Hunter Brown vs Real Water, Part 2, August 16, 2024

you want get it you because if you snooze you lose and that how that goes yeah those Latin phrases always confusing Joel henriad likes to quote uh George castanza who says it's not a lie if you think it's true and okay Mr Parker thank you honor as always honor over the lunchtime I had a chance to reflect on some of the comments made here by the court and by uh the opposing counsel Mr penber and Mr kavanau and I I'm going to get back to the case analysis but I want to throw a couple of things in front of the court uh go to slide 20 um Mr Cy Conor I wanted you to see this because I wanted you to I want to address something that you said I thought was really I don't know if everybody caught it I thought it was a very good comment I thought it was insightful and required me to address it you talked about Reliance Chris ker vice president of terrible herbs Administration Executive Vice President the top dog believe under the herps this gentleman was designated as a 30 B6 witness and certainly the court understands the implications of a 36 Witnesses testimony that's October 3rd 2023 honor and he was the gentleman who also during the evident hearing admitted to submitting two inaccurate uh declarations and inaccurate deposition test but I want you to take look as the second declaration when we were here the last time we talked about the first declaration his second declaration and this is dated the hearing date was January scheduled for January 23rd he signed this January 19 2024 he says here in a second declaration and my role as terrible Herb's executive VP of administration I am directly involved in et's appearance in this matter ET one's Chief Information officer Brad seon was a person who rebuilt the server so that searches could be conducted and who oversaw conducted email searches utilizing certain Search terms provided to ET in order to respond to Discovery requests now we went through this morning all those Search terms next paragraph ET search for documents responsive to the request for production in the related case Henry which is the case we are here for today yielded additional emails that ET search did not find when responding to the Discovery requests in this case y honor I don't know what Mr Kavanaugh could say on behalf of his client ET that is more convincing than the fact that the top the 30 B6 Terribles indicated that in a search for documents related to our Discovery request this is the extent of what they found not 271,000 documents at the time your honor only 209 using the Search terms we provide which were identified in our Discovery Quest honor there is so much information we've discussed already but when if Mr penberg will get up and say I don't believe he's going to say this now because of the last comment he made before we left the lunch we should be able to rely on the veracity of the opponents what message in terms of deterrence what message did you send if you're saying that 30 B6 Witnesses or just any witness party witnesses can lie or give an accurate testimony when it's convenient in one case and then indicate to the court that you can't use that against me when I pr provide or fail to provide documents in a coordinated case we did the coordination of Discovery so we wouldn't have to repeat depositions of everyone in each case that was the whole point of the coordinated Discovery and that's what he said paragraph four says et's team was not previously aware of these emails when its Council responded to discovering indic that's fine they weren't aware of it they became aware of it and we're not I'm not here to cast blame in terms of Coen or con not informing their clients obviously it wasn't done that's something the court can address in terms of the 271,000 pages that wer produced back in January of 2024 or back in November 2023 or even as far back as May of 2023 but what we do know given his the 30 B6 testimony is that they believe at that point that they produced everything at least that's what there Mr Ker's declaration says and then it says number five paragraph five ETS et1 believed that the specificity of the request in Henry as well as the timeline in the Henry plaintiff's consumption of real water and injuries from 2020 to 21 2020 to 2021 led to the recent discovery of these emails ET had not previously discovered these emails when attempting its Discovery obligation attempting to meet its Discovery obligations and was not intentionally hiding them for PL and then it says paragraph seven et's team responsible for preparing discovered responses uh recently discovered the emails and was actively working with his Council to disclose them as Pro as appropriate when plaintiff's council received the email inadvertently sent to ET one's counsel your honor there is no excuse that can be offered for this delay in the production this withholding of information and in fact Kayla Adams as I pointed out earlier today testified that she had not done AER each one of these declarant declarant indicated that they checked their own emails and didn't find so let's go back to page 37 again this is where we left off J comparing the facts of this case of the Valley Health Systems case and certainly your honor when you look at what is occurred here the conduct of ET or Terribles is much more egregious in this case when you compare to beh next slide please behina they failed to provide verified interrogatories failed to timely produce a witness for deposition to authenticate voluminous documents and cause repeated delays and discovery that was enough y honor it's much more egregious here not only do we not have verified interrogatories we have inaccurate responses interrogatories inaccurate responses to request reduction documents false affidavits or de I'm sorry declarations false testimony not only from Witnesses but 3v6 Witnesses all leading us now to a week before disclos the discovery no way of incorporating these documents in our Discovery no way of redoing all of the depositions no way of getting our experts up to speed on these documents it's impossible next MTH and on again from the 290 Pages first it start at 11 then two 90 then now 271 and in between the 290 and the 271 your honor 271,000 th000 thank you your honor 271,000 now let's get to the Johnny Rivero case and your H We Believe truly that these factors are ones that you will consider at the time or following the time of the evidentiary hearing as you hear all the evidence and you hear the testimony of these Witnesses that's when this these considerations are made that's when you consider all of the factors pronounced by the Supreme Court in this case if you could uh when we cons when we compare and contrast the factors in Johnny rero versus the facts of this case Shor certainly in terms of the willfulness each of these individuals signed those declarations knowing that either they didn't search or if they did search they withheld documents and then gave in uh inconsistent inaccurate sworn testimony that's what we do know and there's no way around it because they're the own Witnesses Mr keer each one of them admitted to it so we know that and what Mr penberg likes to say is well that was in the past no when they said it then gave that foreign testimony in that case they also referred to this case and they were not given accurate information then and now it's finally caught up with because 290 is turned 290 pages is turned into 271,000 pages so the willfulness certainly weighs in favor not only of an evidentiary hearing but ultimately to striking of their answer but that's again the court that's something that comes after the court it Hees for itself the testimony of these witnesses there is no lesser of sanction that we can think of the H that would remove the Prejudice suffered by the plains because we can't redo everything it's impossible it is practically impossible to redo everything that should have been done before retake all the depositions to modify or make more precise some of our written Discovery requests based upon these documents to question these Witnesses on the documents the user documents the further Discovery efforts to give them to our experts so they could include them in their analysis and their reports they're all done the initial reports are done the rebuttal reports are done number three is the severity the sanction relative to Discovery abuse H in every case we've shown you and I don't think Mr poen penberg can think of others where the conduct was more egregious uh in terms of Discovery it all weighed in favor of significant sanctions and that's what we're seeking here next slide please now it's our belief that the discovery should have been produced in 2021 because and you'll see in a second gen these cases Henry H wartson Gallagher the complaints the operative complaints are the same the causes of action are the same we were seeking exactly the same damages for different plaintiffs but the relationships form the basis of our claims against them with real water as well as of course p ders number five sanctions being requested do not operate to penalize defendant from misconduct their attorneys I have not said a negative word about my friend Mr Kavanaugh since I've been today or the last time he was said other than asking him to take notes and wait till I get that's other than those two things but I would do the same for him but I know he's passionate and that's probably why he he's um gotten up and interjected and I'm not upset about that that's that's what he did and I'm fine you but I'm not bringing this down to the lawyers what I am bringing this down to is the clients because terrible herps in each one of those executive uh held positions they said they searched their own emails that's what they said in their declarations in these emails that we found within these 271,000 they're their names on them they came from their emails or received in their emails so I this does not this does not this is not a criticism of Mr Cav number six says the defend and all future L I'm sorry number six is the policy faing adjudication of theer H that's what terrible hers has done to itself it has prevented us from trying this case on a mer because they withheld the documents which would allow us to try this case in the mar they can't use that factor as a sword and a shield so that's what they've done their conduct is prevented this and we shouldn't suffer a penalty for their misconduct number seven it says whe the sanctions unfairly operate penalize perty for misconduct we just discuss that then the last one the need to deter both parties and future litigant your H certainly we cannot send a message that if you fail to produce or withhold this quantity of documents until the last possible moment that that's going to be condoned we cannot support or send the message to liance that it's okay to submit false declarations or give false testimony and depositions we can't do that our rules are designed to do just the opposite you're supposed to provide the documents you're supposed to be forthright you're supposed to be honest so that's what we know wasn't done next slide now this goes down to pre and again I think you will after an evidentiary hearing you can see hear for yourself and see the exhibits uh you have a better and Fuller understanding of the Prejudice uh plers have suffered but we know that they failed to identify documents even if you use Mr Kavanaugh's date of July 24th 2024 your honor that was after plaintiff's expert reports were done it was after we did all our written Discovery it was too late to do anything else the document also revealed dozens of new Witnesses that have not been deposed it's too late to take those depositions it's too late to send Discovery related to those Witnesses just two witnesses were enough in the Valley Health case next this is what I was just saying we're unable to take the deposition of witnesses that these documents and the witnesses identifying these documents those depositions should have come long before our experts reports were due and they weren't this should have been done as a part of 16.1 should have been done in response to our request reduction which uh took place back in October 2023 number six is that number I'm sorry number five says the names and companies that have been subpoenaed and opposed and summoned for trial we can't do that some of the 200 partners supplier partners for terrible herbs we didn't have all those names we could follow up on those number six experts did not have the benefit of these Witnesses that's true we discussed that genre they didn't have the benefit of the transcripts they didn't have the benefit of documents they didn't have the benefit of us following up through further discovery of those documents number seven we discussed this but you name point we haven't discussed in terms of seven is we haven't we don't have the benefit of these documents purposes of dispositive motions or motions in but but you know what it's actually much more layered than that because for example I don't know exactly what potentially could happen but here's my concern for example if you're not given all the documents potentially That Could That Could impact your uh theories of liability for example you could move to amend the complaint based upon Discovery right I mean I mean it's it's really layered um uh it can impact how you prepare your experts and expert theories um it could impact whether you file motions in limony or motions for partial sermon judgment uh it it's a systemic issue and I and that's why