IN THE UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF PENNSYLVANIA
`
`DESTINATION MATERNITY
`
`)
`
`CORPORATION,
`
`Plaintiff
`
`CERTIFIED COPY
`
`)CASE NO. 2:l2—CV—O5680—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
`
`8'77-702-9580
`
`DMC Exhibit 2005_001
`
`
`
`EASTERN DISTRICT OF PENNSYLVANIA
`
`DESTINATION MATERNITY
`
`)
`
`CORPORATION,
`
`Plaintiff
`
`CERTIFIED COPY
`
`)CASE NO. 2:l2—CV—O5680—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
`
`8'77-702-9580
`
`DMC Exhibit 2005_001
`
`
`
`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.
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_002
`
`
`
`A P P E A R A N C E S
`
`FOR THE PLAINTIFF:
`
`Mr. Michael L. Burns IV
`
`DLA Piper
`
`One Liberty Place
`
`1650 Market Street
`
`Philadelphia, Pennsylvania 19103
`
`FOR THE DEFENDANTS:
`
`Mr. Daniel M. Lechleiter
`
`FAEGRE BAKER DANIELS
`
`300 North Meridian Street
`
`Indianapolis,
`
`Indiana 46204
`
`FOR JCPENNEY AND THE WITNESS:
`
`Ms. Diane K. Lettelleir
`
`Ms. Melinda Balli
`
`JC PENNEY
`
`6501 Legacy Drive
`
`Plano, Texas 75024
`
`ALSO PRESENT:
`
`Joseph McDermott, Videographer
`
`TSG Reporting - Woridwide
`
`877-702-9580
`
`DMC Exhibit 2005_003
`
`
`
`Appearances.
`MINDY SIMON
`
`Examination by Mr. Lechleiter
`
`Examination by Mr. Burns
`
`Further Examination by Mr. Lechleiter
`
`Signature and Changes.
`
`Reporter's Certification
`
`NO.
`
`DESCRIPTION
`
`DEFENDANT‘S EXHIBITS
`
`EXHIBITS
`
`Exhibit 22 (Previously marked)...
`
`Fall/Winter Catalog 2005
`
`Exhibit 23 (Previously marked}...
`
`Introduction
`
`Exhibit 27 .
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`.
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`. ..
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`Spring & Summer
`Exhibit 28 .
`.
`.
`.
`.
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`.
`
`'96 Catalog
`.
`.
`.
`.
`.
`.
`.
`.
`. ..
`
`Spring Maternity Catalog 2005
`
`Exhibit 29 .
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`.
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`.
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`.
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`.
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`.
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`. ..
`
`Two Photographs, Maternity Form
`
`with Pants
`
`Exhibit 30 .
`
`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`. ..
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`Handwritten Diagram of Stitching
`
`Exhibit 31 .
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`.
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`.
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`.
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`.
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`. ..
`
`JCPenney Maternity Form
`
`(Photograph depicting exhibit)
`
`Exhibit 32 .
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`. ..
`
`Work to Weekend Maternity Page
`
`out of Catalog
`Exhibit 33 .
`.
`.
`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`. ..
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`Spring/Summer Catalog 2006
`Exhibit 34 .
`.
`.
`.
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`.
`.
`.
`.
`.
`.
`.
`. ..
`
`Subpoena
`Exhibit 35 .
`
`.
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`.
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`. ..
`
`Introducing Secret Fit Belly
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_004
`
`
`
`INDEX
`
`(CONTINUED)
`
`EXHIBITS
`
`NO.
`
`DESCRIPTION
`
`PLAINTIFF'S EXHIBITS
`
`Exhibit 88 .
`
`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`. ..
`
`August 31, 2008, Mothers Work Letter
`
`to JCPenney
`
`Exhibit 89 .
`
`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`.
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`. ..
`
`February 9, 2009, Haynes Boone Letter
`
`to JCPenney
`
`REQUESTED DOCUMENTS/INFORMATION
`
`(NONE)
`
`CERTIFIED QUESTIONS
`
`(NONE)
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_005
`
`
`
`P R O C E E D I N G 3
`
`THE VIDEOGRAPHER: We are now on record at
`
`9:12 a.m., on October 10th, 2013,
`
`for the videotaped
`
`deposition of Mindy Simon,
`
`in Dallas, Texas,
`
`in the action
`
`entitled, Destination Maternity Corporation versus Target
`
`Corporation, Case Number 2:l2—CV—O5680—AB. This is Tape
`
`Number 1.
`
`Counsel may identify themselves at this
`
`time; afterwards,
`
`the court reporter will swear in the
`
`witness.
`
`MR. LECHLEITER: Good morning. This is Dan
`
`Lechleiter here on behalf of Defendant, Target
`
`Corporation.
`
`MS. LETTELLEIR: Diane Lettelleir,
`
`representing JCPenney.
`
`MS. BALLI: Melinda Balli, on behalf of
`
`JCPenney.
`
`MR. BURNS: Michael Burns, representing
`
`Destination Maternity Corporation.
`
`MS. LETTELLEIR: And just to clarify; we're
`
`representing JCPenney and the witness,
`
`individually.
