PX 10 - cbs8.com · 2020. 9. 15. · 18, 2018, before Rose A. Tamburri , RPR, CM CCR, CRR, ISCRA Speed and. Accuracy Chanpi on and Notary Public. Job No. 3106831 PAGES 1 - 316 Page

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Case 3:14-cv-02129-MMA-AGS Document 439-3 Filed 09/13/19 PageID.37359 Page 1 of 29

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I N THE UNI TED STATES DI ST RI CI COURT

FOR THE SOUTHERN DI STRI CI' OF CALI FORNI A

LOU BAKER, individually and: Case No. 3: 14- cv-

on behalf of all others : 2129- MVA- AGS

similarly situated,

P1 a i nt i ff

vs.

SEAVORLD ENTERTAI NVENT,

et al

Defendant S.

CONFI DENTI AL

Videotape aposi t on of FREDERI CK D. J ACOBS ,

VOLUVE 1, taken pursuant to Notice, at the law

offices of Kessler, Topaz, Al t zer & Check, LLP,

280 Ki ng of Pr us si a Road, Radnor, Penns yl vani a,

contlenci ng at 10: 10 a. m , on TUESDAY, DECEM3ER

18, 2018, before Rose A. Tamburri , RPR, CM CCR,

CRR, ISCRA Speed and. Accuracy Chanpi on and Notary

Public.

J ob No. 3106831

PAGES 1 - 316

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1 A. In most cases, 1 would -- let me --2 let me back up.3 So if if I went to a -- my4 supeivisor, whether it was Tony or Jill or Jim

5 Atchison, and of course Jim wasn't my6 supervisor, but had authority to -- and -- and7 got very specific direction, I would not then8 seek additional approval on the precise9 language that I was going to use to -- to10 resolve the media inquiry.11 So if it was a -- a simple matter12 of fact, and I had specific direction on how13 to deal with it. I would deal with it and14 there would be no further approval that I15 would seek on the actual language.16 Q. Were there any times in 2013 when you17 responded to a media inquiry from — strike18 that -- when you responded to a media inquiiy19 regarding Blackfish where you did not obtain20 approvals before responding, even though you21 were responding with new information, not22 information that was a canned answer from a23 prior answer?24 MR. LOHNES: Objection to form.25 MR. YOUNGWOOD: Objection to form.

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A. Correct.Q. What was your purpose in going to see

it?A. It was to -- and I was with two other

executives, Chuck Tompkins, who was a seniormember of our zoological staff and a -- and avery experienced animal trainer, and then anattorney, Matt Rearden, who was at that timeresponsible for intellectual property matters.At least that's my recollection.

So the -- the company had decidedthat the three of us would go and judgeBlackfish based on our specific areas ofexpettise. So yes, that's — that was thepurpose of me going.Q. What did you think of the film when

you saw it?A. I was really disappointed, frustrated

by it. I had gone to Sundance in the hopethat Blackfish could be easily dismissed, thatit would be amateurish or plainly inaccurate,something that would give us the ability todeal with it quickly and with sort of minimuminterruption to our business, but -- but whatI saw really wasn't that at all.

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1 THE WITNESS: So if I understand2 your question, did I answer a question based3 strictly on my own authority; is that correct,4 without any guidance on the substance of that5 response?6 MR. D'ANCONA: That's what I'm7 asking.8 THE WITNESS: I don't recall --9 MR. D'ANCONA: Okay.10 THE WITNESS: -- doing that.11 BY MR. D'ANCONA:12 Q. Blackfish premiered at the Sundance13 Film Festival in Janualy of 2013. Do you14 recall that?15 A. Yes, I do.16 Q. And you went to see it at Sundance;17 right?18 A. Yes, I did.19 Q. And is it fair to say that Blackfish/0 presents a -- a negative portrayal of21 SeaWorld?22 A. Yes.23 Q. You went in your capac -- you went to24 see the film in your capacity as a SeaWorld25 employee; correct?

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It was a — it was a very powerful2 and emotional film, extremely well made, and I3 felt represented a problem, very serious4 problem for us.5 Q. Was Blackfish plainly inaccurate?

MR. YOUNGWOOD: Objection to form.7 THE WITNESS: There were8 inaccuracies in it, but that -- my -- my9 primary takeaway from the film really was that10 it didn't give us an awful lot to work with in11 terms of inaccuracy.12 And one of the reasons that we had

13 brought Chuck was because he was a -- he was14 present for a lot of the things that were in15 Blacklish and would be able to answer that16 question better than I could; that is what17 was what was inaccurate, what was18 misleading, what was unfair. So that --19 that's why he was present.20 Matt was present, as I =call,21 because he could reflect on whether the22 filmmakers had -- had inappropriately used23 intellectual property of ours and perhaps we24 would have some defense there.25 BY MR. D'ANCONA:

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1 Q. When you say it didn't give you a lot2 to work -- an awful lot to work with in terms3 of inaccuracy, can you just explain what you4 mean?5 A. Well, if-- if I, just based on my6 long time with the company, my sort of7 immersion in these animal rights issues over a8 long period of time, if I could just, in that9 short 80 or 90-minute span, begin to kind of10 catalogue things that are clearly wrong with11 the film, then we're about halfway to12 discrediting the film as an act of journalism,13 as an act of, you know, documentary filmmaking14 and essentially destroy it before it has any15 real impact on -- on us.16 But the film had multiple cast17 members who were former SeaWorld employees,18 and that was one of the most damaging parts of19 the film, probably the most damaging, that20 these men and women who worked with killer21 whales, in the water with killer whales were22 actually members of the — the cast of this'73 film.24 So there were things that I — I25 don't recall anything specific, but there were

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public, whether in a newspaper article or a TVstory or a book, it had been cast in all thoseforms to -- to the point of, you know,January 2013.

There had been a very lengthy,scrupulously researched book by David Kirby,there had been a book by Tim Zimmerman, therhad been long form articles in -- in -- in thenewspaper and in magazines, thousands andthousands of television stories.

So we had reached this point wherethe -- where it felt like maybe, you know, wewere starting to heal a little bit after thedeath of Dawn, and then Blackfish comes alongand -- and tells the story in a way so muchmore emotional, so much more persuasive thananything that we had seen before.

I mean, if you were able to wadethrough the 450 pages of David Kirby's book,you might be left with outrage, but frankly,nobody was willing to wade through 450 pages.

Blackfish only requires you to sitthere for, you know, 80 minutes or 90 minutesor whatever, and they're going to tell you thestory and they're going to tell it to you. in a

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1 times in the film where I can say, well, you2 know what, that's not quite right or that's3 not right at all, but I don't remember leaving4 the theater thinking okay, this is a slam dunk5 for us.6 Q. Slam dunk in terms of --7 A. Defending.8 Q. -- misrepresentations or9 inaccuracies?10 A. Helping. That's right.11 Q. Okay.12 And you said you felt that the13 film represented a problem, "a very serious14 problem for us," can you explain what you15 meant by that?16 A. Well, the -- the film is about the17 death of Dawn Brancheau., but it's more than18 that. It's -- the -- the thesis of the film19 is the death of Dawn Brancheau or the death of/0 somebody was inevitable because SeaWorld21 shouldn't have been in the killer whale22 business to begin with, that killer whale23 display was intrinsically immoral and -- so if24 you -- if you look at all of the ways that a25 -- that that thesis can be presented to the

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way that's — that's emotional, highlyselective, I should say that. That's one ofour complaints with the film then and -- andfor me now, is that the film is entirelyselective in how it tells you a story.Q. Selective in what sense?A. Well, it's only those things that

cast SeaWorld in a negative light gatheredover a 54-year history, or whatever thehistory was. So to me, Blackfish was unfairand it was incomplete.Q. SeaWorld had -- had SeaWorld been

asked to participate in the making ofBlackfish by the director?A. Yes.Q. And did -- did SeaWorld participate

in the making of Blackfish?A. We declined.Q. So SeaWorld had the opportunity to

participate, but declined to?A. That's right.Q. Okay.

After you saw the film, did youhave a sense of how you thought it wouldaffect potential SeaWorld customers who saw

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1 it?

MR. YOUNGWOOD: Objection to form.3 THE WITNESS: Yes.4 BY MR. D'ANCONA:5 Q. And what was that sense?6 A. Well, I -- I felt it wasn't going to7 have a good effect If you saw the film and8 were ambivalent about SeaWorld, this -- the9 real risk was that it was going to tun you,10 at a minimum, anti-SeaWorld and -- and in an11 extreme case, might turn you into an activist12 against SeaWorld.13 It's very hard to watch that film14 and not have -- not leave with your opinion. of15 SeaWorld altered in some way, and that way16 would almost always be negative.17 Q. Did you think that Blackfish would18 only have an audience with people who were19 already animal activists?20 A. I hoped that, but after seeing the21 film, my worry was that this story just became22 less -- you know, we've seen this many times23 where -- where some sort of work product would24 have only very limited appeal among people who25 already hate SeaWorld.

