Hilsley v. Ocean Spray Cranberries, Inc. et al

RESPONSE re Reply to Response to Motion, Defendants' Objections and Motion to Strike Plaintiff's Late-

S.D. Cal.October 9, 2018

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 26 27 28 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION GREENBERG TRAURIG, LLP Rick L. Shackelford (SBN 151262) Adam Siegler (SBN 116233) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700; Fax: 310-586-7800 Email: ShackelfordR@gtlaw.com SieglerA@gtlaw.com Attorneys for Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CRYSTAL HILSLEY, on behalf of herself and all others similarly situated, Plaintiff, v. OCEAN SPRAY CRANBERRIES, INC.; ARNOLD WORLDWIDE LLC, and Doe Defendants 1 through 5, inclusive, Defendant. CASE NO.: 3:17-CV-2335-GPC-MDD [Hon. Gonzalo P. Curiel] DEFENDANTS’ OBJECTIONS AND MOTION TO STRIKE PLAINTIFF’S LATE-FILED EVIDENCE IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Date: October 12, 2018 Time: 1:30 p.m. Courtroom: 2D Date of Removal: September 19, 2017 Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1729 Page 1 of 13 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 26 27 28 1 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION OBJECTIONS AND MOTION TO STRIKE Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide LLC hereby object and move to strike the evidence submitted, for the first time, in the Reply (Dkt. No. 35) in support of Plaintiff’s Motion for Class Certification which had been previously filed on August 16, 2018 (Dkt. No. 23). This evidence consists of the Declaration of Dr. Laslo Somogyi (“Somogyi Decl.”) (Dkt. No. 35-9), an expert witness whose opinions were never disclosed in discovery or in the moving papers, and certain exhibits attached to the most recent Declaration of Robert Marron (Dkt. No. 35-1), consisting of hearsay newspaper and journal articles, and product labels which are not even at issue in this case. The specific objections are tabulated below, but several general objections are in order. A. The Evidence Was Improperly Introduced in Reply. First, the evidence is improperly introduced in the reply, not the moving papers, thus denying Defendants any meaningful opportunity to respond to it. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“[W]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non-]movant an opportunity to respond.”) (citation and internal quotation marks omitted). Townsend v. Monster Beverage Corp., 303 F. Supp. 3d 1010 (C.D. Cal. 2018) is right on point. In that case, a putative class action regarding beverages, the plaintiffs' expert's supplemental report was filed in support of their reply brief in support of their motion for class certification. Id. at 1026. The trial court ruled that it constituted new evidence, and ordered it stricken, even though the report used the same methodology, evaluated the same statements, and arrived at the same conclusions as expert's original report. Id. at 1027. The court reasoned that the redesigned survey generated new data, and defendants had had no opportunity to cross-examine the expert or to respond to new evidence. Id. at 1027-28. This case is much more egregious than in Townsend, because none of Dr. Somogyi’s opinions, data or methodology were ever disclosed in discovery Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1730 Page 2 of 13 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 26 27 28 2 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION or in the moving papers. See also Docusign, Inc. v. Sertifi, Inc., 468 F. Supp. 2d 1305, 1307 (W.D. Wash. 2006) (“It is well established that new arguments and evidence presented for the first time in Reply are waived.”); Iconix, Inc. v. Tokuda, 457 F. Supp. 2d 969, 976 (N.D. Cal. 2006) (sustaining an objection to new evidence and argument submitted with a plaintiff’s reply); Nguyen v. Marketsource, Inc., No. 17-CV-02063- AJB-JLB, 2018 WL 2182633, at *4 (S.D. Cal. May 11, 2018) (“[C]ourts routinely hold that new evidence or arguments may not be filed in a reply memorandum unless the other party is given a chance to respond.”). B. The Evidence Was Not Produced in Discovery. This new evidence offered in reply was never produced in class discovery. It is fundamental that a plaintiff cannot introduce by motion evidence which she withheld from discovery. See Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1028 (9th Cir. 2003) (upholding the district court’s decision to exclude a document that was not produced in discovery and noting that, “the district court may validly exclude, as a discovery sanction, evidence not produced in discovery”). As previously noted in the Declaration of Rick Shackelford (“Shackelford Decl.”) (Dkt. No. 30-2), Plaintiff refused to provide a single substantive interrogatory response, and refused to produce documents, other than a single page test result not relevant here. (Shackelford Decl. ¶¶ 4-9.) Defendants had specifically requested information on experts: INTERROGATORY NO. 22: Identify all information shared between you, your counsel, and any expert whose opinions you intend to offer in support of your motion for class certification motion. INTERROGATORY NO. 23: Identify the name of each person whose testimony, declaration, or expert opinion you intend to offer in support of your motion for class certification. (Ex. 6 to Shackelford Decl., emphasis added.) Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1731 Page 3 of 13 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 26 27 28 3 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Hilsley’s responses included pages of a “Preliminary Statement,” General Objections,” and “Objections to Definitions,” followed by this response: Plaintiff incorporates by reference the general objections set forth above. Plaintiff further objects to this Request [sic] on the following grounds: Plaintiff objects to this Interrogatory to the extent that it seeks information that is protected from disclosure by the attorney-client privilege and/or the attorney work product doctrine. Plaintiff objects to this Interrogatory to the extent that it seeks premature disclosure of expert materials and opinions. Plaintiff objects to this Interrogatory to the extent that it seeks information that is neither relevant nor proportional to the needs of the case. Discovery is ongoing and Plaintiff reserves the right to supplement this response as discovery proceeds. (Exhibit 7 to Shackelford Decl., emphasis added.) In other words, nothing was disclosed about Dr. Somogyi or any other expert for that matter.1 Similarly, all relevant labels were requested in class discovery: REQUEST FOR PRODUCTION NO. 2: All documents that reflect purchases by Plaintiff of the Products identified in the Complaint, including grocery receipts, saved containers or labels, grocery lists and grocery budgets. REQUEST FOR PRODUCTION NO. 8: All documents that constitute any labels reviewed by Plaintiff prior to her purchases of Products or Related Products. REQUEST FOR PRODUCTION NO. 32: All documents that constitute the “labels,” “labeling” and “advertising statements” as alleged in Paragraphs 156-160 of the Complaint. (Exhibit 3, to Shackelford Decl., emphasis added.) 1 Plaintiff never produced for deposition the two experts whom she did disclose in the moving papers. Defendants’ counsel requested available dates to depose the two experts whose opinions were put forward in support of the motion. Mr. Houchin responded later that day that they were “checking availabilities.” But they never did. Needless to say, no deposition has been, or could be, taken of Dr. Somogyi, who has just appeared in the Reply. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1732 Page 4 of 13 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 26 27 28 4 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION But not a single label was ever produced by Hilsley. (Shackelford Decl. ¶ 6.) Plaintiff cannot now add new experts and new labels that she withheld from discovery. C. The Evidence Is Not Competent Or Probative. Even if this evidence had been disclosed in discovery and appended to the moving papers, it is still incompetent and irrelevant. 1. Mr. Marron’s Exhibits Are Irrelevant Hearsay. Exhibits 1 through 5, the newspaper and journal articles offered by Mr. Marron, are just hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (Federal Rules of Evidence (“FRE”) 801(c)). Hearsay evidence should be disregarded at summary judgment. See Finocchi v. Corbin, No. 89-16283, 1991 U.S. App. LEXIS 11763, at *9 (9th Cir. May 31, 1991) (“[H]earsay evidence does not create a genuine issue of material fact sufficient to withstand a summary judgment motion.”); Roberts v. Heim, No. C 84-8069 TEH, No. C 87-6174 TEH, No. C 88-3373 TEH, 1991 U.S. Dist. LEXIS 19377, at *6 (N.D. Cal. Aug. 28, 1991) (“Hearsay evidence is inadmissible and must be disregarded at summary judgment.”); DePinto v. Provident Sec. Life Ins. Co., 374 F.2d 50, 55 (9th Cir. 1967); In re Fortune Sys. Sec. Litig., 680 F. Supp. 1360, 1366 (N.D. Cal. 1987); Hudson v. Moore Bus. Forms, Inc., 609 F. Supp. 467, 477-48 n.5 (N.D. Cal. 1985). Here, Exhibits 1 through 5 are unsworn statements by witnesses not before this Court, that are not tied to any admissible expert opinion. Simply put, somebody in counsel’s office obviously went trolling through the internet trying to dredge up something to save the poor showing made in the moving papers. Exhibit 6, a screen shot of a single serving 100% Apple Juice product, has nothing to do with this case. The website