`
`MINDY SIMON,
`
`having been first duly sworn,
`
`testified as follows:
`
`(No omissions.)
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_006
`
`
`
`BY MR. LECHLEITER:
`
`EXAMINATION
`
`Q.
`
`Good morning, Ms. Simon.
`
`Good morning.
`
`Q.
`
`Thank you for agreeing to provide your
`
`deposition today. As I believe you're aware,
`
`I'm Dan
`
`Lechleiter; I'm counsel for Target Corporation.
`
`I'm here
`
`today to ask you some questions.
`
`It's really all a
`
`deposition is; it's just a question—and—answer session.
`
`Sometimes my questions will be purely oral; sometimes
`
`they'll involve exhibits that we'll look at. You see
`
`these folders here with me, and we'll get into those in a
`
`minute. But it'll just be a series of questions. And I
`
`anticipate that,
`
`later, Mr. Burns will also have some
`
`questions for you.
`
`Have you given a deposition before?
`
`A .
`
`NO .
`
`Q.
`
`So let's just go over a few of the —— the ground
`
`rules for the deposition.
`
`If you need a break at any
`
`time, please let me know. This isn't a marathon nor —~
`
`nor is it a foot race. Any time you need a break,
`
`for any
`
`reason,
`
`just let me know.
`
`A.
`
`Q.
`
`Okay.
`
`Are you on any medications of any form that
`
`would inhibit your ability to testify today?
`
`TSG Reporting — Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_007
`
`
`
`A.
`
`No.
`
`Page 8
`
`Q.
`
`Okay.
`
`For the court reporter,
`
`I'm going to try
`
`to minimize my "ands" and my "ums,” but I would ask that
`
`you do the same.
`
`For the court reporter, it's important
`
`that we don't talk over each other.
`
`So that when I ask a
`
`question, I'll try to pause and let you answer; and I'll
`
`try to avoid talking over you.
`
`I'd appreciate it if you'd
`
`do the same for me so the court reporter can get our --
`
`our answers recorded.
`
`Um —— and there I go with an "um."
`
`In general, it's important that,
`
`if you
`
`have a yes or no answer,
`
`that it be a yes or no, not a nod
`
`of the head or a yeah or a uh—huh or a nah;
`
`just clear yes
`
`or nos for the court reporter. And it's important that
`
`everything we say is audible so the videographer and the
`
`court reporter can hear what we say.
`
`From time to time,
`
`I think you may hear
`
`your attorneys object to a question. Typically, that'll
`
`be an objection to the form of the question, and I'll --
`
`I'll try to leave -~ not speak over them when they object.
`
`And it's important that you also give them time to object
`
`before you answer my questions.
`
`I think the last thing, really,
`
`is, if you
`
`don't understand any questions —— any question that I've
`
`answered (sic),
`
`just let me know.
`
`I'll either restate it
`
`or ask the court reporter to read it back. And,
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_008
`
`
`
`Page 9
`
`certainly, at any time,
`
`if you need clarity,
`
`just let me
`
`know.
`
`So I‘d like to begin today with just a
`
`little bit of background on you and your experience.
`
`Did you go to college?
`
`A.
`
`Yes.
`
`And where did you go?
`
`Boston University.
`
`What year did you begin at Boston University?
`
`'81.
`
`And --
`
`The year I began?
`
`YES .
`
`'81.
`
`'81. And when did you graduate?
`
`‘85.
`
`And what major did you have when you graduated?
`
`Psychology.
`
`It was a degree in psychology?
`
`Degree in psychology.
`
`Any minors?
`
`I was premed,
`
`so I had all the sciences.
`
`So it
`
`Q A
`
`Q A
`
`Q A
`
`Q A
`
`.
`
`Q A
`
`Q A
`
`Q A
`
`Q.
`
`A.
`
`was biology.
`
`Q.
`
`And then what did you do after college?
`
`I went to work for JCPenney.
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_009
`
`
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Right away?
`
`Yes.
`
`So that was —— what year was that?
`
`'85.
`
`Q.
`
`Okay. And what did you do when you began with
`
`JCPenney in 1985?
`
`A.
`
`I was a trainee in the store training program --
`
`store management training program.
`
`Q.
`
`A.
`
`And what did that entail?
`
`Basically, you go through the training program;
`
`you learn what it‘s like to run a store.
`
`You are assigned
`
`an area, and it's your area, and you're responsible for
`
`the profit and sales of the merchandise that you sell.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`How old were you when you began with JCPenney?
`
`I was 22.
`
`And so --
`
`23.
`
`Q. After you began with JCPenney, how long did that
`
`initial program last?
`
`I was a trainee for nine months.
`
`And then what did you do after that nine—month
`
`A.
`
`Q.
`
`period?
`
`A.
`
`Then you get promoted to a department manager,
`
`and you have your own department.
`
`Q.
`
`And, at that time, were you promoted to partner
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_010
`
`
`
`(sic) manager?
`
`Yes.
`
`Excuse me; department manager?
`
`Yes.
`
`And what department was that?
`
`Housewares, stationery, gifts, and lamps.
`
`Q.
`
`And so what did you do as your —— as part of
`
`your roles and responsibilities as department manager
`
`there?
