Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:07-cv-02278-BTM-CAB

Document 35-3

Filed 09/11/2008

Page 1 of 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

J. MICHAEL KALER, SBN 158296 KALER LAW OFFICES 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 MELODY A. KRAMER, SBN 169984 KRAMER LAW OFFICE, INC. 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 Attorneys for Plaintiff JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff, v. HELEN OF TROY Texas Corporation; OXO International Ltd.; and DOES 1100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-CV-02278-BTM-CAB DECLARATION OF MELODY A. KRAMER IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR EXCEPTION TO STAY TO PRESERVE EVIDENCE Date: October 31, 2008 Time: 11:00 a.m. Courtroom 15 ­ 5th Floor The Hon. Barry T. Moskowitz NO ORAL ARGUMENTS UNLESS REQUESTED BY COURT

Case 3:07-cv-02278-BTM-CAB

Document 35-3

Filed 09/11/2008

Page 2 of 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

I, MELODY A. KRAMER, declare: 1. I am not a party to the present action. I am over the age of eighteen. I

have personal knowledge of the facts contained within the following paragraphs, and could and would competently testify thereto if called as a witness in a court of law. 2. At all times relevant herein I have been an attorney for Sorensen

Research and Development Trust ("SRDT"), Plaintiff in the above-captioned matter. 3. This Declaration is being submitted in conjunction with PLAINTIFF'S

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR EXCEPTION TO STAY TO PRESERVE EVIDENCE 4. Plaintiff has already requested the relief sought in this motion from

Defendants by stipulation, and has provided Defendant with a copy of relevant portions of the August 20, 2008 court transcript and resulting orders in those six related cases in which the Court ordered identical discovery. However, Defendant still refuses to stipulate. 5. Pre-litigation, Defendants' counsel advised Plaintiff's counsel that

detailed manufacturing information required to respond to Plaintiff's infringement claims had to be obtained "from OXO's suppliers in Asia." 6. In a letter dated October 31, 2005, counsel for Defendants

acknowledged the difficulty in getting process information from the foreign third party manufacturers. Additionally a number of the Accused Products are near the end of their life cycle, as stated by Defendants' counsel in a letter dated March 16, 2006. 7. These facts lead Plaintiff to believe that the Accused Products have

ceased to be in production or will no longer be in production soon. As a result, the foreign manufacturer is not likely to, and has no obligation to maintain molds, design documents or correspondence. Every day that goes by without the production of this evidence increases the likelihood that the evidence will be lost or destroyed.

1.

Case No. 07-CV-02278

Case 3:07-cv-02278-BTM-CAB

Document 35-3

Filed 09/11/2008

Page 3 of 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

8. Defendant has not provided Plaintiff with identification of the manufacturers, importers, suppliers, or other non-parties who may have possession, custody, or control of relevant evidence to this case, specifically including prototype and productions molds and technical documents requested in the motion, thus there is no way to ensure preservation of evidence.

RESPECTFULLY SUBMITTED this Thursday, September 11, 2008. JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff /s/ Melody A. Kramer Melody A. Kramer, Esq. Attorney for Plaintiff

2.

Case No. 07-CV-02278