Edge Systems LLC et al v. Aguila

MOTION to Strike Plantiff's Expert Witness Report and Preclude Expert Testimony

S.D. Fla.December 4, 2015

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLO RIDA M IAM I DIVISION CASE NO . 1:14-cv-24517-K M M /M CALlLEY EDGE SYSTEM S, et aI., Plaintiffs, F IL E D by D . C . DE2 () 2215 5 f iè' V L N M 1 - h ER l M O R E C L E:è R K U S D 4S 1' C; T S D of FL.A - M IAMI Rafael Newton Aguila, Defendant. / Defendant's M otion To Strike Plaintiffs' Expert W itness Report A nd Preclude Expert Testim ony INTRODUCTION The Defendant, Rafael Aguila, seeks to preclude the introduction of any docum ents that were not produced by the Plaintiffs prior to the discovery cutotx ''Discovery must be completed in accordance with the court-ordered discovery cutof-f datev'' S.D. Fla. Local R. 26. 1(9. The only exception to this rule is if the parties agree to conduct discovery after the discovery cutoff date, but such is not the circumstance here. The discovery cutoff in this case was November 14 , 20l 5. (D.E. l 041. See Jones 3., Royal (.7t'/rj/p/tv/?? Cruises, Ltd., No. 1 2-20322-C1V, 20 1 3 WL 869536 l (S.D. Fla. Apr. 4, 2013). The parties are to submit their expel't disclosures ''at the times and in the sequence that the court orders.' Fed.R.CiV.P. 26(a)(2)(D). According to Rule 26(a)(2), it requires a party to disclose to the other parties the identity ofany expel't witness it may use at trial to present evidence and 'tgelxcept as otherwise stipulated or directed by the court, this disclosure shall ... be accompanied by a written report prepared and signed by the witness.' Fed.R.CiV.P. 26(a)(2). Thus, 'gdjisclosure of expel't testimony' within the meaning of (Rule 261 contemplates not only the identifcation of the expert, but also the provision of kthe expelfs) written report.'' Reese v. Herbert, 527 F.3d 1253, l 265 (1 lth Cir. 2008),. see Prieto v. Malgor, 36l F.3d 1313, 1317-18 (1 lth Cir.2004). Defendant's M otion To Strike Plaintiffs' Expert W itness Repol't And Preclude Expert Testimony-- 14-cv-245 l 7-KM M Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 1 of 27 Here, the Plaintiffs did not produce their expert witness' written report until after the close of discovery. Thus, Defendant's disclosure of the Plaintiffs' expert written report after the close of discovery ran afoul of Rule 26 and Local Rule 26.2(C), as interpreted in Reese. 5'E!t? OFS Fitel, LL (7 v. Epstein, Becker tznt./ Green, #.C2, 549 F.3d l 344 ( l lth Cir. 2008) Rule 37(Q(1) gives teeth to the requirements imposed by Rule 26 by forbidding the use at trial of any information that is not properly disclosed. Hqyman v. Construction Protective Services /??c., 54l F.3d 1 175, l l79 (9th Cir. 2008), This is a Lûself-executing, automatic sanction to provide a strong inducement for disclose of material.' Yeti by M & />', Ltd. r. Deckers O?#/Jf.?o?- Corp., 259 F.3d 1 101, 1 106 (9th Cir. 2001) (quoting FeII.R.CiV.P. 37 advisory committee's note (1993)). To the extent that Plaintiffs have not produced all their expert reports in their possession before the discovery cutoff, they should now be precluded from doing so at trial, due to unfair surprise and prejudice. On November 24, 201 5, the Plaintiffs provided their Expel't W itness Repol't to the Defendant. The Discovery cutoffdate was on November l4, 201 5.l Therefore, the Defendant was never able to depose the Plaintiffs' Expert W itness. LAW AND ARGUM ENT Permitting the Plaintiffs to use their untimely expert witness report would unduly prejudice Defendant. The Court should not be inclined to cause this inequitable result. See Reese 3., Herbert, 527 F.3d 1253, 1265 ( I Ith Cir. 2008) (aftirming order striking expert's affidavit and noting that tûthe expert disclosure rule is intended to provide opposing parries reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses') (internal quotation marks omitted). See also, l'ook v. Ro.yal Ctzrj/l/petr? Cruises, l/tf , No. 1 1-20723-CIV , 2012 W'L 23 19089 (S.D. Fla. June l5, 2012). The Federal Rules of Civil Procedure empower the Coul't to award appropriate sanctions when confronted with discovel'y abuse. Although monetary sanctions are usually the first line of 1 The Court had previously ordered in D .E: 104 that tt(a)11 discovery, including expert Jj-s'ti't?vt?ry, shal be completed one hundred (100) days prior to the date of trial' (emphasis added). Defendant's M otion To Strike Plaintifs' Expert W itness Report And Preclude Expert Testimony-- l4-cv-245l7-KMM Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 2 of 27 sanction, they would be meaningless in the instant case given that we are on the eve of trial and today is the deadline for the tiling of dispositive motions. The issuance of monetary sanctions in this context would be meaningless. Defendant does not now have time to compel further responses, nor should he be required to do so. lnstead, the court should turn to other mechanism s available under the discovery statutes, including issue and evidentiary preclusion. Plaintiffs should not be allowed to present any documents not produced in discovery. Federal Rules of Civil Prooedure Rule 26(a) provides inter alia a broad duty to disclose documents which a party may use at trial: (a) Required Disclosuresn' Methods to Discover Additional Matter. (1) lnitial Disclosures. Except in categories of proceedings specitsed in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by ordera a party must, without awaiting a discovery request, provide to other parties: (B) a copy otl or a description by category and location otl a1l documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defensesa unless solely for impeachm entp ' ld. Federal Rule of Civil Procedure Rule 37 provides for sanctions for abuse of the discovery process of this type. lndeed, it identities the failure to respond or submit to an authorized discovery device as an abuse of the process. fJ. Rule 37(c)(1) provides in pertinent part: (1) A party that without substantial justiflcation fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, germited to use as evidence at a trial, at a hearing, or on a motion any witness or lnformation not so disclosed. ln addition to or in lieu of this sanction, the court , on motion and after affbrding an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure. Defendant's Motion To Strike Plaintiffs' Expcrt W itness Report And Preclude Expert Testimony-- l4-cv-24517-KMM Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 3 of 27 Iti Because Defendant has not been able to take the deposition of the Plaintiffs' expert because they only filed their repoft