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1. this, meaning that I was getting all of this2 input, but there was this sample bias, because3 the input that I'm getting is -- is always4 negative.5 So it was hard for me to judge6 whether people out in the world were con sumin7 Blackfish, believing Blackfish and having8 their opinion altered by Blackfish, because9 all I was seeing was the tweets and the media10 inquiries and all of this negative input. So11 I had to continually remind myself that12 there's a big world out there and -- and --13 and -- and maybe Blackfish isn't going to have14 that big of an impact.15 But there were a couple of times16 in my -- you know, in my private life when I17 saw that Blackfish was having an impact.18 There was -- I was having lunch at a place19 in -- near my home and I wasn't wearing20 anything that would signify SeaWorld and I'm21 -- I'm watching the bartender and a couple of22 the -- the waiters and waitresses talking23 about Blackfish and -- and I'm listening very24 carefully to what they're saying. And I25 thought well, this is -- this is -- you know,

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1 My worry with Blackfish was that2 it was so well made that the risk was that we3 were -- it was just going to be viewed by a4 lot more people, number one, and it would --5 and it would take people who are either6 SeaWorld supporters or ambivalent on these'7 issues and turn them into people who really8 don't want anything to do with us.9 Q. And as 2013 progressed, do you10 believe that you observed people who were11 either SeaWorld supporters or ambivalent about12 SeaWorld turning against SeaWorld because of13 Blackfish?14 A. Yeah.15 MR. YOUNGWOOD: Objection to form.16 THE WITNESS: Yes.17 BY MR. D'ANCONA:18 Q. And in what way did you see that?19 A. Well --20 MR. YOU] GWOOD: Objection to form.21 THE WITNESS: -- you would see22 it -- and I had to be very careful that I23 wouldn't allow, you know, the -- the -- my24 experience working as SeaWorld's head of25 communications to sort of color my opinion on

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1 these are people who are in our neighborhood2 and they have clearly been affected by what3 they saw, and not in a way that's going to4 help SeaWorld.5 I also had, in church of all6 places, people who had learned that I worked7 at SeaWorld and the capacity that I worked --8 that I worked in, and would become very9 hostile to me.10 So there -- you know, I -- I could11 see, you know, the sort of troubling influence12 that Blackfish was having and outside the --13 the realm of just animal rights activists.14 BY MR. D'ANCONA.:15 Q. When you mentioned in that answer16 inputs that were coining to you, did those17 include E-mails or letters from SeaWorld18 guests?19 A. Yes, although I can't -- I don't have20 any specific recollection of a guest, you21 know, someone -- someone who had come and -22 and -- and paid and enjoyed the -- presumably23 enjoyed the experience and then saying, you24 know what, I just saw Blackfish and now I'm25 mad.

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1 So I don't recall anything -- you2 know, I do, I do recall one person doing that.3 And I said, well, okay, that's fair, but I4 just need to tell you that Blackfish -- and I

5 agree with you, it's an emotional film, but if6 we could just get you back, if we could just7 get you back and we could maybe have you talk8 with some of our trainers and keepers and9 curators and veterinarians, maybe we could --10 maybe we could convince you to still be a11 SeaWorld fan.12 And that worked. So that was an13 offer I made a number of times. It was a very14 powerful, sincere offer. If you don't like15 what you saw in. Blackfish, please come, see16 for yourself and — and then make a decision.17 Q. So when you got E-mails or letters18 from members of the public saying that they19 had seen Blackfish and they -- they didn't20 like SeaWorld, would you personally respond to21 the senders?22 A. Sometimes.23 MR. YOUNGWOOD: Objection to form.24 MR. D'ANCONA: Okay.25 BY MR. D'ANCONA:

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1 A. In fact, if somebody were to identify2 themselves in an E-mail or — or letter as3 being an animal rights activist, I would4 probably dismiss it altogether because your5 opinion is formed and it's hard and there's no6 way that I'm going to be able to reach you, so7 I'm not going to waste my time.8 Q. Did you think that watching Blackfish9 would make people less likely to come to10 SeaWorld's Orca parks?11 MR. YOUNGWOOD: Objection to form.12 THE WITNESS: Yes.13 BY MR. D'ANCONA:14 Q. Do you recall ever discussing that15 view with anybody else who worked at SeaWorld16 in 2013?

17 MR. YOUNGWOOD: Objection to form.18 THE WITNESS: I don't recall any19 specific conversations, but I almost certainly20 would have. I mean, you can't -- if' you watch21 Blackfish, your opinion about SeaWorld changes22 unless you came into it with a negative. That23 was my view, that -- that if you're going24 to -- if you watch this film and you have no25 other input about SeaWorld, you are going to

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1 Q. And do you recall any other instances2 when you had personal interactions with the3 senders of-- of letters or E-mails in, let's4 say, 2013, concerning Blackfish?5 A. It wouldn't have been unusual at all6 for it, because my name was so well known and7 my E-mail was in such wide distribution for me8 to get an E-mail, and sometimes they would be9 easy to dismiss because they would abusive or10 profane, and other times they would be kind11 of, you know, just a very emotional plea, like12 please help me understand this because I was13 such a huge SeaWorld fan and I -- and I can't14 do it anymore.15 So it wouldn't be unusual at all16 for me to respond to those E-mails and letters17 myself.18 Q. And when you responded to the senders19 of E-mails and letters that you received, did/0 you -- did you see that at least some of them21 were from people who were not necessarily22 animal activists, but just more mainstream23 regular people?24 A. I -- yes, that's fair.25 Q. Okay.

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leave with a negative impression and -- andI'm certain that I had conversations like thatwith with others.BY MR. D'ANCONA:

Q. So is it fair to say that you thoughtthat to the extent people saw Blackfish, itwould negatively affect public opinion aboutSeaWorld?

MR. YOUNGWOOD: Objection to form.THE WITNESS: Yes.

BY MR. D'ANCONA:Q. Did you think Blackfish would harm

SeaWorld's reputation?MR. YOUNGWOOD: Objection to form.THE WITNESS: The only —

Blacklist' could only do one thing, and thatwas damage SeaWorld's reputation. Thequestion wasn't whether it would or not, butwhether-- how much it would.

So it all really hinged on whetherBlackfish became popular, became a kind ofcultural phenomena, because so manycommercially-distributed documentaries comeand go without anybody ever seeing them.

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7891011121314 Q. But did you believe that if you saw15 increasing awareness of Blackfish and16 increasing association of Blackfish with17 SeaWorld, that that would correspond to, in18 your mind, an it to SeaWorld's reputation?19 A. Yes./0 Q. Did you -- do you recall whether you21 reported back to anyone at SeaWorld's22 corporate office from Sundance?23 A. Yes, I did.24 Q. Who did you report back to?25 A. I wrote probably a 6, 700-word memo,

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I for lack of a better term, that I presented,2 along with Chuck and Matt, to the -- I believe3 it was called at the time the Strategy4 Committee, which was senior leadership and5 then typically one layer of management below6 that. So it had 25 or 30 people, I guess.7 Q. Okay. And we'll actually get to that8 in a few minutes when we get into the9 documents, I think.10 Do you recall that Blackfish was11 picked up for distribution by CNN Films and12 Magnolia Pictures in January of 2013?13 A. Yes.14 Q. And it showed at various film15 festivals in the late winter and spring of16 2013?17 A. Yes.18 Q. The fihn was released in — in19 landmark theaters in certain cities in July of20 2013; do you remember that?21 MR. YOUNGWOOD: Objection to form.22 THE WITNESS: That's my23 recollection.24 BY MR. D'ANCONA:25 Q. And do you remember that in the

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1 spring of 2013 and the early and mid-summer of2 2013, major media outlets, such as the LA3 Times or ABC News were — were running stories4 on Blackfish?5 A. Yes.6 Q. Did the showing of Blackfish at film7 festivals and its release in movie theaters in8 July of 2013 and its coverage by mainstream9 media in the spring and summer of 2013, did10 that concern you --11 MR. YOUNGWOOD: Objection.12 BY MR. D'ANCONA:13 Q. -- with respect. to your -- your14 position at SeaWorld?15 MR. YOUNGWOOD: Objection to form.16 THE WITNESS: Yes.17 BY MR. D'ANCONA:

18 Q. And why?19 A. So long as the -- the film has either20 kind of this very limited art house following,21 you know, people who really like to go to art22 house cinemas and watch things like this,23 and -- and frankly, a lot of those people24 probably wouldn't be all that fond of SeaWorld25 to begin with

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So as long as it was confined to avery limited distribution among people whodon't like SeaWorld to begin with, then that'sno real problem for us. It's a tree fallingin the woods.

