Free Response in Opposition to Motion - District Court of California - California

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] ALISON L. PIVONKA [SBN 156977] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

CASE NO. 08-CV-1166 IEG (POR) HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY Date: Time: August 28, 2008 2:00 p.m.

Hon. Louisa S. Porter

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TABLE OF CONTENTS PAGE(S) I II INTRODUCTION................................................................................................................. 1 LIVING ESSENTIALS JUSTIFIES NEITHER DISCOVERY NOR DELAY ................... 1 The Timetable. ...................................................................................................................... 1 What Living Essentials Knew and When.............................................................................. 2 Hansen's Injunction Motion.................................................................................................. 2 Living Essentials' Michigan Case......................................................................................... 3 III LIVING ESSENTIALS STILL DOES NOT SAY WHAT DISCOVERY IT SEEKS OR WHY.................................................................................................................. 4 Living Essentials' Discovery Claims. ................................................................................... 4 Living Essentials' Fails to Justify Any Discovery Now. ....................................................... 5 The Danger of By-Passing Rule 26....................................................................................... 5 IV DISCOVERY WILL YIELD NOTHING FOR THIS INJUNCTION MOTION ................ 6 Literal Falsity and the Legal Presumptions that Follow. ...................................................... 6 Living Essentials' Key Admissions and Literal Falsity. ....................................................... 7 The Depositions of Rodney Sacks and Thomas Davis, Ph.D. Are Unnecessary. ................. 8 Rodney Sacks. ........................................................................................................... 8 Dr. Davis. .................................................................................................................. 8 V VI HANSEN DID NOT DELAY THIS ACTION..................................................................... 9 CONCLUSION ................................................................................................................... 10

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Table of Authorities Page(s) CASES American Medical Corp v. Axiom Worldwide Inc., 522 F.3d 1211 (11th Cir. 2008).................................................................................................. 7 Castrol, Inc. v. Quaker State Corp., 977 F.2d 57 (2d Cir. 1990) ........................................................................................................ 6 Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312 (2nd Cir. 1982) ..................................................................................................... 8 eBay v. MercExchange LLC, 547 U.S. 388 (2006) .................................................................................................................. 7 Living Essentials v. N2G Distributing , Inc.. 2008 U.S. Dist. LEXIS 30047 (E.D. Mich. April 14, 2008) ..................................................... 3 McNeil-PPC, Inc. v. Pfizer Inc., 351 F.Supp.2d 226 (S.D.N.Y. 2005) ..................................................................................... 7, 8 Tillery v. Leonard & Sciolla, LLP, 437 F.Supp.2d 312 (E.D. Pa. 2006) .......................................................................................... 7 Time Warner Cable, Inc. v. Directv, Inc., 497 F.3d 144 (2d Cir. 2007) .............................................................................................. 6, 7, 8 STATUTES The Civil Justice Reform Act of 1990 ............................................................................................ 5
RULES

Local Rule 16.1 ............................................................................................................................... 5 OTHER AUTHORITIES Federal Rule of Civil Procedure 26............................................................................................. 4, 5 Federal Rule of Civil Procedure 34............................................................................................. 5, 6

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I INTRODUCTION Living Essentials' discovery motion is just another attempt to buy time. Judge Gonzalez, on almost identical papers, has denied Living Essentials' ex parte application for a two or three month delay. Here, Living Essentials cannot justify any need for expedited discovery--except as yet another excuse to put off Hansen's motion. Hansen's injunction papers make clear that this is a "literally false" case.1 That motion, by specific design, focuses primarily on Living Essentials' own admissions on its website.2 Those admissions establish irreparable harm and Hansen's right to injunctive relief as a matter of law. Nothing more is required. II LIVING ESSENTIALS JUSTIFIES NEITHER DISCOVERY NOR DELAY The Timetable. Eight weeks ago, on July 1, Hansen served its complaint. Thirty-seven paragraphs of material facts3 state in precise detail Living Essentials' false advertising and trade libel. Hansen quoted verbatim the texts of commercials that support its claim. The complaint made clear that Hansen sought injunctive relief. Living Essentials waited more than two weeks, until July 16, to ask for three more weeks--until August 11--to respond to that complaint. Hansen agreed. On August 11, the day Living Essentials' response was due, it requested, and again Hansen granted, even more time--to August 18.4 Meanwhile, on August 8, Hansen served its preliminary injunction papers. They reiterate the facts detailed in Hansen's complaint, included Living Essentials' website admissions, and

3

4

Those papers are Docket No. 7. Within 24 hours of Judge Gonzalez' order, Living Essentials' website shut down. Kammer declaration, ¶ 20. Hansen assumes that Living Essentials has preserved all versions of that website with a litigation hold. For the Court's convenience, Hansen includes a copy of its complaint as Exhibit 1 to the Request for Judicial Notice; ¶¶ 9 though 46 state detailed facts about Living Essentials' false advertising and trade libel. Living Essentials' August 18th response was unremarkable; it answered with the expected denials and 8 affirmative defenses. Docket No. 9.

