Free Redacted Document - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KEURIG, INCORPORATED, Plaintiff, v. KRAFT FOODS GLOBAL, INC., TASSIMO CORPORATION, and KRAFT FOODS INC., Defendants. Civil Action No. 07-017-GMS REDACTED ­ PUBLIC VERSION

KEURIG'S MOTION IN LIMINE NO. 3 ­ MOTION TO PRECLUDE KRAFT FROM INTRODUCING PURPORTED PRODUCTION RECORDS AND OTHER DOCUMENTS NOT QUALIFYING FOR THE BUSINESS RECORDS HEARSAY EXCEPTION

John W. Shaw (No. 3362) [email protected] Adam W. Poff (No. 3990) [email protected] YOUNG CONAWAY STARGATT & TAYLOR, LLP The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 (302) 571-6600 Michael A. Albert Michael N. Rader WOLF, GREENFIELD & SACKS, P.C. 600 Atlantic Ave. Boston, MA 02210 (617) 646-8000 Attorneys for Plaintiff Keurig, Incorporated Dated: August 4, 2008

DB02:7054260.1

065927.1001

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CERTIFICATE OF SERVICE I, Karen E. Keller, Esquire, hereby certify that on August 11, 2008, a true and correct copy of the foregoing document was electronically filed with the Clerk of the Court using CM/ECF which will send notification that such filing is available for viewing and downloading to the following counsel of record: Richard L. Horwitz, Esquire [[email protected]] David E. Moore, Esquire [[email protected]] Potter Anderson & Corroon LLP Hercules Plaza 1313 North Market Street, 6th Floor Wilmington, Delaware 19801 Additionally, I hereby certify that on August 11, 2008, copies of the foregoing document were served by e-mail on the above-listed counsel of record and on the following nonregistered participants in the manner indicated below: BY E-MAIL David Schlitz, Esquire [[email protected]] Baker Botts L.L.P The Warner 1299 Pennsylvania Ave., NW Washington, D.C. 20004-2400 YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Karen E. Keller John W. Shaw (No 3362) [[email protected]] Adam W. Poff (No. 3990) [[email protected]] Karen E. Keller (No. 4489) [[email protected]] The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 (302)-571-6600 Attorneys for Plaintiff Keurig, Incorporated

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KEURIG v KRAFT

2 APRIL 2007

DEPOSITION OF M. TAMBLIN Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ______________________________ : KEURIG INCORPORATED : : Plaintiff : Civil Action No. : 07-017 GMS v : : KRAFT FOODS GLOBAL, INC : TASSIMO CORPORATION, and : KRAFT FOODS INC, Defendants : _____________________________ : VIDEOTAPED DEPOSITION UPON ORAL EXAMINATION OF MICHAEL TAMBLIN On Wednesday, 2nd April 2008 Commencing at 10.24 am Taken at: Baker Botts 41 Lothbury London EC2R 7HF United Kingdom

Reported by: Miss Pamela Henley

MARTEN WALSH CHERER LTD 12-14 NEW FETTER LANE
TEL: 020 7936 6000 E-MAIL: [email protected]

