Hunter Brown vs Real Water, Part 1, August 16, 2024

and at this stage we're less than six days before trial and say well they got it now too bad so sad no harm just give it to your expert that'll happen in every case that's right no yes yes all right I just want to say good morning everyone let's go ahead and set forth our appearances for the record start first with the plaintiff then we'll move to the defense good morning honor Teddy Parker Eric Pepperman and we have Shane Godfrey here is our ad profession oh okay good morning morning RoR Jim Calvin off for et1 LLC DBA carable herst good morning honor Corey Corbridge and Dan penberg for et1 is we T now good morning your honor Joel do on Zoom for Affinity lifestyles.com realat Inc I also see my co-counsel Eric Freeman and Matthew Kaufman whose Pro is pending we don't anticipate speaking today but wanted to wish the court a good morning good morning Mr oo anyone else on zo that's all the chck all right thank you okay let's continue on from where we left off yesterday uh I guess a few days ago Mr Parker good morning again your honor y honor this could be a long morning and a Long Afternoon it could be a very short Geor morning um depending on the direction the court would like to proceed in I am I have I do I don't know if you've covered this but I know there was a May 28 2024 letter submitted to council yep and we can go there and specifically what was the purpose for what purpose was the letter sent and uh because I I remember we had some discussions regarding ESI protocol potentially uh I it appears to Me Maybe I'm Wrong but this would be my impression that uh taking a look at the letter on that stated May 28 2024 uh paragraph five potentially might deal with ESI protocol as far as Search terms are concerned yes Sean and so your honor when we when I sent this letter on May 28 2024 was my belief that Miss uh Ken o Conor's firm Miss uh roas would still be representing terrible and we were so concerned that we had not gotten all the documentation now I've never professed to be Clairvoyant your honor but given the inconsistent testimony we got during the evidentiary hearing which was held during trial we still believed that there were documents uh commercials uh promotional information that we' not received all right and here's my next question uh as far as the promotional materials are concerned uh for what purpose would those promotional materials be utilized at trial perfect your honor and this was actually at the end of my presentation today but you've jumped all the way to the back so your honor when we were here the last time Mr Kavanaugh wanted to discuss the relationship of these documents to why we are here and then he wanted to try to separate the H wartson case from this case and so the promotional documents y are important because of our claims against not only real water but also their relationship with their Distributors and sellers and in this case with Terribles Terribles based upon the testimony of Anthony Randol was an intricate part of their of real water getting to the marketplace okay and so they had poor the pump and poor was one of the promotional genre pump and poor and I don't know if you remember this from the first trial but the pump and poor was a feature at terrible herbs so if you when you're putting in gas I don't know if you've ever seen the I I know what you're talking about and while you're getting gas you get this promotional on the screen there it says hey while you're getting gas if you want to come into the store and get something to drink you can do it you can push those little button get a coupon and you go take that coupon and you go into terrible hurt and you get that real water at a discounted price that's a a shared marketing approach promotional approach between Terribles and real water real water was giving Terribles water at a discount they were sharing in the profits it was a relationship this relationship now under Tor law how would you define that relationship you honor I have thoughts you already have answers that relationship is's a relationship that's described that every when you deal with any strict product liability case when you have a chain of distribution the one between cheered between real water and teror that relationship that joint relationship that endeavor to make more money through the promotional marketing activities between real water and Terribles not only involved the pump and poor y it involved the commercials it involved uh signage it involved displays it was when you look at their business plan that being real water business plan the incorporation of the marketing promotion efforts by uh Terribles is highly emphasized and so we knew that there had to be something else out there because we were only we weren't getting it now what we didn't know your honor because and no no one would know this no one no reasonable litigant would know this because what we did is we sent written Discovery out and we got in response to that written Discovery we after a diligent search we found no documents that's what the responses were now it didn't make sense given the testimony we had and I want to give you a highlight of what Miss Kayla Adams said and then I'm going to get into this presentation so you can understand just how just why that letter we thought was important uh Shane can you bring up Kayla Adams deposition and we're talking about the May 28th 