Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 1 of 316
`
` VOLUME 14
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`
`
`Pages 3512 - 3826
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`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable YVONNE GONZALEZ ROGERS, Judge
`
`)
`EPIC GAMES, INC.,
` )
` Plaintiff,
`) NO. C-20-5640 YGR
` )
` vs. ) Thursday, May 20, 2021
` )
`APPLE, INC., ) Oakland, California
`)
`) BENCH TRIAL
` Defendant.
`____________________________)
`APPLE, INC.,
`)
`)
`)
` Counterclaimant,
` vs. )
`)
`)
`)
`)
` Counter-Defendant.
`____________________________)
`
`EPIC GAMES, Inc.,
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: CRAVATH, SWAINE & MOORE, LLP
` 825 Eighth Avenue
` New York, New York 10019
` BY: KATHERINE B. FORREST, ESQUIRE
` GARY A. BORNSTEIN, ESQUIRE
`YONATAN EVEN, ESQUIRE
`(Appearances continued.)
`
`Reported By: Diane E. Skillman, CSR 4909, RPR, FCRR
` Pamela Batalo-Hebel, CSR 3593, RMR, FCRR
` Raynee Mercado, CSR 8258 RMR, CRR, FCRR
`
`TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION
`
`
`
`
`
` VOLUME 14
`
`
`
`Pages 3512 - 3826
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable YVONNE GONZALEZ ROGERS, Judge
`
`)
`EPIC GAMES, INC.,
` )
` Plaintiff,
`) NO. C-20-5640 YGR
` )
` vs. ) Thursday, May 20, 2021
` )
`APPLE, INC., ) Oakland, California
`)
`) BENCH TRIAL
` Defendant.
`____________________________)
`APPLE, INC.,
`)
`)
`)
` Counterclaimant,
` vs. )
`)
`)
`)
`)
` Counter-Defendant.
`____________________________)
`
`EPIC GAMES, Inc.,
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: CRAVATH, SWAINE & MOORE, LLP
` 825 Eighth Avenue
` New York, New York 10019
` BY: KATHERINE B. FORREST, ESQUIRE
` GARY A. BORNSTEIN, ESQUIRE
`YONATAN EVEN, ESQUIRE
`(Appearances continued.)
`
`Reported By: Diane E. Skillman, CSR 4909, RPR, FCRR
` Pamela Batalo-Hebel, CSR 3593, RMR, FCRR
` Raynee Mercado, CSR 8258 RMR, CRR, FCRR
`
`TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION
`
`
`
`
`
`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 2 of 316
`
`3513
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`CRAVATH, SWAINE & MOORE, LLP
`For Plaintiff:
` 825 Eighth Avenue
` New York, New York 10019
` BY: LAUREN A. MOSKOWITZ, ESQUIRE
`JUSTIN C. CLARKE, ESQUIRE
`W. WES EARNHARDT, ESQUIRE
`BRENDAN BLAKE, ESQUIRE
`JIN NIU, ESQUIRE
`BRENT BYARS, ESQUIRE
`
`
`
`
`
`For Defendant: GIBSON, DUNN & CRUTCHER
` 333 South Grand Avenue
` Los Angeles, California 90071
` BY: RICHARD J. DOREN, ESQUIRE
`DAN SWANSON, ESQUIRE
`CYNTHIA RICHMAN, ESQUIRE
`RACHEL BRASS, ESQUIRE
`
`
`
`
`
`
`GIBSON, DUNN & CRUTCHER, LLP
`2001 Ross Avenue, Suite 1100
`Dallas, Texas 75201
` BY: VERONICA S. MOYE, ESQUIRE
`
`PAUL WEISS RIFKIND
`WHARTON & GARRISON LLP
`2001 K STREET, NW
`Washington, DC 20006
` BY: KAREN DUNN, ESQUIRE
`JESSICA E. PHILLIPS, ESQUIRE
`
`For Defendant:
`
`PAUL WEISS RIFKIND
`WHARTON & GARRISON LLP
`943 Steiner Street
`San Francisco, California 94117
` BY: ARPINE LAWYER, ESQUIRE
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 3 of 316
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`3514
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`Defendant's Witnesses:
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`Page
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` Vol.