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briefed the law that, because of Living Essentials' literally false advertising, irreparable injury is presumed and injunctive relief appropriate. Living Essentials waited until August 14--six weeks with the complaint in hand and more than a week after receiving Hansen's motion--to claim it needed discovery. It waited yet another week to file this motion. Now Living Essentials demands that everything stop. What Living Essentials Knew and When. Hansen's July 1 complaint did not merely state bare-bones allegations. Rather, paragraphs 9 through 7 spell out Living Essentials' competition with Hansen in the energy drink market. Then, paragraph 18 gets to the heart of it: " ...the name, "5-HOUR ENERGY®," is, in and of itself, false and misleading ..." Paragraphs 19 through 23 quote the first Living Essentials' commercial and specify precisely what is untrue. Paragraphs 24 though 26 quote another commercial and 26 detail its false statements. Paragraphs 27 through 30 quote yet a third and do the same. Paragraphs 31 through 37 quote the claims on Living Essentials' labels and specify what is false. Finally, paragraphs 38 through 44 state in detail how Living Essentials targets Hansen--an element that establishes Hansen's right to injunctive relief without showing consumer confusion. Hansen's Injunction Motion. Hansen's motion raised nothing new--certainly not to Living Essentials. Hansen quotes the same advertising and details the same false claims.5 It attacks the "no crash" and "five hours" claims on Living Essentials' labels6 and the 5-hour ENERGY® name;7 it identifies Living Essentials' direct attack on Hansen's energy drink products.8 What is "new" in Hansen's injunction papers are Living Essentials' own website's admissions--hardly "new" to Living Essentials.9 As that website concedes, Living Essentials' 5-

5 6 7 8 9

Hansen's preliminary injunction memorandum, pp. 7-9. Docket No. 7.1. Id. at 3. Id. at 6-7. Id. at 2, 9-10. Id. at 3-6.

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hour ENERGY® "energy drink" provides no physical energy.10 Its own graphic, reflecting its "clinical trial", belies its "no crash later" and five hours of energy claims.11 In these circumstances, Living Essentials cannot now demand sweeping expedited discovery and try to postpone the injunction hearing for months. Living Essentials' Michigan Case. In its recent Lanham Act suit against a competitor in Michigan,12 Living Essentials went, with lightning speed, from complaint on March 7, to injunction motion on March 13, to hearing and decision three weeks later on April 7--all without discovery on the merits.13 It forced that competitor, "6 Hour Energy Shot," to pull its product off the shelves and out of distribution channels, and to redesign its packaging because "6 Hour Energy Shot" had infringed Living Essentials' trade dress.14 In Michigan, Living Essentials argued that the court could decide the trade dress issue on the exemplars in its papers--no need for discovery there--and irreparable injury as a matter of law.15 That is precisely the case here. Hansen put the verbatim texts of Living Essentials' ads and labels before the Court; it quoted Living Essentials' own website's admissions; it argues that irreparable harm is presumed as a matter of law. In these circumstances, Living Essentials is not entitled to expedited discovery, especially when it does not--cannot--say what discovery it needs or why. /// ///
10 11 12

13

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Id. at 4-6. Id. at 3-4. By citing that "clinical trial," Hansen does not agree that its methodology or results are valid. Innovation Ventures, LLC d/b/a/ Living Essentials v. N2G Distributing , Inc.. 2008 U.S. Dist. LEXIS 30047 (E. D. Mich. April 14, 2008). Living Essentials' complaint gave N2G even less detail than Hansen's complaint in this case. Living Essentials played rough. Its counsel sent threatening letters to distributors, wholesalers and retailers with a copy of the complaint; cancelled orders resulted. N2G wanted the list; Living Essentials refused. So N2G sought emergency discovery on this collateral issue. McIntyre declaration, ¶¶ 2-3. Innovation Ventures, supra at * 12-21. The USPTO rejected Living Essentials' trademark application for "5Hour Energy" as merely descriptive of the product. Id. at *3. The USPTO apparently took the claim inherent in the "5-Hour Energy" name at face value: "merely describes a product that provides energy to the user for up to 5 hours ..." Id. [emphasis added]. We know from Living Essentials' website that this is not the case. McIntyre declaration, ¶ 4.

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III LIVING ESSENTIALS STILL DOES NOT SAY WHAT DISCOVERY IT SEEKS OR WHY Living Essentials ignores the proscription that discovery not take place until counsel have engaged in Rule 26's process and prepared a discovery plan for the Court. Hence, Living Essentials' excuse for jumping ahead must be some genuine emergency. What that emergency is, however, Living Essentials fails to say. The shamelessly generality of its discovery requests only underscores either that Living Essentials does not need this discovery now--but wants to stall for time--or has no idea what it needs. Neither is an excuse to put the injunction hearing on hold for another two or three months. Living Essentials' Discovery Claims. It claims it needs 15 document requests--but does not say what documents or even what categories of documents; it fails to say why it needs them now or how any of those unspecified documents have anything to do with Hansen's motion. It claims it needs 5 interrogatories--but does not say what it would ask, why it needs the information or how any such questions might bear on any injunction issue. It claims it wants a 30(b)(6) deposition but does not even say what categories of information it seeks or why it needs any of it. It claims it needs two half-day depositions of unnamed persons who are "other witnesses discovered with information directed to the issues raised in the Hansen preliminary injunction motion or Living Essentials defenses." What issues? Living Essentials will not say. The Court should presume, however, that by now Living Essentials knows if it has any defenses and has lined up witnesses whose declarations it can file. It claims it needs "discovery from any third parties with information relevant to the Hansen preliminary injunction motion or any Living Essentials defenses." The breadth of that demand hardly passes muster under "ordinary" discovery standards; it does not justify extraordinary, expedited discovery.