LONDON EC4A 1AG
FAX: 020 7427 0093

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Tamblin - Rader A. Six to eight months. He is about to finish. It was only an assignment. Q. Someone else will replace him? A. Yes. Q. Prior to him you do not recall the name of the person who did that? A. Prior to him it was a guy called Paul Watts. Q. How long was he there? A. Four years, five years, perhaps. Q. Is the job of Mr Watts and Mr Caiger -- is that analogous to what you do for the other products? A. No, because they are based on days as opposed to being a shift manager. Q. What is the difference? A. The difference mainly is that in the Maxpax facility the day role was to do the planning of the labour as I understood it, and the actual running of the lines was assigned to what they called team leaders who were really the line technicians. Q. I see. So Mr Watts and Mr Caiger their job would be to manage the labour, but not
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Tamblin - Rader recipe, yes. Q. When you say the recipe you mean all the things -A. That make up the final SKU. Yes. Q. -- so in what -- in your current job do you work in the same building as the singles production lines? A. No. Q. Do you go over there at all? A. Very, very infrequently. The last time I went over was probably nine months ago. Q. Are you familiar with the Lambert and Rychiger packing lines for singles cartridges? A. No, not at all. Q. Do you know how many packaging lines there are for singles cartridges? A. I think it is four, but I am not sure. Q. Do you how many lanes they each have? A. No, not at all on that, no. Q. On the singles lines over the years do you know what their procedures have been for moving crews to different lines if they have
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Tamblin - Rader the lines themselves? A. That is right. Q. Do you know who the team leaders have been over the years? A. I really do not know. I have never had any involvement over there. Q. Okay. In your facility it is different because you... A. You had a manager on each shift because it was a bigger operation. Q. So you essentially fill the roles of both managing the labour and the lines themselves? A. Yes. Q. So in your current job as production manager and coffee packing -A. That is not my current job. Q. -- oh, sorry, that was your prior job? A. Yes. Q. As the plant master data control co-ordinator, your current job, that job does encompass data for singles cartridges? A. Only the input in to make the

Tamblin - Rader breakdowns? A. I have no idea. As I say I have never been involved in that department. I really do not know how it was managed. Q. Okay. The court reporter before you came in marked what we are calling Exhibit 201, which is a partial printout of some of the data that we received. The total data was several thousand pages so I decided not to print out the entire thing, but this is taken from the very beginning of the 1994 section of the data. Does this document look familiar to you? (Exhibit 201 marked for identification) A. Yes, I think it is from the Excel spreadsheet I provided. Q. Tell me about the Excel spread sheet that you provided? A. What do you want to know? That data is taken by a query and imported into Excel from the -- what is now called our productivity server which retains all this information. Q. What is the productivity server? A. It is for each area we have, as I said, a coffee area, a Maxpax area, a flexibles

4 (Pages 10 to 13) MARTEN WALSH CHERER LTD 12-14 NEW FETTER LANE
TEL: 020 7936 6000 E-MAIL: [email protected]

LONDON EC4A 1AG
FAX: 020 7427 0093

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KEURIG v KRAFT
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Tamblin - Rader area. At one time we did have an R&G, which was roast and ground coffee but that has been sold. But for each area every shift the information would be input into this system to record what we have produced against what SKU. Q. So is there a terminal at each production line? Is that how it works? A. No, it is a server which is linked to the computers in the production offices. So there would have been one in coffee packing where I worked. Obviously one in flexibles packing, one in Maxpax. There was also one in R&G when it existed. But as I say that has now been sold off. Q. Is Maxpax the -- another name for the singles production area? A. That is where the singles occurs, yes. The original Maxpax business was an in-cup -Q. I see. A. -- business. Q. So when you say "Maxpax" you are referring to singles nowadays? A. It still produces in-cup as well so it is just the building in which it produces
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Tamblin - Rader Q. Did you enter data on that computer? A. On the coffee packing, yes. Q. Were you -- when you were the production manager through 2005 was it your job to enter data into that computer? A. That is correct, yes, for my shift. Q. How many shifts were there? A. In coffee packing there is three shifts; a morning shift, an afternoon shift and a night shift. So each manager would be responsible for entering their own information. Q. You never entered singles data like what we have in Exhibit 201 into their computer? A. No. Q. Were you ever present when anyone entered data into that computer? A. Not at all, no. As I say it is a different building entirely. Q. Is it the same software or different software? A. Same software, yes. Q. Now, what is the purpose of entering the data into that productivity server?
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Tamblin - Rader everything, in-cup and the singles. Q. So when you say "Maxpax" you are talking about that building? A. Yes, the Maxpax business. That is what it refers to. Q. So there is a computer in that Maxpax building that links up to the productivity servers? A. Yes. Q. And that computer has software on it that allows you to enter this kind of data? A. That is correct. Q. That data gets stored on a central server? A. Yes. Q. Where is that server? A. It is located in Banbury. Q. There is -- in each of the production buildings there is a computer like that? A. Yes. Q. So in -- there was one in the coffee packing facility where you worked? A. That is correct, yes.

