Free Response - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00329-WYD-CBS CACHE LA POUDRE FEEDS, LLC Plaintiff, v. LAND O' LAKES, INC., LAND O' LAKES FARMLAND FEED, LLC., AMERICAN PRIDE CO-OP, POUDRE VALLEY COOPERATIVE ASSOCIATION, INC., FRANK BEZDICEK, ROBERT DeGREGORIO Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE'S ORDER OF APRIL 13, 2007 Pursuant to the Court's Order of April 24, 2007, Defendants, through their undersigned counsel, hereby respond to Plaintiff's Objection to Magistrate's Order of April 13, 2007 as follows: I. INTRODUCTION

More than one year after the discovery cut-off, and just days before the parties submitted their respective witness lists, Plaintiff served a Rule 26(e) supplement, disclosing 37 previously undisclosed witnesses who allegedly had information concerning Plaintiff's claims and defenses. Following a conferral process with Plaintiff regarding all of the witnesses, Defendants moved to strike 20 of those witnesses as their late disclosure was neither substantially justified nor harmless. Magistrate Judge Shaffer held two hearings regarding

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Defendants' motion, ultimately striking 15 of the 20 witnesses.1 Judge Shaffer, however, denied Defendants' motion with respect to 5 witnesses, holding that 2 were obliquely disclosed through deposition testimony, and that the late disclosure of 3 others was substantially justified because Plaintiff had only recently discovered the existence of their knowledge. With respect to the remaining 16 witnesses ­ one of whom Plaintiff disclosed on April 10, 2007 ­ Judge Shaffer held that Plaintiff failed to timely supplement its disclosures in accordance with F.R.C.P. 26(e), and after applying Tenth Circuit case-law, determined that such failure was neither substantially justified nor was it harmless.2 Plaintiff objects to Judge Shaffer's decision striking these 16 witnesses from testifying at trial. Plaintiff's objection, though, cannot be sustained as Judge Shaffer's decision was neither contrary to law nor clearly erroneous ­ the standard required to overrule a magistrate judge's decision regarding a nondispositive pretrial matter. See Fed. R. Civ. P. 72(a). Plaintiff, in fact, did not even address the applicable standard in its Objection, presumably because there is nothing about Judge Shaffer's Order that would support such a finding. Yet, even if this Court were to review Judge Shaffer's decision de novo, as Plaintiff inherently suggests, Plaintiff's reasoning as to why it is substantially justified in failing to disclose 16 of its own customers who had information regarding market penetration of Plaintiff's PROFILE products until October 2006 is fundamentally flawed. That is, Plaintiff asserts that it could not disclose these individuals until it received and reviewed invoices evidencing sales of Land O' Lakes' PROFILE products. Notwithstanding that these invoices
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Magistrate Judge Shaffer also struck another witness that Plaintiff attempted to add following the first hearing on the matter on April 9, totaling sixteen witnesses. 2 See Transcript of Telephonic Hearing with Magistrate Judge Shaffer held on April 13, 2007, pp. 9-14, a copy of which is attached hereto as Exhibit A, and hereinafter referred to as the "April 13 Order."

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were produced at least six months prior to Plaintiff's disclosure at issue and that detailed spreadsheets setting forth the same material was produced years earlier, there is no rational relation between Land O' Lakes' invoices and Plaintiff's market penetration witnesses. Market penetration has always been a key issue in the case, both as an element of establishing a common law trademark and as an element of the good faith junior user defense. Whether Plaintiff had invoices backing up the spreadsheets previously produced has no bearing on whether the issue was in the case. In its Objection, Plaintiff claims that these 16 witnesses ­ none of whom was even disclosed on Plaintiff's "will call" witness list in October - are "critical" to the presentation of its case. Assuming that were true, it stands to reason that Plaintiff would have investigated its case concerning this element from case inception and these witnesses should have been disclosed years earlier. Simply put, there is no substantial justification for waiting until a year after discovery to disclose key witnesses. Finally, because the harm of the late disclosures cannot be cured by telephone conversations, or even by depositions at this late stage, exclusion of these witnesses is warranted under F.R.C.P. 37(c)(1). II. A. ARGUMENT