on November 24, 20 I 5 - ten days aher the discovery cutoff The Defendant does not now have the ability to obtain additional expel'ts to rebut the Plaintiffs' expert opinions. Nor can the Defendant use the deposition testimony of the Plaintiffs' expert witness in his summary judgment motion, because the Defendant was never able to depose the Plaintiffs' expert witness because of the discovery cutoff On June 22, 201 5, the Defendant had asked the Plaintiffs in its interrogatofy number 3a to 'gpllease provide the name of each person whom you may use as an expert witness at trial'. The Plaintiffs responded on July 27, 20l 5 to this interrogatory as follow s: 'Lplaintiffs incorporate by reference their Preliminary Statement and their General Objections. Plaintiffs further object to this interrogatory as premature, and on that ground, as unduly burdensome. Plaintiffs have not completed their investigation and discovery. Plaintiffs will identify their expert witnesses and provide reports at the appropriate tim e pursuant to Fed. R. Civ. P. 26(a)(2) and/or the Court's case scheduling orders in this m atter'' See Exhibit A, pg. 13. Furthermore, the Defendant also asked the Plaintiffs in interrogatory number 4 to t'gpllease state in detail the substance of the opinions to be provided by each person whom you may use as an expert witness at trial'. The Plaintiffs responded on July 27, 2015 to this interrogatory as follows: 'iplaintiffs incorporate by reference their Preliminary Statement and their General Objections. Plaintiffs further object to this interrogatoly as premature, and on that ground, as unduly burdensome. Plaintiffs have not completed their investigation and discovery. Plaintiffs will identify their expert witnesses and provide reports at the appropriate time pursuant to Fed. R. Civ. P. 26(a)(2) and/or the Court's case scheduling orders in this m atter'' See Exhibit A, pg. l 3. Lastly, the Defendant asked the Plaintiffs in interrogatofy number 5 to t'gpllease state each item of damage that you claim, whether as an am rmative claim or as a setoftl and include in your answer: the count or defense to which the item of damages relates, ' the category into which Defendant's M otion To Strike Plaintiffs' Expert W itness Report And Preclude Expert Testimony-- l4-cv-245l7-KMM Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 4 of 27 each item of dam ages falls, i.e. general damages, special or consequential damages (such as lost profits), interest, and any other relevant categoriesv' the factual basis for each item of damagesk and an explanation of how you computed each item of damages, including any mathem atical fbrmula used.''. The Plaintiffs responded on July 27, 201 5 to this interrogatory as follow s: kplaintiffs incorporate by reference their Preliminary Statement and their General Objections. Plaintiffs further object to this interrogatory as prem ature, and on that ground, as unduly burdensom e. Plaintiffs have not yet made a computation of any category of damages pursuant to Fed. R. Civ. P. 26(a)(1)(A)(ii) and wil require discovery from Defendant and perhaps one or more third parties as well in order to do so. Plaintiffs expect that they will produce such information and supporting docum entation through an expel't witness and report at the appropriate time pursuant to Fed. R. Civ. P. 26(a)(2) and/or the Court's case scheduling orders in this matter''. See Exhibit A, pg. 14. However, the tirst time that the Defendant had heard about the Plaintiffs' designated expert witness, M r. Gafy Loomis, was on November 24, 20l 5 when the Plaintiffs sent the Defendant a copy of M r. Loomis' expert report - ten days after the discovery cutoff. Therefore, the Plaintiffs did not provide their expel't witness ''at the appropriate time pursuant to Fed. R. Civ. P. 26(a)(2) and/or the Court's case scheduling orders in this matter', as they had previously written in their response to Defendant's interrogatory number 5. The expef't disclosure rule is intended to provide opposing parties 'treasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.' Sherrodv. fajz?g/t?, 223 F.3d605, 6l3 (7th Cir.2000) (quoting Fed. R. Civ. P. 26(a)(2) advisory committee's note). ln this case, the Plaintiffs did not even designate their expert witness, M r. Loomis, as a potential witness in their Rule 26 disclosures. Rule 37(c)(1) provides that tilal party that without substantial justification fails to disclose infbrmation required by Rule 26(a) or 26(e)(l) ... is not, unless such failure is harmless, perm itted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.'' Fed. R. Civ. P. 37(c)(l). Defendant's M otion To Strike Plaintiflk' Expert W itness Report And Precludc Expert Testimony-- 14-cv-245 l 7-KMM Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 5 of 27 At a minimum, the Plaintiffs could have filed a motion to extend the discovery period so as to permit a proper disclosure. However, the PlaintifTs have offered no excuse for failing to do so. tBecause the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise, compliance with the requirem ents of Rule 26 is not merely aspirational.' Cooper v. S. Co., 390 F.3d 695, 728 (1 lth Cir.2004), ovel'ruled oz? other p -tp//z?f-/.: by Ash v. Tyson FooJ5', hw. , 546 U.S. 454, 457-58, 126 S.Ct. 1 1 95a 1 1 97-98, 1 63 L.Ed.2d 1053 (2006) (citing Sherrod, 223 F.3d at 613). Here, the failure to comply with Rule 26(a) was both unjustified and harmful to the defendant. Aside from M r. Loomis' report, Plaintiffs did not provide any other witness disclosures as otherwise required pursuant to Fed. R. Civ. P. 26(a)(2)(B)-(C). ln fact, the Plaintiffs had not even provided the nam e of their expert witness to the Defendant before N ovember 24, 2015. W hich goes against the Plaintiffs' obligation under Rule 26 to provide the Defendant with a list of potential witnesses. The Plaintiffs cannot provide any justifs cation, beyond their control, for the untimely submission of their expert reporq ten days ajter the discovery cutoff .d T&T Wireless s'crus'. of (.W/#i?r/?jJ LLC v. City (tfcarlsbadn No. 0lCV2O45-JMLAB, 2002 W'L 34396709 (S.D. Fla. Nov. 7, 2002). Under the Court's Rules, al1 discovery must be served well in advance of the discovery cutoffin order to allow a1l responding parties to do so by that date. S.D . Fla. Local R. 26. 