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

Filing 42

OBJECTIONS to 40 Reply Brief and Accompanying Declarations of J. Andrew Coombs Filed by Louis Vuitton Malletier, S.A. In Support of Its Motion to Compel by Akanoc Solutions, Inc., Managed Solutions Group, Inc., Steven Chen. (Lowe, James) (Filed on 4/18/2008) Modified on 4/21/2008 (cv, COURT STAFF).

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

Doc. 42

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GAUNTLETT & ASSOCIATES David A. Gauntlett (SBN 96399) James A. Lowe (SBN 214383) Brian S. Edwards (SBN 166258) 18400 Von Karman, Suite 300 Irvine, California 92612 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Akanoc Solutions, Inc., Managed Solutions Group, Inc. and Steven Chen

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

LOUIS VUITTON MALLETIER, S.A., Plaintiff, vs. AKANOC SOLUTIONS, INC., et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: C 07-3952 JW Hon. Magistrate Judge Howard R. Lloyd OBJECTIONS TO REPLY BRIEF AND ACCOMPANYING DECLARATION OF J. ANDREW COOMBS FILED BY LOUIS VUITTON MALLETIER, S.A. IN SUPPORT OF ITS MOTION TO COMPEL
[FILED IN OPPOSITION TO PLAINTIFF LOUIS VUITTON MALLETIER, S.A.'S MOTION TO COMPEL PRODUCTION OF ELECTRONIC
COMMUNICATIONS CONTAINED ON INTERNET SERVERS]

Date: April 29, 2008 Time: 10:00 a.m. Dept.: Courtroom 2, 5th Floor

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EVIDENTIARY OBJECTIONS TO DECLARATION OF J. ANDREW COOMBS ­ C 07-3952 JW

Dockets.Justia.com

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Defendants Managed Solutions Group, Inc., Akanoc Solutions, Inc. and Steven Chen (collectively "Defendants") hereby object to plaintiff Louis Vuitton Malletier, Inc.'s ("LV") Reply Papers including the Declaration of J. Andrew Coombs ("Coombs Decl.") filed therewith, as follows: GENERAL OBJECTIONS LV's reply papers, including its brief and accompanying declaration of J. Andrew Coombs, is replete with new "facts" and legal arguments not raised in the initial moving papers, including statements as to what defendant Steven Chen allegedly testified to at his recent deposition. Defendants cannot respond to these allegations because (1) these new issues were first raised on reply, and (2) the transcript of Steven Chen has not yet been prepared. Defendants generally object to this attempt by LV to "shift gears" and introduce new facts or different legal arguments in the reply papers than were presented in the moving papers. See Lujan v. National Wildlife Federation 497 U.S. 871, 894-895 (1990) (court has discretion to disregard factual matters raised in the reply). If a court relies upon new material contained in a reply brief, it must afford the opposing party a reasonable opportunity to be respond. Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1164-1165 (11th Cir. 1998); See Springs Industries, Inc. v. American Motorists Ins. Co., 137 FRD 238, 240 (ND TX 1991) (if reply brief raises new material (and is permitted), nonmovant should be given an opportunity for further response).

COOMBS DECL.

MSG'S OBJECTIONS

In a letter dated January 17, 2008, Objection. Declarant's statement and the case initiating Defendants' that meet and asserted confer, he cites to are not relevant to the issue of that whether or not Louis Vuitton listed Plaintiff's

counsel

"blanket objections" were of no force objections in its motion as required by Local and effect and quoted from the decision Rule 37-2. See Fed. R. Evid. 402: ("Evidence in Kerr v. United States District Court, which is not relevant is not admissible.") Northern District of California, 511 F.2d

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COOMBS DECL. 192, 198 (9th Cir. 1975). Coombs Decl. ¶ 4:

MSG'S OBJECTIONS

Objection. The declarant has no foundation

That [CPRO] database included of personal knowledge about the matters upon service entries pertaining to the servers which he testifies, nor does he affirmatively owned and maintained by Defendants. show that he is competent to give such testimony, admissibility. as is a prerequisite to

See Fed. R. Evid. 602 ("A

witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter."); and Fed. R. Civ. P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.").

This is also an alleged factual statement LV is raising on reply for the first time which Defendants do not have an opportunity to rebut or provide evidence in response to. Defendants also cannot respond because the transcript of Steven Chen's deposition has not yet been prepared. If a court relies upon new material contained in a reply brief, it must

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COOMBS DECL.