I come back to uh uh this one point because it's so overlooked and they say well you can do a do open you know no you can't right no you can't unless you don't pay for the entire litigation and start from square one and you don't do that and U and and and this is another important point because I think this is this overlooked because I I don't mind saying this as a lawyer I handled complex litigation that's I I did and I understand the importance of how you set your case up and then you're down the road uh shortly before before trial and you find missing evidence that should have been produced in the case you know you don't just sit back well go take their dep no that's not how it goes I mean it really doesn't and it's such a disadvantage it just is and I I'll just tell everyone this too I'm really concerned about false testimony I mean and false declarations that goes to the whole Integrity of the process and then I understand it's a coordinated case but that test that Discovery was going to be used in this case it's not like we're going to take the deposition of the person most knowledgeable and specific specific issues on behalf of terrible herps five times one for each case I don't think that was the agreement when the cases were coordinated you know and um um that's my concern I I'll just say that for the record because it's layered it really is and it's easy to say if you haven't been involved in complex civil litigation oh just do a doo no you can't be if you could go to number five I'm sorry number 45 oh I'm go back you're right Shane I apologize and so you honor getting back to the merits as a result of Terribles his conduct it's impossible We Believe for the jury to decide pl's case against Terribles on a merit and what do you mean by that tell me what you mean so this is the problem to really develop the merits of the case we would have had these documents We Believe since 2021 we could have gone through with each of these Witnesses tell me your history with real water how do how were you involved in the promotional activities the marketing activities did you add or take away from the commercials how long how often were the commercials played how were you selling these you know how did you and using Mr anon's um Randol Anthony Randolph's testimony how are you so such an integral part of the development of real water none of that stuff we can do now because we didn't have these documents they were denying everything that we thought was the case just flat out denying it denying that was happening denying denying the relationship denying the documents denying the communications the emails the contracts all of those things were being deny objection Miss state says to Henry so your honor without being able to develop those have those depositions with those documents available we don't get the testimony those that's the m to the case the documents and the testimony and we don't have it we just don't have it because of their misconduct their withholding of documents and I thought it was strategically done to prevent us from being able to do it because they've done it so late July 24th and you're right J the day to amend the the uh pleadings or ad parties gone to add theories of liability gone all of that so when you go to the next go to the next slide these are this is the Hun wartson complaint your honor and the Henry complaint one filed two years after the other terrible herps is in both of them in both cases their obligation to produce these documents started in 2021 because this these emails aren't about Henry per se they're about real water in a relationship with real water Mr Kavanaugh says oh then it's only important if it involved Henry no your honor in the Galler case did any of the documents between real water and P or Milwaukee specifically mention Miss Gallagher no it's not going to mention any of the plaintiffs but it will represent or have it would represent the relationship between the distributor the seller and real water so when we're asking about Communications with real water we didn't say give us Communications with real water related to Henry or to Quant tote Henry or to Mr Brown or anyone else give us documents related to real water and your Communications with them their contracts those documents should have been produced in 2021 so if would have developed the relationship issue factually what would have been your request perfect so if we had had these documents 200 uh 21 the 2,2 71,000 pages of documents if we had those dra we would have had the benefit of using them in each of their depositions we would had the chance at that point to say you know something in terms of punitive damages sah herps you were not just a seller but you cooperated with them and how to develop the sales of real water you are much more involved in real water than you pretended to be because they said they had no real relationship that's what they said circling back to what we talked about earlier joint venture theory that absolutely y absolutely when Randolph and Anthony Randolph said he learned a lot from them on how to Market and promote this we're saying okay where's the documents and they're kept they kept denying denying denying denying so I had to bring this to Court's attention because I wanted the court to see that from 21 March of 21 terrible hers knew the claims second page the cause first cause of action both strict liability and then you know what that means your honor everyone in the chain and so did terrible in its counil second cause of action breach of imply warranty Merchant ability real water and distributor defendants your honor next negligence per se adulterated product you know it just you know it goes on and on it's the same planes and so Mr Kavanaugh takes this myi view because the word didn't show up in an email that's not what's required for punitive damages it's not requir that's not what's required for strict product liability they Tred to diminish their role in this product and it's uh availability to the marketplace that's what they and tried to distance themselves from real water these documents prove just the opposite and we needed to show that relationship and they tried to hide it that was the whole point behind what they were doing your honor again looking at this case page 54 uh slide 54 this is terrible herbs answers to request for admissions this was done on December 4th 2023 in the Henry case I point this out again to say they were denying these requests they were trying to distance themselves from real water that was the whole point you leave it up for a second sure well it keeps flashing back and forth let him see request number one um Shane can we see the whole thing the whole page these are your answers but that's they're not my answers but I'd like to see the whole page that's fine 54 please let us see 54 good enough i' like to see the the page with the answer I just it's you say you want to see the first page this is the first page okay we can start with requests for admissions number one your honor I just wanted to read this one p there we go tell when you're done Mr Cav we'll move to the next and we can highlight a request number one so I can titles and the first page again did you pleas no you don't want the first page right I do now I've read the second I want to see the first so these are responses in 2023 before any supplemental responses are given okay yeah let's I want to see specifically what each request for mission was that I guess the first number one uh commercials on gas mons after let's go to number two denes I believe they're the same request just in different years that's correct but I wanted the court to see that they denied both 16 and 17 let's go to the next one and den all right I see 2018 209 19 again deny John Mr Kavanaugh is correct there is no supplement because terrible herps is not supplemented its responses to these requests for admission again an obligation they have under the rulle room so as we stand that's the office of responses to request for missions I believe they up on there but I don't have any proof of that they said here so I don't know the honor at the last at the last hearing I showed the court Terrible's fourth supplement which was produced on July 24th 20 uh 24 this is page 56 and you can see the date electronically served honor I provided a copy to the court this is where the 271,000 two 271,000 pages of documents were disclosed at the first couple of pages shows the 16 insurance policies 1498 pages of documents that were also produced what what was the list of topics the 30 B6 was set to testify on I don't know if I have that with me we can have maybe we can pull it up Mr keer I think it was ker it was ker well Mr are you looking that up or what he's oh okay I don't want to move on if we can try to get an email and bring it up for you that's fine you I wanted to continue if I could yeah absolutely perfect if you could go to SL 69 y honor this is just what we've been able to come up with so far trying to go through some of the 271,000 pages this is just a chart of emails regarding meetings between real water and uh Terribles how many how many meetings any idea I I didn't count them your honor but the meetings I mean I'm just taking this at face value does it appear that the meetings first started on 6 2028 2008 I'm sorry that's right 08 all the way to the last one of November 5th 2020 that's only five months four months before it was pulled off the shelves on the second page there's 25 listed here for the record unlikely to be all inclusive and that's the problem your honor we haven't been able to get through all the documents yet we're trying to put this stuff together as we go through it but that's what we've been able to to determine thus far which highlights the problem when you get 271,000 Pages this late in the game if you could go to 72 please now these are some of the emails we found just on commercials and remember they denied any commercials and these are 2013 through uh 2019 next slide 74 these are emails regarding the impulse Communications that we've been able to find your honor and we got two pages of these if you go to slide 77 you these are emails with Breeden and Anthony Randall again just ones we've been able to pull out in preparation for this and Mr Breeden was the one who said he wasn't not even aware with the name Anthony Randolph and you can see all of these emails between him and Anthony Randall next email next uh exhibits 80 please these are individual emails we found from Ryan Prince dealing with real water honor from 2016 through 2018 and all of these are part of this 271,000 Pages revealed in July this of last month July 24th go to 83 please these are emails related to Mr Walters again all of these declarations saying we had no Communications with them we have no emails with real water people and your honor you can see we have two pages with several emails going from 2008 all the way to May 21st 2020 from Mr Walters these are in between people at terrible herbs other people at terrible herbs they deal with real water you it Mark Walters to somebody at Nevada beverage somebody at Terribles or somebody else at Terribles I don't know if Mr Kavanaugh is arguing or just talking off I'm just pointing out we haven't seen these documents this form well that's that's fine I don't know that what they are didn't produce them that again highlights the Prejudice of what we're dealing with well everything doesn't go one way and this is all I'm going to say on this isue and um um I understand why you have to have document production early uh we have uh strict rules regarding uh Discovery cut offs expert designations motions to amend summary judgment dispositive motions and all those things and uh just as important too you need documents you can have legal theories but to be really candid with everyone you might not even have a legal theory that might be viable until you get the documents and stuff jumps off the page I mean and this is you know it's not this isn't a simple RAR Ender right even those can be complex from a medical perspective sometimes so I don't want to denigrate rear Enders but but factually they're not as complex but maybe from a medical causation it can be but um I can see what you know when you look at it from this perspective because you get documents and you don't get them during the course of Discovery uh maybe they will disclose nothing maybe they disclose a lot but you can't make that determination until you get with documents you if we could look at now uh slide 86 these are emails between Mark walers Walters from terrible hers and related to Mr Anthony Randol from real water and we got two pages of these dos two pages outlining emails from 2011 all the way through June 18 2020 all of these are are new documents that were not previously provided we have the U we found the 30 B6 um notice of deposition from Mr CER H you want us to pull that on the screen yeah pull it up I just want to see his topics okay the first deals with audits right y second one deals with distribution agreements shelving agreements purchasing agreements entered into the manufacturer which would be real water same this one specifically mentioned Nevada beverage rela to water I can't read that just don't call me all time I would not we have a few days over than me I thought you were going to say only have a few days left oh that wouldn't be a good thing nothing I would say I did do my cardio I did on Sunday good for you okay thank you now your honor I want to show you before we get all right Fin and a couple of