1(9 (ttDiscovery must be completed in accordance with the court-ordered discovery cutoff date'). ln this case, the discovery cutoff has long since passed. Summary judgment motions are already fully briefed and pending, and the parties should be proceeding to trial preparation. The timing to file an expel't report is controlled by this Court's order from M ay 5, 20l 5 (D.E. 1041, which states that tûlalll discovery, including expert discovery, shall be completed one hundred (100) days prior to the date of trial''. Fed. R. Civ. P. 26(2)(D) states that: 'tA party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order , the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trialn' Defendant's M otion To Strike Plaintiffs' Expert W itness Report And Preclude Expert Testimony-- l4-cv-24517-KM M Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 6 of 27 Clearly, Fed. R. Civ. P. 26(2)(D) shows that if a court order requires that expert discovery end at a time other than '90 days before the date set for trial's then the court order is what must be followed by a11 parties. In this case, the court order (D.E. 1041 clearly indicates that aI1 discovery shall be completed by November l4, 2015. Therefore, the Plaintifrs' expert witness report was submitted ten-days past the discovery completion date. THE FAILURE TO COMPLY WITH RULE 26(A)(2)(B) WAS NOT SUBSTANTIALLY JU STIFIED The Defendant contend that Plaintiffs' failure to disclose is not substantially justified because this action has been pending one year and the expert repol't was only provided to the Defendant aher the close of discovery. The Plaintifrs w ere in possession of the necessary documents and could provided them to their expert to review in preparing his report. THE FAILLJRE TO COMPLY WITH RULE 26(A)(2)(B) WAS NOT HARMLESS The Defendant contends the failure is not harmtess because there are only 80 days to trial and expel't and percipient witness discovery has closed. The time to submit the motion for summary judgment also ends today. Therefore, Defendants have no information on how Plaintiffs intend to prove many of their claims or how exactly their expel't came to their conclusions. The Defendant ha snot been able to depose the expert witness because the Plaintiffs did not provide his name until ten days after the close of discovery, on N ovember 24, 20l 5. Further, the Defendant was required to disclose any rebuttal experts within thirty days of Plaintiffsn expert discloses. Fed.R.CiV.P. 26(a)(2)(D)(i). Since Plaintifs did not provide a repol't which would inform Defendants of the expert's opinions to be proffered at trial , Defendants were unable to designate a rebuttal expert and provide an expert opinion within the time period prescribed by the Rule. At this point in the litigation, discovery is closed and the Defendant was not provided with Plaintiffs' expert's opinion and the bases, and did not have the opportunity to depose Plaintiffs' expert until aoer the close of discovery. The failure to provide the expel't report was not harmless. Yeti by M olly, Ltd., 259 F.3d at l 106. (The burden is on the party facing the sanction to show that the failure to disclose was harmless). 1ti at 1 107 Defendant's Motion To Strike Plaintifrs' Expert W itness Report And Preclude Expert Testimony-- 14-c:,-2451 7-KMM Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 7 of 27 CONCLUSION W HEREFORE, Defendant respectfully requests the district court to preclude the Plaintiffs from using any documents or reports that they did not produce before the discovery cutoffin their motions or during trial. CERTIFICATION OF GOOD FM TH CONFERRAL Pursuant to Local Rule 7. l(a)(3), the Defendant conferred in good faith with the Plaintiffs' counsel regarding the relief requested in this motion and was unable to reach an agreement. Respectfully submitted, Dated: December 4th, 2015 Rafael N ew ton Aguila, pro se e-rnail : J-tlgk,l i l ;('! t, t' ,(ltg! .t1 fi'y i l . Jtrtl !') 1 W eittenauerstrasse 1 1 72108 Rottenburg am Neckar GERM ANY Telephone: +49 7472 4303 995 8 Defendant's Motion To Strike Plaintifrs' Expel't W itness Report And Preclude Expert Testimony-- 14-cv-245 l7-KM M Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 8 of 27 CERTIFICATE OF SERVICE l HEREBY certitk that on December 4th, 201 5, 1 conventionally filed the foregoing document with the Clerk of the Court. l also certify that a true and correct copy of the foregoing document was served by U.S. mail on all counsel or parties of record on the Service List below . .M Rafael Agu' a, p se December 4th, 201 5 SERVICE LIST James A. Gale, Esq. (FBN 37 l 726) Richard Guerra (FBN 689521) FELDM AN G ALE One Biscayne Tower, 30th Floor 2 South Biscayne Blvd. M iami, FL 33131 Telephone: (305) 358-5001 Facsimile: (305) 358-3309 Brenton R. Babcock, Esq. (admitedpro hac vice) Ali S. Razai, Esq. (admittedpro hac vice) KNOBBE, M ARTENS, OLSON & BEAR, LLP 2040 M ain Streetv Fourteenth Floor lrvine, CA 92614 Telephone: (949) 760-0404 Facsimile: (949) 760-9502 zl torneysjbr Plaintffb', EDGE SYSTEM S LLC and AXIA M EDSCIENCES 9 Defendant's Motion To Strike Plaintifrs' Expert W itness Report And Preclude Expert Testimony-- 14-cv-2451 7-KM M Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 9 of 27 M IAM I DIVISIO N CASE NO . 1:14-cv-24517-lkM M /M CAL1LEY EDGE SYSTEM S. et aI., Plaintiffs, Rafael Newton Aguila, Defendant. DECLARATION OF RAFAEL NEW TON AGUILA IN SUPPORT OF DEFENDANT'S M OTION TO STRIKE PLAINTIFFS' EXPERT W ITNESS REPORT AND PRECLUDE EXPERT TESTIM ONY 1, Rafael Newton Aguila, pro se, declare as follow s: My name is Rafael Newton Aguila, l am over the age of eighteen (1 8) and competent to execute this Declarationa and the following statem ents are true and correct based on my personal knowledge or information transmitted to me from records made at or near the time of the transactions referenced therein by personts) with personal knowledge thereof. l am the Defendant in this case. I declare that the Defendant was not able to question the Plaintiffs' expel't witness in a deposition before the end of the discovery cutoff 4. The Plaintiffs' expert report was only submitted on November 24 , 2015, ten days after the end of the discovery cutoff l declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 4th day of December 201 5. in M iami, Florida. Dated: December 4. 2014 Respec submitted, Rafael ' a ro se7 Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 10 of 27 E X H IB IT A Defendant-s Motion To Strike Plaintiffs' Expert W itness Report And Preclude Expert Testimony-- 14-cv-245 l 7-KM M Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 11 of 27 I.JNITED STATES DISTRICT CO URT SO tJTHERN DISTRICT O F FLO RIDA CASE NO . 1 :14-f.>N?