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Finally, it claims it needs to depose Rodney Sacks and Thomas Davis, Ph.D.16 Living Essentials' Fails to Justify Any Discovery Now. Living Essentials' gives no reason for expedited discovery. It argues that an injunction will cause it harm; that is an argument against the motion, but it does not justify discovery. It argues that Hansen relies on "old" law; again, an argument against the motion, not for discovery. It identifies Dr. Davis' declaration and says that it may submit its own expert's declaration. Either it has an expert who can counter Dr. Davis or it does not--no reason for expedited discovery. Living Essentials cites a legion of cases that this Court has authority to allow expedited discovery. That misses the point. The only issue is whether it has "good cause" in this case for expedited discovery. It offers none. The Danger of By-Passing Rule 26. This Court is well aware of the major changes in discovery practice after the December 2006 Federal Rules amendments. This Court also has considerable experience with its ENE procedures that originated with the passage of the Biden Bill, the Civil Justice Reform Act of 1990. The Local Rules impose a discovery stay until after the ENE.17 Living Essentials wants to bypass all that--with significant unintended, or perhaps intended, consequences. Living Essentials' unarticulated requests necessarily implicate ESI because of the addition of "electronically stored information" to Rule 34. The problem, however, with ESI production in modern America is that some 90% of documents are produced electronically and an estimated 80% are never printed. They reside only in the various memory media of the personal computers and servers or in off-line storage media. As the Court is also aware, in most companies the great majority of that ESI is in the form of e-mail and attachments.18 Thus the 2006 Amendments impose an early obligation to discuss the breadth, form, and ramifications of ESI discovery, since most "documents" fall into that category. Judges and commentators press parties to work together to devise a search methodology that will "harvest"

See discussion at pp. 8-9, below. CivLR 16.1. Kammer declaration, ¶ 4.

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relevant and responsive ESI; most attorneys try to do so to minimize the expense of retrieving, harvesting, reviewing, and producing ESI.19 Because most corporate clients' ESI is email, the challenges of appropriate ESI production are further compounded. E-mail software has mediocre search functions. Microsoft's Outlook® searches, for example, are generally limited to a single word or exact phrase. The challenge is finding all responsive documents without harvesting a vast number that deal with irrelevant matters yet contain the name of a product, process, party, or witness. Hence, many companies must use third-party software that allows logical or Boolean search phrases to harvest truly relevant materials from the mass of stored data.20 Living Essentials' unarticulated requests offer no method to arrive at logical search phrases that would produce responsive and discoverable ESI, even if there were a compelling need for expedited production. In addition, although these parties are direct competitors, Living Essentials does not even hint at the need for a protective order--frequently a time-consuming negotiation. Hansen's ESI resides on the individual computers of its employees and executives or on computer servers. Thus, any search involves the stored ESI of each employee and on each server. Absent a negotiated joint agreement to define and utilize search phrases, there is no reasonable way to conduct an intelligent and economical search of Hansen's ESI.21 IV DISCOVERY WILL YIELD NOTHING FOR THIS INJUNCTION MOTION Literal Falsity and the Legal Presumptions that Follow. When a Lanham Act plaintiff demonstrates literal falsity, the courts presume irreparable harm.22 That is Hansen's case. As a consequence, Living Essentials does not need discovery to find out whether Hansen has been irreparably harmed. Apparently recognizing this legal fact, Living Essentials claims that "Hansen is applying
19 20 21 22

Kammer ¶¶ 5-6. Id. at ¶ 8. Id. at ¶ 10. Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62 (2d Cir. 1990); Time Warner Cable, Inc. v. Directv, Inc., 497 F.3d 144, 162 (2d Cir. 2007).

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old law"23 and cites to "newer" law--eBay v. MercExchange LLC 24 and American Medical Corp v. Axiom Worldwide Inc.25 Neither changes the landscape. In eBay, the Supreme Court held that the traditional test--showing irreparable harm--was necessary to obtain permanent injunctive relief. eBay is inapposite, however, because it was specifically limited to disputes arising under the Patent Act. American Medical, a Lanham Act literal falsity case, held that falsity is sufficient to sustain a finding of irreparable injury when the false statement is made in comparative advertising between plaintiff's and defendant's products.26 This is not "new law." Hansen's moving papers address this very issue: "[i]rreparable harm is presumed where the advertisements at issue are literally false and draw a direct comparison to the plaintiff."27 Here, Living Essentials' advertisements compare itself to Hansen's Monster Energy® drinks. Thus, even applying American Medical, Hansen remains entitled to a preliminary injunction. 28 More importantly, Living Essentials ignores those cases that hold irreparable harm is presumed in literally false advertising cases even without direct comparison.29 Living Essentials' Key Admissions and Literal Falsity. Living Essentials features a chart on its website that ironically puts the lie both to its "no crash" claim and its "five hours of energy" assertion.30 Living Essentials claims that with 5-hour ENERGY® there is "No crash later." Yet, as its own graphic demonstrates, almost a quarter of the participants in its "clinical trial" experienced that "crash." Zero crash does not mean almost 25% experience a "crash." The graphic further demonstrates that barely half (only57.7%) of "clinical trial" participants claimed they experienced "5 hours of energy"--whatever "energy" means in this
23 24 25 26 27 28

