Case Document 73-43 Filed 04/06/16 PagelD.3849 Page 10f5 Exhibit LL Case 3:14-cv-01191-JLS-KSC Document 73-43D. Potterf, Filed 04/06/16 PageID.3850 Page 2 of 5 Mitchell IV October 19, 2015 Page 1 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA - - Cross-Fit, Inc., a Delaware : Corporation, : : : Plaintiff, : : vs. : : National Strength and : Conditioning Association, : a Colorado Corporation, : : Defendant. : Case No. 14CV1191 JLS KSC - - DEPOSITION OF MITCHELL D. POTTERF, IV - - Monday, October 19, 2015 9:31 a.m. Donchatz Law 35 North Fourth Street Suite 200 Columbus, Ohio 43215 - - SUSAN L. COOTS, RPR REGISTERED PROFESSIONAL REPORTER - - - Exhibit LL Page 411 U.S. LEGAL SUPPORT (619) 573-4883 Case 3:14-cv-01191-JLS-KSC Document 73-43D. Potterf, Filed 04/06/16 PageID.3851 Page 3 of 5 Mitchell IV October 19, 2015 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: MR. JUSTIN NAHAMA, Attorney at Law Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC 3580 Carmel Mountain Road Suite 300 San Diego, California 92130 (858) 314-1500 jsnahama@mintz.com (Via telephone) On behalf of Plaintiff. MR. KENNETH KAWABATA, Attorney at Law Manning & Kass, Ellrod, Ramirez, Trester, LLP 550 West C Street Suite 1900 San Diego, California 92101 (619) 515-0269 kak@manningllp.com On behalf of Defendant. MR. KENNETH DONCHATZ, Attorney at Law Donchatz Law 35 North Fourth Street Suite 200 Columbus, Ohio 43215 (614) 241-5550 ken@donchatzlaw.com On behalf of the Witness. --- Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS --MITCHELL D. POTTERF, IV being by me first duly sworn, as hereinafter certified, deposes and says as follows: EXAMINATION BY MR. KAWABATA: Q. Good morning, sir. Could you state your full name and spell your full first name and your last name for the record, please. A. My name is Mitch Potterf. Mitch, M-I-T-C-H, Potterf, P-O-T-T-E-R-F, as in Frank. Q. Just one "F"? A. Just one F. Q. Is Mitch short for Mitchell? A. Yeah. Mitchell David. Mitchell David Potterf, IV, is the full legal name, to differentiate me from my father and my son. Q. Okay. But you're known around town as Mitch? A. Yeah. Q. All right. My name is Ken Kawabata. I'm representing the National Strength and Conditioning Association. I'll just refer to it as NSCA. And this deposition relates to the lawsuit brought by Page 3 1 2 3 4 5 6 7 8 9 10 INDE X --WITNESS MITCHELL D. POTTERF, IV Examination (By Mr. Kawabata) Examination (By Mr. Nahama) Further Examination (By Mr. Kawabata) --- 1 PAGE 4 190 5 197 8 EXHIBITS MARKED Defendant's Exhibit No. 1 50 (Cross-Fit-Based High-Intensity Power Training Improves Maximal Aerobic Fitness and Body Composition) 23 24 25 11 12 164 Defendant's Exhibit No. 4 (Email string dated 3-29-12) Defendant's Exhibit No. 5 (Email dated 4-1-12) 167 Defendant's Exhibit No. 6 (Email dated 4-9-12) Defendant's Exhibit No. 7 (Email string dated 4-8-12) 170 19 172 20 Defendant's Exhibit No. 8 (Email string dated 10-10-12) Defendant's Exhibit No. 9 (Email string dated 3-2-13) --- 174 22 177 23 13 165 14 15 169 16 17 18 21 20 21 22 9 10 Defendant's Exhibit No. 2 (Email string dated 2-29-12) Defendant's Exhibit No. 3 (Email string dated 3-21-12) 17 18 19 6 7 14 15 16 2 3 4 11 12 13 Page 5 24 25 Cross-Fit, Inc. versus the NSCA. And Justin Nahama is on the phone, he represents Cross-Fit, Inc. in this case. A. Okay. Can I move this? This is, kind of, distracting. Q. Mr. Potterf, this deposition is in the case that's brought by Cross-Fit, Inc. against my client, and I'm taking your deposition as a witness. I appreciate your coming down here. I know it's somewhat on short notice. I appreciate Mr. Nahama's assistance and Mr. Donchatz's assistance in getting your here so we can ask you some questions. I take it you've had your deposition taken before? A. Yeah. Q. How many times? A. Whatever the record says it is. Once or twice for my cases with this with regards to -yeah. With regard to OSU, and I think there's two. There's one with NSCA and me and one with OSU and me. There's another one with OSU, one with NSCA. And I believe one with a former landlord. Q. You said a landlord? A. Yeah. George Kusaris (phonetic). I'm trying to think of the trainer's name. 2 (Pages 2 to 5) Exhibit LL Page 412 U.S. LEGAL