-245l7-KM M /M cAlile)' l'i. DGE SAf' S7- E M S LLf -a f Xal i forni a I i m ited I i abi I i ty company, and AX IA M 1:7. D S (.' l E N C E S - L L C , a De 1asvare l i m ite d 1 i abi l 1 ty c onlpany - Plaintiffs, DEFENDANT'S EXH BIT1 / Rafael Neucton Aguil a, a/k/'a Ralph Agtli 1:1 , a11 individual . d/b/a Hydradermabrasion Systenls- Defendant. PLAINTIFFS EDG E SYSTEM S LLC'S AND AX IA M EDSCIENCES , LLC'S RESPONSES TO DEFENDANT'S FIRST SET OF INTERROGATO RIES (NOS . 1-6) Purstlant to Rule 33 of the Federal Rules of Civil Procedure , Plaintiffk Edge Systelzls fol lows to the First Set of lnterrogatori es propounded by Defendant Rafael Newton Agui Ia - a/rlt/a Ralph Aguilan d In/'a Hydradermabrasion Systelns (eûAguila-). 1. PRELIM INARY STATEM ENT The following responses are based upon information presently available to and located Plaintiff-s and its counsel and reflect the ctlrrent state of Plaintiffs' k'nowledge, understalding- and belief respecting the matters about which inquioz was made . Plaintiffs have not conppleted their investigation of the facts relating to this case or preparation fbr trial and anticipate that as this case proceeds , further facts may be discovered. W ithout obl igating Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 12 of 27 thelmselves to do so- Plaintiffs reserve the right to modify or supplement these responses with any sucl) pertinent infbrmation. l ' tiff ' d 'thout 1 n any xvay wai vi ng or 1 ntendi ng to Nvai veP aln s responses are ma e wl - but on tht) contrary, intending to preserve and preservring'. The right to rai se all questions of' authenticity- reI evallcy , material 1 >,. privilege, and admissibi Iity as evidence for any purpose of the information and the documents identi fied and/or produced in response to these or any other actiollt The right to obi ect to the use of the information and/or documents 1 n any stlbsequent proceeding in, or the trial of- this or aly other actiol on any grotlnds: reqtlests- or other discovery i nvolving the infbrmation and/or docblments or the subj ect l'natter thereof andR The right to make subsequent answers if Pl ai ntiffs uncover additional infbrmation called for by these requests as di scovery is stil I ongoing and Plaintiffs- action has not been completed. W ords and terms used in the fbllowing responses shall be construed in accordance uf'l' th thei 1. normal meanings ancl connotations. and shal I i n no u'ay be interpreted as terms of art or statutorily defined terms used 1 IA the trademark' and/or trade dress laws , and Plainti ffs speci t'ical ly disavow any such meaning or connotation that might be accorded to such terlns . Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 13 of 27 W'ithout waiving objections set forth below, and subject to the limitations stated responsive and the subject of- legiti mate discovery that has been uncovered by' retsonable investigation. Specific objections to variotls interrogatories are made in the responses set forth below'. In addition to those specific objectionsp Plaintiffs generally object to the llterrogatories as foI Iosvs'. II. G EN ERAL O BJECTIO NS Defendalt-s lnterrogatories and are not waived with respect to any response. Plaintiffs generally object to Defendant-s lnterrogatories to the extent that they seek' disclosure of any in fbrlnation protected , pri vi leged, immune, or othel-wise exennpt froln discoveo, pursuant to applicable state and federal statutes . the Federal Rules of Civil Procedure. case 1 au', regtllations, adnlinistrative orders. or aly other applicable rules , decisions, or laws inform ation protected. by the attorney-client privilege , the 'work product doctri ne and/br other applicable pri vi lege. The specific objections stated below' on the grounds of attorney-client privilege and/or work product in no way Iimit the generality of- this obîection Nothing contained in these responses is intended to be nor should be considered a w'aiver of any attorney-client privil ege , work' product protection, the right of privacy n or any other applicable privilege or doctrine , and to the extent that any request nzay be construed as cal I i ng for disclosure of information protected by such pri vi leges or doctrines , a continuing obj ection each and every sucl' interrogatory is hereby i mposed, Any stlch protected- information will not be provided , although a privilege log will be produced if there are any protected doctlments responsive to any of these lnterrogatories. Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 14 of 27 Plaintiffs generally object to Defendant's lnterrogatories to the extent that Defendant pul-ports to require Plaintiffs to identify 'ol1 a privilege Iog any doctlnlents or information protected by the attorney-client privilege , the work prodtlct doctrine, other applicable privilege that were generated by its counsel agents fol' internal tlse and/or privi Ieged colll-ntlnications betvveen among Plaintiff's and counsel commencement of this proceeding. The applicabil ity of the attorney-client privilege and/or work prodtlct doctrine is so clear and the burden of identifking each stlch document is so great that l'cquiring Plainti ffk to do so wotlld be so burdelsolne as to restllt in injustice and would be oppressiy'e in that the burden inlposed thereby would be incommensurate with the result sought by Defendant. Defendant-s Interrogatories. including instrtlctions and definitions , to the extent they purport to ilnpose upon Plaintiffs obligations greater tllan those i nlposed by the Fedel'al Rules of Civil Procedure, the local rules, or other appl icabl e rtlles or l aw'. Plaintiffs general 13., object Plaintiffs generally obj ect to Defendanl' s lnterrogatories to the extent that they seek inforluation that is not calctllated to lead to the discovel'y of adlnissible evidence or to the extent that Defendant-s lnterrogatories seek the disclosure of inforlnation , doculments- or things beyond the scope of discovery as provided by the Federal Rules of Civil Procedure n the local rules, or tltler appli cable rules or lavv. Plailtiffs generally obj ect to Defendant-s lnterrogatories to the extent they seek' in forluation concerning ûall-- or t-any'- documents persons , or entities concerning a particul afR subject on the grounds that pertbrming searches of such breadth is unduly burdensome. ln its -4- Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 15 of 27 search for relevant doctlments- Plaintiffs have made, or will make, a reasonable search as Plaintiffs generally object to Defendant'sInterrogatories to the extent that they caI I for in fbrmation that is protected from disclosure by agreenzents Plaintiffs have writh another entity, if any- or obligations Plaintiffs have to another entity- if any. Plaintif-fs further object to Defendant-s definitions and instructions in the discovery l'eqtlests to the extelt they make the individual requests vague, anabiguous, or N.s,'ol-d to have l-nultiple nnean ings. 111. RESPONSES T0 INTERRO GATORIES INTERROGATORY NO. 1: Please provide the name, address, telephone ntlmber, place of employment and job title of any persol) who has, clai ms to have or whom you beli eve may have lknowledge or information pertain ill.j., to any fact al leged in the pleadings (as defined in Federal Rule of Civil Procedure RESPONSE TO INTERROGATORY NO. 1: Plaintiff-s incorporate by reference their Preli minary Statement and their General Obj ections. Plaintiffs further obj ect to this interrogatory as vague and ambiguous, parti cbllarly i 1 its use o1- the phrase -kpertaining to.'