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` HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`________________________________________________________
` Case No. 2:12-cv-05680-AB
`DESTINATION MATERNITY
`CORPORATION,
` Plaintiff,
`vs.
`TARGET CORPORATION, CHEROKEE
`INC. AND ELIZABETH LANGE, LLC,
` Defendants.
`_______________________________________________________
`
` The Videotape Deposition of AMY BRADY, a 30(b)(6)
`designee, taken pursuant to Notice of Taking Deposition,
`taken before Christine K. Herman, RPR, CRR, a Notary Public
`in and for the County of Anoka, State of Minnesota, taken on
`the 10th day of October, 2013, at 2200 Wells Fargo
`Center, 90 South Seventh Street, Minneapolis,
`Minnesota, commencing at approximately 9:17 a.m.
`
`DMC Exhibit 2027
`Target v. DMC
`IPR2013-00530, 531, 532, 533
`
`
`
` HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`________________________________________________________
` Case No. 2:12-cv-05680-AB
`DESTINATION MATERNITY
`CORPORATION,
` Plaintiff,
`vs.
`TARGET CORPORATION, CHEROKEE
`INC. AND ELIZABETH LANGE, LLC,
` Defendants.
`_______________________________________________________
`
` The Videotape Deposition of AMY BRADY, a 30(b)(6)
`designee, taken pursuant to Notice of Taking Deposition,
`taken before Christine K. Herman, RPR, CRR, a Notary Public
`in and for the County of Anoka, State of Minnesota, taken on
`the 10th day of October, 2013, at 2200 Wells Fargo
`Center, 90 South Seventh Street, Minneapolis,
`Minnesota, commencing at approximately 9:17 a.m.
`
`DMC Exhibit 2027
`Target v. DMC
`IPR2013-00530, 531, 532, 533
`
`
`
`Page 2
`
` APPEARANCES:
`
` FOR THE PLAINTIFF:
` DLA PIPER LLP US
` BY: PAUL A. TAUFER, ESQ.
` One Liberty Place
` 1650 Market Street
` Suite 4900
` Philadelphia, Pennsylvania 19103
`
` FOR THE DEFENDANT TARGET CORPORATION:
` FAEGRE BAKER DANIELS, LLP
` BY: TREVOR CARTER, ESQ.
` 300 North Meridian Street
` Suite 2700
` Indianapolis, Indiana 46204
`
` and
`
` JASON K. WALBOURN, ESQ.
` Senior Corporate Counsel - Litigation
` Target Corporation
`
` ALSO APPEARING: Randy Wallin, Videographer
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`Page 3
`
` INDEX:
` PAGE:
` AMY S. BRADY
` Examination by Mr. Taufer . . . . . . . . . . 7
`
` EXHIBITS:
` Deposition Exhibit Number 101
` Marked for Identification . . . . . . . . 57
` Deposition Exhibit Number 102
` Marked for Identification . . . . . . . . 59
` Deposition Exhibit Number 103
` Marked for Identification . . . . . . . . 68
` Deposition Exhibit Number 104
` Marked for Identification . . . . . . . . 76
` Deposition Exhibit Number 105
` Marked for Identification . . . . . . . . 78
` Deposition Exhibit Number 106
` Marked for Identification . . . . . . . . 81
` Deposition Exhibit Number 107
` Marked for Identification . . . . . . . . 87
` Deposition Exhibit Number 107
` Re-Marked for Identification . . . . . . 88
` Deposition Exhibit Number 108
` Marked for Identification . . . . . . . . 90
` Deposition Exhibit Number 109
` Marked for Identification . . . . . . . . 94
` Deposition Exhibit Number 110
` Marked for Identification . . . . . . . . 97
` Deposition Exhibit Number 111
` Marked for Identification . . . . . . . . 101
` Deposition Exhibit Number 112
` Marked for Identification . . . . . . . . 103
` Deposition Exhibit Number 113
` Marked for Identification . . . . . . . . 107
` Deposition Exhibit Number 114
` Marked for Identification . . . . . . . . 109
` Deposition Exhibit Number 115
` Marked for Identification . . . . . . . . 112
` Deposition Exhibit Number 116
` Marked for Identification . . . . . . . . 121
` Deposition Exhibit Number 117
` Marked for Identification . . . . . . . . 125
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` Deposition Exhibit Number 118
` Marked for Identification . . . . . . . . 127
` Deposition Exhibit Number 119
` Marked for Identification . . . . . . . . 129
` Deposition Exhibit Number 120
` Marked for Identification . . . . . . . . 133
` Deposition Exhibit Number 121
` Marked for Identification . . . . . . . . 136
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`Page 4
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` Certificate of Court Reporter. . . . . . . . . 140
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` THURSDAY, OCTOBER 10, 2013
`
`Page 5
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` THE VIDEOGRAPHER: We are on the record.