SUPPORT (619) 573-4883 Case 3:14-cv-01191-JLS-KSC Document 73-43D. Potterf, Filed 04/06/16 PageID.3852 Page 4 of 5 Mitchell IV October 19, 2015 Page 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yeah, several times. Q. I want to make sure I understand your testimony. Are you saying that you don't remember whether he came down or not or are you saying he did not come down to The Fit Club? A. I do not remember that he came to The Fit Club. Q. You're saying it's possible then he could have come down? A. Anything's possible. Yeah. I'm not there 24 hours a day. He could have come when I was not there. This is entirely possible. I don't remember that. I do not remember having a conversation with Mike Smith at Fit Club. Q. Okay. Right. And that's what I was asking you. The times that you were there -A. Uh-huh. Q. -- you do not know whether -A. Sure. Q. -- someone else was there? In terms of this specific event, did he come down to The Fit Club himself, along with, you know, another student or another person to come down to pick up diet logs, talk to you about the participants in this study? A. You just asked -- Page 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You have no idea where that came from? A. That nine stated overuse or injuries? Q. Correct. A. What is overuse or injury? Q. I'm just asking: Do you know where that information came from? Do you have knowledge of that? A. My understanding is Mike Smith fabricated it. Q. That's your contention, right? A. Well, that's -- I think it's the truth. But, yeah, I guess that's what we're still debating. Q. Your testimony is, definitely, it did not come from you? A. It did not come from me. I did not tell him those nine people were injured or overused or suffered from overuse or whatever term that is. Q. But the part where it says "two cited time concerns," that's true, correct? A. If those two are the two I mentioned earlier, and time concerns are considered family or work concerns, yeah, I guess. Q. Right. Because you told Mr. Smith there were two: Sanson and Miracle? MR. NAHAMA: Objection. Page 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. NAHAMA: Objection. A. -- me if I remember that. MR. NAHAMA: Asked and answered. Go ahead, Mitch. Q. The answer is no? A. Yeah. The answer is I did not -- I don't remember that. Q. Okay. If you look at Exhibit 1, Mr. Potterf, if you look on the bottom where it says, "OSU89," if you look at the top paragraph, the sentence that says, "Of the 11 subjects who dropped out of the training program, two cited time concerns, with the remaining nine subjects, 16 percent of total recruited subjects, citing overuse or injury for failing to complete the program and finish follow-up testing." Do you see that sentence? A. Yeah. Q. Okay. So in terms of the nine citing overuse or injury for failing to complete the program, and finish follow-up testing, that's untrue? A. Yeah. Nobody told me they were injured. And if you talk to them; they'll say they weren't injured, so I don't know where that comes from. Page 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I don't know that it's a -- you just -MR. NAHAMA: Objection to the extent this line of questioning lacks foundation. It's vague and ambiguous. Mitch, you can answer if you understand what he's asking you. It also calls for speculation as to what the study did, and the document speaks for itself. Go ahead, Mitch. A. I don't know what 11 subjects, nor what two or what nine this refers to. I know there are two people that stated what I -- what could broadly be considered a time constraint either because of family or work. I do not know anybody else. I know nobody said, "Mitch, I'm not going to do it because I'm hurt. I'm overused. I'm injured." Nobody told me that. I didn't convey to Mike Smith or anybody else in his staff that somebody was injured. Q. But the two who had family situations, you did explain that to Mr. Smith? A. I would have explained that probably prior to this because they asked me to try and figure out if I could get a favor to get the testing done after the fact. If I remember correctly, they were even 34 (Pages 130 to 133) Exhibit LL Page 413 U.S. LEGAL SUPPORT (619) 573-4883 Case 3:14-cv-01191-JLS-KSC Document 