- Plaintiffs further object to this interrogatory as overly broad and tlnduly btlrdensome in seek' ing infbrmation for t-any person svho has, clai ms to have or whom you bel ieve Inay have knowledge or information pel-taining to any fact al leged in the pleadings' becatlse Plaintiffs have interacted with a Iarge number of customers- potential custom el's, or other persons who nlight have information relating to facts alleged in the pleadings Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 16 of 27 that is ctlmulative of information known by persons more closely related to the lawsuit. Plaintiff-s ftlrther object to this interrogatory as prenlature- and on that ground, as unduly btlrdensome. Plaintiffs have not completed their investigation and discovery. Further investigation, discovel-yn and legal research and analysis may yield additional information and documents, add new' lnealing t() known information and doctlments- or establish entirely new factual conclusions or legal contentions. Subject to and without waiving these objections and to the extent Plaintiffs understand ; tj; '. q f; zsJ.y$ iyjqjg jFj4z .' .' ?y) ' ' '. m .j ' ' ' '. ': '. k'r;' ': : 'k f '' . ' ' 'v ' ): ê' ' ' ' . ' j ':' ') J-) $ .: )kt-,.) -., f-)(y.: ,: ' , t )i.,).. ,)ïj>,( -5$7. . '. 4),j)4),- tt,1.7u#T. . ; - .pr . ) ' %' . ' ' - - ' . ' ' . -: , . , '- . . . ' . ' ' ' -. .. . . ; ' ' . , . - ' k ,. ' ' ,r'l;; ,. . .), . . .. ... '... ... . : . . . . . , . . . . .. W ill ianl Cohen President Contact throtlgh Counsel lr Edge Systems I.-t.C Knobbe 'M artens Olson & Bear rà ' ' l 20.,1.0 uain street 11 Irxine california 92614 lt n t Telephone: 949-760-0404 i ( Roger lg lon Vice Chairman of the Board Contact through Counsel i Vice President of Engineering and Knobbe Martens Olson &r Bear1 Il Product Developnaent 2040 M ain Street j j Edge systems I-LC Irvine, Califbrnia 926 14 lT elephone. 949-760-0404 John H. Shadduck Owner Contact through Counsel r I Axia N' ledscielces- I-Lf Klobbe Nlal tens Olson & l 204() Nlain street l1 Ilwine- california 926 l 4 ,1i u l Telephone. . 949-760-0404 .-jl -Q G-a- co--r/w-ay --- vice Pr-e-sident of sales '- (--ontact thro-t-lg-h counsel -- - --' !l ry > Knobbe Martens Olson & Bear l@ Edge Systems LL( 1 l 2040 Main street j l I rvine, califbrnia 9261 4, jr .Tele hone: 949-760-04 04 Rosemarie Senior N'larketing Nlanager Contact thl-otlgh Cotlnsel Ip It Holcomb Edge Systems LLf> Knobbe M artens Olson & Bear l1 204( . ) Majn Street ël l rvine n Cal iforni a 926 l 4 ij Telephone'. 949-760-0404 Stev'e Haik Regional Sales Representative Contact through Counsel j l Edge Systems LLC Knobbe Martens Olson & Bear l1 j@ 2 04. () M ai n S treet j1 . - . . (y):() j 4 p! lrvrlne, Califolnla Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 17 of 27 Tele hone: 949-760-0404 Lisa Heinemann Regional N'lanager for the Coltact through Counsel j ld Knobbe M aftens Olsol & Bear lSoutheastern United States al I Caribbean 204 0 M ain Street E dge Systems I-LC lrvine, California 926 l 4 Telephone: 949-760-0404 1 t cindy caltavespri Btlslness M anager contact through Counsel1 - L ngevity & w ellness Knobbe Nlartens Olson & Beal' 1l f-enter for o l Metairie, Louisiana 204: Main Street ! I 'ine california 926 l 4 j 1'N , lj Telephone: 949-760-0404 ! I-ealalpi I rby Owrner Contact throtlgh Counsel1 1 l 2976-BeautifuI Skin Esthetics Knobbe Nlartens Olson & Bear ' 2040 s'lain StI eet lrvine, Cal ifornia 926 I 4 I i 7-ele hone' . 949-760-0404 1 I James ,A. Baker 200 Sheridan Ave //306 l y . (.)uy.y tj(y jI aIo A1 to - f A Jose Anlonio Derlnatologist Contact through Counsel f Tabush f-lare Knobbe Martens Olson & Bear 1i 1 204() Main street 1i - . j a (.) g, (.) j 4. lji l rv ine, Cal i f ol n 1 'relephone: 949-760-0404 p t Eliot Dtlboys Plastic Surgeon f-ontact through Counsel lt ,A' ssociated Plastic Stlrgeons and Knobbe M artens Olson & Bear r Colsultants 2040 Main Street j l Irvine - califbrnia 926 l4 i1 Asociate farofesor of- Ialastic -relephone: 949-760-0404 1 St tlv/lyofs' rok I-JI, iversity Medical ljS1 j Center and Nassau University j 1 N'ledical Center i Rafael N Aguila Owner W eittenatlerstrasse l l tûEdge Systems I-LC'' 72 I 08 Rottenburg am Neckar 1 oermany j1 k 1 Tel e hone: +49 7472 4303 995 r t John Wilcox Regional Sales Manager 6800 Sh' 40th Street l l -kEdge Systems LLC-- M iam i- FL 33 l 55-3708 1' ' ,------.-.--- .-.------.- . . - -- -- - -- .- -- - .- -relep-,one, unknown .-.-. .,1 r Raiph A nderson Sales M anager 6800 SSV 40th Street, Sulte l 02 C 1 ' % E dge Sy ste m s I -- 1-, f - ' N1 iam i, Fl.- 3 3 1 5 5 -3 70 8 )1I 'relephone: unknown 1 i . -7- Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 18 of 27 INTERROGATORY NO. 2: Please state the specif-ic nature and substance of- the knowledge that you believe the personts) identified in yotlr response to interrogatory no. l may have RESPO NSE TO INTERROG ATORY NO.2: Plaintiffs incorporate by reference their Preli nlinary Statement and Objections. Plaintiffs further object to this interrogatory a.s vague and ambiguotls, partictllarly in its tlse of the phrase -Lpertaining to ' Plaintiffs furtler object to this interrogatoly as overly broad General and undtily btlrdensonle in seek ing informatiol for tkany person who has, clai ms to have w'hon4 ),'kltl bel i eve nlay have Iknowledge or infbrtnation pertaining to any fact al leged i n the pleadings- becatlse Plaintiff-s have interacted with a Iarge number of custolners, potential ctlstomers- or other persons who nlight have information relating to facts alleged in the pleadings that is cumulatiN'e of informatlon known by persons more closely related to the lawstlit. Plaintiff's ftlrtler object to this interrogatofy as premature, and on that groundp as unduly burclenstltne. Plaintif-fs have not cornpleted their investigation and discovery. Further documents, add new meaning to k nown factual conclusions or legal contentions. information and docklments, or establish entirely new Stlbject to and without waiving these objections and to the extent Plaintiffs ullderstand the interrogatory, PI aintiffs respond as follovvs.' l ) 3' lj i/.r 'i lJ' . j.' (j .