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

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

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Filed 09/11/2008

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J. MICHAEL KALER, SBN 158296 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 E-mail: [email protected] MELODY A. KRAMER, SBN 169984 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 E-mail: [email protected] 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 INTERNATINONAL LTD;: and DOES 1-10 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-cv-2278-BTM-CAB 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

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Plaintiff, pursuant to a shortened procedure outlined by Judge Moskowitz in this case, 1 and consistent with the rulings of this Court on August 20, 2008 in related cases 2 on motions for exception to stay to preserve evidence as follows, request the Court for the following relief: 1. Leave to Plaintiff to file an Amended Complaint adding Accused

Products within 30 days of this Order and that Defendants be ordered to respond to said Amended Complaint within 45 days after the stay is lifted. 2. Order that all prototype and production molds used in the production of

the Accused Products specifically identified within the Amended Complaint within the custody and control of the Defendants be preserved. 3. Order that all design and technical documents for the Accused Products

specifically identified within the Amended Complaint within the control and custody of the Defendants be preserved. 4. Leave to Plaintiff to propound (and order to Defendants to answer) one

(1) interrogatory that seeks the identification of the company names and addresses of nonparty manufacturers, suppliers, and importers who may have prototype, production, design, technical documents or evidence regarding the Accused Products specifically identified in the Amended Complaint. Plaintiff has already requested the above-described relief 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. Kramer Decl., ¶ 4.

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Sorensen v. Helen of Troy Texas Corporation, et al, Case No. 07cv02278

Sorensen v. CTT Tools, Case No. 08cv231; Sorensen v. Emerson Electric, Case No. 08cv00060; Sorensen v. Esseplast, Case No. 07cv2277; Sorensen v. Logitech, Case No. 08cv308; Sorensen v. Ryobi, Case No. 08cv00070; Sorensen v. Senco, Case No. 08cv00071. 1.
Case No. 06CV1572

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

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Plaintiff believes these items of discovery are necessary and that delay until completion of the `184 patent reexamination creates the risk of loss of evidence. A motion to preserve evidence requires the court to consider "1) the level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; 2) any irreparable harm likely to result to the party seeking the preservation of evidence absent an order directing preservation; and 3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence's original form, condition or contents, but also the physical, spatial and financial burdens created by ordering the evidence preservation." Jacobs v. Scribner Slip Copy, 2007 WL 1994235 (E.D.Cal. 2007) citing: Daniel v. Coleman Co., Inc., No. 06-5706 KLS, 2007 WL 1463102, *2 (W.D.Wash. 2007). "The obligation to preserve [evidence] arises when the party has notice that the evidence is relevant to litigation -- most commonly when the suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation." Treppel v. Biovail Corp., 233 F.R.D. 363, 371 (2006). A foreign manufacturer, however, is not likely to, and has no obligation to maintain molds, design documents, or correspondence. Molds are often sold for scrap metal after production ceases. Every day that goes by without the production of this evidence increases the likelihood that the evidence will be lost or destroyed. 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." Kramer Decl. ¶ 5. In a letter dated October 31, 2005, counsel for Defendants acknowledged the difficulty in getting process information from the foreign third party manufacturers. See Id. Additionally a number of the Accused Products are near the end of their life
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Case No. 06CV1572

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

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cycle, as stated by Defendants' counsel in a letter dated March 16, 2006. Kramer Decl. ¶ 6. 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. Kramer Decl. ¶ 7. Since the filing of this case, Plaintiff has learned of an elaborate web of onshore and offshore corporations of which the named Defendants are a part, but have not been advised of the identity of the actual manufacturers of the Accused Products. See Docket #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. Kramer Decl. ¶ 8. Plaintiff is also seeking the ability to file an Amended Complaint to add additional accused products so that the order to preserve evidence can be as complete as reasonably possible at this point in the proceedings. WHEREFORE, Plaintiff respectfully requests the Court to issue an order for Exception to Stay for Preservation of Evidence on terms consistent with those in the related cases referenced herein, specifically, to grant items (1) ­ (4) itemized at the beginning of this brief. // //

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Case No. 06CV1572

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

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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. J. Michael Kaler, Esq. Patricia A. Shackelford, Esq. Attorneys for Plaintiff

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Case No. 06CV1572