29 30

Living Essentials' memorandum, p. 7, fn. 2. eBay v. MercExchange LLC, 547 U.S. 388 (2006). American Medical Corp v. Axiom Worldwide Inc., 522 F.3d 1211 (11th Cir. 2008). The American Medical plaintiff failed to demonstrate the comparative advertising component. Id. at 1227. Hansen injunction memorandum, 21: 20-21. Living Essentials also cites to Tillery v. Leonard & Sciolla, LLP, 437 F.Supp.2d 312, 329 (E.D. Pa. 2006) but that case does not deal with literally false claims and is, therefore, inapposite. Time Warner Cable, supra; McNeil-PPC, Inc. v. Pfizer Inc., 351 F.Supp.2d 226 (S.D.N.Y. 2005). Hansen injunction memorandum, p. 7.

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Living Essentials' context.31 It is axiomatic that "five hours of energy" does not mean "only 57% enjoy five hours." Do 25% of them "crash"? For Living Essentials, it only gets worse. It admits that 5-hour ENERGY® does not provide any physical energy. Its website has a "FAQ's" link with nineteen questions and answers. The tenth question and answer admit: If 5-Hour Energy contains zero net carbohydrates, from where does it derive its energy? 5-Hour energy works to provide mental alertness, focus and improved mood rather than physical energy..."32 [Emphasis added.] Living Essentials has engaged in both comparative and non-comparative advertisements. Because its advertisements are literally false, the law presumes irreparable harm. "Because it is virtually impossible to prove that so much of one's sales [was] lost or that one's goodwill [was] damaged as a direct result of a competitor's advertisement, the plaintiff need not point to an actual loss or diversion of sales... ."33 The Depositions of Rodney Sacks and Thomas Davis, Ph.D. Are Unnecessary. No deposition of Rodney Sacks or Dr. Davis can disprove literal falsity. Rodney Sacks. Living Essentials appears to ignore that this is a "literally false" case; hence, Hansen does not need to prove irreparable harm. Hansen, at least at this stage, has either carried its "irreparable injury" burden as a matter of law or it has not. As a consequence, however, Rodney Sacks' deposition is unnecessary to oppose Hansen's motion. Dr. Davis. Similarly, because the website admits that the "5 hours of energy," and without a "crash," claims are literally false, Dr. Davis' deposition is unnecessary. Living Essentials argues that Hansen's motion "addresses complex scientific issues," such
31 32 33

We will see on Living Essentials' website that it is not physical energy. Hansen injunction memorandum, 5:2-9. Time Warner Cable, supra at 161, citing to Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312 (2nd Cir. 1982). See also McNeil-PPC, Inc. at 250.

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that Dr. Davis must be deposed "to test [his] conclusions." Nothing Dr. Davis could say, however, will overcome Living Essentials' own admissions about 5-hour Energy®. Nothing he could say will change the facts that 5-hour Energy® admittedly does not provide five hours of physical energy or that 5-hour Energy® could cause a "crash." Living Essentials has already "tested" Dr. Davis' conclusions with its own "clinical trial"--it supports Dr. Davis' conclusions. V HANSEN DID NOT DELAY THIS ACTION Living Essentials, claiming that 5-hour Energy® has been around for four years, 34 argues that Hansen should have sued it sooner, based on the August 7, 2008 transcript of an "earnings call" between Hansen CEO Rodney Sacks and financial analysts. Rodney Sacks is quoted as saying that Hansen had "wanted [the "energy shot" market] to mature" before it could justify introducing its own brand into that market. This "delay" argument fails. First, even if the transcript were admissible, 35 Living Essentials' assumption that, because Hansen wanted the market for energy drinks in smaller containers to mature, it knew about 5-hour Energy® is baseless.36 Second, Living Essentials' further assumption that, even if Hansen knew about 5-hour Energy® , it also knew that the advertising claims were untrue is also false.37 Finally, Living Essentials' own website does it in. It only posted its damning "no physical energy" segment after February 200838 and its "clinical trial" results in December 2007.39 If Hansen had known that Living Essentials' advertisements were false, it would have sued sooner.40 The facts are that, in March 2008 Hansen was forced to bring a lawsuit against another energy drink manufacturer, N2G, for trademark infringement. Until then, Hansen had paid almost no attention to the manufacturers of energy drinks sold in smaller containers and was unaware of
34

35 36 37 38 39 40

In its trademark applications, however, Living Essentials certified to the USPTO that it first used "5 Hour Energy" in commerce only in June 2005. Request for Judicial Notice, Exhibit 3. See Hansen's separate evidence objections. Sacks declaration, ¶¶ 5, 6 and 7. Id. Kammer declaration, ¶ 19. Kammer declaration, ¶ 17. Sacks declaration ¶ 6.