(, lt)'C(; .j%t(4j;ô j'j. j$. q ,( jjj., jkjjt/j jy.t 7 ' ' $ 1 P' ' 6' t' ;5? ' /' ' ' ' 'ï' ' li;jh ;' 'C /' ) '* ?$ w 'j?' ' ' ' C' ' ' 5 1. 'd ' ' ' '' 'jI h:( 't?.tlà$t,?'- '$i . )i lërik,hk... ':z.- (. . ' .)? jkt $t-;., ..,;,l'-j îsty, p,(4 j-.,).j t,?;. -ç.,?y-r.: -- (r $L:.' .-$-., r,#.-f,:-d1L. .- 6':r . .. ' ... :-?'ï .-,'.,/.-.ïi,.,)-,. '. ..:.,/j. . . : ' .- . . ' : -'. , . -. . . ' - .);.'. . . . . .' '-' . ' : - 3'23t'/7Lfè: 'k'tq ! :' 9: :.;u. .. .. . . , . , u ;, . . . . . ' t. . ' . ' , . . ,'. .. . .fk' ,18,. r ! W'i I l 1 am M r. Cohen may have k nowledge about Edge' s histoly and the Cohen development process of its prodtlcts. N'lr. Cohen may also llave lknowledge about the strength of the asserted marks and trade dress. M r. ;C ohen may also have k'nowledge about Edge's acquisition of the patents-ln-stlt. Mr C ohen nlay have knowledge abotlt the developlnent j process of prodtlcts elnbodying the patents-in-suit. N,lr, Cohen mav have i . '- ' tknowledge about the development process of products bearlng the ! Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 19 of 27 . ; . E!.ï . . , . . . J assel-ted marks and/or trade dress. M r. Cohen may also have knowledge 's infringement of tl4e patents-in-suit. the assel-ted marks 1about Defendant ' , Cohen may also have knowledge about the degree 4 1and trade dress. Ml of similarity between Defendant's products and Edge's products bearing the asserted marks and/or trade dress, the degree of sim ilarity between Defcndant's products and Edge's prodtlcts bcaring the assertcd mark's 1 I and/or trade dress, the proximity of the products, the degree of l sophistication of the buyers, and the quality of the Defendant%s products. l ') lMr . Cohen may also have knowledge about the listofy of Edge s . products that embody the patents-in-stlit. M r. Cohen may also have kl'lowledge about tlle history of E dge's products tllat bear tlle asserted marks and/or trade dress, M r. Cohen may also have klowledge abotlt he luarketing of E dge-s products, the market for such products, and the 1t fs goodwi 1 and I'eputation. Mr, Cohen 1 ,development and val ue of Edge ' also have knowledge abotlt the val ue of Edgegs goodwill and tmay j reputation. Nlr. Cohen may also have knowledge as to the ilupact and ( 's infrinqement, 1injury caused by Defendalt Roger Ignon Nlr. lgnon may have k'nowledge about Edge's history and the development process of its products. M r. lgnon may also have knowledge about the strength of the asserted marks and trade dress. M r. lgnol nlay also have knowledge abotlt Edge's acquisition of the patents- j in-suit. M r. lgnon nlay have knowledge about the development process r of products embodying the patelpts-in-stlit. M r, lgnon lnay have knowledge about the devefopment process of prodtlcts bearing the asserted marlts and/or trade dress. M r lgnon nlay also have klowledge abotlt Defendant-s infringement of the patents-in-suit, the asserted marks i l and trade dress. M r. Ignon may also have k'nowledge about the degree of j i N *i . n tsimilarity between Defendant s ploducts and Edge s products bearing ; the asserted marks and/or trade dress, the degree of similarit .y between Det-endant's products and Edge's products bearing the tsserted marks and/or trade dress, the proximity of the products, the degree of , . d ts 1sophistication of the buyers , and the quality of the Defendant s p1o tlc . N'Ir, lgnon may also have knowledge about the history of Edge's products that embody the patents-in-suit. M r. lgnon may also have I knowledge abltlt the histol'y of E dge-s prodtlcts that bear the aserted ( jnarks and/or trade dress M r. lgnon may also have knowledge abotlt the j - ducts, the market for stlch products, and the 'jmarketing of Edge s pro ., hdevelopment and value of Edge s goodwill and reputation. Nlr. lgnon may also have lknowledge about the value of Edge's goodwill and reputation. M r. Ignon may also have knowledge as to the impact and ' infringenaent. 1injuo' caused by Defendant s - ' jJohn i4. M r. Shaddtlck may have knowledge about Axia's history and the Shadduck development process of its patented technology. M r. Shadduck may also have knowledge about the conception and reduction to practice of j the patçnts-in-suit. Mr. Shaddpçk may also have knovyledge about the 1 -9- Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 20 of 27 ; , . ; . . . . z z ' t ' i ., ' . . . ' ' infrint.ement of the patents-in-suit by Defendant. Gary M r. f'onway may have knowledge about the marketing of Edge's ) Con way products embodying the patents-in-suit, bearing the asserted marks, and/or bearing the asserted trade dress. M r. Conway may also have ç knowledge about the market for such prodtlcts. M r. Conway may also l t have knowledge about Defendant-s infringeluent of, and the strength of t the asserted marks and trade dress. M r. Conway m ay also have 1 ' 'i t of the patents-in-stlit and the 1knowledge about Defendant s infl ngemen j asserted marks and trade dress. M r. Conway may also have k'nowledge about the degree of- sinlilarity between the Defendant's products and E dge's products bearing tle asserted marks and trade dress, the degree 1 5 l of sophistication of tl4e buyers, and the quality of the Defendant s 1 roducts. 1 Rosellarie N'ls. Holcolub lnay have knowledge about the Iuarketilg of Edge-s Holcomb products embodying the patents-in-suit, bearing the asserted marksp 1 and/or bearing the asserted trade dress. N'ls. Holcomb may also have i lknowledge about the market for such products M s. Holcomb may also j have k'nowledge about Defkndant-s infringement of, and the strengtll of 1 the asserted marks and trade dress. Ms. Holcomb may also have tk'nowldgabout Defkndnt's infringement of theptent-in-suit and the asserted marks and trade dress. N'ls. Holcomb may also have k'nowledge about the degree of similarity between the Defendant's products and Edge's products bearing the assel-ted marks and trade dress, the degree of sophistication of the buyers- and the qualit.y of the Defendant's l roducts. l Steve Halk M r. Haik may have knowledge about the mark eting of Edge's products il embodying the patents-in-suit- bearing the asserted marks, and/or t Ibearing the asserted trade dress . M r. l4aik may also have knowledge j about the mark et for such products. M r. Haik' may also have knowledge abotlt Defendant's infringement of, and the strength