Plaintiff Failed To Establish that Magistrate Judge Shaffer's Order Was Clearly Erroneous or Contrary to Law The standard of review of a magistrate's order is outlined in Fed. R. Civ. P. 72(a). As

to non-dispositive pretrial matters, the district court reviews a magistrate's order under a "clearly erroneous or contrary to law" standard of review. Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1461-62 (10th Cir.1988) (citing rule). The clearly erroneous standard requires the Court to affirm the decision of the magistrate unless "on the entire 3

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evidence the court is left with the definite and firm conviction that a mistake has been committed." Id. at 1464 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); see also Cook v. Rockwell Int'l Corp., 147 F.R.D. 237, 242 (D. Colo. 1993). 1. Judge Shaffer's Order Was Not Contrary to Law

There is no doubt that Judge Shaffer applied the applicable law to his decision to exclude 16 of Plaintiff's witnesses in accordance with F.R.C.P. 37(c)(1). First, Judge Shaffer focused on the disclosure requirements of Rule 26, noting that he considered his decision and the controlling law in Sender vs. Mann, 225 F.R.D. 645 (D. Colo. 2004), even conducting his own research in addition to the cases cited by the parties. See April 13 Order, pp. 6:12-19; 9:3 ­11:1. Judge Shaffer set forth the prevailing law, acknowledging that he must be guided by the mandates and objectives underlying Rule 26(a) in determining whether or not a party has properly supplemented its disclosures under Rule 26(e)(1). Id. at 10:12-13. Rule 26(a) requires a party to adequately identify those individuals likely to have discoverable information to support its claims and defenses and to identify the subjects of the information. Id. at 10:1619. If this information is provided by some alternative means through the discovery process, then the supplementation requirements of Rule 26(e) are satisfied. Id. at 11:2-4. On the other hand, if "common sense" tells you that a party does not have enough useful information to make informed decisions regarding discovery and trial preparation, then supplementation of Rule 26(a) disclosures is required. Id. at 10:5-9. Based on Judge Shaffer's application of Rules 26(a) and 26(e), he determined that Plaintiff did not satisfy the supplementation requirements with respect to 16 witnesses. Id. at 11:5-11.

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Second, in determining whether he should impose sanctions against Plaintiff in accordance with Rule 37(c)(1) for failing to supplement its disclosures, Judge Shaffer recognized that he should be guided by the factors set forth in Woodworkers Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). Id. at 14:2-5. The factors include: (1) the importance of the witness's testimony; (2) the explanation of the party for its failure to comply with the required disclosure; (3) the potential prejudice or surprise to the party against whom the testimony is offered that would arise from allowing the testimony; (4) the availability of a continuance to cure such prejudice; (5) the extent to which introducing such testimony would disrupt the trial; and (6) the non-disclosing party's bad faith or willfulness. Judge Shaffer stated that he did in fact consider these factors when making his determination regarding the 16 witnesses he excluded. Id. Thus, because Judge Shaffer researched, understood, and applied the prevailing law in the Tenth Circuit when he issued his order excluding 16 of the 21 witnesses, Plaintiff cannot, and has not, established that his ruling was contrary to law. Rather, Judge Shaffer was careful to apply the relevant law. 2. Judge Shaffer's Order Was Not Clearly Erroneous

Judge Shaffer was also not factually wrong when he applied the facts surrounding the late disclosures to the prevailing law. For example, he determined that 2 witnesses were adequately disclosed under Rule 26(e) because they were discussed during depositions ­ albeit in passing and without the deponents confirming that the witnesses had any relevant knowledge ­ and Defendants had an opportunity to ask follow-up questions concerning these witnesses during discovery. Id. at 7:7-19. With respect to 3 more witnesses, Judge Shaffer determined that because they were not discovered by Plaintiff until after August 31, 2005 (the discovery