cited by Mr. Marron plainly shows it is a “single serve” product: https://www.oceanspray.com/Products/Juices-and-Drinks/By-Type/On-the- Go/Single-Serve-100-Apple-Juice. (Dkt. No. 35-7.) But Plaintiff does not claim that she bought this product, and thus it is completely irrelevant to this litigation. The only Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1733 Page 5 of 13 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 26 27 28 5 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION product sizes at issue in this litigation are 60-ounce and 64-ounce products, not single serve products. Exhibit 7, from an unrelated third-party website, in addition to being hearsay, is also a product that Plaintiff has not claimed she purchased, so it is irrelevant in addition to being inadmissible hearsay. 2. Dr. Somogyi Is Not Qualified And His Opinions Are Irrelevant. Dr. Somogyi is not qualified to offer the speculative opinions in his Declaration. He does not even mention any of the Ocean Spray products except for Cran-Apple. (Somogyi Decl. ¶¶ 33-38, 40.) Thus, his opinion does not cover the other products Hilsley claims she bought: Ocean Spray Cran-Grape and Ocean Spray 100% Apple juice.2 (See Declaration of Plaintiff Crystal Hilsley in Support of Plaintiff’s Motion for Class Certification and to Appoint Class Counsel (“Hilsley Decl.”), ¶ 4. Dkt. No. 30-2). And there is good reason for his silence: The 100% Apple Juice product that Hilsley claims she bought does not contain any added malic acid or fumaric acid, so there is nothing for him to say. Dr. Somogyi has done no testing or analysis of any of the challenged Ocean Spray products, including Cran-Apple, so his opinions as to any Ocean Spray products are lacking in any foundation to support his purported opinions. And he has done no investigation or review of the unchallenged testimony of Erich Fritz that malic acid was used as an acidulant, not as a flavor. In fact, Dr. Somogyi’s claim that only a “small quantity” of malic acid was used (Somogyi Decl. ¶ 38) actually proves Mr. Frtiz’s point. Only small quantities were needed to even out the pH consistency from one batch to the next, and it was added as required by pH testing, not by flavor testing. In other words, 2 Hilsley also claimed that she purchased Cranberry Juice Cocktail. (Hilsley Declaration, ¶ 4.) However, in Plaintiff’s Reply in Support of Plaintiff’s Motion for Class Certification and to Appoint Class Counsel (“Reply”) (Dkt. 35) she concedes that Cranberry Juice Cocktail does not contain malic acid. (Reply, at 9 n.4.) (“Plaintiff believes after additional research that a historical ingredient list obtained for Cranberry Juice Cocktail is likely incorrect and the product does not contain malic acid as previously thought.”). Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1734 Page 6 of 13 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 26 27 28 6 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Dr. Somogyi’s opinion boils down to speculation that if malic acid had been used as a flavoring agent in other products, it must therefore have been used as a flavoring agent in this product at issue, named Cran-Apple. But Cran-Apple already has apple in it; it doesn’t need malic acid to provide apple flavor. In any event, his speculation is inadmissible. Thus, in addition to being late, Dr. Somogyi’s opinions completely unsupported by any scientific analysis and do not meet the most basic requirements for an expert opinion. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-98 (1993); see also Elliott v. Google, Inc., 860 F.3d 1151, 1160 (9th Cir. 2017), cert. denied, 138 S. Ct. 362 (2017) (ruling that “the district court properly excluded two of Elliott's consumer surveys because they were not conducted according to accepted [scientific] principles”). There is no way to replicate the results of any tests he never performed, or to examine the error rate in any analyses he never conducted, or to challenge the methods he never reveals. His opinions are classic ipse dixit, and should be excluded as inadmissible even if they had been disclosed timely, which, of course, they were not. Defendants’ specific objections are noted below and incorporate the general objections above. All citations below are to the Federal Rules of Evidence (“FRE”). OBJECTIONS TO MARRON EXHIBITS Material Objected To: Grounds for Objection(s): Ruling: 1. Marron Exhibit 1 Article 1. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 2. Marron Exhibit 2 2. Hearsay, FRE 801(c); lack of Sustained ___. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1735 Page 7 of 13 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 26 27 28 7 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Material Objected To: Grounds for Objection(s): Ruling: Article foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Overruled ___. 