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their advertising.41 About a month before filing this action, Hansen first learned of the disparaging statements Living Essentials' commercials made about Hansen's Monster Energy® products.42 Hansen started to focus intense scrutiny on 5-hour Energy® and reviewed the 5-hour Energy® website. Hansen discovered that 5-hour ENERGY® admitted that it did not actually provide five hours of energy and that, in spite of the label's "no crash" claim, the company's own "clinical trial" proved that the product actually caused a significant percentage of its users to "crash".43 Hansen investigated and filed this lawsuit on July 1. As this timeline shows, Living Essentials' "delay" claim is another red herring. VI CONCLUSION Living Essentials cannot justify expedited discovery; it should not be allowed to delay the injunction hearing Judge Gonzalez has scheduled.

DATED: August 27, 2008

Respectfully submitted, SOLOMON WARD SEIDENWURM & SMITH, LLP

By:

/s/ Edward J. McIntyre NORMAN L. SMITH EDWARD J. MCINTYRE ALISON L. PIVONKA Attorneys for Hansen Beverage Company

41 42 43

Id. at ¶¶ 4-5. Id. ¶¶ 5-6. Id. ¶ 6.

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CERTIFICATE OF SERVICE I caused the HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). I served the following by email and Federal Express Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] ALISON L. PIVONKA [SBN 156977] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

CASE NO. 08-CV-1166 IEG (POR) DECLARATION OF RODNEY SACKS IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY Date: Time: August 28, 2008 2:00 p.m.

Hon. Louisa S. Porter

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Rodney Sacks declares: 1. I am the Chairman of the Board and Chief Executive Officer of Hansen

Beverage Company ("Hansen"). The facts in this declaration are based on my own personal knowledge. 2. Since 1992, Hansen has developed, marketed, sold, and distributed a variety

of product lines in the specialty or "alternative" beverage category--including non-alcoholic beverages such as sodas, fruit juices, energy and sports drinks, smoothies, lemonades, and iced teas, including its line of the popular Monster Energy® drinks. 3. Monster Energy® drinks are sold or are about to be sold in a variety of

container sizes including 3, 8, 15, 16, 16.9, 23.5, 24 and 32 ounce containers. 4. In or about March 2008, Hansen became aware that N2G Distributing Inc.

and Alpha Performance Labs were infringing Hansen's trademarks and instituted proceedings against them. N2G Distributing Inc. and Alpha Performance Labs are manufacturers of "energy" drinks sold in smaller containers that compete with Hansen's Monster Energy® drinks. 5. There are hundreds of manufacturers of energy drinks. Although Hansen

monitors the activities of its larger competitors that produce energy drinks, except as described in the preceding paragraph, it did not, previously pay attention to the manufacturers of energy drinks sold in smaller containers, as the sales of those products appeared limited and Hansen was then not aware of their advertising activities. However, when it came to Hansen's attention that its competitors producing and marketing "energy drinks" in smaller containers had begun aggressively advertising and marketing their products, Hansen focused more attention on the activities of those competitors. 6. Approximately a month prior to Hansen filing its complaint in these

proceedings, Hansen became aware of the extensive advertising and other promotional and marketing activities of Living Essentials. It was then that Hansen first began to learn of the disparaging publications Living Essentials' commercials made about Hansen's Monster Energy® products. Hansen then began to investigate 5-hour Energy,® its advertising and
P:00439578.6:07565.158

-208-CV-1166 IEG (POR) DECLARATION OF RODNEY SACKS IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

Case 3:08-cv-01166-IEG-POR

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1

mâfkelln8 activitles, and tlre clalms it mado, Hansen revìewed the S,hour fnergy@ websito
and di¡covored that 5-hour Ânergyl¡ admìtfed, lnter alia, that ir dld nor always or uniformly

2
3

provide flve hours of energy and lhat, in splte of the product's lahsl's claim of

Nno

crash,'

4

the company's own'cllnlcal tf¡äl'proved ïhê product actuâlly caused a signlflcant
percantage of
¡tÊ

t
6

usgrs to

'crash.' Hanren

âlso ¡nvest¡gâred the full ôxtent the fal¡e cl¡ims
¡ts invertigatlon, Hanson filed

fhåt wer6 being mado bV

l-how Energ'¡'s.o After concludinB

7

thls lawsuÍt, l'{ad l'lsnñen known earlier about 5-hou¡ Ënergy'so false claims, advertislng claims and dlsparaginE publicallons âbout Hansen/s Monster Energyo drink¡, I would have authofizêd rhls lawsult then, jusr as soon as I was practlcably ablo to do so,

I
9

t0
t1

7,

Ai

Living Êssentials po¡nts out, In an Augqst 8, 2006 Éarnings Call I discussed

the fact that Hansen had baen oboerving maturålion oÍ the r¡arket for "energy" drlnks sold ln

l2
f3
14

smaller contalnêß to ovaluate thE vlability and desirablllty of Monsrer Energyo being told in
gmaller contalneß. Howevêf, attr¡bilinß anythlng moro to thât statêment*as Living
Essentlals do6s--to suBEBst that Hanson knew about the fal¡e statemenr$ of 5"hour Energyo

t5 r6
17
18

take5 my SlatÊmsnt corïplBtBly out of context and

15

lñcorrÊct,

I declare undor penalty of periury under th laws of the United Srates of RmerÌca that th facfs in this declàrätlon are true and conact, and that I exÉcutÊd thi6 dôclôfation on

^ugrr}},

zooa,

19

20
21

22

23 z4
2Ë

26

27
2B

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CERTIFICATE OF SERVICE I caused the DECLARATION OF RODNEY SACKS IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). I served the following by email and Federal Express Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE

-408-CV-1166 IEG (POR) DECLARATION OF RODNEY SACKS IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] ALISON L. PIVONKA [SBN 156977] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant. I, William N. Kammer, declare: 1.