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cut-off), Plaintiff was substantially justified in the late disclosure. Id. at 8:6-9. Finally, with respect to the 16 remaining witnesses, Judge Shaffer first determined that they were never properly disclosed under Rule 26(e). Id. at 11:5-11. Therefore, to determine whether exclusion was warranted under Rule 37(c), he was obliged to consider the Woodworkers balancing factors. This is exactly what he did. Judge Shaffer considered the claimed importance of these witnesses testimony to both Plaintiff and Defendant (as opposed to just the former), and found that this factor weighed in favor of striking the witnesses. "If these people were sufficiently important to be will call witnesses, it was incumbent upon plaintiff to act in a timely manner." April 13 Order, p. 14:911. He also determined that the witnesses' testimony would be disruptive to the trial, and improperly burdensome to "require the defendant to go around and depose or potentially conduct discovery" with all 16 witnesses. Id. at 14:6-9. Finally, Judge Shaffer recognized that it would be expensive and untenable to postpone the trial at this stage, and therefore Defendants had no opportunity to cure any prejudice. Id. at 14:15-19. In no way was Judge Shaffer's decision to exclude 16 witnesses clearly erroneous when Plaintiff disclosed them a year after discovery and admittedly knew of the existence of these customers for years. Plaintiff has therefore failed to meet the standard required to overrule a magistrate judge's decision regarding a non-dispositive pretrial matter. Notwithstanding this failure, even if the Court were to apply a de novo standard, Plaintiff's own arguments in its Objection make it clear that Plaintiff's late disclosures were neither substantially justified nor are they harmless.

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B.

Plaintiff's Failure to Disclose 16 of Its Own Customers As Having Knowledge Regarding Market Penetration Was Not Substantially Justified 1. Plaintiff Knew About These 16 Witnesses For Months or Years Prior to the Disclosure and Defendants Could Not Determine From the Documents the Extent of the Witnesses' Knowledge

Plaintiff argues that this Court should overrule Magistrate Judge Shaffer's Order excluding 16 witnesses disclosed in October 2006 because such exclusion is an "unduly harsh remedy and inappropriately extreme under the facts of this case." Objection, p. 8. In an attempt to detail the "harsh" nature of Judge Shaffer's Order, Plaintiff focuses on one factor: that these 16 witnesses are "critical" in establishing the extent of Plaintiff's market penetration. According to Plaintiff, these newly disclosed witnesses will testify that Plaintiff's PROFILE products were "sold, distributed or displayed in an additional 21 states plus the District of Columbia" beyond those states Plaintiff actually disclosed during the discovery period. That is, Plaintiff asserts that these 16 witnesses have new information that was never disclosed during the discovery period, which information is apparently central to Plaintiff's claims and defenses. This fact alone supports Judge Shaffer's decision to exclude these individuals as such late disclosure of key witnesses, all of whom Plaintiff knew about during discovery, is not substantially justified. See Woodworkers Supply, 170 F.3d at 993 (holding that the importance of the witnesses testimony is a key factor in guiding the court's discretion in imposing sanctions under Rule 37(c)(1)). According to Plaintiff, these were "critical" witnesses who had information that had not otherwise been disclosed. There is no question that if these 16 witnesses were essential to establishing the scope of Plaintiff's market penetration, they should have been disclosed during the discovery period.

