Free Objections - District Court of Colorado - Colorado

Case 1:03-cv-02372-PSF-PAC

Document 140

Filed 09/16/2005

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2372-PSF-PAC JACK BARRECA, Plaintiff, v. SOUTH BEACH BEVERAGE CO., INC.; LOTTE U.S.A.; and 7-ELEVEN, INC., Defendants.

DEFENDANTS' OBJECTIONS TO PLAINTIFF'S PROPOSED TRIAL EXHIBITS

Defendants hereby assert the following objections to Plaintiff's proposed trial exhibits:

EXHIBIT NO.
2

DESCRIPTION

OBJECTION

3 9 10 13

SoBe Energy, Power, No SoBe gum product other than Tsunami Gum Boxes and the Energy gum is at issue in this Drinks (physical exhibits) case, rendering any other SoBe products irrelevant. 10/31/99 Agreement This agreement is irrelevant. between Barreca and Yang 4/11/01 Letter from Patton This letter is irrelevant and Boggs to M. Oda constitutes inadmissible hearsay. 4/13/01 Letter from Patton This letter is irrelevant and Boggs to M. Oda constitutes inadmissible hearsay. 5/1/01 Fax from Barreca to This fax is inadmissible hearsay. Coughlin

Case 1:03-cv-02372-PSF-PAC

Document 140

Filed 09/16/2005

Page 2 of 6

14 15 16 17 19 21 24

5/24/01 Letter from Meissner to Barreca 5/25/01 Letter from Amuso to Meissner 5/29/01 Letter from Amuso to Oda and Komuro 5/29/01 Letter from Amuso to Meissner 6/25/01 Fax from Amuso to Komuro 7/31/01 Letter from Yang to Ito 10/30/01 Letter from Kovarik to McElwee

This letter is unauthenticated. This letter is inadmissible hearsay and is unauthenticated. This letter is inadmissible hearsay and is unauthenticated. This letter is inadmissible hearsay and is unauthenticated. This fax is inadmissible hearsay and is unauthenticated. This letter is inadmissible hearsay. This letter is inadmissible hearsay and constitutes an impermissible attempt to introduce extrinsic evidence regarding the release agreement. This press release is inadmissible hearsay and is unauthenticated. This press release is unauthenticated. The "laboratory analysis" attached to this letter is inadmissible hearsay, is unauthenticated, and comes from an entity not identified as an expert in this case. This letter is inadmissible hearsay This memo and attachments are inadmissible hearsay and are unauthenticated. This exhibit is irrelevant.

28 29 37

7/17/02 SoBe Press Release 8/21/02 - 7/11 Press Release 11/8/02 Letter from Kovarik to McElwee

43 44

46 48

49

1/8/03 Letter from Stephen Coryea 2/20/03 Memo from Jennifer Cooper and Amy Siegel, with attachments Chewz 2 Looz label example 8/29/02 Comments on This exhibit is irrelevant and any Statements for Reasons for probative value it may have is Allowance substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. 7/26/02 Second This exhibit is irrelevant and any Supplemental Amendment probative value it may have is and Response substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury.

2

Case 1:03-cv-02372-PSF-PAC

Document 140

Filed 09/16/2005

Page 3 of 6

50

51 52 53 54 55 56 57 58 59 60 61 62

63

7/1/03 Comments on Statements for Reasons for Allowance 3/26/02 E-mail from Derek Schmitt to F. DeLeo 2/25/02 E-mail from Derek Schmitt to F. DeLeo 2/8/02 E-mail from Derek Schmitt to F. DeLeo 2/5/02 E-mail from Derek Schmitt to F. DeLeo 1/10/02 E-mail from Derek Schmitt to F. DeLeo 1/10/02 E-mail from Derek Schmitt to F. DeLeo 1/7/02 E-mail from Derek Schmitt to F. DeLeo 1/7/02 E-mail from Derek Schmitt to F. DeLeo 1/3/02 E-mail from Derek Schmitt to F. DeLeo 2/21/02 E-mail from Derek Schmitt to F. DeLeo 2/27/02 E-mail fro Derek Schmitt to F. DeLeo 7/30/02 E-mail from Derek Schmitt to D. Manley with attachments 7/02 Draft of July, 2002 Press Release

This exhibit is irrelevant.

This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated. This exhibit is unauthenticated.

irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and irrelevant and

64

65

67

84

88

This press release is unauthenticated and lacks foundation for admissibility. Product Development This exhibit is unauthenticated Project - 7-11 and Lotte and lacks foundation for USA (Bates 7-E 000022- admissibility. 36) SoBe Gum Week 22 Sheet This exhibit is unauthenticated and lacks foundation for admissibility. 9/01 Preliminary Concept This exhibit is unauthenticated Sheet and lacks foundation for admissibility. SoBe Gum Product This exhibit is unauthenticated Schedule and lacks foundation for admissibility. 6/14/01 Letter from M. This letter is inadmissible Amuso to R. Caughlin hearsay and is unauthenticated. 3

