Hunter Brown vs Real Water, August 7, 2024

but just as important too it's like Ronald Reagan said right and I love this quote uh trust but verify and that's Hunter Brown versus a lifestyle just go ahead and set for appear start good morning your honor Jim kavanov for defendant ET one LLC DBA terrible her Dan penberg good morning your honor also for et1 which I will call ET today all right good morning honor Joel ad you on behalf of realat lifestyles.com observing is Matthew Kaufman on Zoom I see my co-counsel on Zoom Eric Freeman from Hopkins berno good morning you're honor Jack Franco Bar number 13484 with Backus spon on behalf of Albertson's LLC with me today is our newest associate Jamie Clank we a juror does that cover all appearances your honor this is Loren 13217 for KD Distributors of Nevada good morning your honor do bar 9000 Council for Nevada beverage good afternoon your honor here on [Music] of Kaitlyn Z for k distrib admitted Pro region all right does that cover all appearances okay I guess we have a few matters on uh let's deal with some of the easy matters first before we get to the contested motions um we have a uh motion to associate Council in an order short in time that appears to be uncontested is that correct yes and as far as let's go ahead and deal with the motion Mr cavano your motion now I have a your honor I'm not which motion are you talking about the motion to associate counsel yes you're on it was uncontested motion to associate Mr Brian Ledger he's with the firm Gordon re Scully manuk count but he's located in California and uh we've received the necessary from State Bar and now we presented the Motions associate to your honor okay we're going to Grant it with no opposition thank you sir so we'll take that off the table um you want to talk about the jury questionnaires before after your honor I talked to Mr Ado about it and uh we got a little bit of push back from the jury commissioner about the number of questionnaires right and we had proposed 800 on abundance of caution because of the publicity I think the jury commissioner wants a lesser M 600 perhaps and I'm I'm okay with that that Mr do I think's okay with that um you know I'm I'm of a view that no one reads the newspaper they anymore Jo for real water we'll fine with the 600 obviously if we run into an issue we'll deal with it but yeah we can deal with it put it this way we'll get the case dried that's the best thing I can say right Mr Parker I had another 500 drawers in my back pocket I've never seen it happen before or after since there so I'm not worried about that okay so um where do we go next oh we have the defendant Alberton LC's motion for Le to have been answer to cross claims uh that was on the uh Express Indemnity issue is that correct yes your honor Indemnity and BR of contract Jack Frank on behalf of defendant Albertson all right let's go there thank you your honor defendant Albertson has brought this motion under 15 a um the parties were trying to discuss indemnification over the last 11 months to see if it would be picked up unfortunately we were not able to reach an agreement hence we are before you requesting that you grant our motion for to amend so that we can assert the claims against some of Beverage thank you we'll hear from the opposition thank you your honor c doil bar 9000 Council for Nevada beverage alberon has a pending cross claim against Neta beverage already for Equitable Indemnity and contribution their motion to amend to join a Express uh Indemnity claim should be denied uh under the uh NRS 369 485 subd statute under the uh alcoholic beverages legislation we argued in our response that the court cannot enforce an illegal contract their claim would be futile and that's because the fada beverage cannot participate indirectly in the operation of a store that sells liquor such as Albertson's and the direct Indemnity provision would be a sharing of losses which would be participation of operation we provided the court that statute as well as an attorney general letter that was sent to All liquor distributors in the state of Nevada that's two of the three branches of government that have addressed that the concern is the attorney General enforces that then NADA beverage could be uh prosecuted under deceptive trade practices and as the Attorney General warns that could be criminal prosecution which could result in suspension of their ability to conduct visit all right I'm trying to figure out how an Express Indemnity agreement for pursuant to a contract uh has any application to uh operating a a retail recor store I I wish the uh attorney general had given us uh more guidance but we're we're Bound by their interpretation and our our review is that we would be sharing in the loss obviously there's claims against Albertson in this case um they're claiming that that would be a loss they're trying to shift that loss onto us and that sounds like participation and operation under a under a broad interpretation of the statute which uh because it does risk penal consequences we need to uh take every every effort not to expose Nevada bage to Pru all right your honor these are two sophisticated parties who have entered into a contractual obligation Nevada does not have um a policy that states that you cannot have an anti-indemnity language sharing of a loss as a result of a product defect that is non-alcoholic Common Sense tells you is not a joint operation of a grocery store distributor it's not go ahead man' you understood my point directly your honor and unless you have any questions I am comfortable submitting um I don't and I don't mind saying this I don't always agree with the uh Attorney General on certain issues uh in regarding some of their opinion letters I've had scenarios where I've gone another way and uh I've been affirmed on and uh my point is this I don't see how an express indentity provision pursuing to a contract is participating directly or indirectly in the operation of a retail store all that simply is is a sharing of the loss based upon contractual principles nothing more nothing L regarding the motion I'm going Grant it thank you submit a proposed order all right uh let's move on are you're welcome sir um next up PL of's motion to strike Cher Herb's Cher's answer or a lesser appropriate sanction on an order shorten time H I don't know who I'm arguing against today U both of us okay normally is a you know I prefer one horse one Rider so I can one horse one Rider well we the reason I can't do that is because I just came into the case so I don't know enough of the facts and this was on order shortening time so Jim's going to have to take all the factual issues I understand thank your honor so your honor just so again I can understand who I'm arguing against I understand that I know I actually it's my recollection review to points of authorities we had a significant uh Records dump is that correct I like the way you describe it exactly exactly how I would describe was it 27,000 Pages no no 277,000 271,000 obeses 270,000 pages of documents deposited I correct myself than so your honor let's that's a lot of pages in it'll become clear okay what come clear to your honor then hopefully it'll become clear to the rest of us as it stands your honor I don't believe it's clear what those documents uh will how they will play out in this case but the H just to make things easier going forward may I approach the bench and provide a copy of Terrible's uh Port supplement1 make sure Mr Kavanaugh had a chance to look first oh he prepared it oh but I'll take a copy if you're going to hand it take my copy all right you have my copy you what the heck all right and and it's my understanding this is I'll use it after you then that's more helpful to you that's fine and for the record this would be um this would be disclosures is that correct Mr that is correct joh terrible hers produced this doc and I I provide it to the court now because when we filed our initial motion your honor we anticipated that Terribles would be producing additional documents based upon the evidentiary hearing held in the H wson C during trium right and we were told that going into that evidentiary hearing we were told by way of depositions by way of written Discovery responses and by declarations that there were no more documents and the Terribles have produced everything and so we get into the evidentiary hearing and I will tell the court as we've done so in our briefing that each one of the terrible Witnesses each one of them we called four during the evidentiary hearing I examined all four and all four admitted that they had given false testimony or inaccurate testimony during their position and during the and in their declarations and they admitted to this in front of Judge Kish this came to light because accidentally Terrible's prior Council Coen a Conor sent to Brianna switzler of Mr Kemp's firm an email she happened to be on the string of recipients that we found 11 documents that pertain to the Henry case so I see this over the weekend this is the weekend before the Martin Luther King holiday I sent I quickly sent a 2.34 letter saying we need to see those 11 pages um immediately and we need to discuss why they weren't produced we get those 11 pages and in between that weekend and the next day of trial 290 Pages show up so it goes from 11 pages to 290 pages so we go into day number six of trial judge kishner decided to have the evidentiary hearing based upon our motion to strike and I call as our first witness the terrible hers give you his title y just so you'll know and this is Mr Brian Breeden he's the first witness we called he's the vice president of advertising and marketing and if you go to exhibit one of our motion your honor got it right there and if you could go to page 18 exhibit one just for the Court's record is a transcript of the evidentiary hearing it is January 24th 20 2024 I'm sorry January 23rd 2024 and it's day six of the trial so you see that we're in trial mode and we're having to do this evidential hearing during trial page eight at the bottom starting line 21 I introduced the issue and I talked about the 11 documents that I just described to the court and the 290 Pages we eventually received I discussed a 2.34 letter but most important in your honor to this case if you go to page 19 I have a right front it says this is coming from again Terrible's prior Council I'm not attributing this to Gordon and Reese nor to my friend Mr Jim Kavanaugh over there it says here in lines 11 and 12 during searches for documents responsive to the Henry case case we're here to talk about request for production using the term drink Rew water.com which is in quotation marks I understand terrible HT located emails from 2019 that may be relevant to the H wartson case which is a trial that was in front of Judge uh kisher H now that's an admission related to H ws and under 16.1 that these documents should have been produced over two years ago October 15 2021 now I want the court to understand that this case has been Consolidated for Pur purpose of Discovery a long time ago a thank you your honor a long time ago coordinated judge coordinated that's fine I'm more I'm more than happy to use Mr penberg word coordinated for purpos of Discovery and I used the court words a long time ago so I think Mr penberg knows more about the facts than he pretended to be PR pretended not to know early on I know I know legal distinctions we'll see we'll see we'll see we'll keep him to the facts you do legal distinctions so your honor kishner hears this judge kishner hears what's going on and I point this out because the Henry case is that issue and based on the fact that these cases were Consolidated a long time ago these documents should have been produced a long time ago objection rather again he's calling this a Consolidated case it is not a Consolidated case with un warts in your honor and this is going to be misleading and it's going to be reple in the record this is not Consolidated case that we're here about with hun wartson never has never was it's coordinated for Discovery the very same Discovery CMO order the plists have ignored to bring this straight to the court this alleged discovery abuse problem thank you Mr K so now I know that I got two Riders talking about coordinations versus Consolidated so July just to make it straight y July 11 2022 the cases were coordinated for purposes of Discovery I also want the court to be aware of the fact that Terribles was named in this case March 7 2023 two months later they did their initial 16.1 those documents did not include the 11 pages the 290 Pages or the 271,000 pages that we received last month so little pause here just to see if Mr C fenberg has something to say about those dates but they don't so we'll keep moving yall the after that the 290 Pages were disclosed in this case yor January 16th 2024 which is a few days before we had the evidential hearing in the H Watson case so now at the very least sh we believe these documents should have been produced in accordance with nrcp 16.1 on uh May 16 2023 at the very least if not before then based on the coordination of Discovery for all the cases on July 11 2022 and we know that they were not but we also know your honor if we go through exhibit one and I'm going to take it take the court through this uh methodically y on page 49 of exhibit one it says here ET was in a process of disclosing these documents in the Henry case that's what it says these documents being the 290th speaking of at that time unfortunately should have included the 271,000 pages that we just received last month and I point that out because we did not have those 271,000 pages when we prepared the motion in front of the court we didn't have it because our briard was filed on July 17th 2024 however ter opposition was filed July 31st 2024 and they failed to mention in their opposition to 271,000 pages that they had produced just a week before what the what the opposition does is it fixates on the 290 Pages completely ignoring the 271,000 pages and then it says here and this is where judge kishner I thought was very good at catching the the the obvious lack laps in judgment in terms of terrible herbs complying with 16.1 it says here at line 2425 under 16.1 you were planning on doing it or under response in Henry because initially as I pointed out joh honor the attorney prior attorney teral said in responding to request for production of documents under rule 34 they realized that these documents would be responsive in Henry well if that's the case this should have been done these documents should have been produced but they weren't under 34 or 16.1 and then your honor this is where Mr Wade Mr penberg department on page 30 uh page 50 says if you go to the next page on lines this is lines 2 through 4 the court again trying to figure this out says I'm just trying to be clear Henry was It was a 16.1 are pursuant to Discovery Quest and Mr weight says rule 34 so your honor you're familiar with the due diligence requirements under 16.1 the supplement uh supplement uh supplementation requirements as well and you're also familiar with the rule with rule 34 which requires due diligence and supplementation these documents should have been produced in either event over a year ago so Mr weit and his explanation this is M 7-8 and I would uh steer the court towards 15 through 18 he says the conduct is consistent with a mistake or Worse negligence or sloppiness which could be sanctionable well we agree that it is sanctionable but your honor sloppiness or negligence compounded by over a year worth of failures require this Court's attention and it requires significant sanctions there is no way and I know this because I recall with the court your honor being a practitioner a a trial lawyer before taking the bench you know how difficult it is to try to incorporate 271,000 pages of documents when you've already compl completed your initial expert disclosures you've taken over 70 depositions in the combined or coordinated cases you've done written Discovery you've tried to plan out what your pre-trial motions will be and to have this amount of paper dropped on you as you as a court said a data dump this laate in the game I don't know if I said that think you said document d d close enough but you corrected it as a deposit I mean I I I I mean I understand the practicalities of practice and for example if there are key documents involved in a case you need those documents early on from a case preparation perspective you do I I get there absolutely because these documents would be documents that we would use in all of these depositions they would be used to First authenticate the documents they be used to set up test for our experts they be used for further written Discovery or determining if there's other potential witnesses that should be deposed all of those things come along with and are the I believe the backbone for why 16.1 is so important you if you go to Exhibit 2 this is the B7 January 24th 2024 the hson pr Mr Breeden admits on page 60 uh 91 I'm sorry that the representations that he had made regarding Communications between real water and terrible hurts were absolutely inaccurate using his words page 91922 and that testimony that he was referring to was his deposition that was taken and if you want to just a Court's uh benefit and to give context to this on page L 11 that's where I asked the question at the time of your deposition however you said that you never heard of the name Amy Jones is that correct response 14 line 14 I was answering truthfully from what I could recall I had no rection recollection of Amy Jones until I saw the email communication recently well we didn't know until we saw the email communication either Mr Breeden but you would agree with me in front of this court today that the statement during deposition under sworn testimony was a misrepresentation of the truth and he says it was absolutely inaccurate the next page honor we ask him about Anthony Randol who was a vice president of marketing for real water and he denied knowing Anthony Randol he admits on page 92 that again that was a misrepresentation and then on lines 11 10-13 I asked him and then you also testified that there were no Communications whatsoever with real water do you recall testifying to that during your deposition he says yes and that was also a misrepresentation of the truth is that correct and then he says again an accurate until I found out that it was true he honor each one of the witnesses Terribles uh placed before us called as called during the evidentiary hearing made the same admissions during that evidentiary hearing after giving providing inaccurate deposition testimony and declarations and I can take the court through all of them because I have them here I'll give the court another example of this if you go to page 97 your honor this is my examination of Brian Breeden continuation of that examination based now upon his declaration as opposed to his deposition and he says here based upon the question starts at 7 9:17 Now isn't it fair to say based upon what You' have learned recently with the renewed motion for sanctions the reason why you're here today that in fact this declaration was also a misrepresentation of the truth he says I did do an email search prior to signing this declaration and still found nothing then I said but now you've learned after this trial began after began picking this jury that there were emails is that true yes sir making this declaration also for false correct yes so at this point we have three inaccuracies in your deposition we have one inaccuracy in your declaration correct yes y I go several pages and I go paragraph after paragraph after paragraph in this declaration if you go to page 100 by that time lines 15-1 17 I indicate to him we have now three inaccurate inaccuracies in the deposition and three inaccuracies in your declaration correct yes same is true on page 101 yor you missed his fourth and accuracy in the Declaration and is fifth I'm referring ACC Court to uh page 101 lines 5 through 7 and lines 16 through 18 after completing my examination of Mr Breeden I depos I examined Mr Walters and Mr Walters was not Theos but he had he submitted a declaration and I indicate well I ask him and he agrees on page 137 that his uh paragraph four of his declaration regarding his search and locating no Communications with or agreements between terrible herbs was false in line 7 would you agree with me that that this statement was a misrepresentation when it was made he says no do you agree with me that it is now a misrepresentation he says yes and he further page 138 inform admitted that he advised Chris keer the executive VI vice president of terrible hers that he not found any Communications no agreements or contracts with water and then lines 13- 15 but in fact that statement was incorrect there were Communications correct he says yes third terrible her's uh Executive Vice President I'm sorry vice president Mr seon I apologize Mr seon was actually the chief uh information officer he was the person the head person when it comes to it at ter we should have located all of these documents well over a year ago in my opinion back in 2022 when these cases were coordinated he says this is page1 y would you agree with me sir that the line that line number one terrible hurts did not have communications with real water employees 2018 19 and 20 as a misstatement he says yes he goes on on page 182 to admit that paragraphs two and three also of his declarations were his declaration were incorrect statements joh and then he tells us on page 193 had to know what the truth was huh they had to know what they had to know you had to know that's what I want to hear they had to know because if there's Communications with a specific entity wouldn't they know about it there's no way around the wait wait wait wait wait and that's my question because if you're going to put something set forth facts in a declaration I would hope you would make sure that those de that the Declaration is true and accurate and and my point is this I realize for example uh you might have a lot of documents out there but people know what they've done right they know what their conduct would be right for example if there's Communications going on with real water wouldn't somebody know that you can jump in I mean it really well your honor I mean it sounds like I have so much to form the court that I think is kind of taking the court in the wrong direction this case was tried and un to a point and then settled all the claims in that case were settled the settlement agreement was confidential it also included non-disparagement agreements all that aside your honor we're here about Henry so this is being portrayed as there some sort of the equivalent of a tort crime wave that's being committed by one of the best companies in NADA terrible hers they're only in two cases Henry and not looking at it as crimes or criminals I'm looking at looking at through this lens when it comes to disclosures number one and number two truth and accuracy is set forth in a declaration understood your honor but he's quoting from a trial testimony in a different case terrible is when you open up any pleading in front of you your honor you got 19 cases that are coordinated for Discovery coordinated for Discovery Terribles is only in two of those one of them was hun wson the other one is before you today they're separate cases they're not Consolidated they were coordinated by a by a case management order signed by your honor and the rest of the district court judges to assign Floyd to deal with this called so-called discovery of use it's telling that the entirety of the of the exhibits to to plaintiff's motion are all about testimoni and hunson they don't include any of the cross-examination they don't even include the Court's full Logic on how they arrived at a second hearing was held and how they came up with uh what was going to be sanctions I think it was actually applied I'm not here defending hun wson a was settled all claims settled in writing with non-disparagement agreements and everything here today is disparaging the people at terrible HS we're here about Henry Henry was only made made made made Terribles a defendant years into after they first filed their claim they thought it was 7-Eleven they bought they weren't sure and then in the second amended complaint and a little more than a year ago they add Terribles as a defendant they've only been a defendant in the case before your honor since March of 2023 all right and in the middle of trial they produce why why is that somehow a defense and here here's my point and then I'll give you a chance to respond I'm looking here and this is taken from page 191 of the I guess hearing transcripts and there's a simple question of 9914 sure would you agree with me sir that line line number one says chur herbs did not have a communication with real water employees in 2018 201 19 and 20 is that a misstatement and the response is yes and U next question uh in fact it was a lie it was misrepresentation when you signed a declaration Cor correct he says well not when I signed the Declaration but my point is this um there there appears to be communication point on and uh apparently uh that might be part of the 271,000 or whatever pages of of of doc I don't know but it seems to me it's a real simple question wouldn't they know if uh Cher bur herbs in some way form or fashion was having having Communications with real who which which one I mean well but see that's one of the reasons why number one it it would we we could probably get to who what when and where if specific disclosures were made in a Time be F Well if they have application to the claims of Mr Henry in this case if they had anything to do with the claims in this case then I agree your honor we should be considering that but you're he's Rel litigating the failures to have people talking to each other correctly timely and in the meantime in this case the reason the 290 Pages came up in the Hun markson trial is that they discovered them and deposited them in the case before your honor and it was way less than a year after they amended a second time and added tbls in this case and this 270,000 your H can I approach and just show you this because you can but you need to see this youron to understand the 270,000 but but I'm not even focusing on the necessarily it maybe hypothetically the 271,000 documents or so maybe only five six or 10 or 12 might be Germaine maybe none maybe none but he's produce no evidence that anywhere but but here's my question um why would a declaration be prepared that is untrue inaccurate maybe it was untrue ultimately in terms of accuracy but it wasn't an intentional misrepresentation and they never again your honor that was in another case that has no applicability to the causes of Mr Henry here asserted against terrible herbs you know barely a year ago now I have a a question in that regard and I don't know for sure but hypothetically if the documents would have produced and we would have had maybe correct statement set forth in the Declaration maybe that would change the landscape as far as this case is concerned as far as the claims for Relief and the like let me just raise a a legal objection to the consideration of this you know since the phrase that keeps coming to mind is prior bad acts these and and Jim has alluded to that these are things that happened in another case that judge kishner handled and impose sanctions for now we're using I want to catch up I'm not even looking at it from quite a bad a perspective are well no I'm not I'm looking at it from a rule 16.1 perspective and just as important we have declarations that apparently apparently appear to be inaccurate in another case that's what I'm saying you're looking at declarations in another case where that issue has been resolved the issue here is the 11 pages the 290 Pages the 271,000 pages but they want to bring in the the Declarations and the things that were done wrong in that case with other Council that now you're going to get upset about they want to bring it in well you notice I haven't gotten never seen cour upset there's upset and and then there's upset clearly this bothers you or you wouldn't have delved right into that issue when it is really an issue in another case but but but well it's here's my point Mr penberg you know I I really enjoy talking to you you know I do I enjoy talking with you but here's my point and and for example uh yes I'll accept the fact that this was in another case but I'm looking here and I don't understand the necessary timing but let me look at it for example um it appears to me the transcript of the proceedings was electronically filed on January 25th of 2024 right yeah and so my point is this if regardless of whether this was in another case or not shouldn't the documents have been produced much earlier in this case from a case preparation perspective well if you want to talk about that that's a great thing to talk about but that wasn't the Court's question the Court's question was shouldn't have terrible hers known about what its dealings with real water isn't so isn't this declaration uh in incorrect well well well my point is this um and it's really this simple uh number one I would anticipate that they would know about any dealings with real water I mean just to really be candid about it but just as important too um it appears to me that at least as of January 25th of 2024 and looking at the transcripts of the proceedings um clearly that was known from a um coordinated Discovery perspective but but then we should be talking about about the actual production in those three waves and not all of the look at the look at this line in this deposition transcript where I asked him and he said yes it was inaccurate that's all to inflame the court now I know you're