UNITED STATES
`INTERNATIONAL TRADE COMMISSION
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`___________________________________
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`In the Matter of: ) Investigation No.
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`CERTAIN FITNESS DEVICES, STREAMING ) 337-TA-1265
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`COMPONENTS THEREOF, AND SYSTEMS )
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`CONTAINING SAME )
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`___________________________________
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`Pages:
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`Place:
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`Date:
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`271 through 558 (with excerpts)
`Washington, D.C.
`March 10, 2022
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`OPEN SESSIONS
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`HERITAGE REPORTING CORPORATION
`Official Reporters
`1220 L Street, N.W., Suite 206
`Washington, D.C. 20005
`(202) 628-4888
`contracts@hrccourtreporters.com
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0001
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` 1 UNITED STATES INTERNATIONAL TRADE COMMISSION
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` 2 Washington, D.C.
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` 3 BEFORE THE HONORABLE DAVID S. SHAW
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` 4 Administrative Law Judge
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` 5 ___________________________________
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` 6 In the Matter of: ) Investigation No.
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` 7 CERTAIN FITNESS DEVICES, STREAMING ) 337-TA-1265
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` 8 COMPONENTS THEREOF, AND SYSTEMS )
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` 9 CONTAINING SAME )
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` 10 ___________________________________
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` 11
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` 12 Remote Hearing
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` 13
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` 14 International Trade Commission
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` 15 500 E Street, S.W.
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` 16 Washington, D.C.
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` 17
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` 18 THURSDAY, MARCH 10, 2022
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` 19
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` 20 EVIDENTIARY HEARING - VOLUME II
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` 21
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` 22 The Hearing commenced remotely, pursuant to the
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` 23 notice of the Judge, at 10:00 a.m. EST.
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` 24
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` 25 Reported by: Karen Brynteson, FAPR, RMR, CRR
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`Heritage Reporting Corporation
`(202) 628-4888
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0002
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` 1 APPEARANCES:
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` 2 ** All parties appearing remotely **
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` 3
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` 4 For Complainants DISH DBS Corporation, DISH
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` 5 Technologies L.L.C., and Sling TV L.L.C.:
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` 6 LISA M. KATTAN, ESQ.
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` 7 JAMIE R. LYNN, ESQ.
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` 8 THOMAS C. MARTIN, ESQ.
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` 9 SAMUEL L. KASSA, ESQ.
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` 10 LAUREN J. DREYER, ESQ.
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` 11 ANDREW WILSON, ESQ.
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` 12 EILEEN HYDE, ESQ.
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` 13 SARAH HASSAN, ESQ.
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` 14 Baker Botts L.L.P.
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` 15 700 K Street, N.W.
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` 16 Washington, D.C. 20001
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` 17
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` 18 G. HOPKINS GUY, III, ESQ.
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` 19 Baker Botts L.L.P.
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` 20 1001 Page Mill Road
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` 21 Building One, Suite 200
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` 22 Palo Alto, CA 94304
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`Heritage Reporting Corporation
`(202) 628-4888
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0003
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` 273
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` 1 APPEARANCES (Continued):
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` 2
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` 3 For Complainants DISH DBS Corporation, DISH
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` 4 Technologies L.L.C., and Sling TV L.L.C.:
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` 5 ALI DHANANI, ESQ.
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` 6 BRADLEY BOWLING, ESQ.
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` 7 THOMAS B. CARTER, JR., ESQ.
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` 8 STEVE MAULE, ESQ.
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` 9 Baker Botts L.L.P.
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` 10 One Shell Plaza
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` 11 Houston, TX 77002
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` 12
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` 13 KURT PANKRATZ, ESQ.
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` 14 NOLAN McQUEEN, ESQ.
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` 15 Baker Botts L.L.P.
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` 16 2001 Ross Avenue, Suite 900
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` 17 Dallas, TX 75201
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`Heritage Reporting Corporation
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0004
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` 1 APPEARANCES (Continued):
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` 2 For Respondents iFIT, Inc., f/k/a ICON Health &
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` 3 Fitness, Inc.; FreeMotion Fitness, Inc.; and NordicTrack,
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` 4 Inc.:
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` 5 DAVID R. WRIGHT, ESQ.