73-43D. Potterf, Filed 04/06/16 PageID.3853 Page 5 of 5 Mitchell IV October 19, 2015 Page 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 willing to do it if it didn't get to be part of the study just because they wanted the information for their personal. Q. This particular sentence that I just read to you, when did you become aware of that? A. This would have been just before this paper was published. I think another person, kind of, posted it online and said, "See, if you go there, you'll get hurt." Q. Do you remember how you became aware of it? A. It was through Facebook. Q. Okay. A. I asked repeatedly to get copies of it and I didn't get that. Then we were talking back and forth that it was almost going to be out. Somebody else saw it first and then I found it online and I read it. Q. Okay. Let me make sure I understand that. So at some of point, once, you know, the test-out information came in and the study for the program was done, your understanding was that Smith and his team was preparing some sort of article or document? A. Correct. Q. And you were asking to see copies of it? Page 136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Cross-Fit title and then closed his gym, sold his gym. Q. Did you actually know him? A. Not -- it would just be one of those Facebook friend of a friend of a friend of a friend. We were all doing Cross-Fit so we were all on Facebook together type thing. Q. At the time you saw the Facebook posting, he was operating a Cross-Fit blog? A. You know, their records, his records, whatever, kind of, indicate what he was doing at the time. I just kind of know the general timeline. He didn't share it with me. He kind of shared it or some -- somebody else shared it and then somebody -one of my friends, kind of -- other local Cross -- I can't -- I honestly can't remember who that is. They were like, "Hey, Mitch, isn't this your place? What's going on?" type thing. That's kind of -- I didn't really see him post it. Somebody else saw him and just, kind of, like, "Hey, isn't this you?" type thing. And then -Q. Someone referring to the abstract of the article? A. Uh-huh. Q. Is that a yes? Page 135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. True. Q. But you weren't getting any feedback from that? A. Not a lot. I mean, "It's great stuff. It's going to be awesome." That was about it. There was no details on it. Q. Then you saw a Facebook posting? A. Yeah. I saw somebody else kind of reposted the abstract to Facebook along with kind of the -- I don't want to say that it was that line -a quote about people getting hurt doing Cross-Fit. It was some remark of like, "Look how many they hurt with these numbers. Just imagine if they do it longer than ten weeks," or "You get hurt if you go there," or whatever. Q. That's what the Facebook post said? A. Yeah. It was to that extent. Q. Do you know who it was from? A. It was a guy named Tom Sernyak. S-E-R -Q. Can you spell that? A. No. I mean, S-E-R- niak. N-Y-A-K. Q. Okay. Who is he? A. He used to own a local Cross-Fit affiliate, and he de-affiliated or just decided to pursue more basic -- not basic, but he didn't pursue Page 137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Somebody referred to the abstract of the article saying, "This is proof that this will hurt you," right? And then somebody I knew saw that and shared it with me and asked, "Is this your gym? Is this you? What's going on?" And then, at that point, that's when I was really calling Smith and Devor, like, "What's going on? Who are these people that are hurt? You're publishing stuff that's not true. What's going on?" I didn't really get much response from them. Q. Do you remember when it was you saw the Facebook posting? A. This would have been the spring that this came out, so this came out in '12. Q. Well, it was finally published in November of 2013, officially. A. So it would have been the spring of '13, I think, when the abstract was coming out. Q. But was that when the Facebook posting was? A. Yeah. It would have been, kind of, the spring of '13, I believe. Q. And this is to your Facebook account, right? A. I don't think they posted it to mine. I 35 (Pages 134 to 137) Exhibit LL Page 414 U.S. LEGAL SUPPORT (619) 573-4883