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At the same time however, if they were truly "critical," it stands to reason that they would not have been buried in Plaintiff's list of over 180 "may call" witnesses on Plaintiff's original Witness list. Plaintiff disclosed these witnesses on October 11, 2006. On October 17, Plaintiff listed them as "may call" witnesses as part of the Joint Proposed Pretrial Order. See Joint Proposed Pretrial Order, ECF No. 294, pp. 38-40. Even when Plaintiff responded to Defendants' motion to strike on April 5, 2007, Plaintiff did not indicate that the witnesses Defendants sought to strike were "critical" to its case. Plaintiff even down-played the importance of the witnesses in its Response to the motion to strike, arguing that Plaintiff "certainly should not be penalized for providing more information than was required of" it. See ECF No. 317, p. 14. As time passes, however, these witnesses become more and more important to Plaintiff. Either Plaintiff is grossly overstating their importance or Plaintiff has attempted to hide them and prevent Defendants the ability to discover information from them. Under either scenario, they should be excluded: they are either much less important that Plaintiff now claims or their late disclosure is pure gamesmanship. Notably, Plaintiff easily could have disclosed these witnesses during the discovery period. All 16 witnesses are Plaintiff's customers. Plaintiff admits that their names are contained on customer lists, photographs and invoices that were produced to Defendants during this case. See generally, ECF No. 317, pp 9-13. On the other hand, as recognized by Judge Shaffer, Defendants could not have determined from any of the documents disclosed by Plaintiff during discovery that these particular customers were either critical witnesses, or even had the information that Plaintiff disclosed in October 2006. See April 13 Order, 13:1-15.

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Only Plaintiff knew which customers, out of the hundreds on its customer list, it would rely upon to establish market penetration in certain geographic locations. For example, Plaintiff disclosed Glen Rask in October 2006 as having information regarding "CLP's early and continued use of the PROFILE mark and distribution of CLP's PROFILE feed in states other than Colorado."3 See Exhibit B to Defendants' Motion to Strike, ECF No. 309-3. Plaintiff argued that Mr. Rask was properly disclosed under Rule 26(e) because he was identified during discovery in its sales receipts, and further that his information was readily available from Plaintiff's customer list. ECF No. 317, p. 9. This argument is premised on 5 invoices Plaintiff produced that contain Mr. Rask's name. See Exhibit 1 to Response to Motion to Strike, ECF No. 317-2. Judge Shaffer even acknowledged that "in no way" do these invoices put Defendants on notice of that Mr. Rask has any important knowledge that Plaintiff may use to support its claims. See April 13 Order, 12:4-12. Thus, "the onus was on the plaintiff to get a handle on their case and to disclose Mr. Rask properly." Id. at 12:1921. The same scenario applies to the remaining 15 witnesses ­ none of the documents nor any deposition testimony allude to the fact that these individuals are key witnesses regarding market penetration and especially do not indicate the particular states they will testify about which Plaintiff set forth for the first time in its Objection. Because Plaintiff knew about these witnesses long before the discovery cut-off and because Defendants were not on notice of any information these particular individuals had, there was no substantial justification in disclosing them a year after discovery. Thus, Judge Shaffer properly excluded them from trial.
3

Notably, Plaintiff now indicates that Mr. Rask has information regarding market presence in "New Mexico, Nevada, Colorado, Wyoming, Nebraska and California." Objection, p. 5. This is the first time that Plaintiff has made any hint that Mr. Rask information regarding distribution and sales in these states. This only highlights the changing nature of these witnesses testimony, and the fact that they appear to get more important as time goes on.

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2.

Land O' Lakes' Invoices Are A Red Herring

Plaintiff's assertion that its late disclosures should have been viewed in the context of when Land O' Lakes provided invoices of its PROFILE products in April 2006 is a red herring. Even assuming a six month delay in disclosing these witnesses was justified ­ an assumption already rejected by Magistrate Judge Shaffer, see April 13 Order, 20:17-24 ­ the logic in Plaintiff's argument that it could not "fully determine where it needed to show market penetration" until it received and reviewed invoices regarding sales of Land O' Lakes products as opposed to its own is fundamentally flawed. The production of those invoices had no bearing on whether market penetration was an issue in the case. Plaintiff has known since the inception of this case ­ or at least when Defendants raised the "good faith junior user" affirmative defense in their first pleading ­ that where the parties sold their respective products is a central issue in this action. First, Plaintiff did not obtain its federal registration until August 2003, after Land O' Lakes had already began selling its products around the nation. Accordingly, Plaintiff pled infringement of its common law trademark rights. An essential element of common law infringement is establishing where the mark was used. Specifically, Plaintiff must establish the geographic scope of its rights to recover under a common law trademark infringement theory. See San Juan Products, Inc. v. San Juan Pools of Kansas, Inc. 849 F.2d 468, 474-75 (10th Cir. 1988). Second, Defendants raised the "good faith junior user" affirmative defense in their original Answer. The defense specifically puts at issue where the parties were selling their respective products, and who establishes market penetration in a particular geography first. See Natural Footwear Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383, 1397-98 (3rd Cir. 1985). If