But the media selves everybody,the mainstream media serves everybody. Soyou're either left with coverage that isnegative because the film, itself, isnegative, or you're left with coverage thatinspires people to see something they wouldn'thave otherwise seen.

So it was very concerning to methe more the mainstream media were interestedin Black:fish, and that was certainly wellbefore it even premiered in -- in theaters.Q. And then you recall that Blackfish

was shown multiple times on CNN in Oct -- inOctober of 2013?A. Yes.Q. And it was released on DVD and on

iTunes and on Netflix thereafter?A. Yes, although I don't recall the, you

know, the progression, what happened when.Q. Did there come a time in 2013 when

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you believed that Blackfish had certainly bada negative effect on SeaWorld's reputation?A. Well —

MR. YOUNGWOOD: Objection to form.THE WITNESS: --

but my owninstinct was telling me that it was affectingthe company's reputation, yeah.BY MR. D'ANCONA:Q. And did -- was it your view that the

company's reputation was an important driverof attendance and revenues for SeaWorld?

MR. YOUNGWOOD: Objection to form.THE WITNESS: The link between

reputation and sales, I caret say that I'm anexpert in that. I'm not sure anybody is anexpert in that.

You know, the reputation researchis complicated, it's highly sensitive tovariables in terms of, you know, that day'smedia coverage. So for -- for -- to makeconclusions about the rep -- the impact ofreputation decay on your business is certainly

outside of my area of expertise.My instinct was, though, that

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1 resources? What was it. costing us in terms of2 money to defend the company against it? The3 reputation issue, which I mentioned is — is4 difficult to quantify and difficult to5 associate with performance, but is still a6 significant impact on the business.7 So yeah, there were a lot of ways8 that Blackfish was affecting the business in9 2013.10 BY MR. D'ANCONA:11 Q. To your knowledge, were -- were a lot12 of staff resources being devoted to responding13 to Blackfish?14 MR. YOUNGWOOD: Objection I:o form.15 THE WITNESS: Well, you'd have to16 define "a lot," but certainly the way I define17 it, yeah.18 BY MR. D'ANCONA:19 Q. Were you spending -- as a percentage20 basis, how much of your day-to-day work was21 being devoted to responding to -- to Blackfish22 in 2013?23 A. It -- it started -- it gained over24 time, I guess is my point, so early in 2013,25 it might be a portion of every day. By the

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I significant reputation decay could only do one2 thing, and that was damage the company's3 business.4 BY MR. D'ANCONA:5 Q. Did you discuss with any colleagues6 at SeaWorld in -- at any time in 2013 that'7 you -- well, strike that.8 Did you discuss with any9 colleagues at SeaWorld in 2013 the proposition10 that Sea World's reputation was being damaged11 by Blackfish?12 MR. YOUNGWOOD: Objection to form.13 THE WITNESS: I don't recall any14 specific conversations, but I'm -- I'm certain15 that I had them.16 BY MR. D'ANCONA:17 Q. Do you recall any discussions with18 colleagues at SeaWorld in 2013 that Blackfish19 was hurting SeaWorld's business?20 MR. YOUNGWOOD: Objection to form.21 THE WITNESS: I don't recall any22 specific conversations, but the -- you know,23 the -- the impact on the business, you know,24 there's multiple ways of looking at that.25 What was it costing us in terms of staff

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1 end of 201.4, it was every minute of every day.2 Q. How about 2013?3 A. I'm sorry, 2013. You know, by the4 time that we were dealing with the -- the5 artist cancellations for Bands, Brew & BBQ, it6 was essentially all I was doing. And then7 throughout the rest of my SeaWorld career, it8 was essentially all I was doing.9 Q. Were you aware of-- of other10 SeaWorld staff who were devoting as much time11 to responding to Blackfish as you were?12 MR. YOUNGWOOD: Objection to form.13 THE WITNESS: I don't know that14 anyone was devoting as much time to it as I15 was, but certainly anyone in the position of

16 authority in the company was — had demands17 placed on their time and -- and ceitainly, you18 know, whether it was our legal staff or our19 marketing staff or those of us in Corporate20 Affairs, it was a large and growing impact on21 our time and all the way up M Mr. Atchison.22 BY MR. D'ANCONA:23 Q. And how about at the -- at the staff24 level, the people who reported to you, were25 they spending a significant portion of their

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1 time responding to Blackfish issues?2 A. Well, yes, assisting me and Jill in3 responding to Blackfish issues. We tried to4 relieve -- we -- at the time, we had divided5 our responsibilities in the folks who were6 subordinate to me between marketing and, kind7 of, issues, management or, you know, the --8 the Corporate Affairs function, and we tried9 to relieve them, as much as we could, so that10 they could continue to try to, you know, grow11 the business rather than, you know, than12 defend it.13 But there were times certainly14 when it was all hands on deck15 Q. And that was in 2013?16 MR. YOUNGWOOD: Objection to form.17 THE WITNESS: Toward the end of18 2013. In the middle of 2013, you know, there19 were still plenty of gaps in your day where20 maybe you could get some other things done.21 And I don't want to say --you know, them22 were other obligations that I had and if, you23 know, if I had to write a speech for Jim24 Atchison, I wrote it. So it wasn't, you know,25 100 percent of every -- you know, every

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1 yeah.2 I should say also that the — the3 -- the film focuses on these issues, but it4 also gave kind of a focal point, a gathering5 place for people who wanted to -- to end whatSeaWorld does with killer whales. So them

7 was that whole dimension to it, also, that

8 this was essentially the --you know, a call9 to arms for animal rights people.10 BY MR. D'ANCONA:11 Q. Animal rights people used. it as a --12 as a weapon against SeaWorld?13 A. That's right.14 MR. YOUNGWOOD: Objection 1:0 form.15 THE WITNESS: Well, as sort of

16 like a call to action, sort of.17 MR. D'ANCONA: Yeah.18 THE WITNESS: If you don't believe19 us, watch the film.20 MR. D'ANCONA: I see. Just a21 couple more things and then I think we should22 -- we should stop for a quick break.23 BY MR. D'ANCONA:24 Q. Shifting gears, SeaWorld announced a25 capital project to expand its -- its whale

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1 moment, but it was the dominant, part of my...2 BY MR. D'ANCONA:3 Q. As far as a -- an issue that — that4 SeaWorld was responding to, was Blackfish5 the -- similar in terms of the amount of6 =sources it required as other prior activist7 events, the books you mentioned, the movies8 you mentioned, I believe, or was it different?9 MR. YOUNGWOOD: Objection to form.10 THE WITNESS: The only thing that11 was even remotely similar to this was the Free12 Willy films, primarily the first Free Willy13 film, which was viewed, I think correctly, as14 an assault on marine mammal captivity,15 particularly killer whale captivity. So the16 only thing that was ever close to this was17 that, but I don't recall even that being as18 intense at its peak as — as Blackfish was.19 BY MR. D'ANCONA:20 Q. So would it be inaccurate to say that21 Blackfish was just more of the same, as far as22 the demands placed on the company?23 A. I would view that --24 MR. YOUNGWOOD: Objection to form.25 THE WITNESS: -- as inaccurate,

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1 tanks in August of 2014. Do you recall that?2 A. Yes, I do.3 Q. And — and it was announced that that4 project would cost hundreds of millions of5 dollars roughly. Do you remember that?6 A. Yes, I do.78910111213141516171819202122232425

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1, Q. In 2014, SeaWorld celebrated its 50th2 anniversary celebration. Do you recall that?3 A. Yes, I do.4 Q. And the celebration was planned to5 involve a tour of various cities, a kickoff6 event in New York City and other celebratory7 events.8 Do you recall that?9 A. Yes, I do.10 Q. Do you recall that the kickoff event11 in New York City was cancelled?12 A. Yes.13 Q. What do you recall about that?14 A. The — when Blackfish was clearly15 some -- a club that could be used against16 SeaWorld, that became a very, very valuable17 tactic for the animal rights community. And18 what they would do is simply identify anyone19 who had decided to do business with SeaWorld20 in any -- you know, whether we buy from you or21 you buy from us, whether you wholesale22 tickets, whether you host events, whether you23 appear in our parks as an artist, all of those24 people were subjected to harassment and -- and25 Blackfish was the centerpiece of that.