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`Hanssens, Dominique
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`Direct Examination by Ms. Moye
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`Cross-examination by Ms. Moskowski
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`Redirect Examination by Ms. Moye
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`Recross-examination by Ms. Moskowski
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`Malackowski, James
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`Direct examination by Mr. Doren
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`Cross-examination by Ms. Moskowski
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`Redirect Examination by Mr. Doren
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`Recross-Examination by Ms. Moskowski
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`Further Redirect Examination by mr. Doren
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`3714
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`Rubin, Aviel
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`Direct Examination by Mr. Lo
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`Cross-examination by Mr. Byars
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 4 of 316
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`3515
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`Plaintiff's Exhibits:
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`Evd. Vol.
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`1182
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`1183
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`Defendant's Exhibits:
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`Evd. Vol.
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`3134
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`3305
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`3370
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`4080
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`4876
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`4880
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 5 of 316
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`3516
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`THURSDAY, MAY 20, 2021
`
`8:00 a.m.
`
`P R O C E E D I N G S
`
`THE CLERK: Calling Civil Action 20-5640, Epic Games,
`
`Inc. versus Apple, Inc.
`
`Counsel, please state your appearances.
`
`MS. FORREST: Good morning, Your Honor. Katherine
`
`Forrest for Epic.
`
`THE COURT: Good morning.
`
`Good morning, Ms. Moskowitz.
`
`MS. MOSKOWITZ: Good morning, Your Honor.
`
`THE COURT: Good morning, Mr. Niu.
`
`MR. NIU: Good morning, Your Honor.
`
`THE COURT: And, Mr. Sweeney, good morning.
`
`MR. SWEENEY: Good morning, Your Honor.
`
`THE COURT: Mr. Rudd, good morning.
`
`MR. RUDD: Good morning.
`
`THE COURT: Okay. On the Apple side, Mr. Doren.
`
`MR. DOREN: Good morning, Your Honor.
`
`THE COURT: And, Ms. Moye, good morning.
`
`MS. MOYE: Good morning, Your Honor.
`
`THE COURT: Ms. Dunn, good morning.
`
`MS. DUNN: Good morning, Your Honor.
`
`THE COURT: Ms. Adams?
`
`MS. DANSEY: Ms. Dansey.
`
`THE COURT: Ms. Dansey.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 6 of 316
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`3517
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`And Ms. Grenier?
`
`MS. GRENIER: Yes. Good morning, Your Honor.
`
`THE COURT: Good morning.
`
`All right. Mr. Spalding.
`
`MR. ELTISTE: No.
`
`THE COURT: No.
`
`MR. ELTISTE: It's Bret Eltiste.
`
`THE COURT: Eltiste. Okay.
`
`And then I think we've got Mr. Phillips back there?
`
`MR. PHILLIPS: Good morning, Your Honor.
`
`THE COURT: And who else?
`
`MS. RHO: Good morning, Your Honor. This is Jennifer
`
`Rho for Apple.
`
`THE COURT: I can't hear. Maybe -- Ms. Moye, maybe
`
`can help --
`
`MS. MOYE: It's Jennifer Rho for Apple.
`
`THE COURT: Jennifer Rho. Good morning.
`
`MS. MOYE: And Stephanie Fine at Apple.
`
`THE COURT: Okay. Thank you. Good morning.
`
`MS. FINE: Good morning.
`
`THE COURT: On the press side, we have Ms. Lopatto
`
`from The Verge?
`
`MS. LOPATTO: Good morning, Your Honor.
`
`THE COURT: Good morning.
`
`And Ms. Miller from MLex? Good morning. Welcome back.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 7 of 316
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`3518
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`And then Betsy Manifold from the class counsel?
`
`MS. MANIFOLD: Good morning, Your Honor.
`
`THE COURT: Good morning. Welcome back.
`
`Ms. Behringer, good morning.
`
`MR. BEHRINGER: Good morning, Your Honor.
`
`THE COURT: Welcome back.
`
`MR. BEHRINGER: Thank you.
`
`THE COURT: I was also realizing that some of those
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`who are listening who aren't generally in courtrooms many
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`times find this boring. You know, we judges do talk to people
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`and we do talk to our jurors.
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`But with so many people listening, I just generally feel
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`like judicial chatter is probably not the best thing to have
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`happen in the courtroom, so I don't. But if you are ever in
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`my courtroom and you are a juror, we will have much more fun
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`discussions during the breaks.
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`We'll talk about the Warriors more, although I was very
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`disappointed. I said last night it was too much stress to
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`watch them. And then they were winning and they were winning
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`big, and I could hear my husband and my son yelling downstairs
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`so I turned it on, and then they started losing so I turned it
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`off. And then the dog and I just went to the other room.
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`Anyway, so here we are. Two more days and then argument.
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`Ms. Forrest, what do we have from your side?
`
`MS. FORREST: Your Honor, one point of just
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 8 of 316
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`3519
`
`information and also a request as to your preference.
`
`On the expert submissions, Apple has filed theirs on the
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`docket. We are prepared to do the same thing, but we also
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`wanted to ask Your Honor whether you would like hard copies of
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`those, or do you have more than enough paper?
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`THE COURT: I don't want hard copies. Look, I have
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`had the expert reports. I read them before we started. I'm
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`reading them again now because now they make more sense than
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`they did on the first go-around. I was not planning on going
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`back.
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`I thought what you were filing on the docket primarily
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`were things that reflected sealing or other issues. If there
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`are -- if there are material -- and I guess what I would do is
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`to the extent I am relying on something, I can go back to the
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`docket and figure out whether it was struck. I mean, if there
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`are material issues that you think were not proven or upon
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`which there was no factual basis, then the easiest thing would
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`just be to point that out to me so I can go and look.
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`But I'm not going to look at additional copies. I've got
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`my set.
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`MS. FORREST: We -- you know, I think that makes
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`perfect sense, and we don't even need to file anything on the
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`docket if what we can do is rely upon just sort of the rulings
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`that Your Honor has made as to what is struck or not struck.
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`What has been filed on the docket so far has just been by
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 9 of 316
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`3520
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`Apple, just literally copies of the expert reports with the
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`rulings reflected in the filed copies. And we're prepared to
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`do the same thing if that would just make the docket complete.
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`But if Your Honor doesn't need that, we can stand down from
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`that.
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`THE COURT: Well, I think the docket should be
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`complete, because I don't expect -- look, I really -- like I
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`said, everybody is trying to read my mind. It doesn't matter.
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`You can't read it because I haven't decided what I am going to
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`do. That's the best defense to anybody reading anything.
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`But whatever happens, one or both of you aren't going to
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`be happy with the answer, and so it's going to go to the Court
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`of Appeal. So the docket has to be complete.
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`And I don't recall that those reports were ever filed. I
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`think you provided me with copies of them per my request, but
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`I don't think they were filed. So they do need to be filed.
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`MS. FORREST: All right. And Apple has filed theirs.
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`We will mirror that filing and not provide hard copies.
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`The second issue I just wanted to raise as a point of
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`information is we are actively determining whether or not we
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`will need to call any rebuttal witnesses. Part of that
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`depends on, frankly, what happens today because of some
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`witnesses that are going today. Our rebuttal witnesses would
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`be potentially responsive, and that's Mr. Lee and
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`Ms. Mathiowetz.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 10 of 316
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`3521
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`There is a possibility, Your Honor, of one other rebuttal
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`witness, who would have 10 to 15 minutes' worth of factual
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`testimony. We don't yet know, because we've had to locate
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`this person, if we are going to call them, but we will know
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`today.
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`And they would be responsive to testimony that has only
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`just come up and that was not originally in the findings of
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`fact of Apple, so it wasn't something we could anticipate.
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`And we are -- I've notified Mr. Doren of this. I think that
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`there may be a dispute as to whether we have missed the timing
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`cutoff for disclosure, but we have said we will let them know
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`as soon as possible and be prepared, if the person is called,
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`to make them available for deposition for an hour tomorrow
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`morning or something like that, very early, in advance.
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`We don't have to resolve this, the parties can continue to
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`have conversations about it, but I wanted to just let Your
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`Honor know that it is sort of out there in the ether.
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`THE COURT: Okay.
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`MR. DOREN: Your Honor, just so the record is clear,
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`there are two problems with that.
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`One is that in the stipulation filed at Docket 538, the
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`parties stipulated that Epic shall give Apple written notice
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`by 7:30 a.m. Pacific Time of any rebuttal witnesses to be
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`called on the trial day that begins 24 hours later, as well as
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`the order in which said witnesses will testify on that day.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 11 of 316
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`3522
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`That time has come and gone.
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`And that 24-hour period was negotiated as to rebuttal
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`witnesses specifically, as opposed to the 48-hour notice we
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`used for any case-in-chief witnesses. So that deadline is
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`gone. There should not be any surprise witnesses at this
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`time.
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`Secondly, the parties agreed that any witness that will
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`testify at trial would be deposed in advance of trial, before
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`trial, not during trial.
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`So for those two independent reasons, there should not be
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`any surprise rebuttal witnesses at this point in the case.
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`MS. FORREST: Your Honor, we can take this up later,
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`but let me just sort of respond to that very briefly.
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`There was a finding of fact in Apple's findings of fact
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`which did not indicate the information that it now indicates
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`through a redline and that there was testimony about. This
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`particular rebuttal witness would be directly responsive to
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`that.
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`We would ask that, based upon good cause, Your Honor --
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`this is an unanticipated event. It would be 10 to 15 minutes.
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`We would give Apple the opportunity for a deposition, and it's
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`still TBD.
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`THE COURT: There is nothing for me to rule on right
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`this second.
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`MR. DOREN: Yes, Your Honor.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 12 of 316
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`3523
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`THE COURT: Okay.
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`Mr. Doren, other issues from your side?
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`MR. DOREN: Not at this time, Your Honor.
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`THE COURT: While we were talking about -- we have
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`just a few minutes before we are supposed to start anyway, so
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`given that you were talking about process, let me ask for the
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`lawyers on both sides, maybe by the end of next week, it would
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`be helpful to me to have a joint email from the two sides
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`about what trial-related proceedings in terms of your
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`collaborations really worked and what didn't.
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`The reason that I ask that is, I have been asked to
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`participate in a course for judges dealing with antitrust
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`cases in the fall. And as I've said before, I appreciate --
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`and I can see it from my end -- all of the collaboration and
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`professionalism that has happened in this particular case. It
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`doesn't always happen in big commercial litigation trials.
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`And so to the extent that there are things that worked
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`very well for you, please let me know so I can let the judges
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`know and they can put those in pretrial orders.
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`So, like I said, it doesn't always happen, and to the
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`extent I can get better information on best practices, I would
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`be happy to communicate that.
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`MS. FORREST: We'll put something together, Your
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`Honor.
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`MR. DOREN: Agreed, Your Honor. Thank you.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 13 of 316
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`3524
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`THE COURT: Okay. Anything -- we don't have anything
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`else.
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`Can you tell me what the list of witnesses is today,
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`please?
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`MS. MOYE: Yes. We are going to start with Professor
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`Dominique Hanssens. Then we are moving to Professor Rubin --
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`Professor Malackowski and then Professor Rubin.
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`THE COURT: Okay. You may call your next witness.