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` 6 JARED J. BRAITHWAITE, ESQ.
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` 7 TAYLOR J. WRIGHT, ESQ.
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` 8 LIANE M. PETERSON, ESQ.
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` 9 Foley & Lardner LLP
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` 10 136 S. Main Street, Suite 400
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` 11 Salt Lake City, UT 84101
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` 12
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` 13 ANDREW M. GROSS, ESQ.
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` 14 Foley & Lardner
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` 15 321 North Clark Street, Suite 3000
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` 16 Chicago, IL 60654
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`Heritage Reporting Corporation
`(202) 628-4888
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0005
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` 1 APPEARANCES (Continued):
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` 2 For Respondent Peloton Interactive, Inc.:
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` 3 JOSH A. KREVITT, ESQ.
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` 4 ALLEN KATHIR, ESQ.
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` 5 Gibson, Dunn & Crutcher LLP
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` 6 200 Park Avenue, 47th Floor
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` 7 New York, NY 10166
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` 8
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` 9 Y. ERNEST HSIN, ESQ.
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` 10 Gibson, Dunn & Crutcher LLP
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` 11 555 Mission Street
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` 12 San Francisco, CA 94105
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` 13
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` 14 BRIAN M. BUROKER, ESQ.
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` 15 SHUO JOSH ZHANG, ESQ.
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` 16 Gibson, Dunn & Crutcher LLP
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` 17 1050 Connecticut Avenue, N.W.
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` 18 Washington, D.C. 20036
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` 19
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` 20 RYAN K. IWAHASHI, ESQ.
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` 21 STUART ROSENBERG, ESQ.
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` 22 Gibson, Dunn & Crutcher LLP
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` 23 1881 Page Mill Road
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` 24 Palo Alto, CA 94304
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` 25
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`Heritage Reporting Corporation
`(202) 628-4888
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0006
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` 1 APPEARANCES (Continued):
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` 2 For Respondent Peloton Interactive, Inc.:
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` 3 JENNIFER RHO, ESQ.
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` 4 Gibson, Dunn & Crutcher LLP
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` 5 333 South Grand Avenue
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` 6 Los Angeles, CA 90071
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` 7
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` 8 EMILY WHITCHER, ESQ.
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` 9 NICK BARBA, ESQ.
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` 10 Gibson, Dunn & Crutcher LLP
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` 11 3161 Michelson Drive
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` 12 Irvine, CA 92612
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` 13
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` 14 For Respondent lululemon athletica inc., and
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` 15 Curiouser Products Inc. (d/b/a MIRROR):
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` 16 STEPHEN R. SMITH, ESQ.
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` 17 PHILIP E. MORTON, ESQ.
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` 18 EMILY E. TERRELL, ESQ.
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` 19 NAINA SONI, ESQ.
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` 20 Cooley LLP
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` 21 1299 Pennsylvania Avenue, N.W., Suite 700
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` 22 Washington, D.C. 20004
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`Heritage Reporting Corporation
`(202) 628-4888
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0007
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` 1 APPEARANCES (Continued):
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` 2 For Respondent lululemon athletica inc., and
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` 3 Curiouser Products Inc. (d/b/a MIRROR):
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` 4 CAMERON VANDERWALL, ESQ.
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` 5 Cooley LLP
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` 6 3175 Hanover Street
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` 7 Palo Alto, CA 94304
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` 8
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` 9 For the Office of Unfair Import Investigations:
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` 10 AARON RAUH, ESQ.
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` 11 ANNE GOALWIN, ESQ.
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` 12 U.S. International Trade Commission
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` 13 500 E Street, S.W.
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` 14 Washington, D.C. 20436
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` 15
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` 16
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` 17 ATTORNEY ADVISOR:
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` 18 JOSEPH SPEYER, Esq.