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So when. it came to this event, my2 recollection is that we had attempted to

3 3 publicize it. And -- and as I recall, it4 4 wasn't a -- like a general consumer thing, I$ 5 think we were inviting VIPs or travel partners6 6 or something.7 7 But anyway, the -- they had gotten8 8 wind of it, the animal rights folks had gotten9 9 wind of it and -- and started to harass the10 Q. Do you -- do you know -- in your 10 owner of the restaurant. And for that person11 mind, do you associate moving forward with 11 and. frankly others, that's -- that's easy math12 the --the --the Blue World Project as -- as 12 to do. It's like, you know, I can host this13 a response to Blackfish? 13 event and subject myself to protests and14 A. It seemed to me that we were moving 14 harassment, or I can. just cancel it and be15 forward with the Blue World Project because of 15 done with it. So I --we had a lot of people16 the -- the -- the very sort of toxic 16 making that decision.17 atmosphere that was -- and Blackfish was part 17 Q. And to put a time frame on the the18 of it, but it wasn't the only part by any 18 harassment of of partners and vendors19 means. This is -- you know, this is a time 19 and -- and sponsors, did that begin in 2013?/0 of, you know, great controversy and criticism 20 A. Yes.21 of SeaWorld and I think the -- the -- the 21 Q. Did that begin in -- had that begun22 feeling was let's -- you know, we need to make 22 by September of 2013?23 some dramatic moves here, and that was the -- 23 MR. YOUNGWOOD: Objection to form.24 the centerpiece of it. That was my -- that's 24 THE WITNESS: I would say so.25 my recollection, anyway. 25 MR. D'ANCONA: Okay.

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1 BY MR. D'ANCONA.:2 Q. And did it -- had it begun in the3 summer of 2013? Were you hearing about4 partners or sponsors getting Blackfish-related5 harassment in the summer of 2013?6 A. I can't think of anything --7 MR. YOU Objection to form.8 THE WITNESS: -- anything9 specific, but yeah, I think when it became a10 really significant problem was when it was11 clearly working with those artists for -- if12 you could reach those people and influence13 them to do something as dramatic as publicly14 separate from SeaWorld, then you could reach15 anybody.16 BY MR. D'ANCONA:17 Q. And you're talking about the band18 cancellations in November and December of19 2013?20 A. Yes.21 Q. And thereafter?22 A. That's right.23 Q. Okay.24 How about the tour, the 50th25 anniversary celebration tour, do you recall

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1 Q. Other than the ways that you've2 mentioned, can you — can you tell me any3 other ways how the 50th anniversary4 celebration in 2014 was -- was impacted?5 MR. YOUNGWOOD: Objection to form.6 THE WITNESS: Not beyond what I've7 told you, at least that 1 can recall.8 BY MR. D'ANCONA:9 Q. Do you recall discussing Blackfish's10 impact on the 50th anniversary celebration in11 2014 with any SeaWorld colleagues?12 A. I'm sure I did, but I don't recall13 any specific ones.14 Q. Okay.15 MR. D'ANCONA.: I think we should16 take a short break.17 THE VIDEOGRAPHER: Off the record18 at 11:41. This will end Disk No. 1.19 (Whereupon, a rec,ess was taken at20 the above time.)21 (Whereupon, a document was marked,22 for identification purposes, as Jacobs Exhibit23 1.)24 THE VIDEOGRAPHER: The time now is25 12:01, back on the record, beginning of Disk

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that that was impacted by Blackfish. in anyway?

MR. YOUNGWOOD: Objection to fonn.THE WITNESS: I recall it was

impacted, though I don't recall specifically

how. If I recollect correctly, we justcancelled it, eventually we just cancelled itbecause it was -- evely time we would havepeople out in the world doing anything, they

would face protesters and abuse andharassment.

And then so would the people thatwe had chosen to partner with, whether it wasa school --you know, a lot of theseappearances, when. we go into markets, are in.schools or a media outlet or a museum, anotherzoological institution, maybe. They would allbe subjected to this harassment.BY MR. D'ANCONA:Q. At the bottom line, is it your

opinion that SeaWorld's 50th anniversarycelebration was impacted by Blackfish?


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I. No. 2.2 BY MR. D'ANCONA:3 Q. Welcome back, Mr. Jacobs. You4 understand that you are still under oath?5 A. Yes.6 Q. You've been handed a document marked7 as Jacobs Exhibit No. 1. Do you see that,8 sir?9 A. Yes.1 0 Q. Do you recognize this document?1 1 A. Yes, I do.1 2 Q. What is it?13141516171819202122232425 Q. And consistent with what you Just

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said, you -- you presented some discussion ofthese notes at the Strategy Committee meetingat SeaWorld in January of 2013?A. And my recollection is that I spoke

from them and then I likely gave this documentto the participants of the -- the meeting.Q. And what is the Strategy Committee?A. The Strategy Committee was a -- the

group of executives of the two highest levelsin the corporation, so the -- the officers ofthe corporation, and generally speaking,the -- the -- the people who answered tothe -- to the officers of the corporation. Sodown to the level of VP typically.Q. Were you a Strategy Committee member

in 2013?A. In 2013, I was not.Q. Okay.

Were you in 2014?A. No, no.Q. Okay.A. I was briefly a member of the

Strategy Committee when I answered to JimAtchison in 2008-2009.

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1234 Q. Read that over and let me know when5 you've done so.6 (Whereupon, the witness reviews7 the exhibit.)8 THE WITNESS: I've read it.9 BY MR. D'ANCONA:10111213141516171819202122232425

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BY MR. D'ANCONA:Q. Do you recall any discussion of the

points you just made in your prior answer atPage 98

1 Q. Including national news and2 entertainment programs?3 MR. YOUNGWOOD: Objection to form.4 THE WITNESS: Yes. Yes.5 BY MR. D'ANCONA:6 Q. And did you see a real impact to7 SeaWorld from that attention to the film from

8 mainstream media?9 MR. YOUNGWOOD: Objection to form.10 THE WITNESS: Yeah, and I should11 say that the -- you know, the impact takes12 many forms, as I mentioned earlier. You know,13 they -- they -- the most obvious in media, it14 was staff resources. So between my group and15 the legal group and the public affairs and16 government regions group, you know, this17 was -- when it hit, it already had an impact18 because I had to fly to Utah to watch it and19 then, you know, spend time that I could have20 spent doing other things, analyzing it and21 preparing for it. So -- so there was an22 impact immediately.23 It was not significant at that24 point, but my fear was that it would become25 significant

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1 the Strategy Committee meeting --1 MR. YOUNGWOOD: Objection.3 BY MR. D'ANCONA:4 Q. -- in January 2013?5 MR. YOUNGWOOD: Objection to form.6 THE WITNESS: The only discussion7 that I recall was that a lot of people in the8 room seemed very disappointed in what I was9 saying. In fact, I can recall Jim Atchison

10 saying, you know, sort of sarcastically, like,11 geez, thanks, Fred, or something like that,12 that would. suggest nobody really wanted to13 hear what I was saying. I mean, they wanted14 to hear it, obviously it was an important15 matter, but they wanted to hear a different16 conclusion.17 BY MR. D'ANCONA:18 Q. Do you recall any other discussion19 about Blackfish at this Strategy Committee20 meeting?21 A. No, I don't.22 Q. And after January of 2013, did you23 see mainstream media take an interest in the24 film?25 A. Yes.

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BY MR. D'ANCONA:Q. And — and did it become significant?A. Yeah.


BY MR. D'ANCONA:Q. And did it become significant by July

of 2013?MR. YOUNGWOOD: Objection to form.THE WITNESS: I would say so,

yeah.MR. D'ANCONA: Okay.

BY MR. D'ANCONA:Q. And did it remain -- did the staff

resources devoted to responding to Blackfishremain significant, in your view, after Julyof 2013 and through August of 2014, at least?