` This is the videotape deposition of 30(b)(6)
` designee Amy S. Brady being taken on October 10th,
` 2013. The time now is approximately 9:17 a.m.
` The deposition is being taken in the
` matter of Destination Maternity Corporation vs.
` Target Corporation, Cherokee Inc. and Elizabeth
` Lange, LLC, in the United States District Court for
` the Eastern District of Pennsylvania, Case
` No. 2:12-cv-05680-AB. The deposition is taking
` place at the law firm of Faegre Baker Daniels
` located in Minneapolis, Minnesota.
` My name is Randy Wallin. I'm the
` videographer representing Elisa Dreier.
` Will counsel present please identify
` themselves for the record.
` MR. TAUFER: Paul Taufer for Destination
` Maternity Corporation.
` MR. CARTER: Trevor Carter from Faegre
` Baker Daniels on behalf of Target Corporation.
` MR. WALBOURN: Jason Walbourn, in-house
` counsel for Target Corporation.
` THE VIDEOGRAPHER: Will the court reporter
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`Page 6
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` please swear in the witness.
` Whereupon,
` AMY S. BRADY,
` a witness in the above-entitled matter,
` after having been first duly sworn,
` deposes and says as follows:
`
` MR. TAUFER: Before we get started, I
` would just like to make a brief statement for the
` record. Target produced some documents last
` evening. I have not had an opportunity to review
` those documents before this deposition today, and as
` a result I would just like to reserve the ability to
` bring Ms. Brady back for additional questioning in
` case any of those documents turn out to be relevant
` to the topics that Ms. Brady is here to testify on.
` MR. CARTER: And I'll just answer, as I
` did before this deposition started, that I do know
` that there are documents produced out of a database
` that was made available for inspection over three
` weeks ago. DMC did not contact us to actually
` conduct the inspection until Monday. We made
` someone from Target available to do the inspection
` Tuesday morning, and documents identified during
` that inspection were produced last night. But we
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`Page 7
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` have an understanding, agreement in place with your
` co-counsel at your firm that if you proceed with
` Ms. Brady's dep or any of the 30(b)(6) depositions
` this week or 30(b)(1) depositions you've noticed
` this week that you cannot continue those depositions
` because of the production of documents out of the
` database.
` MR. TAUFER: Thank you. And just to
` clarify, I am not aware of any understanding, and
` just personally I do not agree to that sort of an
` arrangement.
` EXAMINATION
` BY MR. TAUFER:
` Q Good morning, Ms. Brady.
` A Good morning.
` Q Thank you for coming here today. I
` represent Destination Maternity Corporation. I will
` be taking your deposition today. Your deposition
` arises as a result of a patent infringement action.
` The patent infringement action was brought by
` Destination Maternity against Target, Liz Lange and
` Cherokee. Target produced you today because you're
` the one that is most knowledgeable on certain topics
` that we were looking to get some information on.
` Were you provided with a list of the
`
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` topics that you're to testify on today?
` MR. CARTER: And I just want to lodge an
` objection to form. The only question that is
` pending other than your statement, which I don't
` agree with, is were you provided with a list of the
` topics that you're testifying to today?
` MR. TAUFER: Yes.
` MR. CARTER: Thank you.
` Q (BY MR. TAUFER) Ms. Brady, would you mind
` responding? I'm sorry. I didn't hear you. Were
` you provided with a list of topics?
` A Yes.
` Q Okay. Thank you. Have you ever been
` deposed before?
` A No.
` Q Do you understand the nature of a
` deposition?
` A I've been given a brief summary.