Tamblin - Rader A. To provide a record. It is normal business practice at Kraft to record what each shift has produced against each SKU. Q. In the facility where you were working in coffee packing as the shift supervisor was it your responsibility to do that? A. Yes. Q. For each of the three shifts it was the shift supervisor who did that? A. That is correct. Q. Did anyone else ever enter the data on that facility besides the shift supervisors? A. No. Q. What would have happened if you were sick one day or on vacation -A. There would be cover provided and then that shift manager would have entered the information. Q. -- okay. What happens to that data after it goes into the productivity server? Is it used for anything? A. It is used to generate reports internally, so we can track things like is the line running efficiently, how much labour is

5 (Pages 14 to 17) MARTEN WALSH CHERER LTD 12-14 NEW FETTER LANE
TEL: 020 7936 6000 E-MAIL: [email protected]

LONDON EC4A 1AG
FAX: 020 7427 0093

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Tamblin - Rader Q. How would the data at the end of the day -- when you were working in coffee packing when did you enter the data; at the end of the day? A. End of the shift. End of the working shift. Q. Do you know when the singles folks entered the data in the Maxpax building? A. I do not know. Q. At the time of the shift when you entered the data did you also have a line code and a line number to enter? A. Yes. Q. How would you decide -- I assume you would decide the line code based on which line was running? A. That is correct. Yes. Q. How would you decide what to put in for the line number? A. Because the SKU is linked to that line number within the computer programme itself. Q. So that field is populated automatically? A. Yes.
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Tamblin - Rader your product was unique to specific lines? A. That is correct, yes. Q. What would happen if a line broke down and you were going to manufacture the product on a different line? A. You could not physically do that. Each line was specific to a jar size. Q. So if one of your lines broke down you would have to wait until it was fixed? A. Or move the crew to a different line and produce a different SKU. Q. So if you wanted to produce that same SKU -A. You would have to wait. BY MR FOSTER: Q. Just for the record, Mr Tamblin, are you speaking about the coffee business -A. This is -Q. -- or are you speaking of the singles business? A. -- no, I am purely talking about coffee here. BY MR RADER: Q. When you were working in the -Page 29

Tamblin - Rader Q. The programme, were there like drop down menus for data, or are you typing all the data in? A. You would start off by typing the shift date, and what shift you were; mornings, afternoons or nights. But, essentially, after that it was all drop down. Q. So it was all -- you were just choosing from a menu -A. Apart from the product code. Once you put the product code you had to enter, everything else after that was drop down choice from a menu. Q. -- so you entered the product code and would the description automatically pop up? A. That is right. Q. And then the line code, would you have to choose that? A. Not if it was unique to that line. That would be automatically populated. Q. But on the singles side are the particular products unique to specific lines? A. I really do not know. Q. In the work that you were doing

Tamblin - Rader A. The coffee production business. Q. -- okay. You do not know whether the various lines in the singles side would support the same product? A. No, I do not, no. Q. So you do not know whether the line code would have popped up automatically or whether they would have to choose that from a menu? A. No, I would not know. Q. Then in your experience working on the coffee side the line number, would that pop up automatically, or would you have to choose that -A. That would coffee, yes, because, again, it is unique. Q. -- do you know whether it would for singles? A. Again, I would not know. Q. And the next column "CONT"; do you know what that means? A. That was whether the line ran continually. So an eight hour shift whether it was crewed to run for eight hours or whether you part crewed it and then people had their meal break. So the option was a yes or a no which was

8 (Pages 26 to 29) MARTEN WALSH CHERER LTD 12-14 NEW FETTER LANE
TEL: 020 7936 6000 E-MAIL: [email protected]