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Defendant adopted the mark in good faith, it is free to continue as a good faith junior user in all areas where Plaintiff did not have more than de minimus sales. Id. at 1399; see also V&V Food Products v. Cacique Cheese Co., Inc., 683 F.Supp. 662, 666 (N.D. Ill. 1988). Thus, this defense squarely puts market penetration as a central issue in the case. This fact was not lost on Plaintiffs. In their first deposition of Land O' Lakes Farmland Feed, LLC ("LOLFF"), Plaintiff sought information concerning "LOLFF's gross, projected, and net sales of all Profile products...all in and by each state or locale."4 The deposition took place on November 10, 2004. As part of that deposition, LOLFF provided Plaintiff detailed spreadsheets showing sales by state.5 Plaintiff has never claimed that the witness did not provide the information requested in its Notice. From that point forward, Plaintiff was on notice of exactly where Defendants contended they had sales. To the extent that Plaintiff doubted the veracity of the witness' testimony, the actual invoices would certainly not broaden the geographic locations of Land O' Lakes' sales. There was no reason not to research and disclose witnesses related to market penetration from that point forward. In any event, this issue was also the subject of the report of one of Defendants' experts made on July 25, 2005 ­ a month before the discovery cut-off. Specifically, expert Steve Duree detailed in his report those states in which Land O' Lakes sold its PROFILE products.6 Mr. Duree also compared Land O' Lakes' market penetration to that of Plaintiff's market penetration in various states; thus, Plaintiff unequivocally knew at this point that Land O'
See Notice of Deposition Pursuant to (F.R.C.P.) Rule 30(b)(6), ¶ (vi), (vii), attached hereto as Exhibit B. See Spreadsheet of LOLFF's Sales (non-relevant portions of which have been redacted for confidential purposes), and portion of Paul Siler deposition discussing spreadsheet as showing sales by state of LOLFF's Profile products from 2001 forward; 20:10-24, attached hereto as Exhibit C. 6 See CLP and LOLFF Geographic Classifications, Exhibit 3.1 of Duree Expert Report, attached hereto as Exhibit D, non-relevant portions of which have been redacted for confidential purposes.
5 4

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Lakes intended to present evidence comparing the geographic scope of the parties' sales, and also knew the exact states where Land O' Lakes claimed it had market penetration. See Exhibit D. Mr. Duree's conclusion is that Plaintiff only had more than de minimus market penetration in a very small number of states. Again, it was abundantly clear that this issue was central to the case. Further, Land O' Lakes filed a motion for summary judgment regarding the measure of Plaintiff's damages, setting forth those states in which Land O' Lakes believed Plaintiff sold and distributed its product. See Motion for Partial Summary Judgment Regarding Plaintiff's Measure of Damages, ECF No. 234-1, p 10 of Motion. In light of the fact that Defendants' motion for summary judgment, as well as its expert report, sets forth the exact states where Land O' Lakes believed Plaintiff sold its PROFILE products, there can be no question that Plaintiff's were on notice of this issue well before Land O' Lakes produced the back-up documentation of its own sales in April 2006 after dozens of pages of spreadsheets concerning the same information had already been produced. Yet, regardless of whether Plaintiff had an obligation under Rule 26 to disclose these witnesses, no later than June 2004, Plaintiff also had an obligation under Rule 33 to investigate and disclose the states in which it sold its products because Defendants issued discovery requests asking for this information.7 Simply put, the production of Land O' Lakes' invoices in April 2006 did not trigger the realization that the geographic scope of the parties' sales would be an important issue in this

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See Defendant Land O' Lakes Farmland Feed's First Set of Interrogatories to Plaintiff, Interrogatory Nos. 5, 7, and 8; attached hereto as Exhibit E.