CASE NO. 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY Date: Time: August 28, 2008 2:00 p.m.

Hon. Louisa S. Porter

I am a partner in the firm of Solomon Ward Seidenwurm & Smith, LLP, and

one of the attorneys responsible for the representation of Hansen Beverage Company in this matter. I have reviewed the Ex Parte Application for Discovery filed by Living Essentials on August 21, 2008, and I have personal knowledge of the matters that I set forth in this declaration. I make this Declaration primarily to discuss the irrationality of the unarticulated document requests in an age of electronic discovery and the amended Federal Rules of Civil Procedure. REQUESTED PRODUCTION OF DOCUMENTS 2. Hansen's Opposition is difficult to express given the generality and breadth of

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08-CV-1166 IEG (POR) 1 DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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the description of the requested document discovery ["Fifteen (15) document requests ... directed to the issues raised in the Hansen preliminary injunction motion and any Living Essentials' defenses, returnable fifteen (15) days from the date of service".] Who knows how many documents might be responsive to 15 unarticulated document requests? And anyone familiar with the work of the Sedona Conference would recognize that a 15-day return date for production is virtually impossible to achieve when dealing with ESI. Additionally, in this type of a case, meaningful discovery will not and cannot occur without the negotiation of a proposed protective order and its subsequent approval and entry by the Court. To my knowledge, the various counsel for Living Essentials have yet to broach the subject with our firm. 3. This Court is aware of the major changes in discovery practice that have

followed the amendments to the Federal Rules in December, 2006. Of course, a request for and the production of ESI was always available, but the amendments, if not the MCLE providers, alerted our profession to the fact the ESI discovery had probably been regularly neglected. This Court also has considerable experience with its ENE procedures that originated with the passage of the Biden Bill, the Civil Justice Reform Act of 1990. Wisely there is ordinarily a discovery stay in all cases until after the ENE has occurred. 4. The unarticulated requests implicate ESI because of the addition of the phrase

and definition of "electronically stored information" to Rule 34 in December, 2006, replacing the older phrase "data compilations". The problem with document and ESI production in our contemporary business environment is that an estimated 90% of documents are electronically produced and an estimated 80% of them are never printed out. They reside only in the various memory media of the personal computers and servers of the parties or in off-line storage media. Additionally, in most companies, the vast majority of that ESI is also in the form of e-mail and its attachments. 5. The wisdom of the 2006 Amendments is its imposition upon the parties of an

early obligation to discuss the breadth, form, and ramifications of the discovery of ESI, given the fact that most "documents" today fall into that category. I have attended and taught
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2 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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numerous courses and webinars over the past five years on electronic discovery and the best practices to conduct it. Most commentators advise parties to work together to devise a search methodology that will produce or "harvest" ESI that might be relevant and responsive to a production request. Most attorneys that I have worked with attempt to do so because it is in the best interests of all parties to minimize the expense of retrieving, harvesting, reviewing, and producing ESI. 6. That advice and the recommended best practices are derivative from three

controlling factors: (1) a gigabyte of data might amount to 70,000-80,000 pages of text or images; (2) the data storage space a gigabyte requires only costs about $1.00 so it is seldom reviewed and culled for destruction; and (3) the value of the attorney time, at today's billing rates, necessary to review each gigabyte of data might approach $30,000. Most commentators agree that the volume of electronically stored information is probably exponentially greater than the volume of stored paper information. For that very reason, temperance, precision, and cooperation are crucial. Thus most judges insist upon a meaningful Rule 26(f) conference resulting in a meaningful discovery plan. 7. Most counsel are aware that electronic discovery costs in current business

litigation may range in expense to their clients from $250,000 to more than a million dollars. Absent the meet-and-confer process, there is no reasonable way to control those expenses. Moreover most counsel are aware that the harvesting and review of ESI prior to production cannot reasonably occur with a 15-day return date. 8. Because most of the ESI of corporate clients is email, the challenges of

appropriate ESI production are further compounded. The e-mail software used by many companies has mediocre search functions. Hansen uses Microsoft's Outlook. In Outlook, the software generally limits searches to a single word or an exact phrase. The challenge is finding all of the documents that might be responsive to a request without harvesting a vast number of documents dealing with irrelevant matters yet containing the name of a product, process, party, or witness. In order to do so, many companies must use other third-party software that allows logical or Boolean search phrases to harvest truly relevant materials
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3 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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from the mass of stored data. 9. Living Essentials' unarticulated requests suggest no method to arrive at logical

search phrases that would produce responsive and discoverable ESI, even if there were a compelling present need for its production. 10. Hansen's ESI basically resides on the individual computers of its employees

and executives and on Hansen's computer servers. To the extent that the ESI is on personal computers, any search for responsive documents must occur in singular fashion on each employee's computer. Any ESI resident on servers can only be efficiently searched after an agreement between counsel to define and utilize search phrases appropriate to the task. That is really the only reasonable way to conduct an intelligent and economical search of Hansen's electronic data. 11. After the "harvest" of a substantial volume of ESI, counsel must determine an

economical method for reviewing it, numbering its pages, and converting it into a producible form, i.e., "petrifying" it. Unarticulated search terms, even broad ones, do nothing to assist agreement upon a reasonable production of relevant and discoverable ESI. LIVING ESSENTIALS' WEBPAGES 12. I am familiar with the project colloquially referred to as The Wayback

