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`Page 1
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` IN THE UNITED STATES DISTRICT COURT
` EASTERN DISTRICT OF PENNSYLVANIA
`DESTINATION MATERNITY )
`CORPORATION, )
` Plaintiff )
` )
`VS. )CASE NO. 2:12-CV-05680-AB
` )
`TARGET CORPORATION, CHEROKEE )
`INC., and ELIZABETH LANGE, LLC,)
` Defendants )
` -----------------------------------------
` VIDEOTAPED ORAL DEPOSITION OF
` MINDY SIMON
` OCTOBER 10, 2013
` -----------------------------------------
`
`REPORTED BY:
`KATHRYN R. BAKER, RPR, CSR #6955
`JOB #66682
`
`TSG Reporting - Worldwide 877-702-9580
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`Page 1
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` IN THE UNITED STATES DISTRICT COURT
` EASTERN DISTRICT OF PENNSYLVANIA
`DESTINATION MATERNITY )
`CORPORATION, )
` Plaintiff )
` )
`VS. )CASE NO. 2:12-CV-05680-AB
` )
`TARGET CORPORATION, CHEROKEE )
`INC., and ELIZABETH LANGE, LLC,)
` Defendants )
` -----------------------------------------
` VIDEOTAPED ORAL DEPOSITION OF
` MINDY SIMON
` OCTOBER 10, 2013
` -----------------------------------------
`
`REPORTED BY:
`KATHRYN R. BAKER, RPR, CSR #6955
`JOB #66682
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 2
`
` VIDEOTAPED ORAL DEPOSITION OF MINDY SIMON,
`produced as a witness at the instance of the DEFENDANTS,
`and duly sworn, was taken in the above-styled and numbered
`cause on the 10th day of October, 2013, from 9:12 a.m. to
`4:02 p.m., before Kathryn R. Baker, CSR, RPR, in and for
`the State of Texas, reported by machine shorthand, at the
`offices of JC Penney, 6501 Legacy Drive, in the City of
`Plano, State of Texas, pursuant to the Federal Rules of
`Civil Procedure.
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`with a made sample based on our specifications.
` Q. Then would there -- would you have any revisions
`to that sample?
` A. Usually.
` Q. And how many -- how many rounds of revisions
`would be typical?
` A. Two to three probably.
` Q. And so this was a series of communications back
`and forth between you and the supplier, tweaking the
`design, essentially, or the --
` A. Yes.
` Q. Well, scratch that.
` A series of communications back and forth
`between you and the supplier, tweaking the physical sample
`they provided?
` A. Yes.
` Q. And so was that more or less how it went in
`every design scenario?
` A. Yes.
` Q. Was there anything particular or special to
`maternity that other --
` A. Yes.
` Q. -- design projects didn't have?
` A. Yes.
` Q. Like what?
`
`TSG Reporting - Worldwide 877-702-9580
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` A. The fit is much more complicated.
` Q. What do you mean?
` A. How it fits the body, because you have this
`belly that is changing every single day, and you want this
`pant to fit numerous women of all different sizes of all
`different stages of pregnancy. So it's really hard to get
`a good-fitting maternity pant.
` Q. How do you address that issue in designing
`maternity pants?
` A. That's why there's multiple styles to address
`different fits for different women.
` Q. When you think about designing for maternity,
`and you think about the growing abdomen of a pregnant
`wearer, that growth is -- is going to be inconsistent
`potentially?
` A. Absolutely.
` Q. And this -- this may sound trite, but is -- when
`you're thinking about a pregnant wearer's stomach, is it
`always rounded?
` A. No.
` Q. It could be different shapes?
` A. Yes.
` Q. How do you accommodate for that in design?
` A. That's why there's stretch in the waistband.
`So, that way, the waistband or panel will stretch to
`
`TSG Reporting - Worldwide 877-702-9580
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`Page 176
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`testings?
` A. No.
` Q. How would you keep track of the feedback that
`you got?
` A. Well, it's only relevant for the time frame
`you're talking about. So we get the feedback; we'd
`develop the pant. If it sold, great, we'd continue it; if
`it didn't sell, we'd mark it down and try something new.
` Q. Okay. Do you remember any specific feedback for
`this -- for the 167 style?
` A. The feedback I remember is everyone loved that
`they could wear it no matter how big or small pregnant
`they were.
` Q. And how would somebody wear it in those, as you
`explained, big or small, no matter how pregnant?
` A. I don't understand the question.
` Q. Is there a different ways of wearing the pant
`depending on how big you are? You said they could wear it
`no matter what.
` A. Yes. It could be up, middle, or down all the
`way.