MR. YOUNGWOOD: Objection to form.THE WITNESS: Yeah, and I should

say that when -- when you asked me whether thefilm had an impact, I include in that thingsthat cascaded from the film. So mediacoverage, social media activity, protests.Anything that -- that seemed to me to be

directly attributable to the film, rd lumpPage 101

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1 into that category.2 MR. D'ANCONA: I understand.3 Okay. Thank you. You can set that document4 aside.5 (Whereupon, a document was marked,6 for identification purposes, as Jacobs Exhibit7 2.)8 MR. D'ANCONA: Jacobs Exhibit No.9 2 has been placed before you. Please take a10 minute to read through it.11 THE WITNESS: I have.12 MR. D'ANCONA: Okay.13 BY MR. D'ANCONA:14 Q. This is an E-mail from an E-mail15 address SWO-PR. Do you recognize that E-mai16 address?17 A. Yes, I do.18 Q. And what is it?19 A. That is the -- the general E-mail20 account for the PR department at SeaWorld in21 Orlando.22 Q. And it's an E-mail dated April 8th,23 2013, to you. Do you see that, sir?24 A. Yes.25 Q. And the subject is forward:

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want to risk anyone, you know, commenting on,you know, sort of freelancing these responsesto people like this because of the -- the riskthat they might, first of all, say somethingwrong, or that their response might becomepublic.Q. Do you ordinarily respond to letters

or E-mails that you received concerningBlack-fish from members of the public?A. As I mentioned earlier, if one was

clearly beyond my ability to -- to reach them,that is somebody who was passionatelyanti-SeaWorld or abusive or threatening, Iwould just ignore it. Or in some cases, sendit to our operations team because they had asecurity provision for things like that.

But if it was somebody like thiswho is -- you know, this is a letter writtenin good faith expressing genuine reservationswith SeaWorld based on what she saw inBlackfish, this is the kind of thing that Iwould conceivably respond to myselfQ. Do you know if you responded to this

sender?A. I don't recall responding to her.

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1 Blackfish reference. The -- it appears the PR2 department at SeaWorld Orlando has forwarded3 to you a message related to Blackfish; is that4 fair?5 A. Yes.6 Q. Where -- and this is a message from a7 sender named arid it -- and8 it's dated April 6, 2013, down below.9 Do you see that?10 A. Yes, I do.11 Q. Was there -- would you ordinarily12 receive E-mails or letters from members of the13 public that were sent to SeaWorld regarding14 Blackfish in 2013?15 A. It's my recollection that we had16 instructed the SeaWorld parks to send anything17 Blackfish related to me rather than deal with18 it themselves.19 Q. And why?/0 A. Well, Blackfish was a significant21 matter and it -- if-- if-- in this case,22 it's Dagmar who was the administrative23 assistant at -- for the PR department and the24 communications department. And given the25 significance of Blackfish, we really didn't

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1 Q. How would you differentiate between a2 letter sent in good faith versus a letter sent3 from a a hardened activist who you wouldn't4 try to reach?5 A. Well, the --6 MR. YOUNGWOOD: Objection to form.7 THE WITNESS: There are -- they'll8 give you clues, you know. They -- if you can9 sort of tease out the general talking points10 from the animal rights community about11 longevity or about, you know, the stereotypic12 behavior, anything that would sort of signal13 that these are talking points from a -- you14 know, from one of our opponents in the animal15 rights community, that was typically a clue.16 But they you know, in order to17 do it this way, they would have to lie. They18 would have to say, you know what, I visited19 SeaWorld and I enjoyed the experience, but20 then I saw Blackfish.21 You know, the -- the animal rights22 ones were usually pretty easy to -- to sniff23 out.24 BY MR. D'ANCONA:25 Q. Did you -- do you recall whether you

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1 confirmed that she had, in fact, come with her2 family?3 A. That's very difficult to do.4 Q. Okay.5 A. So Pm almost certain that I did not.6 Q. Okay.'7 Do you recall whether in -- in,8 say, the first half of 2013, you -- you9 received other E-mails and letters from10 members of the public conveying that the11 sender had seen Blackfish and -- and would not12 come to SeaWorld?13 A. I don't recall any specifically.14 Q. Do you recall that generally letters15 like that started to come in after Blackfish16 was released?17 A. Yeah.18 Q. Do you recall an approximate volume19 of letters or E-mails like that that you had20 received in, say, the first half of 201321 before the theoretical release?22 A. I--23 MR. YOUNGWOOD: Objection to form.24 THE WITNESS: It would be a -- it25 would be a guess.

Page 106

1 100 people who didn't write me who just went2 off and lived their lives with a hardened3 opinion against SeaWorld.4 Q. So did you view letters from

5 consumers to the effect of I saw Blackfish and6 I -- I won't be coming to SeaWorld as a — as7 a meaningful indicator of-- of public8 sentiment or consumer sentiment towards9 SeaWorld?10 MR. YOUNGWOOD: Objection to form.11 THE WITNESS: I don't know that I12 could draw any conclusions about if this was13 representative of broad or even narrow public14 opinion. All I know is that this one person15 and -- and it would be reasonable to conclude16 that that for every one, there's more out17 there, but whether that rises to the level of,18 you know, sort of this cultural influence. I19 -- I couldn't say.20 MR. D'ANCONA: You can set that21 document aside.22 (Whereupon, a document was marked,23 for identification purposes, as Jacobs Exhibit24 3.)25 BY MR. D'ANCONA:

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1 MR. D'ANCONA: Okay.THE WITNESS: And certainly it

3 would -- it was my recollection it would track4 overall U.S. awareness of the film.5 MR. D'ANCONA: I see.6 BY MR. D'ANCONA:7 Q. Did you take -- leaving aside letters8 from -- that you identified as coming from9 activists, did you take letters from -- from10 people who said that they had seen Blackfish11 and -- and would not be coming to SeaWorld12 after seeing it, did you take letters like13 that seriously?14 A. Oh, yeah.15 Q. Why?16 A. Well, because the --the -- the --17 the threat to SeaWorld's business does not18 come in the form of people who hate SeaWorld19 already; the threat comes in the form of/0 people who are either ambivalent or supportive21 of SeaWorld, but had their minds changed by22 Blackfish.23 So if -- and the way I always24 looked at it was this person went to the25 trouble to wiite me. My worry is about the

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And then you combine that with the2 fact that at least some of them appeared to me3 to be genuinely contrite about what they did4 at SeaWorld. So that makes this5 extraordinarily difficult from my perspective.6 BY MR. D'ANCONA:7 Q. Blackfish was difficult to rebut?8 A. It was --9 MR. YOUNGWOOD: Objection to form.10 THE WITNESS: It was difficult to11 rebut, and we had gone to some lengths to --12 to analyze the film frame by frame, so some13 fine work that had been done cataloguing every14 inconsistency, everything in it that's15 misleading, every error in fact, everything in16 it, scrupulously cited, and that document17 exists to this day. And so they -- you know,18 you're looking at, you know, I think it's 6919 or 70 things that -- that we found wrong with20 the film.21 But my position at the time was if22 it's not on that list, then it must be fight,23 and that's what we have to deal with, that's24 what we have to focus on. So that was my25 concern then.

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1 document aside.2 BY MR. D'ANCONA:3 Q. What was it that made Blackfish so4 complicated and difficult, to use your words?5 MR. YOUNGWOOD: Objection to form.6 THE WITNESS: There was a couple'7 of reasons. The first is the film was well8 made, so it was -- it was impossible to9 dismiss on creative grounds.10 But the most difficult part was11 the authority of the people who are in it.12 You've got, I forget how many, six or seven13 people who were not only SeaWorld employees,14 but SeaWorld employees of a-- of a very15 exclusive fraternity., and that was the men and16 women who were in-water killer whale trainers.17 That, you know, there — there can't be more18 than a few hundred people in the world who can19 claim that.20 So to have them -- because they21 can speak from personal experience and with22 personal authority about what went on during/3 their time. They're also -- they're trained/4 to present to the public, so they're very --25 rhetorically, they're very, very effective.

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1 And again, the -- the people in2 it, Jeff Ventre and Jolm Jett, you know, all3 of those trainers, in-water trainers, some of4 the most experienced in the -- and John

5 Hargrove -- you know, in the country, they6 know so much, and even if you could dismiss7 them all as, you know, disgruntled former8 employees with an axe to grind, you know,9 you're still left with people offering10 insights on their experiences at SeaWorld and11 they -- they're standing behind them. So that12 -- that made it very difficult from my13 perspective.14 (Whereupon, a document was marked,15 for identification. purposes, as Jacobs Exhibit16 4.)17 BY MR. D'ANCONA:18 Q. So you've been handed what's been19 marked as Jacobs Exhibit No. 4. Before we get20 into this document, just a couple questions.21 I believe you -- you mentioned22 this miter, but do you -- do you recall that23 Blackfish was being covered by mainstream24 media including the show Nightline, ABC World25 News with Diane Sawyer, in June of 2013?