not going to look like you're inflamed judge but it's bothering you well no what's what see I I I'm looking at it through this lens and this is really an important way to look at it because cases are sophisticated and layered and so in in order to adequately prepare a defense Andor prosecution in a civil case you have to have all the evidence and and you can't have the evidence uh deposited uh potentially um when was the deposit made again last two weeks ago two weeks ago July 24th and here's here's here's my but Jud you need you need to listen to all the facts because there's a reason why those documents were deposited well but here's my point let me finish finished up as far as it my thoughts are uh hypothetically uh maybe you're right maybe Mr Kau is right there's no they're there but just as important too it's like Ronald Reagan said and I love this quote uh trust but verify and so well here's my point uh when documents are being deposited that should have been deposited potentially a long time ago uh that potentially changes the landscape of the entire Discovery because we don't know can I finish J you're prejudging the whole issue wait wait but I'm just I'm talking about overall case preparation because I don't mind saying it Heck if I was given 500 pages of documents that was a lot of documents for me a review that alone uh a couple hundred thousand pages of documents and my point is this we don't you don't that impacts case preparation you've got to listen to what the circumstances are s please let me approach your honor and I am going Mr C have have I never no I know you have I mean really I always enjoy them it's just I'm hearing over and over again about the amount of documents that are so-called dumped yeah but but I'm striking dumped officially from the record okay you notice I went to deposit or something a little bit more uh Bine I'll keep it that way but my point is this understanding the realities of litigation um um that goes to because with lawyers I mean good lawyers if you if you if you deposit 200,000 let me finish up what do good lawyers do they're G to review them and you know and my point is this it it impacts case preparation it really does you know and uh and and let's get to the bottom of this because I want to know about the relationship that's what I need to know but Mr Cav give me what you got this is a letter written by m Parker to predecessor Council May 28th this this year yes yes and this was I'd like to introduce it as an exhibit to this to to our hearing today may I and I'll let you any objection Mr no I I actually appreciate the uh the request because this is a h wartson matter so they're they can't complain about H wartson uh when it suits me I guess this is not H wson matter I don't know what you're talking about well I I say you're prior youed to Prior you're prior counc yeah but this is well after hun Watson's over it's in the can I agree this is your prior the money is paid C nothing to do with hun wartson this that with your prior counsel correct it did gentlemen no it did okay that's fine me but right now I'm just trying to MAV no objection if you would see paragraphs three and five and I want to explain how you end up with 270,000 pages when you search a database it goes back to 2010 by their request okay again 10 years before Mr Henry ever saw real water your honor I have no problem with this document that I'd like to finish then I'll address this as I well kind of unfair that I'm I'm giving this up now but I feel like I have no other choice so you can address it of course okay but you might want to do it on the reply after I get a chance to explain where the 270 came from no worries I have no problem either way you I'm fine with addressing it now I'm fine with adding it doesn't matter who goes first Listen to If if this is the uh you know the Kryptonite that Mr Kavanaugh believes it to be great I don't believe it moves the needle one way the other and your honor it's also discussed in my opposition and my declaration supporting my opposition Mr Parker said a while ago that we ignored this fourth supplemental disclosure the fourth supplemental disclosure is entirely instigated by the letter demanding a digital forensic exam of my client's computer system and and we gave them access and then they didn't do it they met with us three times on site and then we went ahead and did it we did it for them we spent scores of thousands of dollars for a third party vendor and that's all mentioned in my declaration your honor it's mentioned in the opposition to this motion and it shows wise there's no how do you get to 270 you have terms like Nevada beverage the biggest distributor in Nevada can I I want to know about the relation relationship that's what I want to know about thank you thank you the relationship the documents deposit no I want to know about because I think at the end of the day it's my recollection and revie points and authorities and I could be wrong because I I reviewed a lot every day I don't mind saying like today was fortunately I'm not in trial thank God but I just want to know about the alleged relationship and and that's what we're going on thank you that's what I need to know and just for the benefit of again of Mr um Kavanaugh and Mr penberg I started out by discussing that in the evidentiary hearing the Terribles Witnesses said that these documents were discovered as they were preparing to provide responses in the Henry case that's why the relationship between what they were doing and Henry also was involved in their testimony before judge kisher which is what we were going through when we were interrupted by Mr penberg and Mr C yor when we left off before the interruption I was going through Mr seon's testimony and how he admitted that of the five paragraphs sorry three paragraphs that we addressed in his examination all three were false and then your honor I had the opportunity of bringing up on Mr keer who also agreed but before we get there I would ask the court to go to Exhibit 2 page 205 and this is where we kind of sum up where we were by this time in the evidentiary hearing and it says thank you I'm starting at line 20 which means that everyone you spoke to and everyone who suggested other locations suggesting to you that there is nothing else that they found based upon our conversation their own conversations with them were mistaken now I'll put it in context Mr keer was being reported to by Mr seon Mr Breeden and Mr Walters all of them reportedly having checked their emails not finding anything and going to page 29 239 this will bring it home for the uh for Mr kavanau Mr uh penberg lines 2 through five and so the same search that was done for Henry should have been done in this case to capture Communications in those years correct correct your honor I think that Mr Kavanaugh and Mr fenberg should have waited until we got here but that shows you the relationship this isn't me showing you everything that went on in the hward in case just to inflame this court first thing is that's insulting to this court your honor you have one of the best judicial temperaments I've seen and you don't get upset you listen to the facts you consider the law and you make decisions and you've been doing it now for 16 years 18 plus 18 plus you're on I apologize if you thought I said you were Flame by no no no I said it guys guys I don't get upset I really don't which is what I say yeah I mean my point is this I'm trying to Fig you know what the