these emails that were produced uh Shane if you could go to th s Tec 46465 I'll show it to you believe you have this know this attached to it was one of the documents we used put together chart thank you you this is just one of the Nuggets gold nuggets I would say that we found we have a lot here but I'm not going to go through all of them I'll save these or commits an evidentiary hearing no no no no no you can't say stuff for the evidentiary hearing I need to know what the case is against me you these are their documents they have the ability to go through their own documents no I don't have any obligation to present a defense if they can't present a prim aasia case of hopefulness and Prejudice this evidence you're hearing if we have one can't be a game of surprise no I agree with that I understand what you're saying Mr Pro okay but I'm looking here and apparently it appears to me to be a email from Brian it was to Brian Breeden and it's and Richie Griffin but it's related to real water and in fact it says second sentence says also at 148 which is the store number y the inside TVs are only playing one commercial and that is for real water and I'm sure the court remembers all of the denials to all the commercials for real water be it declarations be it respons of written Discovery that's what I'm going to object to the statement what's the objection stating the facts of what was said said they could not find the commercials they didn't say there weren't any commercials that they knew about and what was the date of this email again 2019 young and if you remember we went through each year yeah I remember if you could bring uh uh bring up T HS Tec 8176658325 to Mr Breeden and it says hello Brian I met with Mark Walters yesterday indicating there was a meeting number one and would like to set up a time for you and I to meet to discuss the marketing opportunities again indicative of the relationship between the two companies you have available please let me know your schedule when your schedule allow if you could go to T h s TC and Anthony Rand Rand that's who again he is the marketing person for real water the person that they denied even knowing his name during deposition th TC 238 854 this is June of 2020 your honor this next one you're going to see and again Anthony Rand is the VP of distribution for Le water 23885 238 854 find I can read it to the court and this this is dated June 18th your honor 2020 just to give the cour some perspective and it's from Anthony Randol to Brian Breeden the subject is real water and it says hello Brian we weren't going to give you free product we're going to give nvada beverage free product and then and they were going to charge you a cost of 250 per case you will you will then invoice me the 250 per case for the amount that it was redeemed you will still have a cost it will just be discounted for a promo does that does that not work for you showing the relationship between not only real water and Terribles but real water Nevada beverage and Terribles and how they were discounting or giving free product through a third person for Terribles your honor when Mr caugh was talking about relationships this is a type of Rel documents that would show exactly the kind of relationship they had documents we didn't have during the depositions I'm GNA show you another one y honor if you could go to th I don't know if you have this one Shane THS Tec 15703 1573 oh you did find the one if you if you find it put it up I'll read it to the court your honor this is 2016 and it's an email involving Richie Griffin and and involves real water and it says I've attached the real water campaign but I figured I would also link you to some other examples of advertising and it was showing videos promotional uh videos for their real water campaign in 2016 y here it is right here where they've denied in all of this discovery relationships Communications the knowledge of these people promotional commercials videos all of those things John I want to show you th HS e can we see the top of that email sorry no wor camera this is a says Skyler at the top this is the one I'm looking at says says Skyler at the top right above from Duval who is Skyler well you know it' be good if we knew it tells you in the email address it's Mike AR liquor said from Skyler Mills yeah okay do we know who Skyler Mills is uh yes your honors what this email is depicting is an employee from terrible herps communicating with an employee from Mike's Hard Lemonade about commercials and he was helping the Mike's Hard Lemonade person with what commercials terrible herps has run and as part of that email chain he sends him an example and attaches the real water commercial that terrible herps has denied for years and still denies to this day that it ever played or ever has so this is just further proof that what they said in their Discovery responses and DEP sworn deposition testimony and sworn uh testimony during the evidentiary hearing is is uh not true so I'm going to show you the next one t h s te c 629 this one identifies Mark Walters and Chris uh keer your honor January 2nd 2013 and at top it references Tim herps of the hers family this 2013 that's correct at the bottom it says uproar advertising submitted real water to be placed on the media system Chris had me remove had me remove it is it okay to put it back up so now all these years all of these Discovery sponsors saying there was no commercials and or advertising and here's an admission that it was up at one point and they're considering now putting it back back up as early as 2013 yall and that was that email had terrible herps on it chis ker Mark Walters I've shown you an email from everyone that has given a declaration except for Brad seon and Brad seon himself said in his evidentiary hearing that was he G he gave an inaccurate declaration Kayla Adams said that you could find these things with just a stroke of your computer system and yet they were withheld since 2021 in our opinion but at least in terms of this case since December of 2023 objection mistakes the evidence mistakes or testimony donor I don't believe that the court is required to do an evidentiary hearing right now and the reason I say that because I believe the court should schedule it but Mr kavar I think may be confusing what is necessary for the court to decide to have an evidentiary hearing and then determine what sanctions would be appropriate of any and that comes after the court hears the testimony but given the numerous inaccurate are false statements included in declarations depositions 36 dep deponents written Discovery responses y honor there is more than enough to Warrant an evidentiary hearing unless the court has any uh questions honor I will seed the uh Podium to Mr Kavanaugh and Mr penber okay thank you thank you Mr cavan going about an hour can we take break your oh you can we can continue on Mr Cavanaugh good afternoon and your honor Jim kavanov for et1 LLC DBA terrible hers uh want to start with a few uh preliminary uh points that uh that rent our opposition to the first motion that was filed to strike our answer in Henry uh prior to the the reply and the supplemental reply uh first your honor was our belief that this matter should have first been brought to the special Master pursuant to the case management under number one in this case um it's exhibit a to our to my declaration in support of the opposition to the motion to strike our answer or lesser sanctions no notice was ever given special master that that uh that there was a discovery abuse and a dispute prior to this motion being filed um no opportunity for the defendant to respond on a level with the special Master uh arguably more equipped anyway to deal with some of the minutia of some of these emails and the various uh various Discovery dispute issues I have a question for you because I remember I had um Justice mofin in here as a lawyer post his appearance I mean post his tenure on our Nevada Supreme Court and I very exact same issue and said well jce small but tell me are you saying that I don't have the jurisdiction to hear this matter this discovery dispute and he paused he says judge you have the jurisdiction because ultimately you make the decision if there's an appeal you know and uh but anyway go ahead I want to hear what you have to say on on really what's going on in the substance of what we're dealing with yeah and and I'll get to that very very next thing uh um exhibit B to my declaration your honor which was filed in support of this opposition to the pl motion is the first supplemental disclosure in Henry uh dated January 17 2024 which included the 290 pages of documents bait stamp th 00 2346 to and including th 00226 36 uh these also contained uh marketing materials which were discovered and produced I've enumerated those by Bas stamp number in my opposition U it should be pointed out that uh these documents were produced and made available to plan POS Holo identified as marketing materials seven months before the close of Discovery next week and five full months before and prior to any of the of of Mr Henry's plaintiff uh Henry's initial expert disclosure deadlines uh there's no apparent effort ever been made to look at those review them ref to an expert there's no offer of proof maybe this isn't the place for what they would have done with any of those documents that they've had now for eight months um uh I think that's a very important Salient issue here it's almost as though they don't want the documents they want a sanction here now uh next is pointed out in my declaration Exhibit C are experts from PL tante Henry's mother we deposed July 18th I believe yes and she testified she never saw any terrible hers commercials never saw any real water ads and she wasn't swayed to to make any decision to purchase the real water product in terrible hers because of commercials or ads that now are so important but why why why does that matter whether she as a consumer uh potentially saw those ads because um I kind of look at this issue much differently just listening to what Mr Parker was talking about uh the thrust and focus of his argument has been this look judge um we wanted to inquire into whether or not terrible herps and real water had some sort of relationship uh not just a a distributor relationship and I think that's really and truly what the whole thrust and focus is is there something more because you know from a uh dist you know they're in a they're in a line of distribution so they're on the hook anyway but he wants to find out if there's something more to it than that and that's why when we T when he was talk talking very much earlier uh and he was talking about he was making a lot of allegations regarding the potentiality of the relationship that's why I said well that sounds kind of like a joint venture and Tor to me you know and uh and the reason why I bring that up there's a whole line of cases and legal theories dealing specifically with that type of issue and that's different than um liability based upon being a distributor in in the chain of in the chain of distribution and and I understand that I I follow you your honor and let me just permit me to just say about that that unless PLS are willing to stipulate to the fact there's uh there's been no PL of proof of causation of Mr Henry's injuries related to terrible herbs I think this is very much an important issue uh you know if commercials aren't that important your honor why have we spent several hours today dwelling on what Comm no no no I didn't say they weren't important I what I'm talking about is this and this I understand this case factually I know what's going on and what here's my point um there was Discovery request made and there was a denial of any type of relationship right then we have uh documents that were later produced and it appeared to be something more than a um manufact or distributor relationship right is that a conclusion courts made no and that's their that's their allegation I haven't made any I have that's your allegation and they have facts that support it because it appears to be there's something involved in marketing or something like that and here this is Nuance but I get it because lawyers are very talented Ed and skilled they are I'm not necessarily referring to Mr Parker Mr Pepperman or it could be Mr Kemp but um well Mr K is yes there's no question about that but but but here's my point though um and this is why these cases are so nuanced and um I like to think of myself as a sophisticated judge right and this is my point when lawyers have certain documents and information front of them and they prepare for a deposition they can do wonders with when they take depositions and start digging deep and and all of a sudden the whole case turns based upon some facts or some discussions and some agreements and so on and so on and here's my point that's never that opportunity was never presented because of the fact that the documents were not produced you know and um and that's kind of where that's that's I think what's kind of being overlooked here um and uh and I'm not making any findings right now at all and from my perspective it's more than anything observations but I understand what they're saying they say look judge there's more here than a uh a manufacturer distributor relationship right that's what they're saying that's what they're saying it's and there's no evidence it is let me interject if you're getting outside of those walls you're getting outside of strict liability so I know Mr Kemp doesn't like to go to trial on negligence claims well well understand this I guess it depends on um maybe yes maybe no uh an awful lot of Mayes and money no no no I because in the law there's a lot of May and money it all depends on the facts and I have a question for you Mr penberg for example if should have kept my mouth shut yeah this is the question for you you can answer this for me um tble herps is a distributor real Waters the manufacturer if there was some joint venture between trailor herps and uh real water as it relates to the distribution of the product um why wouldn't strict la ility still apply um strict liability would apply because that's a real good question but but that's irrespective of whether there's a joint venture if you want to pursue a joint venture Theory then you're looking outside of strict liability there there is no reason to have joint venture in strict liability because both the manufacturer and the distributor are held strictly liable well I understand that but but and I understand 402a restatement of TS and all that I get that but what does the joint venture component because typically when you have uh joint venture this my understanding you have you can have common liability maybe based upon you know uh 402a or it could be some form of vicarious liability and I understand this we haven't fed that out those are the I love talking 402a with you um I'd really rather talk for statement third but that's okay um so consumer expectation right uh yeah but if you this is the trial I just had next door consumer expectation versus risk benefit you don't have to worry about that the um so if you've got standard strict liability uh the manufacturer is liable the distributor is liable none of these other theories change that and and Mr penberg I I I don't dis I understand that I really do but what we don't know and what we haven't developed and I'm just making observations if there's a joint venture what impact of any does that have I think they would need to come in and tell you that I agree I don't see one what I see is that they are saying we were denied a fishing expedition to get into something that's totally irrelevant Jim pointed out it's irrelevant for causation in this individual case because Mr Henry's mother did not see any advertising it's irrelevant in in in the legal sense because there is nothing about a joint venture that is necessary or relevant in a strict products liability case I'm not going to answer that I have thoughts I'm going to leave that to Mr par is trying to create residual doubt in you so you don't have no no no it's not my job to respond to that I'm gonna wait for Mr Parker to respond to that I have thoughts but and and I hesitated even bringing this up today because I can bring it up at the evidentiary hearing understand since you're asking I'm telling you you on a fishing expedition to get into things that I don't think are violations I don't think are prejudice IAL I don't think IR relevant now I have another question and here's my point what and and I have to look at I'm looking at the document issue okay that's part of it and what do I do with the testimony and the recanting of testimony those are two different things okay I think what evidence they have and need and didn't get to try the case is an issue that you need to examine to see what effect it has on the trial anything they did with the where uh they did not exhibit cander to the court that should not affect the actual trial of the case we and cases say that that Discovery abuse shouldn't go to the jury but that is something that's in front of you to if it happened in front of you and I you know my argument is it didn't but it for you to address those issues you can and you can impose sanctions that don't affect the trial and you can even do that uh after trial you don't need to hold up the trial to get into a evident hearing I I get that I'm not I'm not I I feel that um it's not automatic you get evidence re right I get and it's and judge when I Cory told me not to say this but what what I'm worried about is if you can say all right I'm going to impose a huge sanction against ET for Stuff their employee said in front of Judge kishner well then they're going to name ET in every case down the line and try to get those same sanctions and get other judges or you in other cases upset about these things serially now are those other cases part of the coordinated cases here I'm sure they'll make I'm part of the coordinated cases yeah but I mean right now no here and there okay so that's different because there goes to a Reliance issue that I brought up earlier and here's my next question I would just want to qualify the know there's one case out there somebody made a motion to bring into the consolidation so they currently there's only Henry as an act coord my my point is this my point is this since they're not coordinated there's no reliance as far as I could see it and I understand what you're talking about about reliance and there other things that I'm saying are totally outside Reliance I understand is something we have to address and that would probably be something for an evidentiary he right here's my next question for you just going down that road and I come back to this because you know when we talk about um spoliation issues remember this case for exam I think the real classic case uh that makes it really simple is bass Davis right and we all remember bass Davis tape's gone tape's gone all right just so I can explain to Cory what a tape is it's what we had before we recorded things on correu corre right it it was a tape video tape it's gone and the question ultimately came down to whether it was lost in the transit from um uh what was it 7-Eleven uh and South incorporation to the insurance company that was the issue right and that was the allegation and the court said okay you got to make a determination as to whether it was intentional Andor uh negligence bation it kind of left it at that uh and you know what's funny about bass Davis I overlooked all the time it's a great collateral Source Case by the way and you probably know that uh yeah there's one we'll talk to Lal Source but there's one squirreling of avoc case but but but here's my question what is a trial court to do uh when it comes to issues like that because um am I to view the evidence like a jury uh I think you have a different you know back back in the finfin cases I used to argue to uh District Judge Jim Hardesty that a district court has a gatekeeper responsibility when it comes to what the jury will hear absolutely he wasn't sure if agreed with me and then when he wrote leoi you notice the word gatekeeper is in there and then it comes up again in Hallmark and they said look at the federal I said I said Leo yeah absolutely so I mean two hardest the opinions so I don't think I think you have to look at it different ways in different contexts if it's something that's that is um less than cander of the Court you can handle that as a FactFinder and as a judge in imposing a sanction but that doesn't affect the trial and looking at something that would affect the trial you have to decide what the effect is going to be and what the jury finds out so that is I got you I understand the distinction there and the reason why I bring that up when I look at the facts and there's allegations that there was um I'll just put it this way uh deposition testimony was recanted Andor uh answers to interrogatories or whatever you notice I was very benign on that and and I command you okay here's even the things we're hearing today were more benign than Teddy Le on it said we've looked for commercials we haven't found any commercials consequently we yeah and the reason why I bring that up as a tri judge you I follow Nevada pattern dur instruction 2.07 I you know you're you're really good at playing stuff B and you've you've got the white head following there from 1986 so I will never agree that any of those apply unless I look at right and you notice I have the G or old Catalan on wow so this is a historic document I have a couple c um I Joel Henry I used to point out that I referred to it as a pamphlet yes I wouldn't even call it a but I I think we take it on I I am going to agree with you you need to get a feel for what happened here I don't think there was willfulness I've represented ET for many years in different types of cases I don't think there was any willfulness here uh and I think you need to look at the Prejudice I don't think they have any Prejudice I think it's a fishing Expedition it may offend you that they didn't get stuff earlier when Jim explains he's going to say we thought they should have done more to get it earlier that's fine no and I remember Jim brought that up from the last hearing he did I did there's no question that's probably where we're going next after we get through with causation and Commercial really and I don't mind telling this I really enjoy this I've got my client Representatives watching I don't think they're I don't think they're I don't know they or not but um is the zoom on yes that's why you have to be very cautious I can change it I can yeah we probably don't need it we needed it more when we had the do you need the the doc C to present interesting which is good to have it on so not me I I I don't use documents I use American Sign Language okay Mr cabau you can continue on sir well um because I remember we left off last week I remember that I do I haven't forgotten anything so so can we return to that document then whatever you can I don't want to cut you up but you can do whatever you want I appreciate very much so so if you look at paragraph 10 of the Declaration to my opposition to place motion to strike okay let me get let me get to that okay I want to take a look at it and follow you just I can follow point I have additional copies of Teddy's May 28th letter to Prior Council requesting uh proposed protocol regarding forensic examination Parable herbs so with for commiss if you if you have your de copy of your declaration you can bring it to me see if I I might I I should have it right here but I'm not well you need that please I do have a copy just give me a I've got a clean copy right here you can keep I approach oh absolutely good point good point thank you sir you're welcome so was at paragraph 10 and we're at paragraph 10 on page six is that correct yeah that's one right after we talked about pl's mother U didn't rely on any commercials or ads when she decided to purchase the product so what happens here is recall the infamous 290 pages that were produced during the Hun wardson trial in a first supplemental production in the Henry case by terrible herbs et1 uh and those documents included marketing materials Etc following that there were several supplements to some of the written Discovery in Henry um and that occurred primarily in February as I recall your honor I think that's the record there was a period there after where perhaps folks were at at uh Teddy's office and Mr Kim's office were satisfied with those supplements perhaps they weren't but nothing really transpired regarding Discovery in Henry by way of plaintiff demanding more or their dissatisfaction with the supplemental responses that followed in February and then in May uh for play's own reasons council's own reasons they decided they need to conduct a forensic digital forensic exam of Terrible's Computer Systems Prior Council was still in in the case at that time and they agreed and we were about to come on in in the case and we were told about it and we agreed as well uh Teddy's letter of May 28th which I have another copy for your honor I'm very much Happy and want to actually get a I think I have a copy of the letter I'd like to call the exhibit D to the opposition decaration and we can do so for the record if you want to do that so we'll say it's exhibit D to the opposition at this point U Mr Parker's letter and specifically uh pretty pretty tur terms essentially says this is the protocol we want if you object let us know but we want to go forward and we have authority that says we can and then paragraphs two three sorry three and five they outline the computer systems they want to have digitally forensically investigated and paragraph five they list the Search terms there's 18 of them now they're very Broad and they necessarily include when you're searching terrible herbs computers for Nevada beverage the explosive began distributor Budweiser and iny Bush products they would necessarily include and were produced in great numbers additional documents that did not mention real water now you've been shown today documents that did mention real water and those are there and I'll try to explain a little bit about that but I'll tell you right now that a large number of the 270,000 documents were a function of paragraph five and those key Search terms that PLS Council insisted to be part of the protocol we did not fight it we did not object to it we proceeded to accommodate plaintiffs in their request for a digital forensic exam by their own experts we gave them two days I believe it's in writing in an email June 6 and 7th PL asked for two days so that's why two days I think it became evident to them and everybody that two days wasn't enough time and eventually in June there were several there were two meetings on site at terrible herbs facilities PL Council was participating in all three meetings one was virtual of the Applause media Network which is the advertising Network that is used to advertise products that terrible cells on the pumps and in that in the course of those three meeting meetings uh was cooperation there was never any kind of complaint or suggestion that help was needed to to make Parables comply and they proceeded to get educated about our systems during that time I informed Council I got I substituted in June 13th after the deposition of Mr Henry later that afternoon I had been talking to to Teddy that month and I explained you know we're we're doing everything we can with a digital forensic exam expert ctec investigations I said I am not going to filter what they what they get according to your protocol we're going to produce it they did that exam and it took more than just the flick of a switch that Miss Kayla Adams allegedly thought would be sufficient to go through this many years it went back to 2008 I think uh up until the present essentially except for attorney client privilege matters and what what happened next is we eventually produce those documents later in July in the course of collecting those documents we received an email correspondence from Mr kimp's office from from Briana U who I'm sure you know Banna uh attached to the to two email s if not three another protocol and i' like to make that exhibit e to the record and give you a copy and share it with with with Council so the first time we got this additional protocol wasn't for us this protocol was meant to be [Music] for plain of own experts digital Mountain oh thank thank you yeah approach yes you may now there's no date on this digital protocol you but I have an email here I can show you that was attached to this J uh July 3r and another email attaching the same thing July 88 like to focus the Court's attention if you would below the subject line image protocol and if I could read it to the record quot upon receipt of the forensic image from terrible herbs comma Ron Levy and David Deng of digital Mountain shall follow the following search protocol and as you read on you realize that that search protocol is 11 items and it eliminates seven very broad items from the 18 Search terms that we performed our forensic digital exams expert performed ctec investigations performed the collection so they contemplated July 3rd July 8th the days that they sent this to me doing a further followup to take the large body of documents that they could probably foresee when Teddy composed that protocol that broad protocol and they were going to Wile it down to this they foresaw this was going to be necessary they foresaw it was going to take time for them to do so in July at least and the courts asked several times how how do we justify recalibrating Discovery there had been no Discovery dispute other than in plaintiff's mind their suspicion that whether it's rightful or not that they hadn't gotten everything that they should have gotten independent of any explanation of why they didn't look at the 290 Pages they already had with mated to marketing which apparently wasn't you know of interest to them to pursue with an expert at that time and they proceeded I assume after they got these albe it July 23rd or 24th in our fourth tural 4 supplemental production where spelled out how we arrived at the these documents the B stamp numbers it attaches plth protocol Teddy's letter it attaches this protocol as well as what was also to be expected now I want to point out right now your honor that today's date is the 16th you saw a whole lot of documents in the presentation by Mr Parker today you know replete with references somewhere maybe it was talking about we should do uh an ad similar to the one in 2016 that we did for real water for Ed's lemonade or or Rockstar Energy or something don't know how any of that would be relevant but that's what the majority of these documents that even do hit on real water relate to There's No Smoking Gun and so anyway that's how we got here with these documents we accommodated been over backwards nothing to hide we didn't even get this in the form of a request to produce we got this in the form of Mr Parker's letter we want to do a digital trendic exam we'll do it you can do your own you can have your experts follow our experts none of that part happened because they overestimated or underestimated the the degree of difficulty we spent scores of thousands of dollars to have CC investigations go in and do what our client was apparently unable to do and you saw a reference in these documents that Mr Parker showed you today a re server that Mr Brad seon had to work with they rebuilt the server to try to find documents and they apparently weren't successful yeah here's my question though when you say your client wasn't able to do so what do you mean by that because I want to know what's going on with from my backstory perspective well you you know your honor um I knew a lot about Tennessee and real and I've been trying to study as quick as I can in this case what happened so you know argument is an Evidence by Mr Parker nor is it by me but my best understanding is they had problems going back in time to accommodate these searches and figure it all out because the next document I'm going to show you your honor does go to that relationship kind of issue now Teddy showed it I think briefly for uh I think he was saying that I've over relied on it somehow not sure how he knew I was going to show it to your honor but um and maybe I am over relying on it but I think it does it's going to go to show your honor uh and I'd like to label it next in order and and approach the bench if I could yes you may and and here's the copy of it um and what I've taken the liberty of not doing is I'm putting a posted on page two and that's the that's the explanation of what this document is I'm going to show you because the first page of this document your honor is it looks to be a couple of hundred companies that market their product in the digital in the U excuse me in the terrible hers facilities if you just take a minute to look so the title on the second page and again I've been warned by by the pelet council not to not to um have read too much into the word partner but why I can see why well yeah I mean you're a lawyer you're a judge of course you can see why but also common sense and experiences tell us that folks in the business in the in in the business World frequently use the term partner to refer to people that they do business with not do business sharing profits with but do business as a matter of Commerce with you even have we've we've had in in the old CD days your honor and partner with insurance companies to get cases thr that and for the record I understand there's a distinction between the legal term and that's what you're saying versus something it might be done as far as U business relationships when it comes to marketing their products I mean I I get it please go back to the first page and look at who we're talking about turn back to page one of exhibit we're going to label this one I think um uh d e well this will be F your honor digital mountains protocol will be like we don't call people employees anymore we call them team members yeah I mean I get it I I understand the concept yeah that team member could get cut and promoted but you know in bottom line they're employees you know so if you look at that first page though and I I I don't want to prevent your honor from reading the second page because that's the important distinction here between these references to Partnerships and joint ventures there's no joint venture there's no written part there's no written agreement and I'm aware of and I don't believe plaintiffs ever put one up because you know maybe they'll claim we didn't produce it but there is no written agreement to share profits or be in a partnership with real water didn't happen and the fact they delivered cases or give people discounts in the real business world that your honor a business Court Judge your honor is a very experienced complex litigator and judge these terms aren't meant to apply we're in a partnership and we're going to split profits we're doing business I represent a local company Dan's represented them for many years I'm new to representing them but not new to them as a business they have thousands of products they sell in their stores it's a family-owned business that grew up here in Clark County has become widely successful giving people fair prices and their gas and and the convenience that we all use every every week I do and and have for years and just look at the list of these businesses that are in a partner marketing meeting invitation there's like one address to Mr Rudolph at real waterer I mean but look at all of them look at all of them teres wasn't in partnership with these people any more than they were in partnership with real water your honor they were selling some product product that they had no reason to know was defective or adulterated they didn't know that they had no notice of it also in these documents the 290 Pages within something like 14 hours you're H or they had pulled every product off the shelf and had emails people confirming this was getting done the day they heard about the recall but again back to that relationship the relationship information that's so important to this court and understandably so because we're we're off the causation now we're into the relationship that might speak to some kind of punitive argument I don't interrupt your honor I know you're you're you're no no I'm fine I'm fine I'm listening to it I just kind of was reading page two so back to exhibit D the digital forensic Mountain got still before you I got it right he is the just one page says digital Mountain PL from Ron plain of forensic yeah Ron Levy is one of the people that works there David D both of these gentlemen R it our facilities terrible hurts in their in their building couple of times as well as getting virtual tours of the how the systems worked as well let me ask you a question about that your honor so they got these documents they got these documents July 24 they clearly got them and looked at them you just saw a presentation here that is the Envy of any any lawyer that would like to present things so that's what three weeks ago where was their 16.1 your honor on these documents that we didn't get to see prior to this hearing where did where is their disclosure of what they believe was important enough to base their case against us yet they didn't produce those documents they didn't produce digital mountains forensic exam under these reduced protocol I mean if they did I missed it and I apologize and that's on me because I get a lot of emails I don't see always on time but they just did their 21st supplement disclosure of documents Witnesses on the 13th the 13th of August today's the 16th and they did a 20th disclosure a few days before that or a week before all of that happened after they've had these documents that we produced in a searchable form form now I will tell you the way we produce them your on is almost a click of the finger for people to go through now that we've spent whatever it was $30,000 to to to get this in a in a searchable form so how we got here it wasn't a discovery problem that was being made known to the special master in any kind of meaningful way they presented us with a demand to come look at our systems we we we agreed in good faith they didn't follow through we kept doing it now I don't want to make any direct assertion that we were set up but a less charitable Observer might think we were but because we went ahead and now the very documents that we went and had a professional digital forensic investigator searched through documents back to 200 2008 almost Genesis of the time real water was in business so how did we get here that's how we got here with those documents and it's a pretty good bet here in Las Vegas or any anywhere that if there is a evidentiary hearing it's going to show a lot of those 270,000 don't relate to real water in any way and even if they did your honor my clients in business they're in business to sell products and and and they had no reason not to be in business and do business with uh selling terrible herbs products but they dealt through a distributor a real in the meaning quote distributor they're a retailer they get these products through a distributor in this case they got it in the latter years from 2010 on to my knowledge it's my belief to Nevada Beverage Company another defendant in this case so how did we come up with these documents why and when I believe that's relevant to your to your to your consideration of these sanctions motions we we we can't go back in time and change the testimony of folks who didn't know the answers they thought they knew um a year ago or even eight months ago when these hearings happened but we have done our best we've done done our best to come up with the documents that were demanded to be part of an investigation a forensic digital exam the plaintiffs themselves didn't complete until after we corraled over Coral under 18 Search terms corraled from our computer systems and on the cloud and everywhere we could find 200 what 271,000 what were we going to do not produce them we had to produce them and we did rightfully so and that's how got to where we are and in terms of those documents I don't believe that's blameable conduct you know the the the fact that people were looking on different systems they weren't you know people have titles but titles don't always fully and accurately or validly describe what people should know if you're a if you're a vice president or head of advertising of of a a product that takes up very little space or even a lot of space if you got 7,000 products in your stores or whatever it is I'm not sure if that's the number you honor but trust me it's verify and trust me but it's a lot of thousands of document of of of do of of products that are sold so how you know honor I I I can't remember some clients from last year uh small cases albe it but can't um you know if I did a computer search for Judge Williams I'm gonna get a whole lot of cases besides real water I mean it'd be like me doing a search of of Dan penberg in the Supreme Court and and I might not get any of the cases that I'm I'm really looking for and that's part of what happened here with that large group do um before I answer more of the questions you I just want to return to the fact that this case starts out complaining with vague allegations that they're not getting everything well it turns out according to the standard of what they thought was relevant they didn't it's it's evident they didn't we had to get a professional that was capable competent and expert in doing a forensic exam they found more documents that reference real water can't explain why that didn't happen before other then people weren't as professionally capable as as as they could have been they were negligent in in in in their search Perhaps Perhaps but there were reasons I mean some person's looking on a Mac system that has a whole different way of archiving things some person's looking on a PC there was a whole rebuilt server thing going on that that was in Teddy's documents if you recall um yeah we did do amendments uh to the request for production we did them based on our fourth supplement and in the in the Amendments supplements to supplements we referred to the fourth 16.1 disclosure uh documents that we had produced not admitting that they have any bearing on the liability in this case of any sort but that we produce the documents plaintiffs demanded to do a digital forensic exam produce we went ahead and did it that's how we got here but your honor we haven't even taken one expert's deposition in this case so far they're all happening next week in about a 7-Day period just commiserating with with Eric about it um there are ways to to to to work around what whatever Prejudice plain of smite claim but it's pretty much speculative and the fact that they might might come up with additional bases you know in this this reference to 2021 we should have had it in 2021 we Terribles wasn't even Mr Henry's defendant until March of 2023 just a little over a year and four months ago no matter what the case your honor in products liability causation is an ABS abolute element of the claim and these documents it's just speculation haven't there's nothing in here plants don't have that kind of expert teed up after we produced the 290 pages in uh January and amended the responses in February um comments made over the course of uh my good friend Teddy's uh Parker's uh presentations and we had an opportunity at some point to address them with your honor uh I might go through those and try to address those but at this point um I also want to stop and see if you have a question that I know I'm I'm listening I'm listening I'm also thinking and okay there's a lot here have I explained a little bit about how this has happened and why you've given me your client's view no question okay so discounts and selling products by a retailer of a manufacturer there's this I I I'm sure I'm sure Teddy didn't mean sharing profits but he said it and that's just there isn't a shred of evidence it was a profit sharing agreement um I explain why they received the supplements and the and the supplemental responses and when we do the supplements we put our additional information in bold the fact that those previous uh objections have been made we didn't remove them we just put a supplement on top of them in Terrible's additional production um uh Mr uh Chris keer Vice seal vice president's uh 3 B6 deposition I don't know how many of those uh topics were objected to I don't know how many of those topics uh were actually utilized in his exam but I do know those stes were all over the map you could see some of them they were asking about 2016 to 2022 or you know 2012 to you know 2020 I mean uh there was a lot there and a lot of it redated any kinds of marketing issue that I think could be more than just speculation had anything to do with a relationship uh that uh plants trying to paint just not evidence of it it's it's speculation but with all these documents produced there's nothing here about sharing profits and I've given you exhibit F which which shows the relationship of all these folks to Terri to terrible herps in the sales realm um there's no contract between terrible herts and ET uh ET and ET DBA terrible hers and real water there's no there's no argument that there is really there might be a speculation but it's not based on any evidence I address I think the recalibration that we now court is now forced to ask why why make your emergency our problem tried to explain my best to how that came about toor and I don't think any of it was willing willingness blamable conduct that merits a sanction certainly not anything that merits anything in the realm of striking an answer or something even close to that nature um you just can't Overlook the scope of the request I mean that speaks for itself is how we got to that many documents further speaks volumes that they did a reduce search with their own forensic expert which they told me they were going to do in July this was if there was a partnership was between us and kimp and Jones and and Parker Nelson to get to these additional documents I would call that partnership one that you know I we readily undertook after we became counsil for terrible herbs and terrible herbs couldn't wait to help get this thing straightened out they don't feel like they had blamable conduct here because there was nothing willful about the failures in the past can't Overlook the thrust and scope of the request I get it you can't and you can't Overlook the thrust and scope of exhibit D your honor and exhibit e that's the request that's relevant to what now has become the Motions to strike our answer over the recently produced documents that was engineered by plaintiff's request not even a formal request for production we did it we did it willingly we weren't pushed we didn't object to it you might see objections to the request for production which also explains some of those answers those weren't textbook requests I mean they were valid requests in most respects but those objections were relevant at the time prior Council made them bear with me you're um I was talking to colleague jool do there was an ESI protocol in any of these cases even now and so it's been a little bit of a moving Target over these kinds of issues throughout most of these real water cases I saw I heard a minute ago a reference to you know why some of these issues were uh there was no doubt this this these documents should have been produced in in October 15 2021 even there was a reference to Gallagher I mean first we're bringing in hwart and now we're talking about Gallagher and then a minute later we're talking and I didn't get that reference to what Hannah and Milwaukee instruments um involvement in these litigations were in any way parallel to what's happened here I I just missed it your honor I apologize I don't recall what was said about it um but I don't see the reference I mean I don't see the the analogy a lot of loose and I do it but a lot of loose descriptors float around in these cases and I hear the word over and over again the word lie and it happened in the examination of the terrible herbs officers and then you know Mr Parker or another plan of counsel would rephrase and misrepresent it or rephrase I mean when you really look at it people made mistakes they didn't know they got hundreds of employees and and thousands of products and they just didn't know they thought they knew and they they testified accordingly or they their affidavit said so but you know what is the what is the correct sanction for that in a subsequent case not a Consolidated case a coordinated case for discovery I I don't think the court should minimize the fact that they had to have a server rebuilt when they went about those investigations and they had different computer systems it was it was terrible hers it wasn't IBM with everybody had a 36040 in their computer room that they were all coordinated with they're good company I think that's the old days yeah remember those where Compu took up a whole room and now we can allegedly go to the Moon with our cell phone I I think I I think Dan and you have addressed re bual factors and and I want give Dan a chance to talk some more about those based on the facts we've been discovering didn't check with May before said oh my bad I I won't be the first mistake I've made you're H and I get it I I understand I heard the court the impact the layers I just explained some layers of these 270,000 recently produced documents and the other layer the other side of the onion as you peel it I'm still waiting for the digital Mountain 16.1 documents that maybe would have made us more informed to be able to respond to the many hundreds of emails you were shown that there was some reference to real water what there was there is has got to be debated it's got honestly be debated rather than speculated about before conclusions made that it mounted to a hill of beam in the in this strict liability case I understand the importance of of of giving an accurate testimony I'm not advocating for doovers but I wanted to explain fully how these this this recent group of documents that we essentially partnered with plaintiffs to produce and that they have since according to the documentation reduced to half the Search terms nearly but we've not seen those in 16.1 I guess that obligation you know needs to be discussed a little more on their side too to be fair doesn't it talked about the objections the over Brad the proportional and not proportional to the needs of the case because these documents now have been found that doesn't invalidate every objection that happened by prior Council to different discovery that came out that needs to be kept in mind and again we left those as we were we state right at the beginning of the supplement new information in bold underlying bold it's in bold but those that doesn't diminish the legal reasonable of those prior objections I mean I'm still trying to figure out how information from the sales of real water in 2008 2010 2015 have anything to do for the case before your honor on behalf of Dante Henry just not there's nothing malicious about what's happened here or what happened in the past there's just been there's just no question about that I you know people are wrong they make mistakes and honestly you're honor they never even didn't offer proof that they had an expert that would even dream up a reason to say that there is a marketing relationship that enhanced the liability that that your honor could find enhanced the liability of terrible herts for having sold a product that was later determined to be adulterated you know I'm sure I have more here I just it's been listening you know for two essentially better parts of two days uh to a real good lawyer on plan side U making his case I I just think it's critical to understand how we got here and I understand Mr Parker's good advocate for his client but your honor um seems to me a lot of this you know I I I get the fact that a big part of the difficulty of your Honor's job even after almost 20 years on the bench and all your years in practice is figuring out factual things that happened or didn't happen but your honor isn't that the province of the jury and shouldn't the jury have the op the the the give give our client the option to to put his defense on that there's no causation for Mr Henry's injuries attributable to real water and we just we just want that opportunity um and and U I appreciate your time and I I would like if I could to maybe respond if if uh other counsel give me that chance so I'll listen to you if there's a point you want to make no problem there you suppos Mur we all know I can go all day all weekend but i' see the look on your face I am not saying you prejudged the ultimate result but you've a couple of times mentioned in evident hearing so I think you're going to order one so I'm going to say I can say tell you this that's not something I enjoy doing is order an evidentiary hearings I remember the last draw there's a question as to whether I should order an evidentiary hearing slightly different different set of facts but I get it I'm sitting here I don't like ordering evidentiary hearings but you do what you got to do but I'm not saying I'm going to do one at this point go ahead uh no what I'm saying is I can where you're going so I'm not going to argue no no you tell me why one isn't necessary Mr well and and but I did earlier it's because um there is you know I have to agree with you him and he covered it um he said that there would be negligence here maybe but not intentional acts when we were here last week Teddy quoted Dan weight saying it was negligent but not intentional uh and but they tell me though if I and I'm glad you really brought that up because if it's negligent then what then you just look at Prejudice and I don't think there's any showing of prejudice here I I think it's hypothetical uh I that's why I made the argument a few moments ago about the fishing Expedition there's nothing concrete here remember in Nevada Power um judge white ordered the sanction without the evident hearing and the Supreme Court said there's no proof of prejudice here right so there party seeking the sanction has to Pro you know they no I get that I mean that's why I asked some of the questions I asked earlier so you know I could quote you I could quote Teddy I can quote the exhibits uh but I I can tell that you would feel more com with an evident so I'm to wave my argument so long as Teddy waves his we can still get out of here this week you know something uh yor I wrote down a note given what Mr Kavanaugh said that it seemed that they were he was implicitly asking for an evidentiary hearing to prove negligence as opposed to Will I think I didn't I know but I didn't say anything wrong okay well have the burden I'll let you finish Mr you can finish sir we don't we don't have the burden in this Cas I didn't say you did I said what I took from Mr kav state if Mr uh penberg is waving his argument because he believes that the court the I don't want say the court the information placed before the court is sufficient for the court to make a decision then I'll wave my argum if he's not saying that then I'll W these finish and I'll make my closing argument well it's it's it's really simple I don't think and I've told you this before I don't think you have enough here to sustain a prime fa case of a severe sanction and minor sanctions such as a monetary fine don't require an epid hearing uh but I'm sorry say that last Point again minor sanctions such as the judge brought it up minor sanctions such as a monetary F don't require an evidentiary you brought that up your honor and your right on that uh but if you but I I'm not saying they've maintained that they've brought forward a primate case but we can get to an evident hearing and that will be clear there too I got you I understand Mr Parker and and I think M what Mr penberg was saying as far as the primacia case is concerned that there's been no establishment of preice yor I have I believe you got a question this in in a general EV I'll let everyone address this whether what hyp ically and bass Davis if the court would have said you know what I think this was negligence foliation would an evidentiary hearing have been required so let me answer that question I think Mr [Music] henbert decides to impose a sanction less than striking an answer or complaint then an evidential hearing is not necessary that's my belief do you agree or disagree I think in your circumstance if if in bass Davis uh the defendant said we weren't intentional we only negligent and the judge said I think you're negligent uh then uh there wouldn't be a need for I think if we were contesting that we were even negligent you would probably need that I I got you I got three lawyers on my side who' said we I understand so the reason why I believe that the court should hear or hold an evidential hearing is because we disagree we believe that this has been a Serial uh list of of mistakes not negligently but intentionally the first one declaration perhaps that's negligence two declarations perhaps that's negligence five declarations no two depositions no three sets of request written Discovery responses no that becomes to me a pattern in practice of willfully trying to prevent and the orderly uh process of discovery that's what I believe has happened in this case and I believe the Terribles is is guilty of doing such a thing for now more than a year in this case over a year in this case uh in in particular and in terms of these coordinated cases for a couple of years Sean and and going through and I I I'll just throw this out for everyone to comment on of course because I think it's important when I'm you know for you to understand some of my thoughts I and I think I mentioned this a little earlier I don't think we've really developed it but um um what is the role of the tri court right and then I remember I pulled up the little pamphlet Nevada pattern jury instruction uh 2.07 and when it comes to evaluation because we know how we instruct the jury on um credibility of a witness witness that has testified falsely and I'm just look reading the second paragraph there and that's why I was asking that one question what is my role and we have and it appears to me that there's no issue of fact as far as whether the Declarations Andor um deposition testimony was accurate you know you notice how I couch that um right and I but then I look at the jury instruction and this is the second paragraph and this is you know this is after we instruct the jury as to credibility or believability of witnesses and I read it and I said this is the second paragraph you believe that a witness is lied about any material fact in the case you may disregard the entire testimony of that witness or any portion of his testimony which is not proved by other evidence period close quote you know and so when I look at that especially under the facts of this case as as based upon the allegations that are being made one thing we do do have that's um uncontroverted would be this it goes to the accuracy of death visition testimony and also accuracy of um responses to Discovery requests right that's and so under those circumstances as a trial judge what do I do and so H there I believe there's a line of demarcation between Discovery and in part the merits of the case right and so when it comes to Discovery this court is charged with enforcing the rules of civil procedure and that's not a decision for the jury to make we brought this discovery issue to this court because this defendant has prevented us from being able to provide the merits of this case to this J and it's prejudiced to the point that it's affected and infected our entire case now this is a point I want the court to kind of put a pin in Mr Kavanaugh has conflated what I consider to be causation for medical purposes with a discovery abuse that he believes has no effect on causation this motion is not about about medical causation this motion deals with terrible Discovery abuses geared at preventing us from being able to show them in the light that they should be shown showing this jury how their efforts created this monster and how their efforts using Mr Kavanaugh's words as a seller of products should have been selling a safe product but they put profits ahead of safy and they sold a product that contained hydrogene which is a known liver toxin that's what Terribles did so you should never complete medical causation with the relationship it had with Terribles between Terribles and real water and they tried to play down that relationship by not giving us Discovery now I will agree with Mr Kavanaugh in ter terms of our arguments not being evidence and that's why I spent so much time showing the court declarations deposition testimony because I didn't want the court to rely on my words i' read the court rely on the words of Terribles employees the other thing I would agree with Mr kavan on I think he's he's right on this we cannot vouch for the Integrity of our clients Mr Kavanaugh has spent a lot of time telling us about how terrible has created this this business in the in Las Vegas and we don't deny that they've created a large business here it's a it's a large company over a 100 stores but that has nothing to do with Discovery abuses and so your honor his attempt to persuade this court or vouch for the Integrity of their Executives is inappropriate the court needs to weigh that in determining how it should enforce rule uh Nevada rule so procedure 37 because we know that they violated through their admissions today rule 34 on several occasions over several months of time they Ru violated rule 16.1 and their attempts of providing information to us on the eve of trial in the eve of the discovery close close of Discovery is in roate and has put us in an untenable position Terrible's had a relationship that we've now been able to further uh reveal through these documents dealing with marketing promoting displays commercials coupons going back to 2008 now what I what we we've done in Prior cases and I think this is why terrible it's done we've developed this industry is a billion dollar industry multi-billion dollar of which terrible is the part of and in terms of punitive damages we will be looking at Terribles for punitive damages because of its relationship with real water the last jury gave us 3.1 billion in punitives real water was of course defend of the N Terribles is defended in this case and we expect that teres is trying to avoid and distance itself from real water because it doesn't want to be subject to punitive damages and so that's been what I believe be the reason behind their misconduct now we need to have those Witnesses on this we believe it would be the four witnesses that we've already examined as well as Miss Kayla Adams so far Mr seon Mr keer Mr Breeden Mr Walters and Kayla ad we may also bring Anthony Randol we're not certain on that but we believe this we can do this in in a day your honor and what I also want to point out Mr Kavanaugh has now said that those documents should have been produced and we agree they should have been produced long before July 24th 2024 his references to my email I when he brought that up I actually was pleased because the words used in paragraph five on page two of this document were the names and the words that your honor has now seen through our written request so this should have been done long before we had to beg for it because the rules requir them to be while I was sitting here listen to Mr Kavanaugh y honor I look back over the evidentiary hearing and looking at some of the testimony given during actually the examination by terrible her's attorney uh of one of the terrible her's employees and and looking at this I'll tell you which page it's on it's uh the cross it's the examination of Mr seon by Miss rops during the evidentiary and she asked Mr seon in your recent search of the document Productions did you actually look at any of the documents he said some of them and did you see emails related to the two 2020 coupons I don't recall and in September of 202 three when you were conducting those searches that was a companywide is that correct yes ma'am and is that true also for your November 23rd I'm sorry November 2023 search that was a companywide search she says yes Ma I'm sorry he says yes ma'am your honor when he did that search which he's telling his attorney during examination under oath he said he did a companywide search those documents should have been produced then but were not he also says that when Kayla Adams who worked for Brian Breeden did her search she included the online archives so when Mr uh Kavanaugh was talking about archives they checked those in preparation by this Adam in preparation for respons to the Henry Discovery and those were discussed again during the evidentiary hearing you every deposition testimony all the deposition testimony by the two terrible herbs employees and all the evidentiary testimony indicates that they did searches for each of these employees emails and did not produce these documents an evidentiary hearing will flash out whether or not it was negligently done or this was a willful obstruction of the discovery efforts on the part of the of Terribles and I I'll give the court another example it says here on page 210 so when you were searching the emails in September of 2022 would that included Mr breeden's emails for example yes ma'am would that search in September of 2023 have also included search of Mr Walter's emails yes ma'am and would your search in September of 2023 also included Mr Ker's email yes ma'am would your search in September 2023 also have included Kayla Adams emails yes ma'am and Kayla Adams is director of marketing and works for Mr Brian Breeden and you also and did you also conduct a search in November 23 I'm sorry of 2023 yes ma'am so we're sitting here listening to these Witnesses terrible herbs executive employees saying that they conducted this is a chief financi to Chief Information officer saying he's checked every email as of that day companywide search these 271,000 pages should have been produced drawn whether it's when willful or negligently uh they failed to do it that's something for the court to decide because the court enforces the rule and every case that we've pulled up the court is making that decision not the jur so your honor I I believe and I have several other items other points within the record that I can point to where each of these and you know what and you know here's the thing I I don't I was actually thinking about it I I can't say that today's time um was excessive and I was thinking about the prior case we had and we talk about Prejudice one of the real components of due process is the opportunity to conduct a meaningful deposition with all evidence in front of you in preparation that's part of part of part and partial do process but just as important too uh we've had some testimony that has been recanted right we have and and here's my point and I think this is a very valid point I understand Mr bosenberg said well Prejudice well that's part of the Prejudice is not being able to take a meaningful deposition uh but but I'm looking at it through from through this lens because at the end of the day um we don't know specifically uh what happens when when Witnesses are put on the stand and they're tested and the reason why I say that is this and I was listening to all of this and I just remember in the last trial uh we had a representative from um I want to say Hannah instruments or Milwaukee wasn't Hannah right this car saaj Mr Carl sagio and so when Mr sagio was on the stand um we kind of I mean it was everyone thought that his testimony was going to go one way and lo and behold under the pressures of cross-examination we found out a lot of information that no one knew about right and uh when I look back at that I just thought about that as you were talking and and and to be caned with everyone I think from a a Judicial perspective it probably would be eror for me not to permit a evidentiary hearing I I I do um and I think Mr sagio is a really good example because under the pressures of examination what happened he admitted that there were tests that he had never produced and never identified right no one knew about it nobody knew about it um and um which I know that's up on appeal I won't say much else but I think that's a really good example because you don't until people testify and why didn't you produce at this you don't know right and at the end of the day that's what happened there was never an opportunity to uh dig deep and and uh ask important questions and the like but uh Mr Sagel is is to me the reason why I think I have no choice in this case but uh grant that I appreciate that your honor is there has has your honor considered your calendar no I still need to answer the question you asked both sides yeah you can Mr so you asked uh about uh Nevada pattern during instruction 22 as far as my role yeah well and you mean your role as opposed to your role versus the jury exactly this doesn't go to the jury I no no no no no no I wasn't saying no no no no remember though there were two competing jury instructions out there on what do you do when a witness lies right one one even older than 1986 the Clark County set said it's the witness lies you are to disregard everything he says and this one says it's up to you that's right right so I'm not following Clark K if that'll make you feel better you've got the witnesses you can say you know when I read it on the piece of paper I felt this guy was a lion sack of baloney but now I listen to him and it's like yeah I understand he made that mistake Joel henriad likes to quote uh George castanza who says it's not a lie if you think it's true and and and Joel would say that in the hallway and laugh and I'd say well you know really I mean look at it from a philosophical moral standpoint it isn't a lie if you think it's true because the difference between a misrepresentation which can be intentional or negligent and a lie is a lie you saying something you know is not true yeah so yes it does make sense for you not to judge them extremely on a piece of paper to go that's exactly where I'm going Mr bosenberg that's totally well teddy gets up here and says stuff about medical C and I don't know what he's talking about well I only think it was brought up because causation was mentioned causation yeah causation is an issue not medical causation well that's also an issue in this case but not what I was talking I got that I got that don't make me disagree with you and him so um remember it used to be for for negligence and I know we're probably not talking negligence here unless it's a joint venture uh it's Duty breach causation and damages and there are three Nevada cases that say the five elements do the breach cause in fact legal cause and damages so so Jim's point was the advertising is irrelevant since Mr Henry's mother didn't see the advertising and I think that goes to Prejudice well you know the thing about it though when it comes to I understand what he's saying but whether the mother saw the advertising or not or or even the consumer that's not the real big issue because we're not I don't think there's any allegations of misrepresentation as far as the products concerned anything like that I think uh really and truly what my thrust and focus is going to have to be on what relationship if any there is outside of a traditional uh manufacturer and distributor I think you and I are saying two different things just bear in mind when we get to the evidentiary hearing what I'm saying because we could say yeah sure we were involved in the advertising who cares but that's kind of my point though I mean and and understand this uh I'm not necessarily saying adver advertising is enough to change the manufacturer distributor relationship example you go into any supermarket and it comes to product placement the vendors bring their stuff in they put it on there and they might have a little sign they put that I get it Dan I I do okay Mr yeah I get it right I I understand that okay so they still even now in rebuttal five hours of argument and then a rebuttal argument they still haven't shown what the Prejudice is you asked about you said Mr penberg things go into Prejudice and Ted he gets up and he says well yeah negligence versus intentional they've not shown the actual Prejudice and judge now they tried five hours in arguing the motion they never brought it up now they're trying to Loop it in for punitive damages I'm going to tell you right now you can't strike our answer as to punitive damages I'm I'm not going to my mind's not made up on anything I kind of look at it slightly different deny us a full trial on punitive damages yeah I I I actually kind of look at it a little bit differently in this regard I don't know I I kind of with I you you know what I'll just leave leave I think I know what's going on here I think it's slightly different than that but go ahead I do I don't think that's what they're trying to do you can ask Tedy what he's trying to do they listed the five witnesses they want to have none of that's going to go to Prejudice so you might as well deny their motion right now they have to show Prejudice judge thank you RoR all right last word thank you no y I think saio is the perfect example that's why go they weren't able to test the witnesses based upon the materials then then have them test the witness based on the material judge you you can't the reason you thought that witness was so unusual and you remember it is because that witness was so unusual you can't take a one in a million case and say well maybe it would happen here too you have to go but you you har on due process and um that to me that goes to the fundamentals a due process because number one they testified there was nothing there there's no no right there's nothing there and then they answered uh Discovery there's nothing there and then they recant you notice I said I didn't say anything else they said they recanted their testimony now um and has have you had an opportunity to testim on why they were canid testimony we're that's yeah we're both pointing to the witness wit you know and interestingly that's one we all three agree on once I crystallized it right that's right well I don't think they've made a primary faure case I don't think they've shown Prejudice I don't think they have shown uh that that there even was you they argue it should have been produced but that is not enough to get a sanction I disagree on their rule uh you can make that argument Mr penberg I'm not stopping you from doing that and I'll make that argum yeah you can make that argument very good thank you R yes you I we addressed Prejudice we had a whole list of prejudice uh that we discussed with how much time do we need from a preparation I what I'd like Jon U I think we need a date the actual uh evidential hearing itself maybe a little bit more than a day but I think primarily we can get it done in a day the only problem that we have is you know we have a busy week next week so if we can fit it into next week well I probably will need two days for the defense of it so if we can't do it next week a day that's not counting my time so yeah well we have to have a fair opportunity to beet with our our clients Witnesses right wa we've got we have 15 expert depositions next week how we could fit it in he's good but I don't know if he's that good we can do is settle this can I pick the one you [Laughter] take preal don't take defition anymore do you that's below D you don't take that's what I'm getting ready to say I didn't make it's a level non deposition take the and we got off the Record I'll tell you about the only case I did depos in recently so you H when does your schedule permit I asked Tori I don't know I was looking Tor po we have pre-ra motions due the following week after the experts what is it said for uh October 7th okay well least it's not September available that we have is August 23rd that's a Friday and we all day I have to defend part of two or okay I'm just that ain't gonna anything in the next 10 days likely is Judge I've I've got a very big case for argument on September 3rd I have a moot court on the 23d can you do anything after that following week the week of the 26 of of a the only thing that we can do the week of the 26th is August 30th that's another Friday and we have all day 30th I think I have another moot court on August 30th and and Jim is Right we've got to check with a bunch of witnesses that we haven't even talked to it's it's to have this be a fair so we probably need more than one day our trial stack begins September 3rd so that would be the following week for our September stack and we don't know what that schedule is going to look like until this upcoming Thursday with our pre trial calendar but here's here's an important point if I said something that first week then I tell the lawyers that that week's taken that you want to get it you want because if you snooze you lose and then how that goes those Latin phrases always confusing so I have this big Supreme Court argument I think I said September 3rd it's September 4th but if you gave us the fifth and the six we have to check with Witnesses and you can only do the afternoon of the fifth that's fine can you do the the all of the sixth all of the six yes don't mind and we're probably gonna need two more days beyond that we have to start somewhere starting at least clear the hearings I mean the U the depositions they're going to spill over past the 2030 yeah it pre-trial motion so I think the fifth and sixth could work oh we have days and we we'll discuss that at the time we'll see how the testimony goes I mean I don't know but we have to see in in those days if you don't we'll start those two days start those two days all right thank you and if it takes if it takes more time it does go ahead the fif will be at 1:30 and you want 9:15 on the six that's a Friday yes sorry Mr Cav no 10 o'clock I walk the dog sometimes at 5:30 or 6:30 in the morning with the heat oh yeah how about you but it's getting nicer now yeah no just it's turned a little bit turned absolutely so the motion is Brandon with regards to the evidentiary hearing and denied regarding the Striking of the answer I know it just say that the judge has ordered a evident hearing on the motion I agree thank you okay no granting or deny no granting i' love to have it say yeah is to strucking the answer not sure I could get that one more so the exhibits that you presented Mr Kavon E and F were you just well I don't know what you want to do are you moving them for admission or are you just calling them next in line to your motion because there's there's a difference with the with admission I have to stick them and take them to the Vault and all I think next in line to the motion I had three exhibits to my opposition had three exhibits to my declaration I and they were ab and c I want to make these D andf they being ad my motion oppos declaration so we don't need to have them as a Court's exhibit we can file them and then they they'll be part of the record yeah that's that's exactly thank you thank you again your honor we appreciate and sorry taking so much time great do I get the PowerPoint judge so it's it's it's I'll have can you get 130 on the 5th or one on the 5th 13 on the 5th 9:15 on the 6th okay and that will be in the minutes all and we will agree to the order of the witnesses among ourselves that's up to you that's they might be there might be some Logistics involved in that so yeah we'll talk about that all right so you H I'll listen to hear back from Mr Kavanaugh in terms of his availability of his Witnesses and then is there a necessity for an order for today uh no I think amended order saying that you've ordered an evident hearing is enough I think so do do we need to subpoena your Witnesses or you g to make them available without I'm gonna make the witnesses available without a subpoena that work at a company still all right that sounds good who does it and and lastly how many witnesses do we anticipate honor we know I don't know yet but I'm gonna have a few we'll figure it out I'm sure they'll tell me see I'm not as concerned about this in this regard because this is the case where I had the record of what was it 20 how many witnesses again toian 29 29 Witnesses testified in one week that's right I had the first trial I ever did after the shutdown judge staney we had seven Witnesses in one day and I was so first remote trial I ever did that's the one where my dog bar so so Tori I'm I'm to file my three exhibits to my op to the motion just file them and call them supplemental exhibit he doesn't even have to worry about it because VI so I'll I'll explain to you yeah we don't else she's good I I remember when we had the remote hearings during Co and uh occasionally my dogs would park next we're going to hear his toil FLH I probably should have gone off the [Laughter] rec thank you honor thank you for