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` 19 Attorney-Advisor
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` 20 U.S. International Trade Commission
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` 21 500 E Street, S.W.
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` 22 Washington, D.C. 20436
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`Heritage Reporting Corporation
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
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` 1 P R O C E E D I N G S
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` 2 (10:00 a.m.)
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` 3 JUDGE SHAW: Good morning, everyone. We're on
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` 4 the public record, day two of our hearing.
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` 5 And before we call a witness, let me just ask if
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` 6 there are any business items to attend to.
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` 7 MS. KATTAN: Good morning, Your Honor. This is
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` 8 Lisa Kattan from Baker Botts. Mr. Wilson from our team
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` 9 would like to address with you the status of the exhibits
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` 10 from the examination yesterday.
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` 11 JUDGE SHAW: Very good. Thank you.
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` 12 MR. WILSON: Good morning, Your Honor. This is
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` 13 Andrew Wilson with DISH.
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` 14 JUDGE SHAW: Good morning.
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` 15 MR. WILSON: The parties have made significant
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` 16 progress on establishing procedures for entering exhibits
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` 17 into evidence. Last night, the parties exchanged lists of
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` 18 exhibits that they seek to enter into evidence this
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` 19 morning. There is one remaining issue that perhaps the
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` 20 Court's guidance would be useful in addressing, and that is
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` 21 the issue of demonstrative exhibits.
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` 22 We would like to submit demonstrative exhibits
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` 23 and exhibits to the court reporter on a single list for
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` 24 ease of entering those exhibits into the record. I believe
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` 25 that -- that Respondents would like to submit two separate
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` 1 lists to clearly identify the demonstratives on one list
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` 2 and the exhibits on another. And perhaps Your -- Your
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` 3 Honor has guidance in -- in regard to what procedure we
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` 4 should follow.
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` 5 JUDGE SHAW: Well, I think as far as submissions
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` 6 to the court reporter are concerned, it's not really an
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` 7 evidentiary matter; it's whatever works best. And when you
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` 8 look at a transcript from a previous case, you can see how
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` 9 the exhibits are listed. I mean, I think eventually it
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` 10 won't make any difference in the way that it looks in the
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` 11 transcript. You could ask the court reporter if there's
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` 12 anything that's better or worse. But I personally don't
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` 13 know of any qualitative difference between the two
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` 14 procedures.
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` 15 Anyone else would like to chime in?
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` 16 MR. BARBA: Yes, I can speak on that, Your
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` 17 Honor.
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` 18 THE REPORTER: I'm sorry, could you identify
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` 19 yourself, counsel?
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` 20 MR. BARBA: Yes. This is Nick Barba for
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` 21 Respondent Peloton speaking on behalf of all Respondents.
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` 22 Our idea to have them on separate lists was to make it
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` 23 easier for the court reporter, so there would be, you know,
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` 24 a heading that says, you know, exhibits admitted into
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` 25 evidence, then there would be the list of those exhibits,
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`Heritage Reporting Corporation
`(202) 628-4888
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` 1 and a separate heading that says, you know, demonstratives
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` 2 for indexing purposes, and there would just be a list of --
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` 3 of demonstratives. We think having them, the exhibits, all
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` 4 in one list and the demonstratives all in one list and
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` 5 keeping them separate like that would actually make it
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` 6 easier for the court reporter and make a clearer record.
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` 7 JUDGE SHAW: Well, I'll never see these lists.
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` 8 So unless -- you know, really, when it comes down to what
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` 9 you actually transmit, I won't see them. Of course, I, you
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` 10 know -- you know I view these differently from an
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` 11 evidentiary standpoint. Really doesn't make any difference
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` 12 from an evidentiary standpoint how you transmit them.
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` 13 I'm not even sure -- when we say "lists," we're
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` 14 probably talking about not pieces of paper, but something
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` 15 in a digital or electronic format. So whatever gets the
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` 16 job done more efficiently as far as the parties getting
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` 17 through the lists and making the lists is what I want, and
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` 18 it doesn't make any difference to me how they're
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` 19 transmitted electronically to the court reporting service.