Case 1:03-cv-02372-PSF-PAC

Document 140

Filed 09/16/2005

Page 4 of 6

96

SoBe Gum Schedule

98 99

101 106 108

112 117

121 124

126 128 131

Launch This letter is unauthenticated and lacks foundation for admissibility. 2/15/02 Letter from R. This letter is irrelevant. Thomason to D. Schorr Lotte Corporate Profile This exhibit is irrelevant and any probative value it may have is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. 2/22/02 SoBe Gum This exhibit is actually three Marketing Plan Meeting distinct documents. 5/8/01 Memo from M. This memo is inadmissible Amuso to M. Komuro hearsay and is unauthenticated. 5/23/01 Production This exhibit is inadmissible Timeline for Chewz 2 hearsay and is unauthenticated. Looz 1/14/03 E-mail regarding This exhibit is irrelevant and is article inadmissible hearsay. 7/30/02 Agenda for This exhibit is unauthenticated meeting with SoBe and and lacks foundation for Lotte with attachments admissibility. 9/12/02 E-mail from D. This exhibit is irrelevant. Schorr to J. Knaggs SoBe Gum Sales This exhibit is unauthenticated, Investment Plan lacks foundation for admissibility, and any probative value it may have is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. 3/24/01 Western Region This exhibit is irrelevant. Status Report 11/24/01 Western Region This exhibit is irrelevant. Status Report 4/14/04 Letter from This letter is irrelevant and Kovarik to Rynbrandt constitutes inadmissible hearsay. 5/26/04 Letter from Kovarik to Rynbrandt U.S. Patent No. 6,869,614 SoBe/Lotte 5% Trademark Agreement This letter is irrelevant and constitutes inadmissible hearsay. This exhibit is irrelevant. This exhibit is unauthenticated and lacks foundation for admissibility.

132 133 138

4

Case 1:03-cv-02372-PSF-PAC

Document 140

Filed 09/16/2005

Page 5 of 6

142 143

144 145 146

147

149

150

10/27/04 Letter from Brody to Bledsoe 12/13/04 Letter from Brody to Kovarik and Bledsoe 1/3/05 Letter from Kovarik to Rynbrandt and Brody 1/4/05 Letter from Brody to Kovarik Printout of SoBe website of a virtual delicatessen product info of Rockridge Deli 7/24/03 Patent Publication No. 20030138518 entitled "Center-Filled Chewing Gum Containing a Deliverable Form of Calcium" by Warner Lambert Company 10/11/02 Article -- Will Functional Gum Stick Out in the Marketplace? 5/20/05 Declaration of Jack Barreca regarding claimed damages with exhibits

This letter is irrelevant. This letter is irrelevant.

This letter is irrelevant and constitutes inadmissible hearsay. This letter is irrelevant. This exhibit is unauthenticated and lacks foundation for admissibility. This exhibit is irrelevant.

158

165

This exhibit is unauthenticated and constitutes inadmissible hearsay. All documents attached to this declaration as exhibits are inadmissible hearsay and were not produced or disclosed prior to the close of discovery, and therefore cannot be used at trial. 12/5/03 Expert Report of This exhibit is irrelevant, Jayne MacPhee constitutes inadmissible hearsay, and is inadmissible under FRE 702 and Daubert v Merrill Dow Pharmaceuticals, Inc., 509 US 579; 123 S Ct 2786 (1993). Further, Ms. MacPhee was not disclosed as an expert in this litigation, and this report relates to the litigation involving the '540 patent. 9/17/01 Letter from Asfaw This letter is irrelevant, at McDonalds to Rick constitutes inadmissible hearsay, Martin and is not admissible to attempt to bolster Plaintiff's character.

5

Case 1:03-cv-02372-PSF-PAC

Document 140

Filed 09/16/2005

Page 6 of 6

166

4/30/99 Letter from Soden This letter is irrelevant, at American Red Cross to constitutes inadmissible hearsay, Barreca and is not admissible to attempt to bolster Plaintiff's character. Respectfully submitted,

Dated: September 16, 2005

s/ Adam J. Brody Adam J. Brody Kevin Abraham Rynbrandt Varnum, Riddering, Schmidt & Howlett LLP P.O. Box 352 Grand Rapids, MI 49501-0352 Tel. (616) 336-6000 Fax: (616) 336-7000 Emails: [email protected] [email protected] and Michael L. Hutchinson, No. 20853 Treece, Alfrey, Musat & Bosworth, P.C. 999 18th Street, Suite 1600 Denver, CO 80202 Tel. (303) 292-2700 Fax: (303) 295-0414 Email: [email protected] for Defendants South Beach Beverage Company, Inc., 7-Eleven, Inc., and Lotte U.S.A., Inc.

CERTIFICATE OF SERVICE I hereby certify that on this 16th day of September, 2005, I presented the foregoing to the Clerk of Court for filing and uploading to the CM/ECF system which will send notification of such filing to the e-mail addresses of the following persons: Joseph E. Kovarik, Esq. ([email protected]) Robert Brunelli, Esq. ([email protected]) Sheridan Ross, P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 s/Adam J. Brody Adam J. Brody (P62035)
1163674

6