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`MS. MOYE: Apple calls Professor Dominique Hanssens.
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`THE CLERK: If you will please remain standing, I
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`will swear you in.
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`THE WITNESS: Sure.
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`(DOMINIQUE HANSSENS, called as a witness for the
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`Defendant, having been duly sworn, testified as follows:)
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`THE WITNESS: I do.
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`THE CLERK: Please be seated --
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`THE WITNESS: Thank you.
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`THE CLERK: -- and go ahead and get set. I'll wait
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`until you get set there. Be sure the mic is pointed
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`underneath the shield, and then would you please state your
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`full name and spell your last name.
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`THE WITNESS: My name is Dominique Hanssens,
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`H-A-N-S-S-E-N-S.
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`THE COURT: Good morning, sir.
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`THE WITNESS: Good morning.
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`HANSSENS - DIRECT / MOYE
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`3525
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`THE COURT: Ms. Moye, you may proceed.
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`MS. MOYE: Thank you, Your Honor.
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`DIRECT EXAMINATION
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`BY MS. MOYE:
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`Q.
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`Good morning, Professor Hanssens.
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`MS. MOYE: Your Honor, I have a book of exhibits that
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`may be used with the witness. I would like to approach.
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`THE COURT: You may.
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`MS. MOYE: Your Honor, we also have a binder for you.
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`We will not hopefully need all of those materials, I assure
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`you.
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`BY MS. MOYE:
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`Q.
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`Good morning, Professor Hanssens.
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`A.
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`Good morning.
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`Q.
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`We have a deck of demonstratives that we would like to use
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`to aid with your testimony.
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`MS. MOYE: So could I have the first demonstrative on
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`the screen, please.
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`(Displayed on screen.)
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`MS. MOYE: Thank you.
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`BY MS. MOYE:
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`Q.
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`Professor Hanssens, could you please tell us, what is your
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`current position?
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`A.
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`I am currently a research professor at UCLA at the
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`Anderson School of Management.
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`HANSSENS - DIRECT / MOYE
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`3526
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`Q.
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`And would you please describe for us your educational
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`background?
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`A.
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`Yes. I have an essential bachelor's degree in applied
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`economics from University of Antwerp in Belgium and a master's
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`and Ph.D. from Purdue University in management, with a focus
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`on marketing.
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`Q.
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`What are your particular areas of research and expertise?
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`A.
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`Well, in the field of marketing, I focus on empirical
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`research, on marketing effectiveness, consumer behavior. And
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`I do that using either transactional data or survey data.
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`Q.
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`Have you designed and conducted surveys in the past?
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`A.
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`Yes, I've done that many times. I've done that in the
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`context of some of my research articles; also in the context
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`of teaching, supervising a fairly large number of student
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`projects in our MBA program that are surveys; also in
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`commercial consulting engagements; and then, finally, in some
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`cases where I serve as an expert witness.
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`Q.
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`Thank you.
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`MS. MOYE: And, Your Honor, we would like to tender
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`Professor Hanssens as an expert in marketing and surveys.
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`THE COURT: No objection?
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`MS. MOSKOWITZ: No objection, Your Honor.
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`THE COURT: He's admitted.
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`MS. MOYE: Thank you, Your Honor.
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`HANSSENS - DIRECT / MOYE
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`3527
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`BY MS. MOYE:
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`Q.
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`Professor Hanssens, could you look at the written direct
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`testimony that is in your binder? It should be behind the
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`second tab.
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`A.
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`I see it.
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`Q.
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`And, sir, is this the written direct testimony that you
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`prepared and submitted to the Court?
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`A.
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`Yes, it is.
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`Q.
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`And is it all truthful?
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`A.
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`Yes, it is.
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`Q.
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`Do you have any changes that you feel you need to make to
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`that report today?
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`A.
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`I do not.