2024 letter yes because I don't mind telling you this I mean I went back and read the letter again I understand what was going on here from my ESI protocol perspective but it seems to me that um The Search terms I I see there's names in it and so on and so on but uh for example a search term of real water potentially would bring up documents right search term of I'm just kind of looking here um and there's some that just kind of Dr jump off drinkwater decom alkaline water and and those types of things and the reason why I bring that up why weren't the search ter and we'll get an answer on this the ESI protocol run and then those documents specifically result from that ESI protocol produced instead of 270,000 plus documents again you're stealing my thunder y these I mean these are things I you can write it down you can wait wait no no no no gentlemen I like everyone in the courtroom but we have to follow yeah we have to we have to follow protocol and you have to remember uh I can't remember one time in 18 plus years close to 19 years make a note of that Mr cabin on because you know I'm GNA do what I'm gonna give you right I let everybody speak I never shut lawyers down I I because I think it's important for me to be educated on what the facts are it really and truly is and I don't mind saying that that's why I take a little bit more time for these cases because I need to know what the facts are I can tell you what the legal theories are you know as I learn more and more facts that's not a that's not a big issue there but I'm I'm gonna give you a full and a full and fair opportunity to respond to that because I know you brought up ESI protocol issues before you said well judge we didn't really meet I I remember everything so Mr Cavo don't worry I'm gonna give you an opportunity sir much appreciate thank give every same for you Mr penberg I always enjoy hearing from you as long as we're making a record I like Shane yes so what I believe this letter does and when I sent the letter I certainly could not have envisioned 271,000 shouldn't have to tell our opposing councel how to search their own records in order to respond to rule 34 request for production how to respond to request for admissions or how to respond to interrogatories your honor what we've gotten in the last couple of days and I'm going to put this in front of the court after I get Miss Adams deposition testimony in front of the court we receiv received at 9 o'clock last night supplemental information from uh Terribles less than 12 13 hours from today here we received at 7:21 again supplemental responses we received on the 14th supplemental responses all indicating that the documents that we were searching for years ago your honor that should have been produced pursuant to 16.1 years ago were not produced and that's why I started saying this could be a very short morning because when you compare this production this untimely production the lack of seasonable supplementation that's enough of the evidential hearing already because now we can start questioning during the evidentiary hearing why they were two years late why did they uh give false testimony in relationship to documents that should have been produced why did they give false declarations false uh deposition testimony inconsistent and inaccurate responses to written Discovery requests that's what the evidentiary hearing is Mr I went over my notes from the last time we were here and for some reason it appears that Mr Kavanaugh believes he can fight the evidentiary hearing and this preliminary motion uh proceeding that's not what this hearing is about this is just enough to show the court that there's a reason for the evidential hearing so that the court can then weigh the young REO fact s given the testimony the court receives but I want the court to see Kayla Adams testimony this is January 8th of this year young January 8 Miss Kayla Adams was the one who actually found the 11 pages of documents that were uh that we were informed of by accident right before the trial started in hun wartson and so Mr km took her deposition on January 8th if if you go now to page nine I wanted to show that Mr Kavanaugh was at that deposition he at that point in your honor probably remembers this from when the Gallagher trial he was representing real water of Tennessee LLC he was at that deposition now if you go to page 30 Shane thank you so much Miss Kayla Adams says that she had never heard the name Anthony Randolph Blaine Jones Brent Jones Anthony Brown all disc Court PRI calls from the Gallagher trial and you will see that we have dozens of the documents that were produced most recently that involve those names go to page 52 beginning at line 14 your honor says here and more specifically as we sit here today we don't know if there were real water commercials on that desktop now where're Mr Kemp is asking her about these commercials again promotional marketing materials and he said she says I can't recall any no you can't recall any but we don't know that's that's his response she says no one way the other do we again Mr Camp has got you know partial sentences here but he's getting to the point she says no I mean all those files from that desktop would have been moved to my new desktop question have you done any search on your new desktop for real water commercials this is as of January 8 2024 I have not I believe Brad has though Brad being the IT guy that's