`
`A.
`
`I bought the product that we sold.
`
`I was
`
`responsible for staffing the department,
`
`taking the
`
`mark—downs,
`
`running the day—to—day business of the
`
`department.
`
`Q.
`
`A.
`
`How did you determine what products to buy?
`
`There's a menu that we were given that showed us
`
`all the different products, and we got to select what was
`
`right for our store.
`
`wowpevprp
`
`Who —— who prepared that menu for you?
`
`At that time, it was the New York buying office.
`
`Okay.
`
`So JCPenney has different buying offices?
`
`They did then.
`
`Okay.
`
`How long were you in that role?
`
`A yearuand~a~half.
`
`And then --
`
`Yeah.
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_011
`
`
`
`Then where did you go next?
`
`A.
`
`To apparel.
`
`Then I was promoted to senior
`
`merchandiser; and I handled women's,
`
`juniors, and bridal.
`
`Q.
`
`How long were you at the apparel level?
`
`Probably three years,
`
`two—and—a—half
`
`to three
`
`Q.
`
`And was it at the end of that period that you
`
`were promoted to senior merchandiser?
`
`A,
`
`At the end of that period,
`
`I was promoted to
`
`come to corporate office, and I was an assistant buyer.
`
`Q.
`
`And I apologize;
`
`I may not have covered this.
`
`When you began with JCPenney, where --
`
`where was that?
`
`A.
`
`Q.
`
`A.
`
`New Jersey.
`
`In New Jersey?
`
`Uh—huh.
`
`Q.
`
`And so how long were you in New Jersey before
`
`you came to corporate?
`
`A.
`
`Q.
`
`Four—and—a—half to five years.
`
`Okay. And so once you came to corporate, what
`
`were your responsibilities?
`
`A.
`
`I was an assistant buyer in heavyweight shirts
`
`and active wear.
`
`Q.
`
`A.
`
`What is a "heavyweight shirt”?
`
`Things you wear when it's cold;
`
`like flannel,
`
`TSG Reporting — Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_012
`
`
`
`corduroy, heavyweight shirts.
`
`Q.
`
`A.
`
`And what is "active wear"?
`
`We like to think it's people that are
`
`exercising, but it's mostly people sitting on the couch,
`
`watching TV, and wanting to be comfortable; so like jog
`
`suits and things like that.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`I see.
`
`So comfortable —— comfortable clothing?
`
`YES .
`
`I see.
`
`How long were you in that role?
`
`Two years, maybe.
`
`Two years.
`
`And then what after that?
`
`After that,
`
`I was promoted to product
`
`development, and I had Hunt Club.
`
`Q.
`
`A.
`
`And what is "Hunt Club"?
`
`It was one of our brands, at the time,
`
`that was
`
`kind of our traditional men's brand.
`
`Q.
`
`so how did your role within product development
`
`differ from your previous roles?
`
`A.
`
`Product development, you're actually working
`
`closer to the product; you develop it from the beginning
`
`to the end.
`
`In the buying unit, you buy what's already
`
`developed.
`
`Q.
`
`Prior to going into product development, did you
`
`have any prior design experience?
`
`A.
`
`No.
`
`TSG Reporting — Worldwide
`
`877-702-9530
`
`DMC Exhibit 2005_013
`
`
`
`Page 14
`
`Q.
`
`Had you managed to —— to pick up some design
`
`experiences in the Course of your previous roles?
`
`A.
`
`What do you mean by that?
`
`Q. Well, since you were around different types of
`
`clothing —— you mentioned heavy shirts; you mentioned the
`
`active wear.
`
`In the course of dealing with those clothes
`
`and —— and selling them and putting them out there for
`
`JCPenney's customers, were you able to pick up aspects of
`
`clothing design or --
`
`A.
`
`Q.
`
`A.
`
`Certainly, yes.
`
`so you didn't have any formal design experience?
`
`Correct.
`
`Q.
`
`Okay.
`
`So, with that in mind, why the —— why the
`
`jump to product development from the sell side,
`
`if you
`
`will?
`
`A.
`
`I guess.my interest lied (sic) more in the
`
`design aspect of it, and I had a knack for it from being
`
`involved with the merchandise.
`
`The buying side is very
`
`numerical and statistical.
`
`The PD side is very creative.
`
`And my supervisors thought that it would be a good fit,
`
`and promoted me into product development.
`
`Q.
`
`A.
`
`Q.
`
`So do you remember what year that was?
`
`I want to say '92,
`
`‘93.
`
`Okay. And then how long were you in that
`
`TSG Reporting » Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_014
`
`
`
`Page 15
`
`particular product development role?
`
`A.
`
`Can you clarify that? Because I'm still in PD.
`
`I've been in PD a long time, but in different areas of PD,
`
`but Still PD .
`
`Q.
`
`Right.
`
`So when you began in —— in —— I'll call
`
`it PD, as well.
`
`A.
`
`Uh—huh.
`
`Q. We'll understand, for the record,
`
`that that --
`
`that that is product development.
`
`When you began in PD, you mentioned that
`
`you were in kind of one specific area, and I think you
`
`just testified that you moved to different areas.
`
`A.
`
`Q.