` Q Okay. Do you understand that you're under
` oath?
` A Yes.
` Q Do you understand that you're supposed to
` tell the truth?
` A Yes.
` Q This setting, although is informal, is
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` still to be considered as if it's a court
` proceeding. The court reporter today is gonna be
` making a record of what's discussed today, and the
` videographer is also gonna take a video of what's
` going on today, so just to make it clear that we
` have all your responses, please, you know, respond
` with either yes or no or some affirmative statement.
` You know, please try to avoid nodding or huhs, just
` so the record is totally clear.
` A Okay.
` Q Are you prepared to answer questions
` today?
` A Yes.
` Q Is there anything that would prevent you
` from answering questions today?
` A No.
` Q If you don't understand one of my
` questions, you know, please don't hesitate to just
` ask me, and I'll clarify for you. As we go along --
` You know, this is not gonna be a torture test.
` We're gonna take some breaks, and if at any time you
` want to take a break for any reason, you know,
` please feel free to ask me and that'll be fine.
` A Okay.
` Q But we'll probably try to take a break
`
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`Page 10
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` every hour or so, whatever you think is appropriate.
` As far as leading up to this deposition,
` what sort of preparation did you do prior to coming
` here today?
` A I met with my attorneys.
` Q Who did you meet with?
` A Jason, Trevor and Andy Johnson.
` Q Do you know generally how long you met
` with these individuals for?
` A Approximately eight hours.
` Q Okay. Did you bring any documents with
` you today?
` A I have a copy of the topics --
` Q Okay.
` A -- in front of me.
` Q Thanks. I'm just gonna ask you now just a
` little bit of information about your background.
` Could you please just state your full name and your
` current home address?
` A Certainly. Amy
`
` Q And what's your date of birth?
`
` Q And could you just summarize your
` educational background?
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` Q Do you have any particular certifications?
` A No.
` Q Okay. Do you have any particular unique
` training? Did you take any courses in connection
` with your current job?
` A I'm not sure I understand the question.
` Q For example, did you take any like
` seminars or did somebody come in to talk to you
` about any specific unique aspects to your profession
` that you sorta sat in and listened to and --
` A At Target we frequently have training
` sessions.
` Q Okay. What's a general topic of the
` training sessions?
` A Apparel-related topics.
` Q Okay. What sort of apparel-related
` topics, if you could just give me some examples?
` A We've had trainings on thread, we've had
` trainings on fabrics, trainings on fibers, trainings
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` on the spinning, weaving, knitting process,
` trainings on dying. Many technical-related aspects
` to apparel.
` Q Okay. Were they in regards to Target
` products?
` A I would say they were applied to Target
` products.
` Q Okay.
` A But general to the apparel industry.
` Q Okay. Could you give me just a brief
` summation of your work history?
` A Sure. I started at Target in January of
` 2006. I was an assistant -- Sorry. Pardon me --
` associate technical designer in the ready to wear
` team. In October of 2006 I was promoted to
` technical designer of maternity on the ready to wear
` technical team. In August of 2007 I moved to the
` SWAT team. In -- Later on I moved to the global fit
` standards team as an apparel standards engineer.
` And then most recently, in 2011, I moved to the
` shoes team as a product development manager.
` Q And in your current position what's
` generally your responsibilities?
` A In my current position, as product
` development manager for shoes, I manage
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` cross-functional team meetings and also manage the
` communication with the vendors for product
` development.
` Q Okay. Now, you've said your current job
` relates to shoes. Do you know the subject matter
` that's at issue in this current action?
` A Maternity pants.
` Q Okay. Do you know generally the type of
` maternity pants?
` A Pants with a panel at the top.
` Q Okay. Now, has your work experience at
` Target ever focused on maternity pants?
` A Yes.
` Q Maternity pants with panels?
` A Yes.
` Q Okay. Could you explain to me just
` generally what is the typical design and development
` process that Target utilizes for developing new
` products?
` A I believe there's a document, the product
` development calendar.
` Q Okay. Okay.
` MR. TAUFER: That's not something that I
` recall seeing. I'm not sure if it's been produced.
` We can talk about that later.
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` MR. CARTER: It has.
` MR. TAUFER: It has? Okay.
