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I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------•.----------X PHILIP MORRIS INCORPORATED, Plaintiff, Civil Action -against- File No. 74 Civ. 2895 CES R. J. REYNOLDS TOBACCO COMPANY & WILLIAM ESTY COMPANY, INC., Defendants. ---------------------------------------X DEPOSITION OF ROF3ERT A. FITZMAURICE, taken before Alice Pizzo, Notary Public of the State of New York, held at the offices of Philip Morris Incorporated, 100 Park Avenue, New York City, New York, on the 3rd day of February, 1975, at 2:00 p.m., pursuant to StipUlation. BORAK REPORTING SERVICE. P. C. CERTIFIED SHORTHAND REPORTERS 295 MADISON AVENUE NEW YORK. N. Y. 10017 12121 689•8080 m NIGHT PMONCS: 42121 475-1347 (516) 487•6474 r O ~ N O N

1 2 2 A P P E A R A N C E S: 3 4 MESSRS. CONBOY, HEWITT, O'BRIEN & BOARDMAN 5 Attorneys for Plaintiff 20 Exchange Place 6 BY: New York, New York 10005 ANTHONY L. FLETCHER, ESQ., and 7 TIMOTHY C. QUINN, JR., ESn. of Counsel 8 9 MESSRS. COOPER, DUNHAM, CLARK, GRIFFIN & MORAN 10 Attorneys for Defendants 30 Rockefeller Plaza 11 BY: New York, New York 10020 R. BRADLEE BOAL, ESQ. 12 of Counsel 13 14 000 15 16 17 IT IS HEREBY STIPULATED AND AGREED by 18 . and between the attorneys for the respective 19 parties hereto that filing, sealing and certi- 20 fication be and the same are hereby waived. 21 IT IS FURTHER STIPULATED AND AGREED 22 that all objections, except as to the form of 23 the question, shall be reserved to the time of the trial. (^ 24 ti 25 C 0 v e ~o

1 2 3 4 L. 5 6 IT IS FURTHER STIPULATED AND AGREED that the within examination may be subscribed and sworn to before any Notary Public with the same force and effect as though subscribed and sworn to before this Court. 7 000 8 9 R O B E R T A. F I T Z M A U R I C E, 10 having been first duly sworn by Alice Pizzo, 11 Notary Public of the State of New York, was 12 examined and testified as follows: 13 EXAMINATION BY 14 MR. BOAL: 15 Q Will you give us your full name and address. 16 A Robert A. Fitzmaurice, 140 East 28th Street, New 17 York, New York. 18 Q What is your title? 19 A Marlboro Brands Manager. 20 Q For how long have you been employed by Philip 21 Liorris? 22 A 23 24 Since May of 1972. Q Can you recite the various jobs you have had since you came with Philip Morris? 25 A From May of '72 through, I believe, April, '73, 3 ,. ,.;-,..~,~...

1 Fitzmaurice 4 2 brands manager on Marlboro; April, '73 through November 4 of '73, brands manager on Benson & Hedges and since No- vember, '73 to the present, brands manager on Marlboro. 5 Q Prior to May-, 1972 by whom were you employed? 6 A Leo Burnett Advertising in Chicago. 7 Q For how long a period•of time were you em- 8 ployed by Leo Burnett? 9 A I believe I.joined them in February of 1968 and was 10 with them through P•iay of ' 72. 11 Q Could you review the history of your experience 12 with Leo Burnett? What you did,'when, and so forth? 13 A I held one job and that was account executive on 14 Marlboro. 15 Q You were account executive at the time Marl- 16 boro Lights was adopted and introduced? - 17 A Yes. 18 Q I have here a copy of a document that bears 19 your name on it and I ask if you can identify this docu- 20 ment? 21 Yes, I can. 22 Q What is it? 23 A It's-a memo -- it's a covering memo written by me 24 to Robert A. Crimmin and it covers a memo written from 25 Todd Abrams to Roger Sherman, subject Philip Morris

Fitzmaurice 2 name usage for Marlboro Lights. 3 MR. QUINN: Are these the documents that 4 5 6 10 11 were marked Exhibit 16A and 1GB to the Benson deposition? MR. BOAL: Probably. Off the record. (Discussion off the record.) MR. BOAL: Let's assume it was 16A and 16B to the Benson deposition. If it turns out other- wise, we can agree to mark it with the appropriate number. 12 MR. QUINN: That's fine. 13 Q Did you authorize the study that was made by 14 Mr. Abrams or request it? 15 A I don't recall whether I did an internal request at 16 Leo Burnett. 17 Q You were with Leo Burnett at the time, 18 assume? 19 A No, I was with Philip Morris. This is August 18, 20 1972 is the date I have got on the covering memo. 21 2 23 . 24 in the memo from Mr. Abrams to Mr. Sherman? Would you repeat the question? (So read.) 25 A Are you asking the purpose of the memo from Mr.