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` 20 I would remind the parties, just to be sure to
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` 21 look at my prehearing order, I do have a 6:30 cutoff for
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` 22 any exhibits that you do transmit to the court reporter.
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` 23 So if you don't make it today, bring it up tomorrow, and we
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` 24 will index them with tomorrow's transcript. But it sounds
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` 25 like the parties will definitely be able to do this before
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`Heritage Reporting Corporation
`(202) 628-4888
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`Google LLC v. WAG Acquisition, IPR2022-01413
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` 1 the end of the day.
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` 2 And, really, I -- no one has shown me -- I
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` 3 understand your concern wanting to keep them separate, from
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` 4 a recordkeeping standpoint, but, again, these won't be
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` 5 transmitted to me. I will see the end result in the
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` 6 transcript. So it doesn't really affect what I do. It's
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` 7 whatever is most efficient, and it may be that there is no
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` 8 difference between the two.
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` 9 MR. WILSON: Thank you, Your Honor. And -- and
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` 10 to address the efficiency perspective, you know, I think
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` 11 that our combined list is ready to go to the court
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` 12 reporter, and so we could submit that right away. I
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` 13 understand the Court doesn't -- probably doesn't want to
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` 14 spend any more time considering this issue, and we
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` 15 understand that.
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` 16 JUDGE SHAW: I've never heard of this issue
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` 17 before. If these lists were being filed, we might have
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` 18 some preferences here from the Commission or my side, but
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` 19 what I'm hearing is just a matter of how they're
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` 20 transmitted. So the court reporter may have no preference
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` 21 either, depending on, again -- as I said, if I were typing
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` 22 them literally over in two categories and they were
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` 23 intermingled, that might be a problem, but I think this is
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` 24 some sort of electronic transmission, so I would check with
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` 25 the court reporter, but there may be no preference there
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`Heritage Reporting Corporation
`(202) 628-4888
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`Petitioner's Exhibit 1112
`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0012
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` 1 either.
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` 2 MR. BARBA: Okay. Thank you, Your Honor. And
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` 3 we have our lists ready to go too. We just wanted to be
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` 4 clear about which exhibits are being admitted into evidence
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` 5 and which are demonstratives.
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` 6 JUDGE SHAW: Sure.
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` 7 MR. BARBA: But we can work together to, you
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` 8 know, get with the court reporter and find out what's the
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` 9 preference.
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` 10 JUDGE SHAW: Well -- yeah, and have a look at
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` 11 past transcripts and the way it really does break out
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` 12 regardless of how they're submitted, you know, what they
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` 13 really look like when -- when you see them in the
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` 14 transcript. And so, okay. Well, that's -- that sounds
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` 15 like you will get it done. I appreciate that.
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` 16 MR. BARBA: Thank you, Your Honor.
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` 17 MR. WILSON: Thank you, Your Honor.
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` 18 THE REPORTER: Your Honor, I can just say, if it
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` 19 helps, if they put a title, we put in the title. If they
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` 20 don't put a title, we -- we leave the title out.
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` 21 JUDGE SHAW: Right. And you do have, like, RX,
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` 22 RX, RX, RX, and then RDX, RDX, RDX, RDX or --
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` 23 THE REPORTER: Correct. However they come in to
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` 24 us is how we put them in the index. So --
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` 25 JUDGE SHAW: Okay.
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`Heritage Reporting Corporation
`(202) 628-4888
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`Google LLC v. WAG Acquisition, IPR2022-01413
`Page 0013
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` 1 THE REPORTER: And if there is a title before
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` 2 each category, we put that title in. If there's not a
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` 3 title, we just list all the exhibits as received, so --
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` 4 JUDGE SHAW: I think -- and the part -- well, if
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` 5 the parties look at past transcripts, they'll see the
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` 6 formatting. And so now we know you'll get what you give,
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` 7 and you can see whatever you give them will be the way that
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` 8 you'll get it back on paper.