` Q (BY MR. TAUFER) Now, could you please
` just explain to me, you know, generally what that
` says? What's the overall process for design and
` development?
` A It would help if I had the document.
` Q I'm sorry. I don't have the document.
` Would you just describe it off the top of your head?
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` Q Okay. So you say benchmark and
` competitors. Is a benchmark the same thing as a
` competitor?
` A No.
` Q Okay. What's a benchmark?
` A A benchmark is a retailer with a higher
` price point than Target.
` Q Okay. Now, what is a competitor?
` A A competitor is a retailer with a similar
` price point to Target.
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` Q Okay. And just so I understand, the
` products range from what you indicate as high end,
` such as designers that are on the runway; is that
` correct?
` A Yes.
` Q Okay. And products from benchmarks, which
` you said are companies that sell products at a
` higher price point than Target.
` A Yes.
` Q Okay. And competitors that sell products
` at a similar or lower price point than Target.
` A Yes.
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` Q Okay. And by trend direction, what does
` that mean?
` A I feel like I already answered that.
` Q Can you please just explain it again? I'm
` sorry, but I'm just not clear with it.
`
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` Q (BY MR. TAUFER) Is it -- Is it -- Just
` guesstimate. Is it --
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` MR. CARTER: Well, I'm not -- I'm gonna
` caution the witness not to guess. It's a 30(b)(6)
` deposition, Mr. Taufer, as you know. The witness
` does not have to have robotic memory of this
` document she's talking about. She's pointed you to
` the document for you to use with questioning. It's
` not her fault that you aren't prepared with the
` document, so don't ask the witness to guess or
` speculate.
` MR. TAUFER: The witness here is here as a
` representative of the company most knowledgeable on
` these topics. I would think the witness would be
` aware of the subject matter without referring to a
` document.
` MR. CARTER: No. A 30(b)(6) deponent does
` not have to memorize all documents and all
` information. She's pointed you to where you can
` obtain that information.
` MR. TAUFER: No.
` MR. CARTER: If you want to take a break
` and try to find the document you can do so.
` MR. TAUFER: No, thank you. And I'd also
` prefer to just limit our back and forth exchanges on
` the record. I think it's counterproductive.
` Q (BY MR. TAUFER) Now, Ms. Brady, could you
`
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` please explain to me, you know, how does Target use
` other retailers' designs in developing its own
` apparel?
` MR. CARTER: Objection, form.
` A (No response.)
` Q (BY MR. TAUFER) You can answer.
` A I'm not sure I understand the question.
` Q Does Target use other retailer designs in
` the development process of new products?
` A No.
` Q Now, you mentioned before that Target uses
` other companies' designs as inspiration.
` A We do not take a design and copy it, and I
` think that's what you're asking.
` Q No, I'm not. I'm just wanting to
` understand what Target does when it sees another
` product and what is the meaning of inspiration.
` A We are constantly aware of what's going on
` in the marketplace. Like any business, you have to
` know what other people are doing to remain
` competitive.
` Q Okay. Are you aware of any instances
` where Target incorporated some feature of another
` company's product into one of Target's products?
` MR. CARTER: Objection, form.
`
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` A Can you restate the question?
` MR. TAUFER: Court Reporter, would you
` mind just restating the question?
` (Whereupon, the court reporter read back
` the requested portion of the record.)
` MR. CARTER: Same objection.
` A Can you state it in another way?
` Q (BY MR. TAUFER) Has Target ever
` incorporated a feature of another company into one
` of Target's products?
` MR. CARTER: Objection, form.
` MR. TAUFER: Excuse me. What is the
` problem with the question?
` MR. CARTER: Has Target ever incorporated
` a feature of another company? What is a feature of
` another company?
` Q (BY MR. TAUFER) A product feature of
` another company into one of Target's products.
` A Can you be more specific about your
` definition of feature?
` Q
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` Q Okay. You say you could. Has Target done
` that?
` A I feel like that would be speculation.
` Q Okay. Now, does Target have any
` procedures in place to assess whether or not a
` competitor may have one of their products patented?
` MR. CARTER: So, Mr. Taufer, somebody else
` has that topic. That deposition is going on in
` another room.
` MR. TAUFER: Okay.
