Soilworks LLC v Midwest Industrial Supply Inc

Filing 125

RESPONSE in Opposition re 106 MOTION in Limine to Bar Testimony and Evidence regarding the Composition of Durasoil and Soilworks' Other Products filed by Soilworks LLC, Soilworks LLC. (Dosek, E)

Soilworks LLC v Midwest Industrial Supply Inc

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E. SCOTT DOSEK #012114 JOHN P. PASSARELLI #16018 (NE) KUTAK ROCK LLP Suite 300 8601 North Scottsdale Road Scottsdale, AZ 85253-2742 [phone] Facsimile: [phone] Attorneys for Plaintiff / Counterdefendant / Counterclaimant Soilworks, LLC UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA SOILWORKS, LLC, an Arizona corporation, Plaintiff / Counterdefendant / Counterclaimant, v. MIDWEST INDUSTRIAL SUPPLY, INC., an Ohio corporation authorized to do business in Arizona, Defendant / Counterclaimant / Counterdefendant.

NO.: 2:06-CV-2141-DGC SOILWORKS, LLC'S RESPONSE TO MIDWEST INDUSTRIAL SUPPLY, INC.'S MOTION IN LIMINE (DOC. #106) TO BAR TESTIMONY AND EVIDENCE REGARDING THE COMPOSITION OF DURASOIL AND PLAINTIFF'S OTHER PRODUCTS

(Before the Honorable David G. Campbell) Midwest's Motion in Limine seeking to bar Soilworks from introducing evidence or testimony regarding the composition of Durasoil and Plaintiff's other products ("Motion") misstates the record of disclosure and discovery which has taken place in this case. In addition to the list of ingredients which Soilworks provided to Midwest, Soilworks also produced an actual sample of the Durasoil product. Multiple copies of Material Safety Data Sheets with respect to the Durasoil products have been provided to Midwest. In response to Midwest's request for production of documents, Midwest was given carte blanch access to every document and piece of paper within the files at Soilworks at Soilworks' only place of business. Midwest took advantage of this access and copied each and every document provided. After having received the documents and the product sample, Midwest took deposition testimony from Soilworks pursuant to Rule 30(b)(6) of the Federal
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Rules of Civil Procedure, and also took deposition testimony from Chad Falkenberg, and Dorian Falkenberg, in their individual capacities. The chemical composition of Soilworks' Soiltac product, as well as all other products manufactured and marketed by Soilworks, are not relevant to any of the issues in this case since Midwest claims only that Durasoil somehow infringes its patents. For all of the above and foregoing reasons, Soilworks respectfully requests that Midwest's Motion in Limine to Bar Testimony and Evidence Regarding Composition of Durasoil and Plaintiff's Other Products be denied. Dated this 24th day of September, 2008. KUTAK ROCK LLP By /s E. Scott Dosek E. Scott Dosek, Esq. John P. Passarelli, Esq. 8601 North Scottsdale Road #300 Scottsdale, AZ 85253-2742 Attorneys for Plaintiff Soilworks, LLC

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CERTIFICATE OF SERVICE I hereby certify that on September 24, 2008, the foregoing SOILWORKS, LLC'S RESPONSE TO MIDWEST'S MOTION IN LIMINE TO BAR TESTIMONY AND EVIDENCE REGARDING THE COMPOSITION OF DURASOIL AN D

PLAINTIFF'S OTHER PRODUCTS was filed electronically. Notice of this filing will be sent to all parties by operations of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s Amy S. Fletcher Amy S. Fletcher

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