rest of the interview; if it's not, we will stop at that point in time and not spend any more money on the project. Q. Now, I've seen your report -- and we'll ask to mark that a little bit later --

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McCullough those are reflected in the report that you've prepared for us? A. Oh, absolutely, yeah. Those would be -- like roughly the first half of the interviews are the initial phase, and then the rest of the interviews are done as the remainder phase. The total represents all the interviews that are in my report. Q. We'll look at the report later, but as I recall, there were some interviews in January and then some more in February. Are those the two phases? A. There was actually -- there was a two-phase setup of the initial printer and a camera also, and that was done probably -looking at this, probably in January. That study was then completed, but then there was an additional printer survey that was done later, which I believe must have been in February. So the -- half of the study was done in -- in early January, the rest was done either in late January, February -- I don't recall; I have to look at my report --

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McCullough but then a second study was done on a second printer. That was done I think probably February. Q. Did you do some interviews involving cameras? A. I did. Q. I don't recall reading about cameras in your report. A. I was called by the client at one point, and said that the cameras were no longer going to be an issue from -- from my -- in my situation. Q. Had you collected a -questionnaire responses pertaining to the cameras? A. I did have interviews on cameras, just like I did on printers. Counsel had told me that the cameras were out. MS. KINGSBURY: I'm going to just object -- excuse me -- at this point for attorney work product. MR. BUCHANAN: Let me explore that -- the scope of your objection. Q. So at the same time that you
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McCullough with consumers pertaining to cameras? A. Yes. Q. Did you have those in your mind as you went ahead with further interviews later about printers? A. No. The two are completely separate. I did -- one survey was about cameras, one survey was about printers, and then the follow-up survey was about printers. The initial survey, cameras and printers, are two different surveys. Q. So the survey that I have a report about, does that survey include both the questions from the initial round of printer questions and the later round of printer questions? A. Yes. The report you have is based on both the initial survey on the printer, I guess the C6180, and also the second printer, which is five something, if I remember. Yes, that -- that report shows both of the results from both of those surveys. Q. So both, the same or substantially
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McCullough conducted an initial phase of interviewing about printers, you also conducted an initial phase of interviewing about cameras? A. That's correct. Q. And so people directed by you went out to shopping malls and asked questions about the cameras as well as printers? MS. KINGSBURY: I want to object about any questioning on the -- this camera survey, based on the agreement that we have on -- that's in the case, that shows that only documents -- or only things that were relied upon in Mr. McCullough's opinions is something that's subject to deposition and to production. So I'm not going to allow any questions on -- on the cameras surveyed. MR. BUCHANAN: Well, I'm going to first test some scope questions, Colby, and then I'll come back and respond to your objection. Q. Is it the case that you saw or heard preliminary results from interviews

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McCullough the same questions were asked to the consumers about the C6180 printer and later the other printer. A. Identical question, yes. Q. And so the report that you wrote covers both sets. A. That's correct. Q. When you were writing the report did you have in your mind the preliminary results that you had heard from the interview of the camera people? A. No. That had nothing to do with my report on the printers. Q. You didn't have it in your mind at all? A. That's correct. Q. So it's your testimony that you did not -- well, let me ask you. Did you consider, have conscious awareness of, the preliminary results that you had heard about cameras as you wrote your report about printers? A. No. Q. So it's your testimony that you

5 (Pages 14 to 17)

ESQUIRE DEPOSITION SERVICES, LLC 1-800-944-9454

83ac5977-95b5-4f5c-a692-2bf61c1c055e

Case 1:06-cv-00738-SLR

Document 249-2

Filed 06/26/2008

Page 7 of 92

Walter McCullough
Page 18 Page 20

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McCullough were able to put that out of your mind entirely when you wrote your report about printers. A. Yes. It's completely unrelated, in terms of my point of view. Q. And what do you mean, they are unrelated? A. They're two completely different surveys on two different products, and when I was working on the printer report I was thinking in terms of the results of the two printer surveys I did; I was not thinking at all about the camera survey, because that was -- from my point of view, I was told that this was taken off -- off the table, so to speak. Q. Did you yourself design the questions that were asked as a printer survey? A. Yes. Q. Did you yourself design the questions that were asked in the camera survey?
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McCullough sought people to ask questions about the printers, also seek people to ask -- answer questions about the cameras? A. Let me think about that. I think they were separate screeners. But it goes back a ways, so I'm not positive. I think they were separately done. But it was an along time ago, and I forgot the detail of it. Q. Well, were there sent to you any documents that reflect responses that people indicative about cameras? A. You mean -- you mean the interviews? Q. Yes. A. Yes. Q. And so -- now, about printers, I've received from counsel about what in my -what fills about one full box of cartons of questionnaire responses -A. Right. Q. -- containing the printer survey. A. Right. Q. Are you familiar with those?
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McCullough A. Yes. Q. Did you -- when did you work on the design of questions for the printer survey, which began in late January '08? A. Sometime in January. I can't recall exact dates. Q. And was it also in January that you worked on designing the questions that were asked this the camera survey? A. That's correct. Q. Did you work on both of those on the same days in January? A. It could have been. Q. Were they -- were the initial interviews conducted in the same shopping malls? A. Yes, they were. Q. Were the initial shopping -interviews conducted by the same interviewing -- interviewers in the same shopping malls? A. Some may have been and some may have been different interviewers, depending on the mall situation. Q. Did the interviewers, when they

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McCullough A. Yes. Q. And those came to your firm initially? A. The original ones did, yes. Q. And then you then provided those to counsel. A. Correct. Q. Did you similarly receive questionnaire responses pertaining to responses about the cameras? A. From the field people that were getting -- yes, I did. Q. So does your firm have those in your possession? A. Yes, we do. Q. And have you provided those to counsel? A. They did not ask for them. Q. So you still have them? A. I still have them in my office. Q. How many