Levi Strauss & Company v. Abercrombie & Fitch Trading Company

Filing 323

ORDER RULING ON 317 Joint List of Objections to Deposition Designations. Signed by Judge Jeffrey S. White on December 11, 2008. (jswlc3, COURT STAFF) (Filed on 12/11/2008)

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

TOWNSEND AND TOWNSEND AND CREW LLP GREGORY S. GILCHRIST (State Bar No. 111536) GIA L. CINCONE (State Bar No. 141668) RAQUEL PACHECO (State Bar No. 245328) Two Embarcadero Center, Eighth Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail]; [e-mail]; [e-mail] Attorneys for Plaintiff LEVI STRAUSS & CO. MICHAEL J. BETTINGER (State Bar No. 122196) RACHEL R. DAVIDSON (State Bar No. 215517) K&L GATES LLP 55 Second Street, Suite 1700 San Francisco, CA 94105 Phone: [phone] Facsimile: 415- 882-8220 J. MICHAEL KEYES (PRO HAC VICE) KJIRSTIN J. GRAHAM (State Bar No. 239485) K&L GATES LLP 618 West Riverside Avenue, Suite 300 Spokane WA 99201-0602 Phone: [phone] Facsimile: 509-456-0146 Attorneys for Defendant ABERCROMBIE & FITCH TRADING CO.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

LEVI STRAUSS & CO., Plaintiff, v. ABERCROMBIE & FITCH TRADING CO., Defendant.

Case No. C 07-03752 JSW ORDER ON JOINT LIST OF OBJECTIONS TO DEPOSITION DESIGNATIONS Trial Date: Courtroom: December 15, 2008 2, 17th Floor Hon. Jeffrey S. White

JOINT LIST OF OBJECTIONS TO DEPOSITION DESIGNATIONS NO. C07-03752 JSW

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

The Court's rulings follow. If an objection is based upon an incomplete designation, and the Court sustains that objection, the additional designations shall be read to the jury. If an objection is based on an incomplete designation as well as other grounds, the Court will identify the basis on which the objection is sustained. If it LS&CO. Designations / A&F Objections the additional portions is not based upon the incomplete designation, shall not be read to the jury. Designation ­ Stacie Beaver 35:4-36:7 Sustained. 38:25-39:16 Overruled. Objection Incomplete Designation ­ add: 34:1-35:3 Lacks sufficient knowledge Response This addition is not necessary to explain the designated portion. Witness is A&F's senior merchandise manager for denim and was designated as 30(b)(6) witness on adoption and use of the Ruehl stitching design; she is familiar with A&F's market research and has sufficient knowledge to testify to the importance of pocket stitching designs to jeans consumers Contains speculation about consumer impressions and is not necessary to explain the designated portion The additional testimony explains portions of the exhibit that are irrelevant, and is unnecessary to the designation Relevant to how jean is shown at point of sale and choice to show stitching Response

60:4-61:20 Sustained, in part. 87:11-89:6 Sustained. 94:20-95:9 Overruled. Designation ­ Nicole Sanger 46:20-47:9 Sustained.

Incomplete Designation ­ add: 39:17-40:23 Omit 39:20-23. Incomplete Designation ­ add: 89:7-90:6 to further explain exhibit about which witness is testifying Relevance

Objection Relevance

60:14-61:24 Sustained, in part.

68:14-71:5 Overruled.

Relevant to witness's experience and scope of her knowledge of third party use of stitching designs, a topic on which she has been designated to testify 61:14-24 ­ calls for speculation; Does not call for speculation, but Incomplete Designation ­ add: merely asks the witness whether the 61:25-64:22 to give context to participants in the focus groups she and explain how witness conducted were shown any product; conducted her focus groups proposed addition contains several pages of testimony and is not necessary Omit 63:21-64:4. to explain designated portion Incomplete Designation ­ add: Addition contains speculation 71:5-17 to give context to and explain designated testimony

JOINT LIST OF OBJECTIONS TO DEPOSITION DESIGNATIONS NO. C07-03752 JSW

-1 -

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 28 128:7-129:7 Overruled. Relevance/outside scope of 30(b)(6) Designation ­ Reid Objection Wilson 97:18-97:22 Relevance/lacks foundation Overruled. 101:22-102:3 Relevance/outside scope of 30(b)(6); Incomplete Sustained designation ­ add: 102:4-103:18 incomplete designation. 103:13-104:21 Sustained incomplete designation. 105:11-25 Overruled. 125:16-127:10 Overruled, but omit 126:20-21. Relevance/outside scope of 30(b)(6); calls for attorney/client communications Relevance/outside scope of 30(b)(6); Incomplete designation ­ add: 101:22103:12 Relevance/outside scope of 30(b)(6) Response Relevant to use of challenged design; will add 97:8-17 to establish foundation Witness testified in individual capacity as well as pursuant to FRCP 30(b)(6) notice; relevant to pending application to register challenged design; requested portion has been added Witness testified in individual capacity as well as pursuant to FRCP 30(b)(6) notice; relevant to pending application to register challenged design; requested portion has been added, to the extent not already designated Witness testified in individual capacity as well as pursuant to FRCP 30(b)(6) notice; relevant to pending application to register challenged design Witness testified in individual capacity as well as pursuant to FRCP 30(b)(6) notice; relevant to A&F's decision to clear and use challenged design; does not call for privileged communications and no privilege objection was made at the time Witness testified in individual capacity as well as pursuant to FRCP 30(b)(6) notice; relevant to A&F's decision to -2 Designation ­ Kevin Cothren 13:12-21 Overruled. Per Levi's response, additions to be given. 33:6 Sustained as to 33:6-9. 71:11-73:5 Overruled. Objection Refers to unidentified testimony of another witness; calls for speculation; incomplete designation ­ add: 11:20-25, 13:21-16:13 Relevance; no response; privilege 72:19-73:5 ­ lacks sufficient knowledge; relevance Response Refers to design process, does not call for speculation. Requested portion has been added, to the extent not already designated. Inappropriate to refer to privilege designation as it suggests that a review by the legal department was undertaken. Witness is testifying to his knowledge of a particular line of LEVI'SŪ jeans that carries a design similar to the Ruehl design; relevant to knowledge of LS&CO.'s mark and intent

JOINT LIST OF OBJECTIONS TO DEPOSITION DESIGNATIONS NO. C07-03752 JSW

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 28 169:22-171:23 Sustained relevance. 191:2-7 Sustained relevance. Sustained relevance. 146:15-147:25 Sustained in part. 155:12-20 Sustained. 166:3-168:24 135:3-136:3 Overruled. 137:6-15 Overruled. 137:24-143:3 Overruled.

clear and use challenged design Relevance/outside scope of Witness testified in individual capacity 30(b)(6); lacks foundation as well as pursuant to FRCP 30(b)(6) notice; witness testified he had seen the exhibit and could identify it Relevance/outside scope of Witness testified in individual capacity 30(b)(6); calls for speculation as well as pursuant to FRCP 30(b)(6) notice; testified to his understanding of the document Relevance/outside scope of Witness testified in individual capacity 30(b)(6); 137:24-139:3, 142:18- as well as pursuant to FRCP 30(b)(6) 143:3 lacks foundation; calls for notice; witness identified and produced speculation the documents in discovery so there is adequate foundation Relevance/outside scope of Witness testified in individual capacity 30(b)(6) as well as pursuant to FRCP 30(b)(6) notice; relevant to creation of Omit 147:19-20. challenged design Relevance/outside scope of Witness testified in individual capacity 30(b)(6) as well as pursuant to FRCP 30(b)(6) notice; relevant to design process and to A&F's intent to copy competitors' marks Relevance/outside scope of Witness testified in individual capacity 30(b)(6); lacks foundation/ as well as pursuant to FRCP 30(b)(6) hearsay/Fed. R. Evid. 408; notice; relevant to willfulness. Alternatively, Incomplete Requested portion will be added, to the designation ­ add: 168:25extent not already designated. 169:25 Relevance/outside scope of Witness testified in individual capacity 30(b)(6); lacks foundation/ as well as pursuant to FRCP 30(b)(6) hearsay/Fed. R. Evid. 408; notice; relevant to willfulness. Alternatively, Incomplete Requested portion will be added, to the designation ­ add: 168:21extent not already designated. 169:21 Relevance/outside scope of Witness testified in individual capacity 30(b)(6); hearsay as well as pursuant to FRCP 30(b)(6) notice; relevant to intent; not hearsay. DISTRI

UNIT ED

S

ES AT T

CT C

JOINT LIST OF OBJECTIONS TO DEPOSITION DESIGNATIONS NO. C07-03752 JSW

ER

N

F D IS T IC T O R

A

C

LI

FO

ffrey Judge Je

S. Whit

e

R NIA

D RDERE S SO O IT I

RT U O

December 11, 2008

NO

RT

H

-3 -