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case. Rather, the "critical" nature of these 16 witnesses' testimony has been known for years, and Plaintiff could have, and should have, disclosed them during the discovery period. C. Plaintiff's Late Disclosure of These Witnesses Is Not Harmless As There is No Meaningful Opportunity to Cure the Prejudice or Surprise Plaintiff suggests that because Defendants are able to telephone these 16 witnesses, there is no prejudice from the late disclosure, and therefore the late disclosures are harmless. However, Plaintiff only focuses on fairness to itself, while the Federal Rules are meant to impart fairness across the board, to all parties in a case. The purpose of the discovery rules, and discovery deadlines, is to give the parties equal opportunity to obtain enough information about the other side's case to make informed decisions about how to prepare for trial. When Plaintiff fails to disclose critical witnesses during the discovery period, Plaintiff strips Defendants of this right bestowed by the Federal Rules. Telephoning the witnesses does not rectify the situation. First, they are not under oath. It is essential that Defendant have the ability to conduct true discovery from "critical" witnesses, not just an unsworn conversation. More importantly, the witnesses are under no obligation to speak to Defendants and have been routinely refraining from doing so. See Declaration of Elizabeth Morton, filed concurrently herewith, at ¶ 3. Second, the fact that Defendants have spoken with a few of the newly disclosed witnesses on the telephone has done nothing but create confusion as to what the witnesses will testify about. In fact, based on the few conversations that Defendants have had, compared to what Plaintiff indicated in its Objection that the witnesses will testify about, it is clear that when not under oath, these witnesses are either exaggerating their knowledge to Plaintiff, or underdisclosing to Defendants. Contrary to what Plaintiff suggests, Defendants have been able to 13

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obtain virtually none of the information that Plaintiff details on page 5 of its Objection. Indeed, Defendants have only spoken with one witness on that list ­ Mr. Crego, and the information that Mr. Crego provided is much different than what Plaintiff indicates he will testify about at trial. See Morton Declaration, ¶ 4. Of those individuals listed in Plaintiff's Objection, Defendants have called and left messages with Mr. Lauridson, Mr. Bart Stromberger and Mr. Alan Stromberger, but have never received a return call from these individuals.8 Id. at ¶ 3 . Defendants have only spoken with relatives of Mr. Mosbarger and Mr. Newkirk. Id. at ¶¶ 5-6. It would not be surprising if none of these witnesses called back, however. Indeed, Defendants struggled to receive a return call from one of the witnesses for whom Judge Shaffer allowed a deposition ­ Lea Anne Strain. Defendants called to speak with her prior to Judge Shaffer's April 13 Order. Ms. Strain never returned the phone call. When Defendants tried her again to schedule her deposition, pursuant to Judge Shaffer's April 13 Order, Defendants left 3 messages with her over a number of days, yet she still did not return the phone calls. Only after Plaintiff provided her cell phone number were Defendants able to contact her. Id. at ¶ 7 . This one scenario highlights the reality that telephoning these witnesses will not cure any prejudice to Defendants. Telephoning these witnesses will not cure, and has not cured, any prejudice to Defendants of the late disclosures. By contrast, the efforts to date and the lack of results show that permitting these witnesses to testify would result in trial by ambush. Moreover, Plaintiff only describes the testimony for 8 witnesses in its Objection, stating nothing about the 7 other
8

Defendants have not attempted to call Ms. Panepinto because the Court struck her as a witness only 3 days after Plaintiff first disclosed her. With respect to Mr. Rask, Defendants were unable to locate him because Plaintiff did not provide telephone numbers with their supplemental disclosures and Defendants could not locate any contact information for him through the Internet. Plaintiff provided his telephone number when it filed its Amended Witness List on April 13, 2007.