Brad seon in your honor that I discussed at the last hearing who said he never found the 11 pages or the 290 pages and now we know he didn't find 271,000 Pages then he says Brad being the IT guy correct but you haven't done any search I have not no is it something that you can just enter a keyword and it searches through your files yes so you haven't entered that keyword real water I have not your honor January 8th 2024 months after we sent written Discovery over a year couple of years since they've been involved in hun wartson and virtually a year since they were involved in this case they haven't done this cannot be considered a diligent search we're not even searching the names of the company that that is the first defendant in the caption I mean I don't mind telling you this I didn't know that was a testimony but when I was looking at the letter and I was reviewing the points from authorities just refreshing myself uh this morning one of the first things that jumped out at me that if I was doing a document search we soon to an ESI protocol the first name I would put in would be realat and you don't even need that's the thing you don't need an ESI protocol and I agree with you your honor but you don't even need an ESI protocol when you know that the defendants in the caption the the person that your company's been dealing with since the beginning 2008 to the present virtually just look for the name they didn't do it and she confirmed it objection M Stakes your testimony so y I want to show you a but why and and Mr Kavanaugh you can answer this for me but why wouldn't a simple real water ESI protoc call be appropriate um I don't know the facts at the time but that wasn't the point of his questioning regarding Kayla Adams an advertising person and she wasn't task with doing that search at that time so the fact that she hadn't done a search for real water and she's being deposed about commercials that doesn't approve anything but my point is this some decision maker shot caller whatever you want to call it should be making when documents are being requested and you have items stored in a computer like database it seems to me the first thing you would do is just do a search real water what comes up before you get to even any specific names and uh that's kind of my my question and I think that's a reasonable approach to it because when I was reviewing the points and authorties again that's the first question I asked myself you know and I will admit I've been out of litigation for over 18 years but you know documents are documents I realize we store them differently but um uh that would be a really simple search I don't know how many documents would come up but at least uh we can all admit there would be efforts performed by doing that versus you know producing an entire database well I I understand the the Court's point I would just say there's more to it that I don't have the qualifications and I know Teddy doesn't either to say what's involved in searching a company's Cloud records individual workstations laptops uh an enormous there's 150 stores in Nevada 164 in in the southwest with different you know inputs to the system I mean Kayla Adams was asked about her role in advertising I mean she wasn't produced as a 3d6 witness on the search uh terms that were used to try to find promotional documents for real water and that's that's all I can tell you for the moment my participation in this case at the time was not related to terrible HS but I was there I me I can tell you that yeah am my thoughts on that would be this I kind of get that I understand what you're saying but it it would and correct me if I'm wrong or not but I you know terrible herbs obviously with 150 stores is a pretty big place right and they have probably different departments but for example do they have an independent marketing department do they have a sales department is there somebody that deals specifically with these types of issues and they could search their databases to find out uh whether or not it's been that has happened but just as important too we can't Overlook the fact that um when it comes comes to pass history uh between uh potential entities and the like somebody might know something about that if you understand where I'm going on that I do but again you put your finger on it you know this is not a small company it's a family-owned business grown in Clark County very successfully because it served the needs of this community and with with many employees and and she wasn't produced 36 on this issue and and I will just say that there's more to it than just going to your laptop and plugging in real water I mean eventually and in fact less than 10 days after her deposition they produced 290 pages that they hadn't found before not out of some nefarious failure to produce something or cooperate they just they just didn't they didn't find it my understanding was because she was on a Mac versus another employee had looked and they were on a PC and the and the archiving system was a bit different you know your honor if if if we're talking about willfulness and intent and Prejudice so we haven't even got to I haven't I haven't gotten there at all I mean I answer the question it's very important good question it can't be answered just with Kayla Adams or why didn't we just look for real water it's just not that simple yeah but but understand this I I'm not going to any of those issues