LONDON EC4A 1AG
FAX: 020 7427 0093

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Tamblin - Rader should have M for the area? A. Should do, yes. Q. And then in column M, the shift; what does that refer to? A. That refers to the shift that has produced that SKU, or that A shift, B shift or N for nights. Q. So A is morning? A. They rotated. So A shift would do a morning shift one week, an afternoon shift the next, but they were always A shift, and B shift were the reverse. Q. The people on that team would either be part of A or B? A. Yes. Q. Then column N, the quarter, what does that refer to? A. It is the business year spread up into four quarters. Q. Is that field automatically populated? A. No, again, it is a choice, but it is from a drop down. Q. So it did not follow automatically
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Tamblin - Rader A. Exactly the same across the whole site. Singles, Maxpax, flexibles and coffee. Q. Column Q, EFF; what is that? A. That is the efficiency. So that would be the efficiency that that SKU was produced at. Q. How is that number calculated? A. That is calculated from the programme. Q. What does it represent? A. For the amount of time that that particular SKU was booked then it calculates that efficiency based on what the standard line speed is. Q. So it is calculating it based on how many cases came out? A. How many cases came out, yes. Q. On the second page in row 2, the efficiency is 37, just over 37; do you see that? A. Yes. Q. What does that mean; is that 37 per cent of something? A. It was 37 per cent of what the line was rated at for the time that the SKU was booked.
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Tamblin - Rader from the date that was entered? A. No. Q. And then the week number, column O? A. Each quarter had 13 weeks so that would refer to the week of that particular quarter. Q. So when you were doing this for coffee you were always aware of what week you were in? A. Yes. Q. The shift hours column; what is that? A. That is the length of the shift. So eight hours would say it is an eight hour shift. Q. The length of a typical shift in coffee was how long? A. Eight hours. Q. That includes -A. On double days. Night shift was eight hours, apart from Friday where it was ten hours. Q. -- do you know what the shift lengths were over in singles?

Tamblin - Rader Which would refer back to the front sheet where it was five and a half hours, produced 49 cases. Q. So in theory the line should have been able to produce more? A. Looking at that figure, yes. Q. Were the shifts compared with A and B for efficiency, that kind of thing? A. It certainly was in coffee, yes. That was one of the reasons why I was doing this type of analysis. Q. I see, okay. What about the next column, detail? A. I really do not know what that is. That was never an input. Q. Flipping to the next page, the next column has at the "top EFF"; what is that? A. Again, I do not know what that is, what that is referring to. Q. Do you know what the "BOT EFF" is? A. No, I do not know that either. Q. Column U "UNITS_CASE"; do you know what that is? A. That would refer to the number of individual units that go into the case. So the

11 (Pages 38 to 41) MARTEN WALSH CHERER LTD 12-14 NEW FETTER LANE
TEL: 020 7936 6000 E-MAIL: [email protected]

LONDON EC4A 1AG
FAX: 020 7427 0093

Case 1:07-cv-00017-GMS

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Tamblin - Rader top one it would be 160. Q. So 160 singles cartridges in a case -A. Case. Q. -- then 375 in-cups in a case? The lemon drink? A. Yes, that would be the in-cups, yes. Q. What is column V, the conversion? A. I am really not sure what that conversion refers to. Q. What about column W, the "PHYS_KG"? A. That would be the physical weight of the case. Q. Over in coffee did you actually weigh the case? A. They were standard weights because of the configuration. Q. So that was not data that you had to enter? A. No, not at all. Q. Was that true, if you know, on the singles side? A. I do not know, but, again, it was
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yes.

A.