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` 9 And it is helpful to have documentaries
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` 10 separated from demonstrative, but that doesn't mean they
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` 11 have to be literally on two separate pieces of paper or
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` 12 something like that. Obviously, when you're listing things
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` 13 numerical, it's helpful to have 12345, and not have
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` 14 something else popping up in between. So I -- I think
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` 15 that's helpful.
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` 16 I am just glad the parties are making progress.
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` 17 And we'll talk again about exhibits toward the end of the
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` 18 hearing, especially what to do on the last day, whenever --
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` 19 I think it will be Monday but, I don't know at what time.
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` 20 So we'll have more discussions about exhibits and making
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` 21 sure they get in the record tomorrow afternoon and whatever
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` 22 we need to talk about on Monday.
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` 23 MR. WILSON: Thank you, Your Honor.
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` 24 JUDGE SHAW: Thank you.
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` 25 MR. BUROKER: Your Honor, this is Brian Buroker
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`Heritage Reporting Corporation
`(202) 628-4888
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` 1 for Respondent Peloton. We did have two minor issues. One
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` 2 is we have asked for an updated status on Dr. Jeffay.
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` 3 Early in the day yesterday, we were told he wouldn't be
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` 4 able to testify until Monday because he was sick, and then
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` 5 later in the day, there was a suggestion that he may
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` 6 testify tomorrow. And, obviously, we need to know if
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` 7 that's going to happen or even if he's going to testify --
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` 8 if he's testifying tomorrow, perhaps, we need to get, you
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` 9 know, cross-examination materials together for him and
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` 10 served properly.
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` 11 JUDGE SHAW: Sure.
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` 12 MR. BUROKER: So we'd like an update, please.
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` 13 JUDGE SHAW: If they can. We know that this is
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` 14 something that's outside of my control, and I'm sure Dr.
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` 15 Jeffay's as well. But, yes, any news will be very
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` 16 valuable, I'm sure.
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` 17 So do we have any update on Dr. Jeffay's ability
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` 18 to testify, you know, use his voice, and he has to have
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` 19 stamina and the ability to -- to communicate effectively?
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` 20 MS. KATTAN: Yes, Your Honor. Thank you for
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` 21 inquiring. He's -- he's on the mend. We still prefer to
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` 22 present him on Monday. Of course, if Respondents'
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` 23 intention with his cross-examination, as they did
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` 24 yesterday, is to not cross-examine him, that, you know,
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` 25 might affect things. But assuming he's going to have the
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` 1 cross-examination that Respondents and OUII had anticipated
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` 2 for him, we prefer that he goes on Monday.
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` 3 JUDGE SHAW: Well, that sounds -- so, yes, and
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` 4 what I would say is this: If his recovery speeds along and
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` 5 it really is best to take him tomorrow, just give everyone
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` 6 enough warning, but I think if we get toward the end of the
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` 7 day today, we've heard nothing else, we will assume that
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` 8 Monday is the day, then.
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` 9 MR. BUROKER: Thank you, Your Honor.
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` 10 MS. KATTAN: Thank you, Your Honor.
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` 11 JUDGE SHAW: Thank you.
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` 12 MR. BUROKER: The -- the second item is in the
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` 13 middle of Dr. Snoeren's testimony here, early this morning,
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` 14 Complainants have served two additional cross-examination
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` 15 exhibits. We think that's completely improper. We had a
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` 16 procedure in place where the parties would exchange all
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` 17 cross-examination exhibits before the witness takes the
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` 18 stand. If we were in court under normal circumstances,
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` 19 halfway through a witness' testimony, adding new
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` 20 cross-examination exhibits would be highly improper, and we
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` 21 just want to make our objection to this violation of our
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` 22 proposed procedure so each party has a fair opportunity to
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` 23 examine and make sure that they're not objectionable and
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` 24 not continue to add materials just because the witness
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` 25 happens to take a break over an evening. So we object to
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`Heritage Reporting Corporation
`(202) 628-4888
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`Google LLC v. WAG Acquisition, IPR2022-01413
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` 1 the new cross-examination exhibits that they may attempt to
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` 2 use later this morning.