yet but I'm just trying to find out I'm on a factual finding okay what's going on how what efforts were made all those types of things that's what I'm trying trying to find out uh specifically because in listening um uh to Mr Parker I guess it appears their theory is there was some sort sort of joint Arrangement or some sort of joint marketing or joint this or that and a profit sharing he said yeah I which is absolutely untrue and has no support profit sharing is complete misrepresentation yeah but I I get that but I'm just telling you what his theories are that's all I'm going and and under the law we understand and I always like could put everything into a bucket that would be under joint venture Theory I get that and I understand what that is right there's joint venture and Tor we know that um specifically there's various forms of vicarious liability as far as joint venture is concerned uh I understand the law and and here's the thing and I don't mind saying it and and many times why I spend a lot of time in these cases is for the most part like in the last case I don't think anybody had to educate me on the law right I need education on the facts that's what I need I need facts I need to know what the facts are because when say find out what the facts are then I can start making decisions secondly I don't mind saying this and I know Mr Parker's at requesting the answer to be stricken but I don't do that very often you know and uh I I I don't mind saying it and uh there's a lot of factors under Johnny R barel I have to consider um you know sometimes I wonder what impact bass Davis has on all this you know when we talk about presumptions and and those types of things and I I don't know you know but uh and I know I have to go through a Johnny rero analysis potentially I get that you know and I will say this and I haven't stricken many answers but I will say this when I've done it uh the case has never come back to me number one and number two I had one case where I did it and uh it was an extremely well-developed record they settled for a lot of money and I wasn't appealed you know so you see where I'm going on that and I understand I hear you that Cas documentation today but you understand where I'm going you documentation right now yeah but no but I'm gonna a partnership meeting among 200 vendors including real water it was called the 20 2021 terrible herbs partnership meeting and it was said to 20000 this a family-owned business that considers everybody that sells their good products with terrible herp stores to be a partner in that loose they to say that not it all depends right actually just keep talking well I approach you give you a letter no no no no you don't need to do anything right now I'm going to give you a full Fair opportunity and talk to Mr penberg but uh this say what you have to say right but but uh never pretty silly that you're arguing their Partners no no no he's not arguing their Partners it's it's a slightly different argu profit sharing what what what where'd you get profit sharing well I don't know but but but but you can point out that maybe there's no evidence in that to me Mr Parker will do his thing and you I'll let you do your thing but uh I say is resp no no I'm Gonna Let You No when when you no make notes I'm gonna when Mr Parker is done I'm going to turn the flow over to you it's gonna be virtually impossible after Teddy's GNA go for an hour and a half and I don't know if he will maybe not that's awesome if you stop at about 15 minutes I'm gonna be good but if you go an hour I'm not gonna be good don't worry about it one thing I can say Mr gav is hard to take those when you're actually doing the talk you done as much as I've done you know you're you're you're wise and right I'll agree with you sir but I'm everyone knows what I'm gonna do I'm gonna listen I'm not gonna Rush a judgment that's why I had you come back in today right I appreciate the opportunity thank you for ask that's why I'm I don't think I ever Rush a judgment I I agree and thank you so Yan getting back to and I've been told I had really good records you you have the best and so we'll see that was from the Supreme Court Justice I was H I'll take that endorsement anyone else so y honor Mr Kavanaugh would like to suggest that perhaps Miss Kayla Adams is on an island but she isn't and we went through this in part when we were here the last time on the 7th but Mr Brian Breeden and I'm glad you said what you said in the question and the way you asked the question there are different departments right Mr Brian Brian Breeden was the vice president of advertising and marketing for terrible hers and he said I understand that other employees have also conducted searches I'm sorry we start for his in terms of of his search cla's accusations are incorrect I've conducted searches of my emails and I did not locate any Communications agreements or contracts with real water any that's Brian re Breeden he also said I also conducted searches the marketing Dropbox for any advertisements videos or commercials of real water he then says I understand other employees have also conducted searches of emails the marketing drop box and other locations for communications or agreements with real water or advertisings or commercials of real water and none related were located other than the 2020 realat coupon Dan he says prior to my deposition in this matter I spoke with Mark Mark Walters