Tamblin - Rader That is what I would have thought,

Q. Do you think those are a mistake in that column? A. I think they probably are. Because, again, that is not something that is entered by the manager. That should be within the programme. Q. So for the rows that have the O instead of the N for the component would you trust the rest of the data on those rows? A. Yes, looking at it I would say that would be accurate, yes. Q. Any idea how the Os could have gotten in there? A. No, I really do not know. Q. Column Y, the line speed; what does that refer to? A. Speed of the line and units per minute. Q. Is that the actual speed or the theoretical speed? A. That is the theoretical. Q. Let us go on to the next page.
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Tamblin - Rader written exactly the same so I would have thought they would not have to. Q. What about the next column, component? A. That refers to what was our desserts business. A code could be a component or not a component. An example which I can only give from a desserts business is we produce sachets which would then go into the final SKU so that sachet would be a component, it would not be the final SKU. It was a way of tracking how efficient it was. So it should all be N for no. Again, I do not understand what the zero is. Q. I am sorry, one more time, what would it mean to call something a component? A. If it was going to be used in another pack which eventually became the final SKU. Q. It did not have its own SKU number if it was part -- it would go into something which had a SKU number? A. Correct. Q. So you would think that on singles and in-cup it would all be no?

Tamblin - Rader Column Z, "STD_CREW"; what is that? A. Sorry, which page are we on now? Q. It is going to be the fourth page. Column Z? A. Oh, standard crew. Q. What does that refer to? A. That would be what the ideal crewing would be. Q. And if it is not a whole number like the 4.6 on that page what does that mean? A. That means that one operator would be doing something else for a portion of the time. Q. I see. Then the double AA column "LINE DESC"; what is that? A. That is the line description for each of the lines in that area. Q. So Lambert 3, Lambert 1, those B lines that produced singles cartridges? A. Yes. Q. If it says line 3, line 7 it would be producing in-cup? A. That is correct. Q. How does that compare to column C, the line code? Is that the same information?

12 (Pages 42 to 45) MARTEN WALSH CHERER LTD 12-14 NEW FETTER LANE
TEL: 020 7936 6000 E-MAIL: [email protected]

LONDON EC4A 1AG
FAX: 020 7427 0093

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ----------------------------------------------X KEURIG, INCORPORATED, Plaintiff, -againstKRAFT FOODS GLOBAL, INC., TASSIMO CORPORATION & KRAFT FOODS, INC., Defendants. ----------------------------------------------X

555 South Broadway Tarrytown, New York March 5th, 2008 2:00 p.m.

10591

Videotaped Deposition of the Defendant, by: GERALDINE A. GRETO, held pursuant to Court Order, at the above time and place, before Notary Public of the State of New York.

ELLEN GRAUER COURT REPORTING CO. LLC 126 East 56th Street, Fifth Floor New York, New York 10022 212-750-6434 REF: 86864

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EXHIBIT 6

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Page 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE -------------------------------------------X KEURIG, INC., Plaintiff, - against KRAFT FOODS GLOBAL, TASSIMO CORPORATION, KRAFT FOODS INTERNATIONAL, Defendants. C.A. NO. 07-17 GMS --------------------------------------------X

120 Park Avenue New York, New York

March 4, 2008 2:00 P.M.

Examination Before Trial of HELEN GLUS, pursuant to Notice, taken by and before Renee S. Harris, a Notary Public and Shorthand Reporter of the State of New York.

ELLEN GRAUER COURT REPORTING CO. LLC 126 East 56th Street, Fifth Floor New York, New York 10022 212-750-6434 REF: 86800

