Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01362-LTB-MJW

Document 53

Filed 07/13/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01362 ABJ-MJW QUALMARK CORPORATION, Plaintiff, v. GREGG K. HOBBS and HOBBS ENGINEERING CORPORATION, Defendants. REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR STAY PENDING COMPLETION OF BRIEFING ON PLAINTIFF'S MOTION TO COMPEL AND EXTEND DEADLINES Plaintiff QualMark Corporation ("QualMark"), by and through its undersigned attorneys, respectfully submits the following Reply in Support of Plaintiff's Motion for Stay Pending Completion of Briefing on Plaintiff's Motion to Compel and Extend Deadlines. Defendants' Response to Plaintiff's Motion for Stay Pending Completion of Briefing on Plaintiff's Motion to Compel and Extend Deadlines ("Defendants' Response") is simply a repeat performance of their earlier efforts in this litigation and the preceding litigation. Arguments made in Defendants' Response at best show a deep misunderstanding of the rules of evidence or at worst are simply disingenuous. Prominent among Defendants' arguments is that Plaintiff's brief violates Federal Rule of Evidence 408. The argument is absurd. The references made in the paragraph 3 of the Plaintiff's motion are to minute entries from the court's own docket. They are not "offered as evidence" and clearly do not run afoul in any way, shape or form of the Federal Rule of Evidence prohibiting admissibility "to prove liability for or invalidity of the claim or its

Case 1:04-cv-01362-LTB-MJW

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amount." "Rule 408 only bars admissibility for purposes of proving existence or absence and amount of liability." Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp. 1560, 1576 (D.N.M. 1994) (citing In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1124 n.20 (7th Cir.1979)) (emphasis in original). Plaintiff has consistently and uniformly requested documents from Defendants which requests they have ignored. On numerous occasions as the time for discovery came to a close, Plaintiff repeatedly asked for, and explained why it was necessary for it to obtain, documentation relating to the seminars and the profits made by Dr. Hobbs in connection with the seminars. Highlighted correspondence between counsel relating to this issue in December 2004 is attached hereto as Exhibits 1, 2, 3, 4 and 5. Further, Plaintiff's expert has explained to Plaintiff's counsel that a review of the profitability of the seminars is necessary in order to identify a "reasonable license fee" regardless of whether or not Plaintiff is seeking disgorgement of Defendants' profits relating to these seminars. Clearly, the information regarding the profitability of the seminars is critical to Plaintiff's expert's analysis. Finally, the taking of Dr. Hobbs' deposition without all of the documentation relating to his seminars which he has resolutely kept from Plaintiff would be absurd. The information was necessary not only to identify with specificity the copyright infringements that took place, but also the number of occasions and the number of people that actually received the infringing material, as well as the profits made by Dr. Hobbs with respect to the seminars. The requested information is necessary not merely for disgorgement purposes, as already articulated, but also to determine what a "reasonable license fee" would be in connection with the use of the materials at the seminars. Without having that specific information prior to deposing Dr. Hobbs, the

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Case 1:04-cv-01362-LTB-MJW

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deposition of Dr. Hobbs would have been an exercise in futility. Thus it was necessary for Plaintiff to await the court's ruling on the motion to compel prior to taking the deposition. For all of these reasons Plaintiff requests the relief that is sought in its Motion for Stay Pending Completion of Briefing on Plaintiffs' Motion to Compel and Extend Deadlines. Respectfully submitted this 13th day of July, 2005.

s/ Stephen D. Bell Stephen D. Bell DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 FAX: (303) 629-3450 Email: [email protected] Attorneys for Plaintiff QualMark Corporation CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on July 13, 2005, I electronically filed the foregoing document, titled PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR STAY PENDING COMPLETION OF BRIEFING, with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] s/ Stephen D. Bell Stephen D. Bell Attorneys for Plaintiff QualMark Corporation DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 FAX: (303) 629-3450 Email: [email protected]

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