`
`Right.
`
`So can you kind of walk me through the time line
`
`of —— of what each of those areas was and when you moved
`
`into them?
`
`A.
`
`Okay. Hunt Club was first.
`
`Then St. John's Bay
`
`men's in outerwear.
`
`Q.
`
`A.
`
`And when would that have been?
`
`They're all kind of consecutive. Like every
`
`year-and—a—half,
`
`I seemed to be moved to a new area.
`
`So I
`
`did men's outerwear and swimwear; St. John's Bay knit
`
`tops.
`
`Then -— then I moved to women's, and I had Cabin
`
`Creek, which is a conservative brand. And maternity —— I
`
`got maternity at that time.
`
`So that was 2003, 2004;
`
`TSG Reponing - Worldwide
`
`877402-9580
`
`DMC Exhibit 2005_015
`
`
`
`something like that.
`
`Then after that,
`
`I went to active wear;
`
`Worthington, Nicole Miller, back to Worthington, Liz
`
`Claiborne. And then I got moved to the home division a
`
`year—and—a—ha1f ago.
`
`Q.
`
`Okay.
`
`so for many years, it sounds like you
`
`were on the product development side in different JCPenney
`
`brands and different areas of clothing?
`
`A.
`
`Yes.
`
`Q.
`
`So how many years ~— I guess,
`
`just to get a
`
`tally for the record, how many years total have you been
`
`in product development?
`
`A.
`
`Q.
`
`A.
`
`Just product development?
`
`Uh—huh.
`
`25 -- 24 to 25.
`
`Q.
`
`And then you said you moved to housewares a
`
`year—and—a—half ago?
`
`A.
`
`Home division.
`
`Q.
`
`Home division;
`
`I'm sorry.
`
`so for 23 of those years, you were in
`
`product development for clothing of some form or another?
`
`A.
`
`Q.
`
`A.
`
`Yes —— no,
`
`the math is off.
`
`Okay.
`
`When I first started, which was included in the
`
`29 years,
`
`I did have housewares, stationery, gifts, and
`
`TSG Reporting - Woridwide
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`877-702-9580
`
`DMC Exhibit 2005_016
`
`
`
`Page 17
`
`lamps.
`
`So the math is just off a little bit, probably a
`
`year—and—a—half.
`
`Q.
`
`So maybe let me ask the question to you:
`
`How
`
`long, over the course of being involved in product
`
`development, were you involved in product development
`
`related to clothing?
`
`I think, 23 to 24.
`
`23 to 24 years?
`
`Yeah.
`
`Okay.
`
`A.
`
`Q A
`
`.
`
`Q
`
`THE REPORTER: Ma'am, you're going to have
`
`to speak up a little bit, please.
`
`THE WITNESS: Okay.
`
`Q.
`
`(BY MR. LECHLEITER)
`
`So I want to focus on your
`
`role in product development for maternity clothing today.
`
`That's probably what we'll be talking about going forward
`
`for the rest of today's deposition.
`
`How long, do you know, has JCPenney been
`
`selling maternity clothing?
`
`A.
`
`Actually,
`
`I don't.
`
`I believe we recently got
`
`out of it, but I don't know exactly when. But prior to
`
`before me coming, it was there all the time. But we
`
`recently got out of it in stores.
`
`I don't know the exact
`
`timing of that.
`
`Q.
`
`When you say,
`
`"Got out of it," that just means
`
`TSG Reporting - Worldwide
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`877-702-9530
`
`DMC Exhibit 2005_017
`
`
`
`You can no longer find it in our stores.
`
`I see.
`
`MR. LECHLEITER:
`
`Do you want to mark it, or
`
`do you want me to mark it? You can mark it.
`
`(Exhibit 27 marked.)
`
`Q.
`
`(BY MR. LECHLEITER)
`
`MS. Simon,
`
`I'm going to
`
`hand you what the court reporter has marked as Exhibit 27.
`
`MR. LECHLEITER:
`
`For the record, we are
`
`beginning with Exhibit 27 here today, because Defendants
`
`have had 26 prior exhibits in a previous deposition.
`
`So
`
`that's why we're starting with the odd number 27.
`
`MS. BALLI: Dan, could you please refer to
`
`the JCP Bates stamp number?
`
`MR. LECHLEITER: Yes,
`
`I Will. Exhibit 27
`
`is JCPOOOlO4 through 107.
`
`MS. BALLI:
`
`Thank you.
`
`Q.
`
`(BY MR. LECHLEITER)
`
`Ms. Simon, do you have
`
`Exhibit 27 in front of you?
`
`A.
`
`YES.
`
`Q.
`
`Have you seen Exhibit 27 before?
`
`NO.
`
`Do you know what Exhibit 27 is?
`
`It looks like the cover of one of our catalogs.
`
`And can you tell, based on the cover,
`
`the age of
`
`TSG Reporting - Worldwide
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`877-702-9580
`
`DMC Exhibit 2005_018
`
`
`
`the catalog?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`'96.
`
`Is that 1996?
`
`Yes.
`
`Could you turn to the —— what is actually the
`
`third page? There's a little —— there's a 106 in the
`
`bottom right—hand corner of Exhibit 27. And --
`
`A.