of the asserted marks and trade dress. M r. Haik lnay also have knowledge about , fendant-s infringement of the patents-in-suit and the asserted marks lDe and trade dress. M r. Haik' may also have ltnowledge about the degree of similarity between the Defendant's prodtlcts and Edge's products bearing the asserted marks and trade dress. the degree of sophistication 1 of the bu ers- and the ualit'v of the Defendant's roducts. l Lisa M s. Heinemann may have knowledge about the marketing of Edge-s lI Heinemann prodtlcts embodying the patents-in-suit- bearing the asserted marks, and or bearing the asserted trade dress. M s. Heinemann may also have knowledge about the market for such products. M s. Heinemann nlay - infri ngement of, and the 1also have k-nowledge abotlt Defendant s 1strength of the asserted mark's and trade dress. M s. Heinemann may, also have knowl edge about Defendant's infringemelt of the patents-in-stlit and the asserted mark's and trade dress. M s. Heinemann may also have j knowledge about the degree of similarity betu/eel) tlle Defendant's 1 - l 0 - Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 21 of 27 ; : , s; '$ .t. . . . , . ,) ' . l ?'r ) . . . . ' ' . . ' . . . . . . . . . . . . . ;' products and Edge's products bearing the assefted marks and trade dress- the degree of sophistication of the buyers, and the quality of the Defendant's products. Cindy M s. Cantavespri may have knowledge about the lnarketing of Cantavespri Defendant's products embodying the patents-in-sblit- bearing the asserted marks, and/or bearing the asserted trade dress M s Cantavespri may 1also have knowledge about the market for such prodklcts M s j Cantavespri may also have k'nowledge about Defendant-s i nfringement 'j of, and the strength of the asserted marks and trade dress. Ms. ) Cantavespri l'nay also have k'nowledge about Defendant's infringement ) of the patents-in-stlit and the asserted Inarks and trade dress. Ms. '1 Cantavesprî may also have knowledge about the degree of similarit'y l1 between the Defendant's products and Edge's prodtlcts bearing the I I asserted marks and trade dress, the degree of sophistication of the jb uyers, and the qualit.y of the Defendant's prodtlcts. Lealani Irby M s. lrby may have k'nowledge about the marketing of Defkndant's l tprodt lcts embodying the patents-in-suit, bearing the asserted marks, t ' bearing the asserted trade dress M s. Irby may also have 'and/or knowledge about the market for such products. M s. lrby may also have lknowledge about Defendant's infringement of, and the strength of the asserted marks a.nd trade dress Y'ls. lrby may also have knowledge ' i fringement of the patents-in-suit and the asserted labout Defendants 1 's and trade dress. Ms. Irby may also have klowledge about the 1mark 's prodtlcts and Edge's ldegree of similarity between the Defendant 1products bearing the asserted lnarks and trade dress , the degree of sophisticatiol of the buyers, and the quality of the Defendant's products. James A M r. Baker may have k'nowledge abotlt the conception and reduction to Baker practice of U. S. Patent No. 6,299,620. M r. Baker may also lave knowledge about the infringeluent of the atents-in-suit by Defendant. Jose z&ntonio Dr. Tabtlsh Clare may have knowledge abotlt the m arketing of Tabush Clare Defkndant's products elmbodvinu the patents-in-suit. bearinc the asserted 1 , * '' ''-' * ' 'k'' d i marks, and/or bearing the asserted trade dress. Dr. Tabush Clare may also have k'nowledge abotlt the market for stlch products. Dr. Tabush -s infringement of) ancl lClare may also have knowledge about Defendant 1th e strength of the asserted marks and trade dress. Dr. Tabush Clare J may also have k'nowledge about Defendant-s infringement of the 1t patents-in-suit and the asserted marks and trade dress. Dr. Tabush Clare t may also have knowledge about the degree of similarity between the l Defendant's products and Edge's products bearing the asserted mark's and trade dress, tle degree of sophistication of the btlyers, and the ' s prodtlcts. 1I quality of the Defendant Ell iot Dr. Duboys may have k'nowledge about the marketing of Defendant's 1I Dtlboys products enlbodying the patents-in-suit, bearing the asserted marks, and/or bearing the asserted trade dress. Dr. Duboys may also have k'nowledge about the lnarket for stlch products. Dr. Duboys nlay also 1 - 11- Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 22 of 27 )4 j i : . . h ' : . . . . . . .' . ; j . .' . ' . . , u yj, ' #'..'?...), . . . . . . . . . .' . . . .. . î ' ,1..43, have knowledge about Defendant's infringement of& and the strength of the asserted mark's and trade dress. Dr. Dtlboys luay also have knowledge about Defendant's infringelnent of the patents-in-stlit and the asserted mark's and trade dress. Dr. Duboys may also have k'nowledge l bout the degree of similarity between the Defendant's products and Ia ', . 1E dge s products bearing the asscrted marks and tradc dress, thc dcgrcc j f sophistication of the buyers- and the qualit.y of the Defendant-s 1O t roducts, l r Rafael N M r. Aguila may have k lAowledge about Defendant-s history and the l Aguila development process of its products. M r. Aguila may have k'nowledge about the development process of Defendant's products accused of illfringing the patents-in-suit. Mr. Aguila may also have k'nowledge 'I about the development process of products accused of infringing the ! asserted marks and/br trade dress. M r Aguila may also have knowledge about the degree of similarity between Defendant's prodtlcts and Edge's products bearing the asserted marks and/or trade dress, the degree of - dtlcts and E dge's products bearing 1similarity between Defendants pro the asserted marks and/or trade dress, the proxilnity of tle products, the degree of sophistication of the buyers- and the qualit.y of the Defendant-s products M r. Aguila may also have k'nowledge about the m ark' eting of Defeldant's products and the market for such products. M r. Aguila may also have knovvledge about Defendant's sales of the accused products. Johl W i Icox M r W'i Icox may have knowledge abotlt Defendant-s l1i story and the development process of its products. M r. W ilcox may also have knowledge about the development process of Defendant's products accused of infringing the patents-in-suit (Mr. q/ilcox may also have j k-nowledge about the development process of products accused of 1 infringing the asserted marks and/or trade dress. N'lr. W'ilcox may also have knowledge about the degree of similarity between Defendant's products and Edge-s products bearing the asserted mark's and/or trade dress- the