Machine but formally the Internet Archive, a non-profit corporation based at the Presidio in San Francisco. It works to preserve the content of the internet for generations to come, using robot "crawlers" or "spiders" to query regularly a vast number of Internet addresses and harvest the contents of many of the pages found at each of those urls. The front page for the project is now found at http://www.archive.org. I have used the Wayback Machine in many cases to obtain copies of information that appeared at earlier times on the internet at various web sites. 13. I am also familiar with the principal website for Living Essentials that is found

at http://5hourenergy.com and also with several subsidiary pages with the addresses http://www.5hourenergy.com/crasheffect.asp and http://www.5hourenergy.com/QandA.asp. From the front page of the 5-hour Energy® site, a visitor can reach the graphic expression of
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4 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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Living Essentials' "Clinical Trial" at the crasheffect.asp page either by clicking on the word "crash" or on a button labeled "Crash Effect Explained". There is also on the toolbar of the front page a button labeled "FAQs". If a consumer clicks on that button, they are transported to the page QandA.asp. 14. At the website of the Wayback Machine, a visitor can enter the Internet

address, the "URL", of any Internet site. I have done so on several recent occasions and again on August 26, 2008. I attach to this Declaration as Exhibit 1 the summary table produced when I last entered the address of Living Essentials' front page into the Wayback Machine. Exhibit 2 is the report that resulted when I last entered the URL of the crasheffect.asp page, and Exhibit 3 is the result when I last entered the URL of the QandA.asp page. The Internet Archive notes on each of those pages that it posts the results of its visits about six months after it has collected the material. That would explain the absence of any reported visits after February of this year. 15. The dates indicated in each of the columns of those exhibits are the dates

when the Wayback Machine crawled through and captured or harvested the contents of the respective pages. The FAQs page of the Wayback Machine explains that the dates marked with an asterisk indicate that there were changes observed that day from the previous visit to that web address. 16. I personally did most of the work I describe below though I asked my legal

assistant to go back and verify that I had accurately captured and printed the appearance and contents of the information and pages I will now discuss. In each instance of a date marked with an asterisk on the Exhibits, we have printed out the web page obtained and retained by the Wayback Machine and stored in its database. We have also "viewed" the "Page Source" of each of those pages, copying what is essentially the source code of that html page and then pasting it into a Word document that we retain in our files. ["Page Source" is the menu pick on the View menu on the Firefox browser; you can see the same information by using "Source" on the View menu of Internet Explorer.] 17. By examining those materials currently available at the Wayback Machine, I

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5 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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was able to determine when the archived information suggests that certain information first appeared on the 5-Hour web pages. The "Crash Effect Explained" button was first observed on a 5-Hour web page captured by the Wayback Machine during a visit on December 6, 2007. The Wayback Machine had last visited that page on November 23. Thus the logical conclusion is that the insertion of that button onto the home page of 5-hour Energy® was made after the November 23 visit and on or before December 6, 2007. 18. Similarly Exhibit 2 shows the capture results for the crasheffect.asp page and

reports that the Wayback Machine first visited that page on December 9, 2007. That page, when visited, contains a series of bar graphs illustrating the results of the "Clinical Trial" that 5-hour Energy® conducted. Exhibit 4 is a copy of the December 9, 2007, page as recorded by the Internet Archive. As I explained in paragraph 13, a consumer would reach that graphical representation by clicking on the "Crash Effects Explained" button or on the word "crash" on the front page of the web site. 19. Finally, Exhibit 3 reports the visits to the QandA.asp page on perhaps 50

occasions from 2005 through February 10, 2008. That web page consists of a number of questions and answers about the product. One of the present-day questions begins "If 5Hour energy contains zero net carbohydrates, from where does it derive its energy?" and responds in part with a disclaimer that the product does not provide "physical energy". By examining the pages collected on the dates indicated on Exhibit 3, and the source code for those pages, I was able to determine that that question and its answer that 5-hour Energy® does not contain any physical energy was never on any of the QandA.asp pages harvested by the Wayback Machine on any date through February 28, 2008. However it does presently appear on the Living Essentials web site. 20. While revising this declaration on Tuesday, August 26, I attempted to visit the

web site http://5hourenergy.com but was not able to do so. I tried again on a number of occasions but found it non-responsive. I then attempted to "ping" the web site but each request timed out. Pinging is basically placing something similar to a phone call in an attempt to get the phone on the other side to respond. As of 9:30 a.m. on Wednesday,
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6 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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AuEUsl27,2008, the 5-Hour web site is still off line.
I declare under penalty of perjury under the laws of the United States of America thal

the preceding is true and correct and that I executed this Declaration on August 28,2008.