most difficult part of my job is it's not the long it's making sure I understand what the facts are you know and that's really what I drove down certain cases are a little bit more complex from a factual perspective like some of the business coordinat because every operating agreement and or um um whatever might be different from case to case because and it's all contractual based I mean when it comes to like products liability restatement of towards 42a kind of got that if you want to talk about or if you want to talk about uh uh the breach of the Covenant of good faith and fair dealings contractually non- tort under the restatement of torts uh I'm sorry restatement contracts either section 205 or 215 as it pertains to the Justified expectations of parties I got that I need to know what the facts are in this case that's what I need to know and when I talk about relationships I'm I'm looking at Mr Parker's uh like page six of his motion I want to know about the relationship or alleged relationship between real water and uh what I want to know exactly what we're going to I want I mean and I don't know if there is one or not you know I said alleged relationship thank you you know I I need to know that you know because potentially I can see where if there was a relationship that was established then the liability of this case might be a little bit different I mean I understand that I I do and so that's what I'm I'm really focusing on because you know I mean Mr Parker makes allegations here but the relationship is very very important were they in some sort of joint marketing agreement you are headed where I'm headed John I mean I want to know that's what I want to know because that's where it becomes really important I'm not going to get uh well J there's I'm not I don't care about the number of documents it's voluminous it's a lot but I want to know about alleged relationships does that make you feel better Mr gav I'm not sure yet let me let me get back to you but I mean as far as what the you know alleged I want to know that because hypothetically if they had some sort of marketing agreement or they an agreement together or something like that that could impact the whole case from a discovery perspective you know I mean and and just as important to and this is my point Mr penberg hypothetically and I'm really focusing on this if there was some sort of agreement in place between real water and um the defendant in this case uh terrible herbs wouldn't somebody know about that I'm not talking about the specifics I'm talking about a relationship you know you know relationships are a funny thing your honor they start at a certain level and sometimes they go up and increase sometimes they go down so if I were to tell the court that approximately 2008 Terribles began marketing real water and I'm not exactly sure if that's the date and it was prior to a exclusive distribution agreement with Nevada beverage the largest distributor in in in in the in the state and and that exclusive distributorship started in 20110 then the relationship of selling real water through terrible herbs may have changed as well and 5 years later changed again and at the time Mr kenry has a claim ever even thought about real water and by the way he's only ever had one receipt from Terribles for Blue Bunny Ice Cream you know but the relationships have changed they changed such that the people that gave those earlier dep depositions in hws and they didn't have a scorecard perhaps that was right up to date and a good lawyer which Teddy Parker is was taken full you know advantage of pointing that out but again your honor you've got exhibits on another case talk what and it's natural to want to know about those relationships of course those are important and and The credibility of those people hinged on that and that came out in the hunson case but right now the relationships that were timely related to this case what's important and I would just say that about relationships you're onor if that makes Court any more inclined to think that through well my point is this and understand this Mr G a case adverse to you I would take your word for it but I would trust and verify exactly and that's what we're trying to do with the claims that PLS made here without any supporting evidence that there's any materiality to any of the documents that are now being produced at their request without even the discovery hearing saying that there was an Abus of Discovery they've come right to you seeking a sanctions order when there's no willfulness being shown by by my client in this case right but I'm going back to one of the reasons why I feel under rule 16.1 philosophically um there's a duty and responsibility of course for these documents that are right number one secondly let me finish let me finish uh secondly uh we have in other in the other matter we still have declarations that apparently for whatever reason and I'm not going anybody under the bus were incorrect how do you like that that's better I did not and that's kind of my point though and and see with I understand sophisticated litigation because at the end of the day uh you might be right but you have to give the other time an opportunity to test it and it becomes very difficult to test something when we're going to trial next what is next month or month after October October two months from now and these documents were deposited when two weeks two weeks ago but your honor has to understand what those documents are none of those documents have been shown to have any relevance to the claims of Mr Henry at all at all and if you look at the Search terms you're Hunter they include every communication between these Executives of terrible herbs and and Nevada beverage that don't have to tie into anything Nevada beverage the biggest the exclusive distributor for Budweiser and anun anheiser Bush in the state of Nevada which are sold every day long before and long after real water sales I mean I get I mean kind of we are I I can't wait to continue addressing the court and I again would suggest to Mr Kavanaugh my friend that you uh pull some of that before you uh all right thank you thank you go ahead I'm sorry education I need to be educ I apologize if I stepped no no no worries Miss Kavanaugh I again I would have just waited because you don't know what's coming well but we'll see I I know what came it wasn't accurate that's what I'm reacting to that that is part of my problem is that from the motion I don't know what's coming well the motion came before we had the 271,000 pages Mr and that's yet another issue judge I mean if they wanted to make an amended motion here we are order shortening time and they're raising things uh you know in the reply and in the hearing I mean I have some real doe process problems I understand most of you are civil lawyers but you know the terms of the indictment and it's a phrase I used in hunson with with with judge kishner is if if there's going to be a motion that results in sanctions I need to know what precisely it is because I think judge you are at times talking about the relationship between Terribles and real water from Page 6 line 21 but Mr Parker seems in the argument to be talking about the relationships between Edwardson and the Henry cases I would give you the same advice Mr pober let this let my argument finish and then you can address what you like that's my due process problem judge I shouldn't at a hearing have to wait to hear what Teddy says to know