`
`Q.
`
`Really old.
`
`—— in the middle, you see Item —— or the photo
`
`labeled B, as in boy?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`pregnant.
`
`Do you know what that is?
`
`It's a maternity pant.
`
`So what is a "maternity pant"?
`
`It's a pant that a woman wears when she's
`
`Q.
`
`And is this —— this is —— how does a maternity
`
`pant differ from a normal pant?
`
`A.
`
`It has an elastic waist that goes over the
`
`belly.
`
`Q.
`
`And is that what we're seeing here on page 106
`
`of Exhibit 27?
`
`A.
`
`Yes.
`
`Q.
`
`Does the material that goes over the belly have
`
`any particular name?
`
`TSG Reporting - Worldwide
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`877-702-9580
`
`DMC Exhibit 2005_019
`
`
`
`We call it a belly band.
`
`A belly band?
`
`Uh—huh.
`
`Could it also be called a belly panel?
`
`YES.
`
`Q.
`
`And just using this Item B, on page 106 of
`
`Exhibit 27, as an example, how is that belly panel
`
`attached to the pants that we see there?
`
`A.
`
`It's stitched to the pants.
`
`It's actually sewn
`
`to the denim.
`
`Q.
`
`I see.
`
`So are these pants specially made for
`
`the belly panel, or are they modified and then the belly
`
`panel attached?
`
`A.
`
`I'm not sure what you're asking.
`
`Q. Well, when we think of standard pants, we think
`
`of —— of pants with belt loops, a waistband;
`
`things
`
`like —— of that nature.
`
`Do those features appear here on page l06?
`
`A.
`
`NO.
`
`Q.
`
`So,
`
`in view of that, my question is: Are these
`
`pants made without those features, or are they made with
`
`those features and then those features are removed?
`
`A.
`
`They're made for the panel,
`
`so they don't have
`
`belt loops. They're made for the panel
`
`to be sewn on.
`
`Q.
`
`I see.
`
`Do you —— do you know how long JCPenney
`
`TSG Reporting - Worldwide
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`877-702-9580
`
`DMC Exhibit 2005_020
`
`
`
`has been selling maternity pants with panels,
`
`like we see
`
`Page 21
`
`here on page 106?
`
`A.
`
`As long as they've had maternity.
`
`Certainly, at least since 1996?
`
`A.
`
`Yes.
`
`Q. What's different about the —— if anything, about
`
`the material of the pants versus the material of the panel
`
`here?
`
`A.
`
`The panel needs to be stretchy, because it
`
`stretches over the belly.
`
`so it typically has some blend
`
`in it that stretches,
`
`like a Lycra or a polyester; it has
`
`to be stretchy.
`
`Q.
`
`What other materials would provide that
`
`stretchiness?
`
`A.
`
`Cotton poly blends, Spandex blends, Lycra
`
`blends.
`
`Q.
`
`Is this —— is this panel meant to Cover the
`
`entire belly?
`
`A.
`
`Q.
`
`A.
`
`From the picture, it looks like it is.
`
`When does one begin to wear maternity pants?
`
`It really varies; everyone‘s different.
`
`some
`
`people will, at three months, need maternity pants;
`
`some
`
`people won't need them until five months;
`
`some people with
`
`twins could need them immediately. Everybody is
`
`different.
`
`TSG Reporting - Worldwide
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`877-702-9580
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`DMC Exhibit 2005_021
`
`
`
`Q.
`
`Did you ~— in the course of your product
`
`development, did you happen to work on these particular
`
`maternity pants that we see here on page 106?
`
`Page 22
`
`A.
`
`Q.
`
`No,
`
`I did not.
`
`Okay.
`
`(Exhibit 28 marked.)
`
`Q.
`
`(BY MR. LECHLEITER)
`
`Ms. Simon, you have in
`
`front of you what the court reporter has marked as Exhibit
`
`28.
`
`A.
`
`Yes.
`
`Have you seen Exhibit 28 before?
`
`And what is Exhibit 28?
`
`It's a more updated, newer catalog —— maternity
`
`Q.
`
`A.
`
`catalog.
`
`Q.
`
`Are you aware,
`
`is Exhibit 28 --
`
`MR. LECHLEITER: And for the record,
`
`Exhibit 28 is JCPOOOl6l through 164.
`
`Q.
`
`(BY MR. LECHLEITER)
`
`Does Exhibit 28 appear to
`
`be a full copy of the catalog?
`
`A.
`
`I'm not sure.
`
`It looks thin.
`
`I'm not sure.
`
`Q.
`
`A.
`
`It's probably missing some pages?
`
`Honestly,
`
`I don‘t remember exactly what; it was
`
`a long time ago. But it just seems thin.
`
`Q. Well,
`
`let me direct you to —— if you look at the
`
`bottom left—hand corner of page 162 --
`
`TSG Reporting - Worldwide
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`877-702-9580
`
`DMC Exhibit 2005_022
`
`
`
`Uh—huh.
`
`—— you see by the —— you see the little number
`
`Page 23
`
`A.
`
`Yes.
`
`Q.
`
`If you flip the page,
`
`same area, do you see
`
`number 22?