` Q. Okay. Now, could each of these ways of wearing
`the pant be worn throughout a pregnancy?
` A. Yes. It depends on the customer.
` Q. What about the normal -- whatever -- whatever
`
`TSG Reporting - Worldwide 877-702-9580
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`
`Page 177
`you designed it on, the normal customer, how would it --
`would it change how they wore it depending on what stage
`of pregnancy they were in?
` A. It could.
` Q. How could it change?
` A. Personal preference. Some people don't like
`anything over their belly, so regardless of how big they
`were, they might still want it under their belly. Some
`people that are used to -- the younger customer that's
`used to low-rise jeans might love it under the belly and
`might never raise it over her belly. It's -- it's really
`a personal preference on where she wants to put it.
` Q. Okay. Did you have any information regarding
`how the pants stayed up depending on the size of the
`person?
` A. I'm sorry; I don't understand the question.
` Q. Okay. When you were developing the products --
` A. Uh-huh.
` Q. -- you said you had these fit sessions?
` A. Uh-huh.
` Q. Did you get feedback on how -- on how the pants
`stayed up on different people?
` A. Yes.
` Q. And what was that feedback?
` A. That it stayed up nicely because the elastic was
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`Page 186
`differences between the Thyme product and this JCPenney
`product?
` A. Besides the denim?
` Q. Right. We're just talking about the band. I
`know you talked about they had worst denim.
` A. I don't remember what the blend was; the blend
`could have been different. I don't remember the exact
`blend of theirs. And I -- I can't swear that the actual
`spec is exactly the same because our tech designer
`determines the spec. So I can't say exactly if it -- what
`was same and what was different. I know we changed the
`denim and the pockets.
` Q. Okay. We're going to go to the figure Number 1
`from 167. So pulled all the way up, could someone who was
`not pregnant wear the pants that way?
` A. They could. I don't know why they would, but
`they could.
` Q. All right. Would the pants -- do you think the
`pants would stay up if they did that?
` A. It depends how skinny she is.
` Q. Okay. And also with the first picture, if you
`look at the top edge of the band --
` A. On the first picture?
` Q. Yes.
` A. Number 3, is that the one you're talking about?
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` Q. I'm sorry; the one that's Number 1 over the
`belly coverage there.
` A. Okay.
` Q. The top edge of the band.
` A. Yes.
` Q. Is -- does it go straight across the belly?
` A. Straight across?
` Q. Yes.
` A. It -- it kind of curves along the belly.
` Q. I'm not going to test you on what kind of a
`curve that is --
` A. Thank you.
` Q. -- but can you explain why it curves?
` A. Because the belly is curved, so when it sits on
`the belly, it curves to the shape of the belly.
` Q. When you say, "Sits on the belly," how does it
`sit on the belly?
` A. Well, your belly -- I mean (indicating) it sits
`on your belly. This is your belly and it's -- it comes --
`in picture 1, it comes over the belly, so it rests on the
`top of your belly.
` Q. How does the curve work? How does the curve
`look?
` MS. LETTELLEIR: Objection, form.
` A. I don't understand what you mean.
`
`TSG Reporting - Worldwide 877-702-9580
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`Page 218
`
`STATE OF TEXAS X
`COUNTY OF TARRANT X
` I, Kathryn R. Baker, a Certified Shorthand
`Reporter duly commissioned and qualified in and for the
`State of Texas, do hereby certify that there came before
`me on the 10th of October, 2013, in the offices of
`JCPenney, located at 6501 Legacy Drive, in the City of
`Plano, County of Dallas, and State of Texas, the following
`named person, to-wit: MINDY SIMON, who was duly sworn to
`testify the truth, the whole truth and nothing but the
`truth of her knowledge touching and concerning the matters
`in controversy in this cause; and that she was thereupon
`examined upon her oath and her examination reduced to
`typewriting under my supervision; that the deposition is a
`true record of the testimony given by the witness, and
`signature of witness is to be before any notary public.
` I further certify that I am neither attorney or
`counsel for, nor related to or employed by any of the
`parties to the action in which this deposition is taken,
`and further that I am not a relative or employee of any
`attorney or counsel employed by the parties hereto, or
`financially interested in the action.
`
`///
`
`TSG Reporting - Worldwide 877-702-9580
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`Page 219
` IN WITNESS WHEREOF, I have hereunto set my hand
`and affixed my notarial seal this the 14th day of October,
`2013.
`
` ______________________________
` KATHRYN R. BAKER, RPR, CSR #6955
` Expiration Date: 12/31/14
` Firm Registration No. 615
` TSG Reporting
` 747 Third Avenue, 10th Floor
` New York, New York 10017
` 877-702-9580
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`
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