3. Marron Exhibit 3 Article 3. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 4. Marron Exhibit 4 Article 4. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 5. Marron Exhibit 5 Article 5. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1736 Page 8 of 13 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 26 27 28 8 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Material Objected To: Grounds for Objection(s): Ruling: 6. Marron Exhibit 6 – Screenshot of 100% Apple Juice Single-Serve Label 6. Irrelevant, FRE 401; improper expert testimony, FRE 701, 703- 706; not disclosed in discovery or moving papers. Plaintiff never bought this product. Sustained ___. Overruled ___. 7. Marron Exhibit 7 – Screenshot from Fred Meyer 7. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. OBJECTIONS TO DR. SOMOGYI Material Objected to: Grounds for Objection(s): 8. Somogyi Decl. ¶ 24, page 4, lines 20-21. “L-malic acid is classified by FEMA as flavoring ingredient (FEMA No. 2655).” 8. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 9. Somogyi Decl. ¶ 25, pages 4-5, lines 4:23- 5:10. “Either l- or dl- 9. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, Sustained ___. Overruled ___. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1737 Page 9 of 13 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 26 27 28 9 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Material Objected to: Grounds for Objection(s): malic acid can be used . . . use of fumaric acid in combination with malic acid improves the flavor profile of the product.” FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. 10. Somogyi Decl. ¶ 26, page 5, lines 13-15. “Dl-Malic Acid is used as a flavoring agent . . . bakery products.” 10. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 11. Somogyi Decl. ¶ 27, page 5, lines 16-20. “Non-carbonated beverages: . . . can mask astringency and aftertaste of some salts.” 11. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 12. Somogyi Decl. ¶ 28, pages 5-6, lines 5:21-6:2. “Carbonated beverages: . . . the overall flavor profile is broader and more natural.” 12. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1738 Page 10 of 13 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 26 27 28 10 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Material Objected to: Grounds for Objection(s): 13. Somogyi Decl. ¶ 29, page 6, lines 3-6. “Powdered mixes . . . .” 13. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 14. Somogyi Decl. ¶ 30, page 6, lines 7-12. “Low Calorie beverages . . . .” 14. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 15. Somogyi Decl. ¶ 31, page 6, lines 13-15. “Ciders and wines:. . . .” 15. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 16. Somogyi Decl. ¶ 37, page 7, lines 10-14. “Apple and cranberry juice are classified as high-acid foods. . . .” 16. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or Sustained ___. Overruled ___. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1739 Page 11 of 13 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 26 27 28 11 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Material Objected to: Grounds for Objection(s): moving papers. 17. Somogyi Decl. ¶ 38, page 7, lines 15-18. “Laboratory analysis . . . will function as a flavor and flavor enhancer.” 17. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 18. Somogyi Decl. ¶ 39, page 7, lines 19-21. “Dl-malic acid adds tartness, astringency, and a fruit-like flavor profile . . . in particular the flavor of apples.” 18. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 19. Somogyi Decl. ¶ 40, page 8, lines 1-3. “I conclude . . . to function as a flavoring agent.” 19. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Sustained ___. Overruled ___. 20. Somogyi Decl. ¶ 41, page 8, lines 4-7. “Fumaric acid similarly functions . . . in 20. Hearsay, FRE 801(c); lack of foundation/lack of personal knowledge, FRE 602; irrelevant, FRE 401; improper expert Sustained ___. Overruled ___. Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1740 Page 12 of 13 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 26 27 28 12 3:17-CV-2335 DEFENDANTS’ OBJECTION TO EVIDENCE SUBMITTED ISO CLASS CERT MOTION Material Objected to: Grounds for Objection(s): combination with malic acid can improve the flavor profile of the product.” testimony, FRE 701, 703-706; not disclosed in discovery or moving papers. Dated: October 9, 2018 Respectfully submitted, GREENBERG TRAURIG, LLP By: /s/: Rick L. Shackelford Rick L. Shackelford Adam Siegler Attorneys for Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC LA 134038513v3 Case 3:17-cv-02335-GPC-MDD Document 60 Filed 10/09/18 PageID.1741 Page 13 of 13