what the charges are against my client I should have that in advance it's notice and the opportunity to be heard not opportunity to be heard and surprise there's no surprises you H if I could well I mean I'm looking at his motion he's alleging this conduct fail you to produce documents timely he's seeking sanctions uh potentially striking the answer and so on and so on Judge that's cka ask I mean just saying we're asking for sanctions I mean they didn't even specify in the 290 documents what documents that should have been produced earlier and what the prejudice is to them it's all very broad-based I don't think there's enough here to give me the opportunity to know what to say well I'm looking here on page six of the motion quote now plaintiffs have lost their opportunity to have their experts examine the discoverable marketing materials because Pary expert deadlines have passed pursuant to the court order regarding Discovery deadlines dated May 14th conclusory you know under Johnny riviero there two factors the Supreme Court mainly looks at willfulness and Prejudice the these are just broad-based allegations without saying look at this document here's an affidavit from my expert who says I needed that document to be able to do this this is all the kind of showing they need to get extreme sanctions all right can I continue Mr the court said that in Nevada Power the honor May iue yeah you thank you to finish up with Mr ker your honor I'd like the court to take again take a look at exhibit uh 2 page 246 and this was the culmination of my examination virtually all of the terrible Witnesses and it says here and based upon their testimony You Now understand say that they all gave misinformation on each of their declarations is that correct he says that's correct and go to the next page and you did as well correct he says correct so every witness the terrible produced gave false declarations in terms of communications with real water agreements with real water discussions with members of the real water staff being uh Anthony Randall Amy Jones now let's talk about the relationship between the companies Johan that's what I need to know thank you real water used this was testimony that in an evidentiary hearing you'd see this as well used Terribles as virtually it's marketing on in fact in real Waters business plan which was an exhibit in I believe the Gallagher trial it was an exhibit in hun wartson and I believe it was an exhibit in the uh Ren case that uh business plan indicated that real Waters promotional uh uh videos were being seen and used in virtually aund of terrible stores Mr Anthony Randol said that he learned a lot working with terrible herbs on marketing promoting fact he said he spoke to Mr herbs he said that that relationship was an important relationship to how real water got to the market his own word John I'm paraphrasing but he's testified now I believe in three tries in in fact in front of your honor I believe joh additionally just to what Mr kav whistle y honor 271,000 pages is very difficult to incorporate in any case this late in the game I don't care how big your firm is Mr km's firm is probably one of the largest plers firms in the state and even his firm doesn't have the bandwidth at this late stage to try to figure out 271,000 Pages just produced on July 24th but we were able to find a few zingers we were able to find that at least from 2008 June 24 2008 these were your disclosures we just got no but judge I have a real issue with this you're on order shorten time they're bringing in things arguments based on things that they haven't uh made before this this is not appropriate and it doesn't provide us adequate notice of what their arguments are for prejudice honor these are their documents we just got them we're trying to pour through them as we speak and it indicates just from our initial review your honor because we can't you know we haven't gone through 271,000 pages we found indications of of at least 25 inperson or video meetings from 2008 all the way to 2020 y well see that goes back to my statement doesn't somebody have personal knowledge of this Bingo they should have had personal knowledge of this when they were on this when they uh did their first initial 16.1 over a year ago these documents and I love what Mr kavanov said and that's why I warn him about talking before I got finished he said how do we know these documents are relevant if they weren't relevant they would have been produced at any time if they didn't weren't required to be produced pursu 16.1 they wouldn't have been produced these documents talk about relationships in the form of meetings this one is from Mark Walters again a person who was uh brought in during the evidentiary hearing and it says subject real water presentation how could this not be relevant and what Mr Kavanaugh feels fails to understand your honor which this court understands because this court handled the Gallagher matter punitive damages as that issue for real water and every distributor and every retail retailer that's what the complaint is the same in every case these cases were coordinated in uh July 22 for Discovery purposes their first initial 16.1 production in hunson should have had this these documents produced because the word real water is in this document so when Mr Kavanaugh jumps up and says oh we got new Search terms this document doesn't mention Nevada beverage but it does mention real water and how do you not produce real water related documents relating to a communication agreements discussions these names are on them Mr waters's email should have been checked and this document should have been provided in 2021 and again in 2022 if you want to break it down by case and certainly in January of 20 24 I'll Che your honor we don't even know what this document that that that Mr Parker is holding up it hasn't given to the judge hasn't given to councel I don't know what the date of that document is I just told you to date June 24th 2008 your document does that have to do with quany Henry's claims in 20 your honor Rel we should be arguing amongst each other you're right apologize that's that's I know you got carried away and I followed suit so but I don't have in front of me what you're claiming that judge should know and we don't know how accurate before I issue I mean of course we're going to give you an opportunity to look at the documents you know here here's my point and and I think this is a valid point it appears to me that maybe I'm wrong but the defense hasn't reviewed the 270,000 documents either that's absolutely right we didn't even set we didn't edit them we collected them with a third party vendor we took them and had another vendor convert them to PDF from native form and bait stamp them we didn't bait stamp them and we had them put in the depository and got access made them searchable for for pl's Council we haven't reviewed one of those documents which we collected at their request and at our expense and what in the world this thing has to do with anything when terrible herps had a different distributor a couple of years later something that happened in 2008 how does that have any bearing on the claims be it punitive or compensatory as time went on there's a lot of things that happened in 2008 that had nothing to do with what was going on in 2009 let alone 2019 when the plth allegedly can't prove it bought his mom bought the real water what does this have to do with the cause of any injury or any of the claims in this case and I don't even know what it is because I don't have it in front raise one let me raise let me raise one other point because I stood up to raise this earlier and we got sidetracked uh 16.1 is an irrelevant standard it's we have a duty to disclose documents that we quote may use to support its claims or defenses it's I'm sorry Dan you you've said this I think the court knows 16.1 better than everyone in this probably in this court now that but I understand 16 I understand 16.11 15.1.2 because remember we had different versions of 16.1 people don't realize that in fact I think the first version was probably the best version because you had staggered experts you know that would have been bestor well this is but this is a different issue in in 2019 the Supreme Court court changed the standard for disclosure from relevance to documents that you may use it's not just relevance to any party it's only documents that the disclosing party may use so Mr B I appreciate that thank God I started this that would be part of the defense thank you I get it I listen but but my point is this I'm really and this is I think we're all getting for our field and I think this is a little bit more nuanced uh maybe they did happen in 2008 that's the time but but I go back to Ronald Reagan and trust but verify and here's my point you could be 100% right but if the documents aren't produced how can they go through it and trust and verify and that's kind of like and that's so overlooked and and I do understand what you were saying uh Mr penberg you say well judge you know we don't know what documents he's talking about I'm not going to make a decision until we know exactly what the what some of the documents are but there's no way you can find out by reviewing 271,000 pages of documents and just as important too remember uh even under rule 37 I mean we have it's not self-executing right and then we have issues regarding substantial justification and or harmless and one of the the decisions that's been made by our federal courts not I'm talking about nationally that if was your document it was produced maybe before trial that might be harmless and so I don't want to get far field I'm not looking at it from necessarily int intentional I'm not I'm trying to understand what the facts are and you're not helping me right because we're equivalate I'm trying to dig deep and find out what's going on here right and I understand Johnny rero I get it I understand bass Davis I get it I understand um I think it was Judge White and the um Nevada Power no I'm sorry that wasn't that mza or white which one that judge white judge White Illinois yeah I understand I mean I know the cases but I'm just trying to get Nuance because I think from a complex civil litigation perspective I understand that you know if documents aren't produced they potentially impact how you prosecute your claim for Relief Absolut I get I I get that I don't know how what impact it has in this case but that's why I'm listening but we won't get anything done we have to come back again I have hearings at 2:00 we don't have LUN we have done our cardio cardio he did say cardio did oh my God we've talked about cardio back in the endoscopy cases absolutely we doing some cardio you've been getting up and down a lot there you go that's it no back back in that case we were both doing cardio now I'm not doing it I'm doing it still Mr penber good for you judge yes Russian Terri proba the point being the relationship that span well over 10 years continued all the way until virtually months before the recall and we just and this is just a you know a small amount of the documents we've been able to review that we know not only are relevant but are particularly uh important when it comes to our P of damage CL this is one of the reasons why real water became as large as it was in southern Nevada you we also found and again these are all bait stamp th s Tec which is a prefix for terrible herst s Tec s Tec correct that's the cation so yor these documents all 271,000 pages we although we've not been able to go through them I now here that defendants have not been able to go through them either not which which tells me that Mr Mr kavanov has been arguing about documents that he hasn't reviewed which also means that Mr penberg in terms of the impact of those documents have been arguing about documents he hasn't reviewed want me make my due process argument again well you should speak to your uh to council who actually produce the documents before you get upset with plaintiffs who just received so you H the point being is there is there a reverse due process argument because my point is this that the documents would have been Ely produced maybe we we would have a better indication that's right judge you haven't even heard the story about you heard part of it about why they weren't produced earlier we were waiting for them to do the computer search we made it available to them they didn't do it and so we did it for them I would keep here's here's the thing I'm tell this I'm not making a decision today because we're not going to finish today yeah we're not we're we're not it's it's I have a 2:00 hearing what do we have to do I yeah we we have some TR stuff right and I have a 1:00 Supreme Court you got to go do what you have to do Mr penberg I respect that you haven't even had lunch you haven't had L yeah we haven't either that's why we're going to have to break because I don't to violate any U any uh Federal Andor State labor laws tell you I I haven't spoken yet but I mean given the defenses admission that they don't know what's in these documents and they can't meaningfully dispute that they're relevant oh no no no no no no I am I that it's their burden to come in and show frag let me finish my suggestion honor um and I and I told this to Mr PS before the hearing uh it seems to me that we're heading for an evidentiary hearing here and what I would suggest is we just pick a day day I don't think you have anywhere near enough to have an evidentiary hearing I don't think you can set an evidentiary hearing till we finish this motion hearing so and we're not going to finish this motion hearing today right so if you want to pick like us to talk get a date Friday I your hon I can't do Friday I have a a multi fatality case out of state I Monday morning I may to Monday give me a second I can do I justay I know that I heard you we can start Monday morning at 9:30 we have to be done at noon I have can't judge what's your next Ava I have I have a hearing where my Cent is you Mr you don't have to give me explanation said judge uh what about Friday the 16th I think I can do Friday okay I'll do whatever is yeah I can move Friday Council and D the 16th what's on how about 9:30 and I got the rest of the day right well if you got the rest of the day make it 10 I gotta walk the dog too you know Mr you will make it is thank you see I never get upset that's what I I never meant to imply no no but oh I always mean to imply it and then you oh damn right great so the 16th 10:00 a.m. Mr Parker hasn't turned over the floor yet I'm going to listen to everybody um um and we have to make some decisions ultimately then because this case is right around the corner right absolutely you know um we resolved the jury questionnaire issue right 6 any other checklist items I have we make sure to have thanks again for your time your honor I appreciate it thanks for everyone yeah everyone to say thank you for