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witnesses that Plaintiff has identified as critical. Defendants are left completely in the dark about their testimony, making the prejudicial impact of the testimony even more apparent. Also contrary to Plaintiff's assertion, the affidavits that Plaintiff has provided do not cure any prejudice. Defendants have no opportunity to challenge the affidavits, or to obtain information other than what is stated in the affidavits that Defendants may deem important. Defendants should not be forced into allowing Plaintiff to make strategic decisions for them regarding discovery. Locking these witnesses into Plaintiff's position, without permitting any challenge, is certainly not fair and will prejudice Defendants at trial. Separately, Defendants are not interested in taking 16 more depositions when trial is less than two months away. This would be an enormous burden on Defendants. There is simply no logistical way that 16 depositions can be taken in 2 days, as suggested by Plaintiff. Even assuming only 2 hours per witness, with no breaks, it would take almost 5 days to complete these depositions. Allowing reasonable breaks, it would take even longer. The difficulty that Defendants have had in scheduling just 3 depositions that Judge Shaffer ordered over a three week period strongly suggests that 16 depositions would take months to schedule and complete. Defendants further question whether this exercise is simply a means of forcing Defendants to spin their wheels and spend valuable trial preparation time taking irrelevant depositions. That is, the first deposition that Defendants took of one of the three newly disclosed witnesses that Judge Shaffer allowed was of Kimberly Fortune, a resident of New Hampshire. Although Plaintiff disclosed her as having knowledge about "use and market penetration" of its PROFILE products, Ms. Fortune testified that she did not learn of Plaintiff's

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PROFILE products until September 2006.9 However, there is no relevance to the market penetration of Plaintiff's PROFILE products in 2006 ­ Land O' Lakes has not sold its products since early 2005 at the latest. Thus, Ms. Fortune's testimony will have no bearing on whether Plaintiff can prove common law infringement in New Hampshire because there was no use in that state during the time that Land O' Lakes sold its PROFILE products. Ms. Fortune should have been excluded. Ms. Fortune's ultimate lack of importance to the case underscores the fact that Defendant should not have to be faced with the Hobson's choice of wasting valuable time preparing for and taking depositions on the eve of trial or be tried by ambush. III. CONCLUSION

Magistrate Judge Shaffer's Order excluding 16 witnesses that Plaintiff disclosed long after the discovery deadline was neither contrary to law nor clearly erroneous. Judge Shaffer understood and applied the Federal Rules and Tenth Circuit law in making a balanced decision in which he determined that the facts warranted exclusion of 16 of 21 witnesses under Rule 37(c)(1). Wherefore, the Court should overrule Plaintiff's objections to Judge Shaffer's Order.

9 See Deposition of Kimberly Fortune, 11:9-16; 62:5-7, attached hereto as Exhibit F.

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Respectfully submitted this 1st day of May, 2007. s/ Gregory S. Tamkin Gregory S. Tamkin Elizabeth L. Morton DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202-5647 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected] [email protected] Attorneys for Land O' Lakes, Inc.; Land O' Lakes Farmland Feed, LLC; American Pride Co-Op; Poudre Valley Cooperative Association, Inc.; Frank Bezdicek and Robert DeGregorio CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 1, 2007, I caused the foregoing document, DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE'S ORDER OF APRIL 13, 2007, to be electronically filed with the Clerk of Court using the CM/ECF system. Notification of such filing will be sent to the following e-mail addresses: [email protected] [Luke Santangelo] [email protected] [Cheryl Lynn Anderson] [email protected] [Thomas R. French] [email protected] [Randy E. Dunn] s/ Gregory S. Tamkin Gregory S. Tamkin Attorneys for Defendants DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202-5647 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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