Uil,*,t/\ \¿-r,lrl
wrllram N. Kammer

p:oo¿:9+6r.lrozs6s,rs8

08-CV-1 166 IEC (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERACE COMPANY'S OPPOSITION TO LIVINC ESSFNTIALS' EX PARIE APPLICATION FOR DISCOVERY

7

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CERTIFICATE OF SERVICE I caused the DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). I served the following by email and Federal Express Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE

8 08-CV-1166 IEG (POR) DECLARATION OF WILLIAM N. KAMMER IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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Exhibit 1.1

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Exhibit 1.2

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Exhibit 2.1

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Exhibit 3.1

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Exhibit 3.2

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Exhibit 4.1

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Exhibit 4.2

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] ALISON L. PIVONKA [SBN 156977] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

CASE NO. 08-CV-1166 IEG (POR) DECLARATION OF EDWARD J. MCINTYRE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY Date: Time: August 28, 2008 2:00 p.m.

Hon. Louisa S. Porter

P:00439950:07565.158

08-CV-1166 IEG (POR) DECLARATION OF EDWARD J. MCINTYRE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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1

Edward J. McIntyre declares: 1. I am a member of the bar of this Court and an attorney for Hansen Beverage

Company in this action. 2. I personally reviewed the docket entries in Innovation Ventures, LLC v. N2G

Distributing, Incorporated, et al., United States District Court, Eastern District of Michigan, Case No. 2:08-cv-10983-PDB-MJH, and reviewed Innovation Ventures brief in support of its motion for a TRO and preliminary injunction, N2G's response and N2G's emergency motion for expedited discovery. 3. That emergency motion focused on the collateral issue of a list of recipients of

the letter Innovation Ventures' counsel sent to distributors, wholesalers and retailers along with a copy of the complaint. 4. Neither Innovation Ventures' motion nor N2G's response appear to rely on

any discovery taken for that motion nor is there any evidence of other expedited discovery. Innovation Ventures argued that the court could find irreparable injury as a matter of law.1 I declare under penalty of perjury under the laws of the United States of America that the preceding is true and correct and that I executed this declaration on August 27, 2008 in San Diego, California. /s/ Edward J. McIntyre EDWARD J. MCINTYRE

Innovation Ventures' brief, pp. 16-17. 08-CV-1166 IEG (POR) 1 DECLARATION OF EDWARD J. MCINTYRE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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CERTIFICATE OF SERVICE I caused the DECLARATION OF EDWARD J. MCINTYRE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). I served the following by email and Federal Express Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE

08-CV-1166 IEG (POR) 2 DECLARATION OF EDWARD J. MCINTYRE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] ALISON L. PIVONKA [SBN 156977] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

CASE NO. 08-CV-1166 IEG (POR) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY Date: Time: August 28, 2008 2:00 p.m.

Hon. Louisa S. Porter

P:00439927:07565.158

08-CV-1166 IEG (POR) REQUEST FOR JUDICIAL NOTICE ISO HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

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Hansen Beverage Company requests the Court to take judicial notice, pursuant to Federal Rule of Evidence 201 of the following: Exhibit No. 1: Hansen's complaint; Exhibit No. 2: Living Essentials' Supplemental Registration filed with the United States Patent and Trade Office; Exhibit No. 3: Living Essentials' brief in support of its request for a temporary restraining order and preliminary injunction, in Innovation Ventures, LLC d/b/a/ Living Essentials v. N2G Distributing , Inc. 2008 U.S. Dist. LEXIS 30047 (E.D. Mich. April 14, 2008).

DATED: August 27, 2008

Respectfully submitted, SOLOMON WARD SEIDENWURM & SMITH, LLP

By:

/s/ Edward J. McIntyre NORMAN L. SMITH EDWARD J. MCINTYRE ALISON L. PIVONKA Attorneys for Hansen Beverage Company

P:00439927:07565.158

-208-CV-1166 IEG (POR) REQUEST FOR JUDICIAL NOTICE ISO HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

Case 3:08-cv-01166-IEG-POR

Document 16-5

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P:00439927:07565.158

CERTIFICATE OF SERVICE I caused the REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). I served the following by email and Federal Express Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE

-308-CV-1166 IEG (POR) REQUEST FOR JUDICIAL NOTICE ISO HANSEN BEVERAGE COMPANY'S OPPOSITION TO LIVING ESSENTIALS' EX PARTE APPLICATION FOR DISCOVERY

Case 3:08-cv-01166-IEG-POR

Document 16-5

Filed 08/27/2008

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Exhibit 1.1

Case 3:08-cv-01166-IEG-POR

Document 16-5

Filed 08/27/2008

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Exhibit 1.2

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.3

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.4

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.5

Case 3:08-cv-01166-IEG-POR

Document 16-5

Filed 08/27/2008

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Exhibit 1.6

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.7

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.8

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.9

Case 3:08-cv-01166-IEG-POR

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Exhibit 1.10

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.11

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 1.12

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.1

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.2

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.3

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.4

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.5

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.6

Case 3:08-cv-01166-IEG-POR

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Exhibit 2.7

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.8

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.9

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.10

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.11

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.12

Case 3:08-cv-01166-IEG-POR

Document 16-5

Filed 08/27/2008

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Exhibit 2.13

Case 3:08-cv-01166-IEG-POR

Document 16-5

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Exhibit 2.14

Case 3:08-cv-01166-IEG-POR

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Exhib