Fitzmaurice 2 3 4 5 ~ 6 ~: . ~ ~ 7 ~:- 8 LF 9 10 ' . 11 12 13 14 15 16 17 e 18 L 19 20 h r people asked fo r ethe Lights or Marlboro Lights? 21 w 22 .a in e ques ion was w e er ey as e or it 23 24 25 Abrams? Q No, the purpose of the study. A According to the first sentencesis to answer the question as to how consumers ask for Marlboro Lights in retail outlets. Q Is your recollection consistent with the pur- pose as stated in the memo? A I don't really recall. Q Do you recall who initiated the request, if there was one, for this particular study? 6 A No, I don't. Q The first page of your memo, which is Exhibit 16A to the Benson deposition, is a statement, "If you feel that it warrants further investigation, let me know and we will have Burnett follow it up in more detail." Do you recall whether or not there was any request for further investigation? .A Not that I recall. Marlboro Lights or Lights and offhand, I can't think of any reason that we had instigated that piece of research. MR. BOAL: Read the question back. Q Was it of any importance to Philip Morris I th' k th t' h th th k d f

1 Fitzmaurice 7 2 (So read.) 3 Q 4 question. 5 A it was of no importance to Philip Morris whether people 6 were looking at research to determine how people asked 7 for the product. 8 Q Do I infer from your answer correctly that- 9 10 asked for Lights or Marlboro Lights? I guess your answer didn't quite meet the The answer is I can't think of any reason that we 11 A 12 .I am not saying it was of no importance. It was not of any importance to me at that time. 13 Q' At that time you were brands manager of Marl- 14 15 16 17 MR. QUINN: Off the record. (Discussion off the record.) Q I have here a c of what I will e resent to 18 opy r p 19 you are answers to interrogatories propounded.by the de- 20 fendants here and I would-ask you if you would read in- 21 22 23 24 25 boro? A That would be correct. terrogatories 3, 4, and 5? (Witness complies.) Are those answers correct? To the best of my knowledge, yes, they are. Did you furrtish the information upon which

1 Fitzmaurice 8 2 those answers were based? 3 4 A I believe I was involved in participating and gath- ering that information. 5 Q Would you read interrogatory no. 7 and the an- (Witness complies.) Q In the course of the deposition of Mr. Morgan. 11 12 13 14 15 16 17 18 swer to it? 9 it was identified as Exhibits 3A, B, and C, what was re- ferred to in that deposition as the first phase of Marl- boro Lights print.advertising. There was also identified as Exhibits 12A, B, C, and D some newspaper print adver- tising which, I believe, also was early newspaper adver- tising, introductory advertising, and as Exhibits 11A, B, and C a group of ads that were termed "a breed apart" which were, I believe, a second phase of Marl.boro-Lights adver- tising. There was also identified in the Adams' deposition 19 as Exhibit 8 a later phase of Marlboro Lights print ad- 20 vertising. That is the.type of advertising that has been 21 22 23 24 25 most recently believed, I believe; A That's correct. is that correct? Q Is my characterization of these ads correct. as well? A I think that's correct, yes. 0 0 N A ~ 0 4 O ~ ~~

I Fitzmaurice 9 My question to you is, is it possible for you 3 to ascertain the point in time when Philip Morris changed 4 from the "a-breed-apart" phase of advertising to the type of advertising represented by Adams' Exhibit 8. 6 10 11 12 13 MR. FLETCHER: You have been asking for this for sometime. We have been working on it. You keep coming up with overlapping dates or not over- lapping dates. We know in some cases the dates did overlap and we are still trying to give you an an- swer. I will ask Mr. Quinn tomorrow to look into the status of that project again. Q I have here what I would represent to you to ies of 14 advertisements that were placed in Life be co p 14 15 Magazine in 1972 and I will represent subject to error 16 if your records prove otherwise that that is all the ad- 17 vertising that was placed in Life Magazine in 19727 18 19 20 21 MR. FLETCHER: Were these from the national page of Life Magazine or from regional pages? MR. BOAL: The copies that Mr. Fitzmaurice is looking at were copied from the New York Public 22 Library's copy of Life Magazine. .. MR. FLETCHER: We are dealing either with 23 24 national or the New York Metropolitan regional 25 pages, whichever be the case. N A C O ~ O Oh

1 2 4 5 6 ? Fitzmaurice MR. BOAL: I believe so. MR. FLETCHER: You don't have the page num- bers, do you? 10 MR. BOAL: If they don't appear on the'copies, then I don't have them. MR. FLETCHER: Off the record. (Discussion off the record.) .Have you ever placed Marlboro Lights ads in 10 Life~Magazine on a regional basis? 11 12. I don't recall. Q Do you recognize each of these ads as having 13 been placed in Life Magazine? 14 15 16 17 I recognize each of these.ads but whether or not each one ran in Life, I couldn't absolutely tell without looking at a schedule. Q How difficult would it be to look at a sched- 18 ule? 19 A No problem. 20 21 22 23 24 25 How long would it take? If it's handy, 20 minutes. MR. BOAL: Off the record. (Discussion off the record.) MR. BOAL:_ I ask the reporter to mark this as Fitzmaurice Exhibits A-1 through 14 for identificatio: