Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Filing 185

Memorandum in Opposition re 184 MOTION for Leave to File MOTION FOR RECONSIDERATION OF ORDER RE: MOTIONS IN LIMINE; DECLARATION IN SUPPORT DEFENDANTS' OPPOSITION TO VUITTON'S REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATIOBN OF JULY 9, 2009 ORDER RE MOTIONS IN LIMINE filed byAkanoc Solutions, Inc., Steven Chen, Managed Solutions Group, Inc.. (Attachments: # 1 Lowe Declaration)(Lowe, James) (Filed on 7/10/2009)

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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 J. Andrew Coombs (SBN 123881) andy@coombspc.com Annie S. Wang (SBN 243027) annie@coombspc.com J. Andrew Coombs, A Prof. Corp. 517 E. Wilson Ave., Suite 202 Glendale, California 91206 Telephone: (818) 500-3200 Facsimile: (818) 500-3201 Attorneys for Plaintiff Louis Vuitton Malletier, S.A. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE) Louis Vuitton Malletier, S.A., v. Plaintiff, ) ) ) ) ) ) ) ) ) Case No. C 07 3952 JW (HRLx) REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF ORDER RE: MOTIONS IN LIMINE; DECLARATION IN SUPPORT Akanoc Solutions, Inc., et al. Defendants. Pursuant to Local Rule 7-9, Plaintiff Louis Vuitton Malletier, S.A. ("Plaintiff" or "Louis Vuitton") moves the Court for leave to file a "Motion for Reconsideration of Order Re: Motions in Limine" to address only the Court's ruling on Defendants' Motion in Limine No. 15 ("Defendants' Motion"). Docket No. 183. This request is based on the fact the same order granted Defendants' leave to file their untimely motions in limine and Plaintiff was provided no opportunity to supplement the record or to dispute the positions adopted on behalf of Defendants. (Defendants' motion for leave, along with the putative Defendants' Motion was filed on Monday, the 6th and the order granting leave and simultaneously granting Defendants' Motion was filed Thursday, the 9th.). Although Defendants' Motion was granted without prejudice, Plaintiff seeks clarification that opinions upon which the Plaintiff's expert was examined at deposition will be admitted.. Moreover, Defendants' Motion is predicated upon an incomplete account of the pertinent record, creating a misleading basis in support of their position. Louis Vuitton v. Akanoc, et al.: Request for Leave to File Motion for Reconsideration -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 Plaintiff easily meets its burden under Local Rule 7-9 and the Court's Order. At the time of this request, a material difference in the facts exists based upon Defendants' omission of several key facts, the Court did not consider material facts because they were purposefully omitted by Defendants, and Plaintiff was not given an opportunity to oppose Defendants' Motion at all. I. Defendants Fail to Note They Were Given An Opportunity to Examine Plaintiff's Expert on All Relevant Opinions At His Deposition. Plaintiff's expert, Michael Wilson ("Wilson") was examined at length on June 26, 2009. Among other things, Wilson was examined on documents produced to Defendants as part of Wilson's production pursuant to Defendants' deposition subpoena. These documents elaborated upon the opinion Wilson expressed in his initial report dated May 20, 2009, in which Wilson stated that he expected "to verify and authenticate the relevant portions of the ESI [Electronically Stored Information] collected by Mr. Murin." The documents produced before Wilson's deposition elaborated upon the contents of the ESI obtained as a result of the Court-ordered inspection first made available after Magistrate Judge Lloyd's order of May 12, 2009. The Court will recall that the ESI was obtained after extensive objection, obstruction and motion practice dating back to Plaintiff's first request for production of documents propounded in November, 2007. When no documents were produced in response to Plaintiff's requests, the Court, after motion and objection by Defendants, ordered an inspection. Further motion practice was required to determine the protocol for inspection, a protocol that was not established until Magistrate Judge Lloyd's order of May 12, 2009. Plaintiff's expert accordingly had but eight days before the expert discovery cutoff to serve his report. This report was to address ESI evidencing staggering amounts of infringing material on but five of the servers maintained by Defendants, evidence which Defendants' themselves asserted was too voluminous in their Motion in Limine No. 12. Notwithstanding this burden, an expert report was timely produced and supplemented, albeit just before Wilson's deposition was scheduled to begin. As no additional opinions have been Louis Vuitton v. Akanoc, et al.: Request for Leave to File Motion for Reconsideration -2- 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 expressed by Wilson following the deposition, Plaintiff concludes that it is opinions included in the deposition should be admitted. Moreover, Defendants did examine Wilson on the subject matter of those additional opinions. There is therefore no prejudice and exclusion of such evidence would be inappropriate. II. Key Facts Were Omitted From Defendants' Moving Papers Resulting in a Materially, Misleading Timeline not Considered by the Court. While Defendants' contend that they are prejudiced by Plaintiff's expert's testimony of which they were made aware prior to Plaintiff's expert's deposition and concerning which they deposed Plaintiff's expert, they do not mention in their papers that they produced their expert's supplemental report by email, at 6:02 p.m. the day before Plaintiff's expert's deposition. Declaration of J. Andrew Coombs ("Coombs Decl.") at 3. Plaintiff's expert could not have been expected to rebut those statements and provide his finalized supplemental report given only the night before his deposition. III. Admission of the Opinions Will Expedite and Facilitate Resolution of the Issues Before the Court. As noted above, the relevant ESI collected from Defendants' servers is massive. It evidences hundreds of websites incorporating offers of counterfeit merchandise infringing Plaintiff's intellectual properties as well as traffic logs indicating when these sites were active. Wilson's opinions will merely explain that data in a manner more readily understood by the jury, including presenting the data in the format in which it appeared when it was online, summarizing when the websites were active and Louis Vuitton offers were being accessed and otherwise providing a useful mechanism to understand the scope of the direct infringements abetted by Defendants on a mere handful of servers operated by them. It is in the Court's own interest and considerably more efficient to permit introduction of the evidence in this format. Louis Vuitton v. Akanoc, et al.: Request for Leave to File Motion for Reconsideration -3- 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 For these reasons, the Court should grant Plaintiff an opportunity to respond to Defendants' Motion through a Motion for Reconsideration in light of the incomplete representations and to prevent Defendants from gaining an unfair advantage at trial. Dated: July 10, 2009 J. Andrew Coombs, A Professional Corp. ____/s/ J. Andrew Coombs___________________ By: J. Andrew Coombs Annie S. Wang Attorneys for Plaintiff Louis Vuitton Malletier, S.A. Louis Vuitton v. Akanoc, et al.: Request for Leave to File Motion for Reconsideration -4- 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 DECLARATION OF J. ANDREW COOMBS I, J. Andrew Coombs, declare as follows: 1. I am an attorney at law, duly admitted to practice before the Courts of the State of California and the United States District Court for the Northern District of California. I am counsel of record for Plaintiff, Louis Vuitton Malletier, S.A. ("Louis Vuitton") in an action styled Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., et al., and, except as otherwise expressly noted to the contrary, I have personal knowledge of the following facts. 2. On or about June 23, 2009, prior to the deposition of Mr. Michael Wilson, Plaintiff's designated expert, I sent correspondence to Mr. James Lowe, counsel for Defendants regarding Mr. Wilson's attempts to "rebuild" certain of the websites hosted on Defendants' servers. I received a response from Mr. Christopher Lai on that same date acknowledging my correspondence, and sent to Defendants' expert, a copy of the raw data from the servers that was delivered on June 24, 2009, pursuant to Defendants' counsel's instruction. Attached collectively as Exhibit A are true and correct copies of my correspondence to Mr. Lowe as well as the exchange between myself and Mr. Lai. 3. On or about June 25, 2009, Defendants submitted its expert's supplemental report by email at 6:02 p.m., which was also the day before Mr. Wilson's deposition. Attached hereto as Exhibit B is a true and correct copy of the email sent by Defendants' counsel after business hours on June 25, 2009. 4. On June 26, 2009, before the deposition of Mr. Wilson began, Mr. Wilson provided to Mr. Lowe additional documents and findings, including printouts from at least one "rebuild" as well as a draft of findings that were to be incorporated in his supplemental report, among other things. Mr. Lowe reviewed Mr. Wilson's documents and questioned him regarding those documents in great detail. Attached hereto as Exhibit C are true and correct sample excerpts from the working draft of the transcript of Mr. Wilson's deposition. Louis Vuitton v. Akanoc, et al.: Request for Leave to File Motion for Reconsideration -5- 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 I declare under penalty of perjury that the foregoing is true and correct and this declaration was executed the 10th day of July, 2009 at Glendale, California. _______/s/ J. Andrew Coombs________ J. ANDREW COOMBS Louis Vuitton v. 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