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GLUS A. Correct. MR. HRYCYSZYN: I think that's probably all I've got, but if you want to take a break and I'll just look through some stuff and make sure. (SHORT BREAK TAKEN.) Q. Ms. Glus, you earlier said that there might be identification of some visitors to the 22nd floor of the 120 Park Avenue location identified in Mr. Camilleri calm's calendar; do you recall that? A. Yes. Q. Do you know if Mr. Camilleri still has his calendar from '95, '96, '97, '98, '99 or 2000? A. We'd have to check. I couldn't say for certainty. Q. So sitting here today, you're not sure if he has them? A. I'm not positive. Q. Have you spoken to Mr. Camilleri about the subject matter of this deposition today? A. Yes.
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GLUS cartridge some time between '95 and 2000; is that correct? A. No, I can't say with certainty. Q. And perhaps my question wasn't clear. Can you identify anybody who could specifically identify any non-Kraft employee who would have used the Kenco brewer here at the 120 Park Avenue location between '96 and 2000? A. Not at this moment, no. MR. HRYCYSZYN: That's all I've got. MR. SCHLITZ: Just a few follow-up questions. EXAMINATION BY MR. SCHLITZ: Q. Ms. Glus, is there a conference room opposite the kitchen that Mr. Camilleri used? A. Pretty much opposite, just a smidge off, yes. Q. And the times when visitors were waiting for Mr. Camilleri, did you ever take any of them into the kitchen? A. Yes.
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GLUS Q. Did you speak to Mr. Camilleri in particular about visitors of non-Kraft, non-Philip Morris employees who might have had access to the brewer? A. No. Q. Sitting here today, can you identify any other person who might know of non-Kraft employees who had access to the brewer on the 22nd floor of the 120 Park Avenue location? A. I would say maybe family of employees. I mean, I know for myself, I can't say with certainty, but I know for myself, my children have visited many times, even back then. So it's possible when they came to see me at the office that they went in and they saw it or made something for themselves. That's just an automatic easy one to think of. Q. Let me make sure I understand. But you're not specifically -- but you don't remember sitting here today that any member of your family did, in fact, go in and use the Kenco brewer with a Kenco singles

GLUS Q. And did they use the machine? A. Yes, usually what would happen is they were sitting by his office, which was near the kitchen. If he wasn't ready, I would say: Do you want to go in this conference room. They would say yes, and would you like some coffee, and especially when we used the Kenco machine, because there were so many varieties, it was just easier to bring them in and say, which would you like. Q. And to get to the bathroom, do you have to pass by the kitchen? A. Yes. Q. Last question. Early in your deposition, you testified that you kept a file and that the documents that we have shown you today came out of that file; is that correct? A. Yes. Q. Does that file include every document you ever received with regard to the orders of the Kenco singles? A. Probably most definitely not.

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GLUS Q. And why is that? A. Because I'm sometimes lazy and I don't file everything. I file what I think I need to. It wasn't -- as we talked about, it wasn't part of my business duties. So it was just something I kept just for my own self to say, okay, I ordered it and to follow up, didn't come, but not because I had to keep it like expenses. It was just if I was lazy or not. MR. SCHLITZ: That's all the questions. MR. HRYCYSZYN: Thank you. (TIME NOTED: 3:55 P.M.)

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CERTIFICATE STATE OF NEW YORK ) : COUNTY OF NEW YORK ) I, RENEE S. HARRIS, Shorthand Reporter and a Notary Public within and for the State of New York, do hereby certify: That the witness whose examination is hereinbefore set forth was duly sworn and that such an examination is a true record of the testimony given by such a witness. I further certify that I am not related to any of these parties to this action by blood or marriage, and that I am not in any way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this day of , 2008. --------------------RENEE S. HARRIS

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ACKNOWLEDGMENT STATE OF NEW YORK ) : COUNTY OF NEW YORK ) I, HELEN GLUS, hereby certify that I have read the transcript of my testimony taken under oath in my deposition of MARCH 4, 2008; that the transcript is a true, complete and correct record of my testimony, and that the answers on the record as given by me are true and correct. ---------------------HELEN GLUS Signed and subscribed to before me this_____ day of _______________ , 2008. _________________________________ Notary Public, State of New York

***ERRATA*** ELLEN GRAUER COURT REPORTING CO. LLC 126 East 56th Street, Fifth Floor New York, New York 10022 212-750-6434 OF CASE: KEURIG V. KRAFT DATE OF DEPOSITION: MARCH 4, 2008 NAME OF WITNESS: HELEN GLUS PAGE LINE FROM TO REASON ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ____|___|________|____________|_____________| ______________________ Subscribed and sworn before me this ___ day of ________, 2008. ____________________

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RULE 7.1.1 CERTIFICATION I hereby certify that counsel for Plaintiff has complied with Rule 7.1.1 of the Local Rules of Civil Practice and Procedure of the United States District Court for the District of Delaware.

/s/ Adam W. Poff Adam W. Poff (No. 3990)

DB01:1341858.1