` Q (BY MR. TAUFER) What do you know about
` Destination Maternity Corporation?
` A They make maternity clothes and sell under
` the names of Mimi, A Pea in the Pod and Motherhood.
` Q Are you familiar with Destination
` Maternity's Secret Fit Belly product?
` A Yes.
` Q When did you first hear about the Secret
` Fit Belly product?
`
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` A Myself personally or members of the Target
` apparel team?
` Q First members of the Target apparel team.
` A I am not sure.
` Q What about anybody at Target?
` A I can't speculate.
` Q You are here as the representative of
` Target who has knowledge about this sort of
` situation, and this is not something that's in a
` document.
` A That is true.
` Q So I need to the best of your ability when
` Target became aware of the Secret Fit Belly product.
` A I don't know. Most likely --
` MR. CARTER: I'm going to caution the
` witness not to guess or speculate. Just testify as
` to what she knows.
` MR. TAUFER: So you're instructing the
` witness not to answer?
` MR. CARTER: I'm instructing the witness
` not to guess or speculate.
` Q (BY MR. TAUFER) It's okay to guess or
` speculate. You can just preface it by you're
` guessing or speculating.
` MR. CARTER: I don't agree with that.
`
`
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` A I'd like to follow my attorney's advice.
` MR. TAUFER: Okay. So I'm noting for the
` record you're instructing your witness not to
` answer.
` MR. CARTER: I would just advise to ask
` her when she knows, what she knows.
` Q (BY MR. TAUFER) So what do you know about
` when the Target group became aware of Secret Fit
` Belly?
` A By the fall of 2008.
` Q And you mentioned separately that you
` became aware of it on your own.
` A In December of 2009.
` Q December 2009?
` A 2008. Sorry.
` Q Okay. Now, could you explain for me how
` Target became aware of the Secret Fit Belly?
` A I believe they saw it at the stores.
` Q Okay. Do you know who saw it at the
` stores?
` A A variety of members
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` Q Anybody else from that team?
` A There were several members of the team.
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` I'm not sure --
` Q Okay.
` A -- who would or would not have seen it.
` Q Was it every member on that team?
` A Seeing the product in person, I am not
` sure.
` Q Okay. Now, as far as -- You mentioned
` seeing the product in person. Did they see the
` product in the stores?
` A
` seen the product in the store.
` Q
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`Page 28
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` would have
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` Q Do you know if the team also obtained any
` product literature regarding the Secret Fit Belly
` product?
` A Can you specify literature?
` Q Brochures, marketing material, Web site
` information.
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` A I'm not aware.
` Q Okay. Are you aware of any material that
` showed up in document form?
` A No. I'm not aware.
` Q Okay. Are you aware of any information
` they saw that was in electronic form, such as over
` the Internet?
` A I'm not aware.
` Q Okay. So just so I'm correct, you're
` saying the only thing that they saw was a product
` sample.
` A I can't speculate.
` Q But you did say they saw a product sample?
` A Correct.
` Q Okay. Do you know what the product team
` did with that product sample?
` A No.
` Q Were there meetings that occurred that
` discussed that product sample?
` A Not specifically.
` Q If not specifically, what generally?
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`Page 29
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` Q Okay. Now, how was the topic of the
` Secret Fit Belly raised during these meetings?
` MR. CARTER: Objection, form.
` A Can you restate the question in a
` different way?
` Q (BY MR. TAUFER) Okay. What general
` discussion occurred at these meetings relating to
` the Secret Fit Belly product?
` MR. CARTER: Objection, form, lack of
` foundation.
` A Can you restate the question in a
` different form?
` Q (BY MR. TAUFER) At any meetings did the
` topic of the Secret Fit Belly product come up?
` A Yes.
`
`
`
`Page 31
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` Q And what was discussed?
` A That it was on the market at Destination
` Maternity.
` Q Anything else?
` A Not that I'm aware of.
` Q Did Target consider the Secret Fit Belly
` product as a trend?
`
`
`
` Q Okay. Now, you mention high panels.
` What's a high panel?
` A A long piece of fabric attached to a pair
` of pants or a skirt or other bottom-covering
` garments.
` Q And when worn where does that high panel
` sort of lie on the wearer's body?