MSG'S OBJECTIONS afford the opposing party a reasonable opportunity to be respond. Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1164-1165 (11th Cir. 1998)

Coombs Decl. ¶ 4: Those [CPRO] spreadsheets, which consisted of several

Objection. Mr. Coombs' statements as to the contents of the deposition transcript constitute inadmissible hearsay. See Fed. R. Evid. 802: ("Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.")

hundred pages, were the subject of testimony of Mr. Chen on April 9 at which time he confirmed that, despite the

production, service log entries and other relevant information about the CPRO database which fell within Louis Vuitton's prior requests documents for production were still of not As a further objection, the speculation and surmise of the declarant is inadmissible including that the CPRO database constitutes hundreds of pages and was requested by Louis Vuitton in discovery ­ it was not. Declarant could have very easily attached discovery requests to his declaration if those requests supported his statement. His

included in the belated April 8 production.

unsupported statement is unreliable and should be disregarded.

This is also an alleged factual statement LV is raising on reply for the first time which

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COOMBS DECL.

MSG'S OBJECTIONS Defendants do not have an opportunity to rebut or provide evidence in response to. Defendants also cannot respond because the transcript of Steven Chen's deposition has not yet been prepared. If a court relies upon new material contained in a reply brief, it must afford the opposing party a reasonable opportunity to be respond. Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1164-1165 (11th Cir. 1998)

Coombs Decl. ¶4: Mr. Chen also confirmed that income statements and balance sheets for Defendant Akanoc Solutions, Inc. existed and, despite financial production of such for

Objection.

"Financial

information"

of

Managed Solutions Group, Inc. and Akanoc Solutions, Inc. has nothing to do with what Louis Vuitton is asking for in this motion to compel. See Fed. R. Evid. 402: ("Evidence which is not relevant is not admissible")

information

Managed Solutions Group, Inc. and an equivalent agreement to produce such documents as pertain to Akanoc Solutions, Inc., the financials for Akanoc Solutions, Inc. were produced by email on April 14, 2008.

Mr. Coombs' statements about the contents of the deposition transcript also constitute inadmissible hearsay. See Fed. R. Evid. 802: ("Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.")

This is also an alleged factual statement LV is

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COOMBS DECL.

MSG'S OBJECTIONS raising on reply for the first time which Defendants do not have an opportunity to rebut or provide evidence in response to. Defendants also cannot respond because the transcript of Steven Chen's deposition has not yet been prepared. If a court relies upon new material contained in a reply brief, it must afford the opposing party a reasonable opportunity to be respond. Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1164-1165 (11th Cir. 1998)

Coombs Decl. ¶4:

Objection. A hard drive crash has nothing to

Mr. Chen also testified concerning an do with what Louis Vuitton is asking for in alleged hard drive crash which deleted this motion to compel. See Fed. R. Evid. 402: all emails before approximately June, ("Evidence which is not relevant is not 2007. admissible")

Mr. Coombs' statements about the contents of the deposition transcript also constitute inadmissible hearsay. See Fed. R. Evid. 802: ("Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.")

This is also an alleged factual statement LV is

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COOMBS DECL.

MSG'S OBJECTIONS raising on reply for the first time which Defendants do not have an opportunity to rebut or provide evidence in response to. Defendants also cannot respond because the transcript of Steven Chen's deposition has not yet been prepared. If a court relies upon new material contained in a reply brief, it must afford the opposing party a reasonable opportunity to be respond. Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1164-1165 (11th Cir. 1998)

Coombs Decl. ¶5:

Objection. Mr. Coombs' statements about the

During Mr. Chen's deposition, he contents of the deposition transcript constitute estimated that at any given time only inadmissible hearsay. See Fed. R. Evid. 802: about 10 to 15% of the server capacity ("Hearsay is not admissible except as owned or maintained by Defendants is provided by these rules or by other rules used for website hosting, as distinct prescribed by the Supreme Court pursuant to from, for example, voice over internet statutory authority.") telephone, online storage and other unrelated functions. He also confirmed Again, this is an alleged factual statement LV that initial password access is assigned is raising on reply for the first time which by the Defendants. Defendants do not have an opportunity to rebut or provide evidence in response to. If a court relies upon new material contained in a reply brief, it must afford the opposing party a reasonable opportunity to be respond.

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COOMBS DECL.

MSG'S OBJECTIONS Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1164-1165 (11th Cir. 1998)

Dated: April 18, 2008

GAUNTLETT & ASSOCIATES

By:

/s/ James A. Lowe James A. Lowe Brian S. Edwards

Attorneys for Defendants Akanoc Solutions, Inc., Managed Solutions Group, Inc., and Steven Chen

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