terrible Herb's vice president of purchasing and sales Christopher ker terrible Herb's vice president of administration and Brad seon torb's Chief Information officer and each confirmed that they were not aware of any Communications agreements and contracts with real water the honor Miss Kayla Adams testimony is in line with what each of these department heads said in fact the Declaration of Brad seon the Chief Information officer he says I have conducted searches of terrible herbs computer data systems and it's on the screen your honor this is paragraph three could contain information that could contain any Communications or agreements with real water or advertisements or commercials of real water I did not locate any Communications or agreements between terrible herbs and real water and the only advertisement I located was a still image of a 2020 coupon for real order that was produced by terrible herbs and is attached to PL of now this is what you started off this morning with joh paragraph four I searched terrible herbs companywide companywide emails using the terms real water real and water and did not locate any Communications or agreements between terrible hers and real water and what once again what's the date of this declaration the date of this declaration your honor is you can turn to the last page where you signed it is November 22nd I believe or 21st yep 21st 2023 your honor this is the Chief Information officer the head Kahuna when it comes to their document retention system and he used those very words and said he didn't find anything so your honor at the end of the day I have the first page oh sure first page is scre are you good yeah okay perfect your honor each one of these executive uh representatives of terrible herps ultimately said during the evidentiary hearing on January 24th 7th Day of trial that they gave inaccurate de ations and inaccurate declarations depositions and declarations now if you could Shane go to slide number two of our presentation this morning y I want to give the court some chronological context of where we are in this case just because and again I don't believe we need to do all of this for purposes of this motion because like Mr Kavanaugh said this is one of the things I did agree with him he can't answer these questions and that's why the evidentiary hearing is so important because M Kayla Adams will Mr Brian Breeden will Mr sexon will Mr ker will and Mr uh Walters will those are the people who will because is it a valid objection that he's misstating what I just write it down just write it down so you honor Terribles was named in the Henry case 3723 their initial 16 .1 May 16 2023 all of these documents should have been produced then all of all 27174 pages should have been produced in addition to the other 11 and 290 Pages we sent interrogatories and request production of documents on 10223 and we set a second uh first set of rfas request for admissions on in November we sent a second set of RS and a second set of request for D on November 3rd as well and we got terrible answers to pl's requests for production documents and pl's rcks on uh November 2723 be honor and those documents weren't identified they weren't produced and in fact and I want the court to see this I want the court to see what we received most recently and I brought copies for everyone but they're all terrible herps documents I'm sure he's familiar this C1 thank you sir you Dan yes thank you very much you may approve yes you may now the first document I gave you H is the terrible herbs responses to planers request for admissions December 4 2023 and I provide this your honor just so you could take a look at request number one and the response I'm sorry I'm confused are you saying I serve this I didn't say you had anything to do with this I'm starting here okay we you'll get the relationship okay write down your notes your questions that's enough that's fine it's a December 2023 do that's right and it says here the request is admit the terrible hers eared real water commercials on gas pumps in Clark County Nevada 2016 Terribles deny Johan the next question the next request is admit that terrible herps aired reward commercials on gas pil Clark County in 2017 again a denial the same question except for the years changed in request number 13 to 2018 again it's denial and the same for 2019 these are denials we've got things that we should be will rely upon in this very case now we receive your honor on the 14th of this month just two days ago this document from Mr Cavanaugh's office now these are and it's funny that they come right after these motions of Bard but we'll get to that this is terrible her's second supplemental response is to pl's for set of request production and I want your honor to take a look at request number uh 24 and in this request y h we ask for all documents from the Applause net Network system operated by terrible pertaining to video advertising advertising in the time period of 2010 to 2020 now if you look the what we got was a bunch of boilerplate objections to the response and now you see your honor that we actually have documents for the first time being identified by Terribles that respond to request that was sent your honor in December of I'm sorry November of 2023 so roughly nine 10 months later yor and only after this motion is filed and after we have this hearing before your honor a week before if you go to number 25 