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` 3 JUDGE SHAW: Well, let's find out the backstory
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` 4 is.
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` 5 MS. KATTAN: Well, Your Honor, Dr. Snoeren
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` 6 wasn't supposed to testify yesterday. We are completely
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` 7 off our originally negotiated schedule. I mean, I realize
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` 8 that when we exchange cross-examination time estimates,
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` 9 they're only estimates, but as you saw yesterday, they
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` 10 didn't examine almost any of the witnesses that they
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` 11 suggested that they would. So we are, frankly, scrambling
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` 12 to catch up and prepare the materials on this. We're kind
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` 13 of in uncharted water here, so it's, you know, a couple
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` 14 exhibits. I -- I don't really see how there's any
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` 15 prejudice. We're doing the best we can under the
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` 16 circumstance that we're in.
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` 17 JUDGE SHAW: Well, yes, I mean, I don't see any
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` 18 -- I have not heard anything that would make me exclude
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` 19 those exhibits. So that's the way I look at it. As I
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` 20 said, when we get back into the courtroom, we're going to
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` 21 reexamine the production of binders and things like that,
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` 22 but what happened -- what's going on now really doesn't
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` 23 have anything to do as I -- as far as I can tell, it
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` 24 doesn't have to do with remote procedures per se, just
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` 25 scheduling changes, which on balance were, of course, to
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`(202) 628-4888
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` 1 our benefit, to move more quickly.
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` 2 So as I said, I haven't heard anything that
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` 3 would make me preclude those -- those two exhibits.
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` 4 MR. BUROKER: Okay. And -- and we will
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` 5 probably, depending they're used, have objections
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` 6 individually to their use, based upon what we anticipate
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` 7 they're going to do, but we'll raise that objection, if and
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` 8 when we get to it, during his testimony, Your Honor.
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` 9 JUDGE SHAW: Well, yes, I mean, production of
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` 10 exhibits is one thing. Admissibility and any objections to
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` 11 any exhibit is a -- is a different matter, of course.
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` 12 MR. BUROKER: Right. Okay. Thank you, Your
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` 13 Honor. I think there's one other exhibit issue, I believe,
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` 14 that the parties -- there's one deposition exhibit -- oh,
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` 15 sorry, two deposition exhibits that were agreed to. We
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` 16 just need to move them into evidence. They're the
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` 17 deposition transcripts of --
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` 18 THE REPORTER: I'm sorry --
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` 19 JUDGE SHAW: I'm sorry. I'm sorry, I missed the
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` 20 name.
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` 21 THE REPORTER: You cut out there when you said
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` 22 the name.
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` 23 JUDGE SHAW: Yeah.
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` 24 MR. BUROKER: Mr. Hurst, H-u-r-s-t. He was
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` 25 scheduled to testify, had some health issues, and we agree
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`(202) 628-4888
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` 1 with the parties not to have him testify live, so we agreed
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` 2 to submit deposition transcripts. That is, the parties
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` 3 have agreed to those and we just need to make them -- make
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` 4 sure they're admitted.
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` 5 And then the deposition transcript of
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` 6 Mr. Grotton -- or Gratton, same thing, the parties have
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` 7 agreed. We just need to say -- you know, we need to move
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` 8 these into evidence. And it's JX-83C and JX-84C.
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` 9 JUDGE SHAW: All right. Well, as long as --
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` 10 seems like everybody is onboard with that, so you can
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` 11 consider those admitted.
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` 12 (Joint Exhibit Number JX-0083C, JX-0084C were
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` 13 received into evidence.)
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` 14 MR. BUROKER: Thank you. That's the last issue
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` 15 we had this morning, Your Honor.
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` 16 JUDGE SHAW: Thank you.
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` 17 Anything else before we continue the examination
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` 18 of the witness?
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` 19 MS. KATTAN: Nothing from Complainants, Your
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` 20 Honor.
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` 21 JUDGE