` A Based on the retailer, based on the
` wearer's stage in pregnancy, based on the height of
` the panel.
` Q And in your interpretation of what's a
` high panel, you know, what is sort of the height
` that's the requisite height to be considered in the
` high panel category?
` A Well, Target doesn't actually use the term
`
`
`
`Page 32
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` high panel as a technical term. We prefer the term
` full panel.
` Q Okay. So would it make it easier if we
` just describe the term full panel?
` A That would help.
` Q Okay. Now, to be considered a full panel
` how high would the panel have to rise on a wearer's
` body?
` A It varies, but a full panel would come
` between, you know, just under the peak of the belly
` to over the top of the belly.
` Q Okay. Now, in reference to the belly, I
` know the belly changes in size based on the stage of
` pregnancy. Is there another part of the body that
` you can use as a reference for how high the panel
` goes up to, sort of a part of the body that doesn't
` change throughout the stages of pregnancy?
` A We use a waist position from natural
` waist.
` Q Okay. Now, what waist position? Could
` you describe for me?
` A The natural waist pre-pregnancy is the
` smallest portion of the woman's body. It is where
` you bend at the side.
` Q Okay. So a full panel you're saying goes
`
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`Page 33
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` up to the natural waist?
` A Approximately.
` Q And when a woman is, say, nine months
` pregnant where does that panel extend up to?
` A It totally depends on the pregnancy.
` Q Okay. Just going back for a minute, you
` said the team looked at trends and high panels that
` were being utilized by various companies.
` A Uh-huh.
` Q At that point in time did Target have a
` full panel product?
` A Yes.
` Q And what was that?
` A We had multiple full panel products. We
` had dress pants, we had denim pants, probably had a
` jean skirt.
` Q Okay.
` A And shorts.
` Q Could you mention any specific product
` names for me to just make it clearer?
` A We don't have specific product names. We
` call it a full panel.
` Q Full panel? Okay. Now, if Target already
` had a full panel product, then what was of such
` interest with competitor products that had full
`
`
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`Page 34
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` panel products?
` MR. CARTER: Objection, form.
` A Will you please restate the question in
` another form?
` Q (BY MR. TAUFER) What was different
` between Target's full panel products and the full
` panel products that Target saw was in the industry
` sold by other competitors?
` A There were a variety of panel heights in
` the industry.
` Q Could you explain to me what heights were
` of particular interest to this group at Target?
` MR. CARTER: Objection, form.
` A Will you please restate the question in
` another form?
` Q (BY MR. TAUFER) What was the interest
` with regard to panel height of products of other
` competitors?
` A In general just knowing what companies
` were offering what heights.
` Q And what heights were they offering?
` A I don't have a record of the specific
` heights during the fall of 2008.
` Q Why did the Secret Fit Belly become
` interest in Target?
`
`
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`Page 35
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` Q Could you just explain to me what features
` or expression of fit was of interest with these
` various competitors? It would help if you just give
` me a list, if you could define it that way.
`
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`
` Q Okay. Now just going through each one of
` those, expression of fit, how were these competitor
` products different with their expression of fit?
` MR. CARTER: Objection, form.
` A Will you please restate the question in
` another form?
` MR. TAUFER: Can you explain to me, what
` was the problem with that question?
` MR. CARTER: How were these competitor
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` products different with their expression of fit.
` I'll explain it to you if you want. How do they
` differ from each other? How do they differ from
` what?
` Q (BY MR. TAUFER) Okay. How did the
` competitor products differ from Target in their
` expression of fit?
` A I can't recall specifically.
` Q Generally.
` A And I -- You know, a competitor is a
` competitor. It would be difficult to say. It was
` noted that the Gap and JCPenney and Destination
` Maternity products had a higher panel height.
` Q Okay. So JCPenney? I'm sorry. JCPenney,
` Gap and Destination Maternity?
` A Uh-huh.
` Q Okay. Now, what was the purpose for the
` higher panel height?
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` Q And what were the different ways it could
` be worn?
` A The Bella Band itself?
` Q Now let's talk about the competitor
` products.
` A Yeah. I mean, I don't know specifically
` what the competitors intended when they developed
` those products.
` Q But how were the competitor products worn?
` You mentioned different ways.
` A Can
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