degree of similarity between Defelldant-s products and Edge's products bearing the aserted nlarks and/or trade dres, the proximity of-1 the products - the degree of sophistication of the buyers, and the quality i of the Defendant's products, M r. ïvilcox may also have k'nowledge about the marketing of Defendant's prodtlcts and the lnarket for stlch j products. Mr. W'ilcox may also have knowledge abotlt Defendant-s k sales of the accused products. ( Ralph Mr. Anderson may have k'nowledge about Defendant's history and the 1 Nndersol) development process of its products. Mr. Anderson may also have la> nent process of Defendant's products 1knowledge about the developl lacctlsed of infringing the patents -in-suit. M r. Anderson may also have knowledge about the development process of products accused of infringing the assel-ted marks and/or trade dress. M r. Anderson may also ' have knowledge about the degree of similarity between Defendant-s ducts and E dge's roducts bearing the asserted marks and/or trade 1pro - l w.? - Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 23 of 27 ' . .' :' rjl xyj' yk*q ' ' . ' ' ' . ' . . . ', .' . . i'(l:27-I!i1jlijilq. ;' .t . . . ' ' ' . . ' . -ï. . . . . . . . . è .. ,r;g,'. dress, the degree of similarity between Defendant's products and Edge's products bearing the asserted marks and/br trade dress, the proximit , y of the prodblcts, the degree of sophistication of the buyers, and the quality of the Defendant's products. Mr. Anderson may also have k'nowledge j about tl4e marketing of Defendantns prodtlcts and tle market for such 2 prodtlcts. M r. Andcrsol m ay also have knowledgc about Defcndant s r sales of the acctlsed prodtlcts. l INTERROGATO RY NO.3: Pl ease provi de the nalue of each person w'hon) you lnay use as an expert w'itness at trial. R ESPONS E rI'0 INTERROGATO RN' NO . 3: Plaintiffs incorporate by reference their Preliminary Statement and their General Obi ections. Plaintiffs further obiect to this interrogatory' as premature. and on that ground- as P. l ai 1-1 ti ffs wi 11 identi f-y thei r expert witnesses and provide reports at the appropriate ti me pursuant to Fed. R CiN'. P 26(a)(2 ) andr,'ol- the Cotlrt's case scheduling orders i 1 th is matter. I N'rl! RROG ATORY NO. 4: Please state in detail the substance of the opinions to be provided by each person whom RESPONSE TO INTERROGATO RY NO.4: Plaintiffs incorporate by reference their Preliminary Statement and their General Obj ectiol'ls. Plaintif-fs further object to this interrog. atory as prelmature- and on that grotlnd- as undtlly btlrdensolme. Plaintiff-s have not col-npleted their investigation and di scovel'y. PI aintiffs vvi 11 identify their expert Nvitnesses and provide repol'ts at the appropriate tilme pursuallt to Fed. R. Civ. 1'.:. 26('a)( 2) ald/or the Coul-t 's case schedul ing orders i n this matter. Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 24 of 27 INTERROGATO RY NO. 5: Please state each item of damage that you cl ai m- whether as an affirmative claim or as :1 setoff, and i nclude in your answer'. the count or defense to which the item of damages relates) the category gnto which each item of damages fal ls, i.e. general danlages, special or consequential each 1 telu of damages, and an explanation of how you computed each item of dalnages, including any nlathellati cal forlmul a tlsed. RESPO NSE TO INTERROGATO RY NO. 5: P1 ai ntiffs incorporate by' refkrence their Preli rninary Statenlent and their General Objections. Plainti ffs furtler object to this interrogatory as prenlature, and on that ground- as unduly burdensome. Pl aintif-fs have not yet nzade a conzptltation of any category of damages fronl Defendant and perhaps ('.ne or nlore third parties as well in order to do so. Plaintif-fs expect that they wiI I prod uce such i 14 fbrl-nation and supporti ng documentation through an expert svitness and report at orders il-l this I'natter. INTERROGATORY NO. 6: Please identify each document (including electronicallyz stored infornlation) pertaining t() each itelu of dallages stated in your response to interrogatory no. 5 above. RESPO NSE T0 INTERROGATORY NO. 6: P1 ai ntiffs incol-porate by reference their PrelinAinar.y Statement and their General Objections. Plaintiffs further object to this interrogatory as premature- and on that ground, as unduly burdensome. Plaintiffs have not yet made a computation of any category of damages Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 25 of 27 ptlrsuant to Fed. R. Civ. P. 26(a) (1)(A)(iii) and will require discovery from Defendant and perhaps one or m ore third parties as well in order to do so. Plaintiffs expect that they will produce such information and suppol4ing documentation through an cxpert witness and report at the appropriate til-nc ptlrsuant to Fcd. R. Civ. P. 26(a)(2) and/or the Court's case schedtlling orders in this luatter. Dated: July 27, 2O1 5 '/ ' - --- - .-. -b>>-,.?% X $.- -- - . - - Brtk-f-itwlk. abcock (Admitted Pro Hac Vice) Emai: bl-elat.babcock@klobbe.com Ali S. Razai (Admitted Pro Hac Vicej Email: ali.razai@knobbe.com KNOBBE, M ARTENS, OLSON & BEAR, LLP 2040 M ain Street, Foul-teenth Floor Irvine, CA 92614 Telephone: (949) 760-0404 Facsinnile: (949) 760-9502 James A. Gale (FBN371726) Email: jgale@feldmangale.com Richard Guerra (F BN 68952 l ) Email : l-gtleln'a@fcldnzalgale.com FEIUDM AN GALE One Biscayne Tower, 30th Floor 2 50t1th Biscayne Blvd. M iami, F L 33 1 3 1 Teleghone: (305) 358-5001 Facslmile: (305) 358-3309 Attorneysfor fvtzjn/tf/i., EDGE SYSTEM S LLC and AXIA M Ii1)Sf A.IENCES, l ,1 J(B- Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 26 of 27 CERTIFICATE O F SERVICE the age of- l 8 and not a party to the above-entitled case. l aln eluployed in lrvine, California, in the office of a member of the bar of this Court at whose direction this service was made, My I am readily famil iar with the firm-s practices for the collection and processing of mail- and that mail so processed is deposited the same day during the ordinary course of business. Jtlly 27, 20 l 5, I caused to be served PL, Al NTl FFS E DGE SYS TEM S LLC ' S A N D AXI A M E DSCI ENC E S, L I.C ' S RESPONS ES counsel sllovvn belovvJ, v'ia email and mail , addressed as folloNvs'. Rafael Newton Agtlila, Pro Se Nveittellatlerstrasse l l -72 l 08 Rottenburg am Neckar GERM ANY raguila/lglzlail.coln l declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on July 27, 20 l 5, at Irvine, California. z (.) - y - ..--.., jy-. . -.-iLï@g.. )7-;4:. ..,;:)-.--, Marla zavalp' )( . . . 't . . ' - l 6 - Case 1:14-cv-24517-KMM Document 182 Entered on FLSD Docket 12/07/2015 Page 27 of 27