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1 MR. YOUNGWOOD: Objection to form.2 THE WITNESS: I don't specifically3 recall those media outlets, but I know that4 there was media attention, and the -- the5 document certainly suggests that that was6 something we were dealing with.7 MR. D'ANCONA: Okay.8 BY MR. D'ANCONA:9 Q. So looking at the document, it's a --10 it's a June 26, 2013, E-mail from Tony Taylor11 to a group of individuals, including yourself12 Do you. see that, sir?13 A. Yes.141516171819202122232425

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6 Q. thd you anticipate ier media7 attention to Blackfish as it was released in8 theaters?9 A. Yes.10 Q. Did you anticipate further media11 attention to Blackfish as it was shown on CNN?12 A. We -- I -- I frankly kind. of13 dismissed the prospect of the CNN airings14 because CNN had such poor ratings. I couldn't15 imagine that their brand new documentary16 division would be any different.17 I didn't anticipate, I don't think18 anybody anticipated what they did. The19 lengths that they went to to promote the film20 with their news division and then their21 obsessive airing of it, hundreds of times they22 aired that film. I don't think -- I didn't23 anticipate that, I don't think anybody else24 anticipated it either.25 Q. When did. you recognize that CNN's

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1 heavy promotion of the film was going to be2 greater than you'd expect?3 A. Well, I think as soon as they really4 started to -- to -- you know, they were5 dispatching crews across, you know, all of6 their news programming. I found that deeply7 offensive as a, you know, as a former8 journalist. I thought it was an enormous9 breach of ethics and said so at every10 opportunity. And they didn't care, obviously,11 and I don't think anybody else cared either.12 The fact that they were -- they13 had a financial interest in this film and that14 they were using the news division, which is15 supposed to be objective and fair-minded to16 promote it, I thought was outrageous. But17 even I was really surprised at the -- at18 the -- at the amount of-- of coverage that19 they were devoting. I think we had done some/0 analysis later that, you know, they -- they21 were covering it six, seven times more than22 their competitors. To me, that was just23 outrageous.2425

age 1

1 referctx:es to Blackfish, what would -- what2 would your takeaway be from that?3 A. Well, that something had occurred4 to — to in --5 MR. YOUNGWOOD: Object to form.

THE WITNESS: -- excuse me, to7 increase the -- so yeah, so there might be --8 you know, there -- there might be a9 letter-writing campaign for PETA or something,10 which would inspire social media activity that11 we would see in our monitoring.12 Clearly any mainstream media13 coverage I would know about because they would.14 have reached out to us. It was very unusual

15 to have anyone in the media cover this16 story -- there were exceptions, but vet),17 unusual for them to cover this stoly without18 reaching out to us. A lot of the reviewers19 never bothered to -- to contact us. In fact,20 virtually none contacted us.21 But other than that, we would know22 in advance if there was going to be a story in23 the paper or on TV about it. But it was the24 other things, the social things that were --25 you know, that we needed to track to sort of

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understand what the -- you know, what thetenor of the debate was.BY MR. D'ANCONA:

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3 34 45 56 67 78 89 910 1011 1112 1213 1314 1415 1516 1617 1718 1819 19/0 20 Q. The cover E-mail from Mr. Taylor21 21 references PulsePoint Group. Do you see that?22 22 A. Yes, 1 do.23 23 Q. What was PulsePoint Group's role with24 24 respect to SeaWorld's Blackfish response in25 25 2013?

Page 124IF 46, 1,44

1 1 A. Well, PulsePoint Group, right around2 this time, or presumably right before this

3 3 time, had been hired to lead the campaign4 4 against Blackfish. They had hired or -- or5 5 subcontracted a portion of the plan to 426 6 West, which is a -- a communications firm that7 7 specializes in, you know, Hollywood film8 8 publicity. So I think -- I think Bob's -- Bob9 9 Feldman's instinct was that that kind of10 10 expertise could be useful, but the -- the, you11 11 know, 42 West is -- excuse me, PulsePoint12 12 Group was the company that -- the firm that13 13 the company decided to -- to take us through14 14 this.15 15 Q. Had you worked with PulsePoint Group16 16 with respect to The Cove film?17 17 A. I don't think so, no.18 18 Q. Had you worked with PulsePoint Group19 19 with respect to any of the other films or20 20 books that came out about -- about the death21 21 of Miss Brancheau?22 22 A. I don't recall ever working -- the --23 23 working with PulsePoint Group before this, and24 24 then certainly I -- I think I would recall25 25 that. But they were hired as the result of

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1 the — of a process that began, you know,2 several months earlier, and that was at the3 direction of Jim Atchison, who I believe was4 operating under the direction of the board of5 directors, that SeaWorld needed to have a6 communications agency, not just for Blackfish,7 but for, you know, any issues that might --8 that might come up that would require, you9 know, good crisis management instinct.10 So we had gone through a pretty11 lengthy process of identifying candidate12 agencies, and PulsePoint Group was one of13 them. They were one on my list, actually. So14 how we went from that process to actually15 contracting with them is — some of that is a16 bit of a mystery to me, but...17 Q. Had you worked with communication18 agencies around crisis management matters with19 respect to any of the prior books or movies/0 that you mentioned related to the death of21 Miss Brancheau?22 A. You know, it's possible that we had23 some boutique agencies that helped us with24 kind of tactical matters. We didn't have a,25 kind of an agency of record. that I -- you

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my view that -- that unless you want to retainan agency on the scale that we used to retainFleishman Hillard, that it was essentiallyuseless. It would just take so much of mytime to bring them up to speed and let them --make them understand what the issues are andthe culture. So it was just pointless, as faras I was concerned.

But the -- but Jim insisted that--that we get an agency, and it just happenedto coincide with Blackfish; that is the -- the-- the idea that we needed. to have an agencyof record. predated Blackfish. But we -- sincewe had done all the work to — to write theRFP and all that stuff, Pulse Point seemed likea good choice.

MR. D'ANCONA: Okay. Thank you.You can set that document aside.

Full that document back out,Exhibit No. 4, please.BY MR. D'ANCONA:

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1 know, I would certainly recall. So we didn't2 have, you know, somebody on retainer that you3 would — like an Edehnan or something that you4 would call up.5 Q. Was the -- was the -- were there more6 consultants involved in assisting Sea World7 with its Blackfish response than had been8 involved in assisting SeaWorld to respond to a9 prior PR crisis?

10 A. The -- yes, with one exception. The11 -- the -- like the death of Dawn Brancheau, we12 had a lot of consultant assistance that was13 given to us by Blackstone, so we had14 attorneys, we had pUblic affairs experts, we15 had communications experts, we had the16 Blackstone communications team all assisting17 us during that early phase.18 But as we — as the dust sort of19 settled on that crisis, you know, other things20 would pop up; campaigns against us from animal21 rights organizations, the — you know, the22 repeated OSHA trouble that we, you know, found/3 ourselves in, which would be very newsworthy24 for a time.25 But it was never-- it was always

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1 Q. Okay.2 In the first line you wrote3 actually, back up. Who is Miss Repass?4 A. Kelly, at the time, was the director5 of research for the company.

6 Q. Okay.7 And you wrote to Ms. Repass, "I8 know you've been in touch with our Blackfish9 consultants." Who did you mean by "our10 Blackfish consultants"?11 A. I can't say for certain, but it's12 likely PulsePoint and perhaps Larry Iser who13 was one of our legal advisors.14 Q. So did you consider PulsePoint a15 Blacklish consultant?

16 A. Yes.17 Q. You go on to say, "It occurs to me

18 that it would be useful to know more about19 national awareness of the film."20 Why did you want to know more21 about national awareness of the film in July22 of 2013?23 MR. YOUNGWOOD: Objection to form.24 THE WITNESS: Because without --25 if you didn't have that understanding, that

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I how big a cultural phenomenon Blackfish was,2 you -- you risk making some very poor

3 3 decisions.4 Now, I was particularly at risk,

5 5 because as I mentioned earlier, all I got was6 MR. D'ANCONA: Okay. Now you can 6 these negative inputs all day every day. So7 set that document aside. 7 for me, it was useful to know how many people8 (Whereupon, a document was marked, 8 really do know about this movie. And if that9 for identification purposes, as Jacobs Exhibit 9 number is really small, then we need to -- we10 5.) 10 need to respond appropriately. If that number11 MR.. D'ANCONA: Sir, Jacobs Exhibit 11 is huge, that's a completely different path.12 No. 5 has been placed. before you. Please read 12 that we have to take.13 it over. 13 So before we started making a lot14 (Whereupon, the witness reviews 14 of vely, very costly decisions, I just felt15 the exhibit.) 15 like we needed to know What the real threat16 MR. D'ANCONA: For the record, 16 was.17 this is an E-mail from Mr. Jacobs sent 17 BY MR. D'ANCONA:18 July 11th, 2013, to Kelly Repass. The Subject 18 Q. At the bottom of the E-mail you say,19 line is survey. 19 "I just spoke with Tony and he agrees." Do/0 THE WITNESS: I've read it. 20 you see that?21 MR. D'ANCONA: Okay. 21 A. Yes, I do.22 BY MR. D'ANCONA: 22 Q. Do you recall discussing with --23 Q. And you sent this E-mail; correct, 23 strike that.24 sir? 24 Is that Tony Taylor?25 A. Yes, I did. 25 A. Yes, it is.