`
`A.
`
`Yes.
`
`Q.
`
`And if you flip the page again, also the same
`
`area, do you see a 26?
`
`Yes.
`
`Do those appear to be page numbers?
`
`Yes.
`
`Q.
`
`Does that indicate to you that this is not a
`
`complete copy of this catalog?
`
`A.
`
`Yes.
`
`Q.
`
`Do the pages that do appear in Exhibit 28,
`
`appear to be,
`
`to you,
`
`true and accurate copies of the
`
`pages as they would have existed in the catalog?
`
`A.
`
`YES.
`
`Q.
`
`Was it generally within JCPenney's normal
`
`business practices to create catalogs such as this?
`
`A.
`
`Q.
`
`Back then, yes.
`
`Any reason to believe that this is not a true
`
`and accurate copy of the —— the pages shown?
`
`A.
`
`NO.
`
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`
`DMC Exhibit 2005_023
`
`
`
`Page 24
`
`Q.
`
`I'll just —— I'll just go ahead and let you
`
`know, I'll ask you questions like that; and the purpose of
`
`doing that is to,
`
`in our legal jargon, authenticate the
`
`document so that when we go to court, when and if we have
`
`to do that,
`
`the Court will accept
`
`the document as a
`
`non—hearsay document; meaning, it will be legitimate
`
`evidence.
`
`So those questions may seem terse and kind of
`
`odd, but that's the reason I'm asking them.
`
`MS. LETTELLEIR: And just for the record,
`
`we do have the original catalogs available for inspection,
`
`if you would like to inspect them,
`
`if there's any issue
`
`with respect to the authenticity of the copies —— the
`
`partial copies, since these are, obviously, not complete
`
`copies of the entire catalog.
`
`MR. LECHLEITER:
`
`Thank you.
`
`Q.
`
`{BY MR. LECHLEITER)
`
`So looking back at the
`
`cover page of Exhibit 28, can you tell,
`
`from the cover
`
`page, any sort of date or age information about Exhibit
`
`28?
`
`A.
`
`YES.
`
`Q.
`
`A.
`
`And what can you tell?
`
`It's dated 2005.
`
`Q.
`
`Does that indicate that this catalog would have
`
`been published in 2005?
`
`A.
`
`Correct.
`
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`877-702-9580
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`DMC Exhibit 2005_024
`
`
`
`Q. Would this catalog have been publicly available
`
`Page 25
`
`to JCPenney's customers in 2005?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Q.
`
`At the top,
`
`I notice that it says, Spring?
`
`Uh—huh.
`
`Does that indicate this would have been
`
`available sometime in the spring of 2005?
`
`A.
`
`Correct.
`
`Q. Would it have been in the late spring or the
`
`early spring?
`
`A.
`
`The entire spring.
`
`Q. Would it have published prior to the spring
`
`season?
`
`A.
`
`It usually would publish,
`
`like, a month before
`
`spring. And then it lives the entire spring season until
`
`the new fall one comes out.
`
`Q.
`
`I see.
`
`so this —— if we had to approximate,
`
`this likely would have been published at some point in the
`
`March/April
`
`time frame of 2005?
`
`A.
`
`Q.
`
`A.
`
`Probably February.
`
`Of 2005?
`
`Yes.
`
`Q.
`
`Okay. And this catalog relates specifically to
`
`maternity?
`
`A.
`
`YES.
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_025
`
`
`
`Q. Where were these catalogs available; as a
`
`JCPenney customer, how would I find one?
`
`A.
`
`In 2005?
`
`Q.
`
`A.
`
`Yes, at the time.
`
`They were in our stores at wrap desks.
`
`They
`
`were in doctors’ offices,
`
`I believe.
`
`I believe, at the
`
`time, we had a mailing list, and they were also sent to
`
`specific customers. That's it.
`
`Q.
`
`So these were —— based on that,
`
`these were very
`
`easy to obtain for one of your customers who would want to
`
`look at it?
`
`A.
`
`Yes.
`
`Q.
`
`Do you have any idea what the catalog
`
`circulation was in 2005?
`
`A.
`
`Q.
`
`I don't.
`
`So if you turn to the second page of Exhibit 28,
`
`which is page l62, what do we see on that page?
`
`A.
`
`Q.
`
`Three maternity pants.
`
`So each —— each one of these is a —— is a style
`
`of maternity pant?
`
`A.
`
`Yes.
`
`Q.
`
`Did you work on any of the maternity pants
`
`depicted on page 162 of Exhibit 28?
`
`A.
`
`Yes.
`
`Q-
`
`which one?
`
`TSG Reporting - Worldwide
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`
`DMC Exhibit 2005_026
`
`
`
`All of them.
`
`Page 2 7 5
`
`Q.
`
`All of them.
`
`So you have familiarity with the
`
`construction of these pants?
`
`A.
`
`Yes.
`
`Q.
`
`Do you have familiarity with the materials used
`
`in these pants?
`
`A.
`
`In a general sense. Like, if you ask me
`
`specifically,
`
`I probably don't know the exact blend. But
`
`in general terms, yes.
`
`Q.
`
`So these —— these s~ these pants appear to be
`
`somewhat different;
`
`is that accurate?
`
`A.
`
`Yes.
`
`Q.
`
`So let's —- let's start with the pant that's
`
`depicted as Item A on the right—hand side of page 162.
`
`Uh—huh.
`
`So we see there —— are those denim jeans?
`
`Yes.
`
`And those denim jeans have p0ckets?
`
`Yes.
`
`A.
`
`Q A
`
`.
`
`Q.
`
`A
`
`Q.
`
`And we see the model's hand in one of the
`
`pockets?
`
`A.
`
`Yes.
`
`Q.
`
`And I see,
`
`in the front, does it —— that appears
`
`to be a fly;
`
`is that correct?
`
`A.
`
`That's correct.
`
`TSG Reporting - Worldwide
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`877-702-9580
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`DMC Exhibit 2005_027
`
`
`
`Q.
`
`And is that an operable fly?
`
`No, it's not.
`
`What is it?
`
`It's a faux fly.
`
`And what does that mean?
`
`It means it doesn't unzip.
`
`Does it have a zipper?
`
`Nope.
`
`A
`
`Q A
`
`Q A
`
`Q A
`
`Q.
`
`Does it have buttons?
`
`Nope.
`
`What prevents it from unzipping —— or opening?
`
`It's stitched out; it's fake.
`
`I see.
`
`So it is —— it is a fly with no zipper?
`
`Correct.
`
`Why have an inoperable fly on jeans?
`
`It‘s decorative so the woman feels like she's
`
`A Q A
`
`Q A
`
`Q.
`
`A.
`
`wearing real jeans, and doesn't look like she's wearing
`
`old maternity pants; it just makes it cooler.
`
`Q.
`
`So rather than a -— than a plain front, that's
`
`an additional aesthetic feature?
`
`A.
`
`Q.
`
`It's a design feature.
`
`So looking at the -— the band —— we've called it
`
`both a band and panel now on the record.
`
`A.
`
`Q.
`
`Uh—huh.
`
`This does —— is this a form of band that we see
`
`TSG Reporting - Worldwide
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`377-702-9580
`
`DMC Exhibit 2005_028
`
`
`
`there in Item A ——
`
`A.
`
`Yes.
`
`Q.
`
`—— above the —— kind of at the waist area?
`
`Does that band go any higher?
`
`A.
`
`NO.
`
`Q.
`
`So as compared to —— and you're welcome to turn
`
`back to Exhibit 27,
`
`if you need to. But as we think
`
`about --
`
`A.
`
`Q.
`
`Oh,
`
`this one.
`
`Yeah. As we think about
`
`the differences between
`
`the panel we saw on the third page of Exhibit 27 versus
`
`the panel or the band that we see here on page 162 of
`
`Exhibit 28, why does one go so much higher in Exhibit 27,
`
`whereas,
`
`in Exhibit 28,
`
`this one is so much lower?
`
`A.
`
`It's two different pants.
`
`So we're giving --
`
`it's trying to attract a different customer. This pant is
`
`for when you're first pregnant, and you don't want to wear
`
`maternity pants.
`
`Q.
`
`And when you say, "This pant," you're
`
`referring --
`
`A.
`
`Q.
`
`A.
`
`Sorry;
`
`the under—the-belly panel --
`
`The Item A?
`
`—— is for early pregnancy. Exhibit 28 is for
`
`earlier pregnancy. And then Exhibit 27 was more for later
`
`pregnancy when you want more belly coverage.
`
`TSG Reporting - Worldwide
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`DMC Exhibit 2005_029
`
`
`
`Page 30
`
`Q.
`
`I see. This may seem like a silly question:
`
`Why would you want more belly coverage as --
`
`A.
`
`Because as a pregnant person, you'd like more
`
`support. And it —— it's personal.
`
`So some people don't
`
`like it; most do. You like more support on your belly.
`
`And it gives you a cleaner line with your shirt,
`
`so you
`
`don't have lots of stuff hanging out.
`
`so it's a different
`
`customer.
`
`Some of them are modest and like more coverage.
`
`Some of the younger customers like it more under the
`
`belly,
`
`so it was almost like low—rise jeans.
`
`It was more
`
`comfortable, because they were used to their low—rise
`
`jeans.
`
`Q.
`
`So not unlike any other clothing, it's different
`
`styles for different tastes?
`
`A.
`
`Exactly.
`
`MR. BURNS:
`
`I'm going to put an objection
`
`on the record. As far as fact versus opinion testimony,
`
`just an objection to, generally,
`
`the form. And I'm not
`
`going to make it again;
`
`I'm just going to do it once.
`
`Q.
`
`(BY MR. LECHLEITER)
`
`Looking at Item C, on page
`
`162, how does that —— how does that item of clothing
`
`differ from the others we've talked about so far,
`
`if at
`
`all?
`
`A. Well, it covers the belly.
`
`So it's similar to
`
`Exhibit 27 in that sense that it covers the belly, but
`
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`DMC Exhibit 2005_030
`
`
`
`Page 31
`
`it's completely different from the under—the—belly A in
`
`Exhibit 28, because it Comes over the belly.
`
`Q.
`
`Now,
`
`let me ask this:
`
`Just thinking about
`
`Exhibit 27, which I see you have in front of you, does --
`
`does the panel —— it's the —— it's the white panel —a
`
`A.
`
`Uh—huh.
`
`—— does that go all the way around the wearer's
`
`Q.
`
`And looking at Item A, on page 162 of Exhibit
`
`28, does that band also go all the way around the wearer's
`
`torso?
`
`A.
`
`I believe so.
`
`Q.
`
`And then looking at Item C, on page 162 of
`
`Exhibit 28, does that panel go all the way around the
`
`wearer's torso?
`
`A.
`
`Q.
`
`I'm sorry; repeat that, please.
`
`Sure. Looking at Item C, on page l62 of Exhibit
`
`28, does the panel we see there in Item C go all the way
`
`around the wearer's torso?
`
`A.
`
`No.
`
`Q.
`
`So tell me a little bit about the distinction
`
`between a panel or band that goes all the way around a
`
`wearer's torso and one like we see here in Item C that
`
`does not.
`
`TSG Reporting — Worldwide
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`877-702-9580
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`DMC Exhibit 2005_031
`
`
`
`Page 32
`
`A.
`
`Again, it's another style.
`
`It's like you have
`
`three pairs of pants;
`
`they're not all the same.
`
`So this
`
`one is just the front belly panel; this one is a full
`
`around belly panel; and this is an under—the—belly panel
`
`(indicating).
`
`It's just different fits for different
`
`customers.
`
`Q.
`
`So if you turn the page to 163 of Exhibit 28, do
`
`you see that the —— what appear to be jeans there on the
`
`left—hand side?
`
`A.
`
`Q.
`
`Uh—huh, yes.
`
`We see the model's hand kind of lifting her
`
`shirt a little bit.
`
`Is what we're seeing there also a band?
`
`A.
`
`Yes, it is a band.
`
`I did not develop this pant.
`
`This is a Levi pant.
`
`Q.
`
`I see.
`
`Just for the record,
`
`I did not develop this
`
`Q.
`
`Okay.
`
`Thank you. And that raises a good --
`
`good point.
`
`The Levi's pants that JCPenney was selling
`
`in this catalog, were those sourced directly from Levi's?
`
`A.
`
`Yes.
`
`Q.
`
`And so if it's a Levi's branded item in this
`
`catalog, you, or JCPenney,
`
`for that matter, did not design
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_032
`
`
`
`Correct.
`
`So JCPenney was simply reselling those --
`
`Yes.
`
`—— as a branded item?
`
`A.
`
`Yes.
`
`Q.
`
`I see.
`
`So if you turn to the last page of
`
`Exhibit 28, which is 164, do you see Item B on the
`
`left—hand side ——
`
`A.
`
`Yes.
`
`Q.
`
`—— where it says, Stone washed?
`
`Uh-huh, yes.
`
`Q. What —— what
`
`type of garment is that,
`
`that we
`
`see on Item B on page 164?
`
`A.
`
`Q.
`
`A.
`
`It's a denim capri.
`
`And what is a "denim Capri"?
`
`Pants go to the —— like to the top of your foot.
`
`A Capri goes to about your ankle.
`
`So it's a different
`
`length.
`
`Q.
`
`I see.
`
`So these are just a different style of
`
`A.
`
`Q.
`
`Yes,
`
`they're shorter.
`
`Now,
`
`if we follow —— if we look up towards the
`
`waistline of the model --
`
`A.
`
`Uh—huh.
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_033
`
`
`
`Q.
`
`—— it appears that the fabric —— there's a
`
`change in the fabric between the top of the pants, and
`
`then there's a —— what appears to be some black fabric?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes.
`
`What is that black fabric?
`
`It's the knit part of the belly band.
`
`I see.
`
`So these pants also have a belly band?
`
`Yes.
`
`And this one appears —— based on Item B, on page
`
`164,
`
`this belly band also appears to go all the way around
`
`the torso of the wearer?
`
`A.
`
`Q.
`
`Yes.
`
`Can you tell, does this particular style —— or
`
`based on your knowledge —— not just the picture here, but
`
`based on your knowledge of these pants, would this panel
`
`have been meant to cover the pregnant belly, as well?
`
`Yes.
`
`Did you work on this particular item?
`
`Yes.
`
`Okay.
`
`so if you'd just go back to page 162?
`
`(Witness complies.)
`
`You mentioned that you worked on each of the
`
`items depicted on page l62?
`
`A.
`
`Yes.
`
`Q.
`
`Can you tell me a little bit about what you did
`
`TSG Reporting - Worldwide
`
`877-702-9580
`
`DMC Exhibit 2005_034
`
`
`
`relative to these items?
`
`A.
`
`We determined the fabric; we determined the
`
`silhouette; we determined all of the trims,
`
`like if we
`
`want flaps, no flaps;
`
`the color of the stitching; any
`
`design aspect of the pant.
`
`Q.
`
`So when you say, "Determined," how did you
`
`determine? Were there guidelines or design rules, or how
`
`did you make those determinations?
`
`A.
`
`We worked with mills to determine fabrics.
`
`So
`
`we worked with a lot of different denim mills
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