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`MS. MOYE: Your Honor, my understanding is that the
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`written direct testimonies are the subject of a stipulation
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`between the parties. We would ask that Professor Hanssens'
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`written direct be provisionally admitted pending that
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`stipulation.
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`THE COURT: So admitted.
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`MS. MOYE: And I think it bears the designation
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`"Expert 10" -- we are using different numbers for the
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`experts -- "Defendant Expert 10."
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`THE COURT: I think there is a document on the file
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`that has all of the exhibit numbers for the expert directs.
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`MS. MOYE: Okay. Thank you, Your Honor.
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`HANSSENS - DIRECT / MOYE
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`3528
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`THE COURT: And rebuttals.
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`MS. MOYE: Thank you, Your Honor.
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`And we have a number of exhibits that apply to Professor
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`Hanssens' work. They are also the subject of a stipulation
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`between the parties that has been filed but not admitted. So
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`we won't do that now.
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`THE COURT: So this was -- it is on the docket now
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`and I have not yet addressed it. Was it before Docket 635?
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`MS. MOYE: I would have to get the specific docket
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`number for you, but, yes, my understanding is that it is
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`pending but has not yet been ruled upon.
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`THE COURT: Oh, okay. I'll double-check.
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`Go ahead.
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`MS. MOYE: Thank you.
`
`Could we have the second demonstrative, please?
`
`(Displayed on screen.)
`
`BY MS. MOYE:
`
`Q.
`
`Professor Hanssens, can you describe for the Court, what
`
`was your assignment in this case?
`
`A.
`
`Yes. In this matter, I was asked to do two things.
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`First of all, I was asked to design and conduct a survey
`
`of iOS device users in the United States, those who are of
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`ages 13 and up.
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`Q.
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`A.
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`And what was the second survey you were asked to prepare?
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`The second survey was to do a review and also evaluate the
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 18 of 316
`HANSSENS - DIRECT / MOYE
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`3529
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`survey work that was done by Professor Rossi in this case.
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`Q.
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`Let's talk about the two surveys you designed.
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`What were they called?
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`A.
`
`I am sorry. There was one that was called the iOS app
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`survey. And that is for people who meet this time that I've
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`already mentioned who actually visited the App Store and
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`downloaded at least one app in the last 12 months.
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`Q.
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`And the second survey?
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`A.
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`The second survey, which we call the iOS Fortnite
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`survey, that was done for people who actually play Fortnite on
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`the iOS devices, also in the last 12 months.
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`Q.
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`And what was the age range for the participants in your
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`surveys?
`
`A.
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`In both cases, it was ages 13 and up.
`
`Q.
`
`And why did you select that age range?
`
`A.
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`That age range was selected because the Epic Games, and in
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`particular Fortnite, is a game that is recommended for people
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`ages 13 and up, and, in fact, their major target demographic
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`includes that age, 13 and up.
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`Q.
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`Were males and females equally weighted in your iOS
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`Fortnite survey?
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`A.
`
`No. In the second survey there was a predominance of
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`males, because that is also the stated target market for
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`Fortnite.
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`Q.
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`Were you concerned at all about surveying those who were
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`HANSSENS - DIRECT / MOYE
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`3530
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`younger than 17 or 18 years old?
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`A.
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`I was not, given that we had parental consent.
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`Q.
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`And can you just describe for the Court what steps were
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`taken to obtain parental consent?
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`A.
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`Yes. These are steps that were -- that are sort of
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`standard procedure with the internet panel provider, as well
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`as the market research firm. There are two kinds.
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`One is there are cases where the parents have previously
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`granted permission for their son or daughter to participate in
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`surveys, so that permission was granted previously.
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`And then there are also cases where the parent was
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`initially contacted and then was asked if the son or daughter
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`was available, if it would be okay for the son or daughter to
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`take the survey. So the parental permission in this case was
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`sort of instant.
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`Q.
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`And you mentioned with respect to both of those surveys
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`asking for information about the last 12 months.
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`Why did you include a 12-month period in your surveys?
`
`A.
`
`I used 12 months because I wanted to filter out possible
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`seasonal effects in usage. So, for example, if the last month
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`was one with a lot of vacation days in it, the usage of many
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`people might be different. By that I mean, the electronic
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`device usage might be different from a month in which there
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`are very few holidays or none at all. And so that can be
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`filtered out by taking a 12-month horizon.
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`HANSSENS - DIRECT / MOYE
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`3531
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`MS. MOYE: Okay. Let's look at the third
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`demonstrative.
`
`BY MS. MOYE:
`
`Q.
`
`And I would like to talk about the questions you asked in
`
`the iOS app survey.
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`Can you tell us, what was the main goal of that survey?
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`A.
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`Well, the main goal was for those people who qualified,
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`however we defined that, the extent to which they use other
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`electronic devices, in other words, non-iOS devices, and,
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`specifically, the extent to which they use those other devices
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`on a regular basis. That was the first goal.
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`And then the second goal was to find out if there were yet
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`other electronic devices that they could have used on a
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`regular basis because they were available, but they chose not
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`to.
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`Q.
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`And we see the phrase "regularly used."
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`Can you explain why you chose that language?
`
`A.
`
`Yes. That language was chosen deliberately because it's
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`understood that a certain device may be used regularly by one
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`person, let's say, on a daily basis, and for another person it
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`may be on a weekly basis or even a monthly basis, but both of
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`them would be regular.
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`So the focus here is on the recurring behavior, not on the
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`frequency. And that's why we used that term, which we
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`pretested and turned out to not be problematic at all.
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 21 of 316
`HANSSENS - DIRECT / MOYE
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`3532
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`Q.
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`You also have the language "available for regular use."
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`What does "available" mean there?
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`A.
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`Yes. The -- "available," once again, is a very easily
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`understood English term, and we gave some examples to make
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`sure people understood the context. Those were devices -- or
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`are devices that are, for example, present in the household of
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`the respondent or maybe at work, anyplace that -- where there
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`would be regular availability.
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`However, even though the device is available for regular
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`use, this -- or a particular respondent doesn't necessarily
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`use it on a regular basis. So it expands the availability
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`set.
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`Q.
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`And did I hear you correctly, did you actually provide
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`some text to describe what "available" would mean?
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`A.
`
`Yes, I gave examples. I forget the exact wording, but it
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`is, "For example, your family members may have that device.
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`And so it hangs around the house, you can use it if you like.
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`Whether or not you do on a regular basis is up to you, as a
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`respondent."
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`MS. MOYE: And let's look at the next demonstrative
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`and talk about the iOS Fortnite survey.
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`BY MS. MOYE:
`
`Q.
`
`Did you ask the same questions in that Fortnite survey as
`
`you had in your iOS app survey?
`
`A.
`
`Well, the first two questions were pretty much the same,
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`HANSSENS - DIRECT / MOYE
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`3533
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`yes, did they regularly use other electronic devices or did
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`they -- were there other devices that were available to them
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`that they did not regularly use. Those are the same.
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`Then there was an additional question specifically for
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`iOS Fortnite users, and that is whether they play digital
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`games on any of these other electronic devices that they have
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`stated they regularly use.
`
`Q.
`
`And let's focus on the language regarding "other
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`electronic devices" in this iOS Fortnite survey.
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`Were "other electronic devices" defined the same way in
`
`the Fortnite survey as in the iOS app survey?
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`A.
`
`Yes. Those are, basically, devices on which you can play
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`digital games.
`
`Q.
`
`Thank you, sir.
`
`Now let's turn to your results.
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`MS. MOYE: If we can have the next demonstrative.
`
`BY MS. MOYE:
`
`Q.
`
`Could you describe for the Court what results you received
`
`in your surveys?
`
`A.
`
`Sure.
`
`This was a very straightforward survey, and so the results
`
`are also easy to represent here in this one slide; that in
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`the iOS app survey, we see 92 percent regularly used other
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`electronic devices in the last 12 months; for the iOS
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`Fortnite survey, that number is a little higher, it is 97; and
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`Case 4:20-cv-05640-YGR Document 757 Filed 05/26/21 Page 23 of 316
`HANSSENS - DIRECT / MOYE
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`3534
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`then in both cases, 99 percent have other devices available to
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`them for regular use without necessarily using them. So the
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`set is the same there in both cases. And I think I summarized
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`that as referring to that as the vast majority.
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`Q.
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`Thank you, Professor Hanssens.
`
`Did you do anything to check the robustness of your survey
`
`results?
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`A.
`
`Yes, I did.
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`MS. MOYE: Could we see the next demonstrative,
`
`please?
`
`I am sorry, I skipped one item.
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`BY MS. MOYE:
`
`Q.
`
`Was there additional data from the iOS Fortnite survey
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`that you determined?
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`A.
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`Yes. So as you may recall, there was one extra question
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`for the Fortnite players, and that was with respect to them
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`playing digital games on other electronic devices. And that
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`number is 94 percent, as you see there.
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`Q.
`
`Thank you, sir.
`
`And now let's go back to robustness.
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`MS. MOYE: Next demonstrative, please.
`
`BY MS. MOYE:
`
`Q.
`
`Would you describe, please, what are the robustness checks
`
`you did?
`
`A.
`
`Yes. In survey research, when you draw conclusions, it is
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`HANSSENS - DIRECT / MOYE
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`3535
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`important to satisfy yourself as a researcher that these
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`results hold for reasonable subsamples. And that is exactly
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`what I did.
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`So, for example, if I look only at people who state that
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`they use an iPhone, do we still get that overall result,
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`versus people who only use an iPad, versus people who use
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`both. That's the first breakdown there, compared themselves
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`to iOS device.
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`When it says "no material change," what I mean by that is
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`that we still find this substantial majority or vast majority
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`result, and so my conclusions are the same.
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`Secondly, and also in -- standard in market research, we
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`checked whether or not people who answered the survey
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`relatively quickly or very slowly might have been inattentive
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`or rushing through, et cetera. And so we discarded those
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`people -- I think in my case it was people who answered the
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`survey in less than 2 minutes or more than 14 minutes -- just
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`to assure ourselves that those results are still similar. And
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`they are. There, again, we find the same results.
`
`Q.
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`Did you -- you mentioned 2 minutes and a longer period of
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`time.
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`Did you also do an additional robustness check using a
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`different lower-range number?
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`A.
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`Well, I did, because there was some feedback on my work
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`from another expert who said that maybe you should check under
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`HANSSENS - DIRECT / MOYE
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`3536
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`3 minutes.
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`And so I did that. So it's the same test except now it is
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`anybody who answers the survey in under 3 minutes, as opposed
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`to 2. And, again, the results were the same.
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`Q.
`
`And then you have a final robustness check on our slide
`
`here related to Microsoft Windows smartphones.
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`Could you describe that for the Court?
`
`A.
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`Yes. That check is also done in response to a comment by
`
`another expert, and that comment was that while Microsoft does
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`have smartphones on the market, they have not been very
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`successful, commercially, that is. And yet a number of people
`
`indicated that either they were available to them or they
`
`regularly used them, and so that number was perhaps somewhat
`
`surprising.
`
`And so as a result of that, I tested the possibility that
`
`maybe these people didn't quite get it right or were
`
`inattentive, and I excluded all of them. In other words,
`
`anybody who said that they either regularly used a Windows
`
`phone or that they had access to one for regular use was
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`excluded, regardless of whether they were right or wrong about
`
`that.
`
`And when I do that test, once again, I find that the
`
`results are basically the same as before.
`
`Q.
`
`Did Dr. Rossi collect usage data in the survey work he
`
`did?
`
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`Case 4:20-cv-05640-YGR Document 757 Filed 0
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