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1 Q. Do you recall discussing with Mr.2 Taylor the proposition of doing a survey3 concerning national awareness of Blackfish in4 July of 2013?5 A. Yes, I do.6 Q. What do you recall discussing with7 Mr. Taylor?8 A. Well, because -- let me back up.9 PulsePoint Group had a connection that was10 unknown to me before -- before I started the11 search, the recruitment for this agency.12 And -- and that seemed. to be an issue as we13 moved forward. And what I mean by that is14 I -- I sought out PulsePoint Group based15 solely on what I had — the research I had16 done on their expertise, their crisis work,17 their work with issues similar to this. So18 that's why they were on my list and that's why19 I reached out to Bob with kind of a summary/0 document explaining what we were prepared to21 spend and what we wanted to accomplish.22 Q. That's Bob Feldman?23 A. Bob Feldman, yes.24 Q. And he's PulsePoint?25 A. That's right.

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1 Q. Okay.A. And it was my understanding that at

3 that point, Bob reached out to David4 D'Alessandro, who was our chairman of the5 board, because they were classmates at, I6 think it was Cornell, and I had -- so that7 conversation obviously occurred without me8 being present.9 But apparently -- and I know this10 because either -- it was either Tony or Jim11 had conveyed, to me that David. thought that our12 approach in the RFP was all wrong. He said13 that it -- that it -- that we weren't likely14 to get anybody interested in representing us15 because the -- the -- you know, the scale of16 the retainer was too low, the -- the focus of17 the work was too narrow, and he felt we were18 out of line by -- by doing that, by -- by19 recruiting agencies in that way./0 And I said look, this -- we are21 recruiting agencies based on the exact22 criteria given to us by Jim Atchison. It's23 that simple. Every word in it, you know, the24 focusing on mid to small agencies, a retained25 relationship of a modest amount of money, all

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1 of those things were given to us, that2 direction was given to us by Jim, and I was3 simply following those directions really to4 the letter.

5 So the idea that we would dangle6 in front of somebody an enormous, you know,7 retainer, that was contrary to Jim's8 direction.9 I didn't think too much about it10 after that, but we never completed the -- the11 process of recruiting. Not long after the12 process had begun, we simply hired PulsePoint13 Gmup.14 Q. So how did that bear upon your15 thinking on. or what you discussed with Mr.16 Taylor about running surveys to know more17 about national awareness of the film in July?18 A. Well, given the relationship of Bob19 with David D'Alessandro, I was uncertain of my20 own authority, either as a tactical matter or21 as a strategic matter. And if the decision on22 who we were going to work with was being made23 at that level, then maybe I don't have the24 authority to do what I think is transparently25 a good idea, and that is to start gauging

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public awareness.So I went to Tony and he says,

don't be ridiculous, it's a good idea, let'sdo it. And -- and he reminded me that I wasthe head of communications for SeaWorldEntertainment and -- and, you know, that comeswith a certain amount of authority.

So I was -- I appreciated thatvery much because I wasn't now in the serviceof PulsePoint Group.Q. I see.A. PulsePoint was in the service of

SeaWorld.

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3 34 45 56 67 78 89 910 1011 1112 12 BY MR. D'ANCONA:13 13 Q. Are you aware of an association in14 14 the United Kingdom called the Scout15 15 Association?16 16 A. I believe that's a variant of the Boy17 17 Scouts of America, or their version of the Boy18 18 Scouts.19 19 (Whereupon, a document was marked,/0 20 for identification purposes, as Jacobs Exhibit21 21 10.)22 22 MR. D'ANCONA: For the record,23 23 Jacobs Exhibit No. 10 has been passed to the24 24 witness. It's an E-mail from Neil Foster on25 25 August 6, 2013, to Fred Jacobs and others.

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2345678910111213141516171819 Do you recall any discussions20 about impacts of-- of Blackfish on tour21 operators actually getting people to come to22 SeaWorld after August of 2013?23 A. Yes. It was always -- you know,24 there was always the potential issue that25 something like this would affect our -- our

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I to cut it off in October -- or excuse me, in2 August.3456

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123456 Q. In your mind, if someone intended to7 see the movie, was that -- did you view that8 as -- as bad news for SeaWorld?9 A. Yeah.10 Q. Okay.11 Do you recall what you. made of the12 fact that the national awareness level went13 from 5.2 percent the prior week to 7.9 percent14 in -- in. week five?15 A. I don't recall.16 Q. Okay. That's a large growth in17 awareness over one week; would you agree with18 that?19 A. I would.20 Q. At the time of this E-mail, did you21 believe that increasing awareness and an22 intent to see Blackfish was injuring23 SeaWorld's reputation?24 MR. YOUNGWOOD: Objection to form.25 THE WITNESS: Would you repeat the

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1 question?2 MR. D'ANCONA: Sure.3 BY MR. D'ANCONA:4 Q. At the time of this E-mail when you5 had these study results, August 20th, 2013,6 did you believe that growing national7 awareness of Blackfish and intent to see the8 film was hurting SeaWorld's reputation?9 MR. YOUNGWOOD: Objection to form.10 THE WITNESS: Yes. Just a11 question of how much.12 BY MR. D'ANCONA:13 Q. Do you know of any analysis that had.14 been done by August 20th, or around15 August 20th, 2013, to determine whether this16 increasing awareness of Blackfish seen in the17 survey data could be linked to an attendance18 impact at SeaWorld parks from people hearing19 or seeing both?20 Mk YOUNGWOOD: Objection to form.21 THE WITNESS: Yeah, I don't know22 if that research had been commissioned or even23 contemplated.24 BY MR. D'ANCONA:25 Q. Aside from whether it was done or

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1 not, do you recall any discussions about the2 potential for research or the need to do3 research along those lines to -- to try to4 connect information in the data that you had5 about awareness of the film and intent --6 intent to see the film and to connect that7 with potential attendance impact or business8 impact on SeaWorld?9 MR. YOUNGWOOD: Object to the10 form.11 THE WITNESS: Not that I recall,12 but you would, you know, look for a leading13 indicator. You know, you've got attendance14 softness someplace that you hadn't15 anticipated. You know, the — you start to16 look for reasons why. But in the, you know,17 the theme park business, it's very, very18 difficult to determine why somebody didn't19 come. So to tie anything to attendance, you/0 know, is a-- sort of an exercise in theory,21 opinion in a lot of cases. It's --22 BY MR. D'ANCONA:23 Q. Are you -- I'm sorry, I didn't mean24 to cut you off.25 A. No, no. And I'm kind of getting out

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1 of my sphere here, you know. That was sort of2 a marketing/sales thing.3 Q. It was a — it was a4 marketing/sales -- it was in the5 marketing/sales domain to analyze and6 determine reasons why people were not coming7 to the park?8 A. Yeah.9 MR. YOUNGWOOD: Objection to form.10 BY MR. D'ANCONA:11 Q. And is that -- was that true in your12 experience at -- at Sea World? Was the13 marketing and sales teams, it was within their14 -- the ambit of their responsibilities to15 explain reasons for why people were not coming16 to SeaWorld parks?17 MR. YOUNGWOOD: Objection to form.18 THE WITNESS: Yes.19 MR. D'ANCONA: Okay.20 BY MR. D'ANCONA:21 Q. And would those be the marketing and22 sales people that you referenced in your prior/3 answer, would those be the marketing and sales24 people at the particular parks?25 MR. YOUNGWOOD: Objection to form.

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THE WITNESS: Yes. And diecorporate marketing and sales teams.

MR. D'ANCONA: Okay.BY MR. D'ANCONA:

Q.that.

Did you have any -- well, strike

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MR. D'ANCONA: Okay. Okay. Youcan set that document aside.

(Whereupon, a document was marked,for identification purposes, as Jacobs Exhibit13.)

MR. D'ANCONA: Jacobs Exhibit No.13 is an E-mail from Mr. Jacobs onAugust 28th, 2013, to Darla Morse, "Subject:Re: (BN) SeaWorld Slashes Park Prices AmidAttendance Drop, Orca Critique."

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1 BY MR. D'ANCONA:2 Q. Do you. see that, sir?3 A. Yes.4 Q. Have you had a chance to look over5 this E-mail?6 A. Yes.7 Q. Okay.8 You sent this E-mail to Darla9 Morse; correct?10 A. Yes.11 Q. Okay.12 And your E-mail at the bottom13 contains a copy of an August 28th, 2013,14 article that appeared in Bloomberg authored by15 Christopher Palmeri. Do you see that?16 A. Yes, I do.17 Q. Is this the Bloomberg reporter who18 you referenced in your testimony earlier this19 morning?/0 A. Yes.21 Q. Okay.22 The article generally addresses an23 attendance drop at SeaWorld in 2013; is that24 fair?25 A. Yes.

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1 A. That is in -- that is I could2 attribute -- let me — let me clarify this.3 Q. Yeah, explain.4 A. For this statement to be true, not a5 single person who was contemplating a visit to6 SeaWorld and changed their mind because of7 Blackfish came. That -- so the statement is

8 unequivocal and I just can't conceive that it9 isn't --you know, that there wasn't at least10 one person out there who changed their mind11 about visiting Sea World because of Blackfish.12 Q. When you made your statement, did you13 know whether it was -- you did not know14 whether it was true or not; is that fair?15 MR. YOUNGWOOD: Objection 1:016 THE WITNESS: I didn't believe it17 to be true.18 MR. D'ANCONA: Okay.19 BY MR. D'ANCONA:20 Q. In the E-mail at the top of this21 thread from yourself to Darla Morse --22 A. Um-limm.23 Q. -- I draw your attention to that.24 Who is Darla Morse?25 A. Darla was the chief IT officer for

form.

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I Q. On. the page of the exhibit bearing2 the Bates number ending 310, there is a3 paragraph that says, "The company is also4 coping."

5 Do you see that?6 A. Yes, I do.7 Q. "The company is also coping," it8 says, "with negative publicity from Blackfish9 released in U.S. theaters on July 19th, which10 began getting attention after its premier at11 the Sundance Film Festival in January. Quote,12 We can attribute no attendance impact at all13 to the movie, Jacobs said."14 Do you see that?15 A. Yes.16 Q. Did you provide the quoted statement17 that appears there to a reporter from18 Bloomberg?19 A. Yes.20 Q. Was that a true statement when you21 made it?22 MR. YOU NGWOOD: Objection to form.23 THE WITNESS: No.24 BY MR. D'ANCONA:25 Q. It says --

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the company at that time.Q. And you're responding in your E-mail

to a question from Ms. Morse, and you say, "Iguess he figures our attendance softness isinfluenced in part by consumer response toBlackfish. It's a theory that is impossibleto prove or disprove."

Do you see that?A. Yes.Q. When you say, "It's a theory that is

impossible to prove or dis -- disprove,"please explain what you meant.A. Well, as I said earlier, it -- trying

to determine why somebody didn't visit a themepark is difficult to do. It -- so the --well, there's a couple of things. So whateverdecrement that you're talking about, say it's-- you're down 100,000. So you have todetermine, really through educated guesses,whether a single cause is responsible for thatdecrement, or multiple causes are responsiblefor that decrement. And then you apportionhow much each of those is responsible for agiven amount of the attendance decline.

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I there's just simply no way to identify the2 100,000 people who are going to come but then3 didn't, and then ask them or try to determine4 why is it that you decided not to come.5 So was it -- you know, was it a6 financial issue? Was it an exchange rate7 issue? Was it a weather issue? What is it?8 But absent that, it's very, very9 difficult to determine, you know, what -- why10 somebody didn't come.11 Q. Why didn't you say that to Bloomberg?12 Why did you say -- if you didn't believe your13 statement to be true —14 A. Um-hinni.15 Q. -- instead you believed what you said16 to Miss Morse to be the case, why didn't you17 -- why didn't you say that to Bloomberg?18 MR. YOUNGWOOD: Objection to fonn.19 THE WITNESS: I was instructed to20 answer the question by Jim Atchison.21 MR. D'ANCONA: I see.22 BY MR. D'ANCONA:23 Q. Are you aware of any -- any factual24 basis that Jim Atchison had in his possession25 that supported that statement when you made

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1 recall like that.2 BY MR. D'ANCONA:3 Q. And you said that was with an4 executive?5 A. I believe so. I mean, it's -- I --6 the broad term would -- would sort of cover7 just about everybody in the corporate office,8 so it's --you know, I wouldn't want to, you9 know, put more to it than that.10 Q. Do you recall whether it was in11 calendar year 2013?12 MR. YOUNGWOOD: Objection to form.13 THE WITNESS: No.14 BY MR. D'ANCONA:15 Q. Do you recall it being a discussion16 of of statements to the effect that17 Blackfish is having no impact on the business?18 MR. YOUNGWOOD: Objection to form.19 THE WITNESS: Yes, it would be a20 statement about how unequivocal the -- the21 comment was, either in the paper or with22 analysts or -- or whatever -- whatever the23 context was, it was too unequivocal.24 MR. D'ANCONA: Okay.25 THE WITNESS: Josh, after this,

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A. No.3 MR. YOUNGWOOD: Objection to form.4 MR. D'ANCONA: Okay. You can set5 that document aside.6 BY MR. D'ANCONA:7 Q. Mr. Jacobs, did you ever say to Mr.8 Atchison that you did not believe what you9 said to the Bloomberg reporter to be true?10 A. I don't believe so.11 Q. Do you. recall any discussions with12 any -- do you recall any discussions with any13 colleagues at Sea World. in -- at any time in14 2013 to the -- to the effect that that15 statement was not true?16 MR. YOUNGWOOD: Objection to form.17 THE WITNESS: I have a -- kind of18 a vague recollection of a conversation, and19 it's -- I can't even tell you who it was with,20 in which whoever the executive was said21 something to the effect of, we need to stop22 answering questions that way or questions that23 way or something to that effect, and I24 apologize that I don't have a keener memory of25 it, but that's the only conversation that I

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1 can we get a quick break, very quick?2 MR. D'ANCONA: Sure. You know3 what, we can take a break right now, before we4 get into the document.5 THE WITNESS: Are you sure?6 MR. D'ANCONA: Absolutely. Can we7 go off the record.8 THE VIDEOGRAPHER: Off the record9 at 2:54.10 (Whereupon, a recess was taken at11 the above time.)12 (Whereupon, a document was marked,13 for identification purposes, as Jacobs Exhibit14 14.)15 THE VIDEOGRAPHER: The time now is16 3:03, back on the record. beginning of Disk17 No. 4.18 BY MR. D'ANCONA:19 Q. Welcome back, Mr. Jacobs.20 A. Urn-lunm.21 Q. You've been handed what's marked as22 Jacobs Exhibit No. 14. Have you got that23 before you, sir?24 A. Yes.25 Q. Have you had a chance to look that

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I over? 1.2 A. Yes, I have. 23 Q. Okay. 34 4 MR. D'ANCONA: Okay. You can set5 5 that aside.6 6 (Whereupon, a document was marked,7 7 for identification puiposes, as Jacobs Exhibit8 815.)9 9 BY MR. D'ANCONA:10 10 Q. Mr. Jacobs, Jacobs Exhibit No. 15 has11 11 been placed before you. It is an E-mail from12 12 you on August 30th, 2013, to Jim Atchison,13 13 Tony Taylor, Jim Heaney, Marc Swanson and14 14 others.15 15 A. Um-hmm.16 16 Q. The subject is "LA Times Story."17 17 Do you see that?18 18 A. Yes, I do.19 19 Q. Do you recall sending this E-mail?/0 20 A. Yes, I do.21 21 Q. Okay.22 22 What do you recall about sending23 23 this E-mail?24 24 A. My recollection is that when the25 25 story appeared. that my quote about slashing

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1 I prices required some explanation. So the --1 2 it -- that seems to be why I sent it, so that3 3 they would know the full context of why I said4 4 that thing that Pm quoted as saying.5 5 Q. I see.6 6 Your E-mail copies an article by7 7 Hugo Martin from the LA Times; is that8 8 correct?9 9 A. That's correct.10 10 Q. Okay.11 11 Do you recall that this article12 12 originally was published on August 29th?13 13 MR. YOUNGWOOD: Objection to form.14 14 THE WITNESS: I don't recall the15 15 date of publication.16 16 MR. D'ANCONA: Okay.17 17 BY MR. D'ANCONA:18 18 Q. In any event, you are circulating19 19 this at 7:36 in the morning on August 30th;10 ?.0 correct?21 Z1 A. Yes.22 ?.2 Q. Okay.23 3 In the LA Times story, you are24 Z4 quoted as saying, "We are not slashing prices,25 .Z5 period, Fred Jacobs, vice president of

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