your honor the request is any and all emails produce any and all emails to and from Kayla Adams referencing real water or real water advertising including but not limited to video advertising during the time period of 2010 2020 so we get all of the objections and Discovery is continuing and now we get the list two-page list of documents that should have been produced at least n months ago if you're using the request but we would say it should have been produced years before because of the relationship to this case to the to be coordinated other cases but we didn't get it in y'all now if you go to request number 26 it says any all references to real water or real water advertising including but not limited to video advertising during the time period 2010 to 2020 on your applause Network we get all of the standard objections that we got back in November of 2023 and now just miraculously two days before this hearing we get these responses with three and a half almost four pages of new documents your honors responded that's what we get that in and of itself would be enough to go to the evid year but we have more you this is what we got which was served on us electronically served on us yesterday at 7:21 p.m. keeping in mind the one that was sent to us on August 14th was 553 p.m. after work hours for most people you're welcome yes you may you know something have three give this one back your H I would have the court take a look at uh request number one we're going to look at one two three and for so request number one says please produce true accurate complete copies of any all video advertising or commercials for real water product which were played on any gas pumps at any of your locations in 2013 to 2021 now I want the court to pay attention to page six of this document because what we we have here is terrible herts actually informing us at that time to refer to the Hun Watson case so when Mr Kavanaugh was talking about oh why are we talking hun wson when and the discovery done in that case versus this case because these cases were coordinated for Discovery purposes y they were referring us back to H WS objection mist what the supplement response is a supplemental response Teddy includes supplemental information not writing this bold because you're misrepresenting well here's the thing here's the thing gentlemen and we have to understand this we don't have a witness on the stand consequently there's no need to object right and uh you can point everything you want to point out to me and I'm just looking at it from this perspective and I think this is often overlooked and I and this is always a great concern of mine when it comes to these types of motions because at the end of the day we all understand what our duties rights and obligations are under the rules of Discovery right and I'm talking about the parties and um when I see uh blanket denials as far as information is concerned uh as it pertains to Discovery uh by written Discovery Andor testimony under O then lo and behold uh we have individuals recant their testimony or weant uh answers interrogatories and the like and then we have this type of scenario comes up and understand Mr Kevin I'm not blaming you you produced it thank you for doing that but my point is this and this is often overlooked because and this is really really really important I don't know what to do with it right now but um and I think the courts I I I don't think they really emphasize this enough because when it comes to potential you notice I said potential Discovery abuses um a factor number seven under Johnny rero always jumps out at me and what I mean by that is this uh the need to deter both parties and future litigant from similar abuses period close quote that's that's really overlooked because under our system of um of uh Civil Justice parties have mutual obligation when it comes to Discovery and it shouldn't and they should be truthful and forthright and this deal with the facts but when it comes to not necessarily producing all the documents that would established whether the true facts are and the nature of the facts that's a significant problem I don't mind saying that I just told everybody that it is it doesn't matter whether you to PL for defendant or whatever um and uh sometimes I don't know if as a practitioner that used to be a really big frustration of mine because I think sometimes the TR judges will say oh you can just do take the dep you don't get doovers right I mean you just don't because you should be truthful and forthright the first time you respond you shouldn't have to catch them and then oh you know too bad I sorry no it doesn't work that way and I'm not saying that's what's happened but I just want to tell everyone this that uh I'm looking at it in that framework because that's one of the factors and and and I and it's really an important factor it it really and truly is and and I just threw that out there because when this Matter's reviewed at some level uh I want the Supreme Court and our court of appeals understand um what I'm concerned about and and and because here we have a case that's been involved in litigation for a long time I'm not blaming anybody for that but uh I need to know why the initial responses wen't responded to like in this case right now today I I want to know why there was a need to um potentially and I'm not going to say it was to um change responses to interrogatories and or uh deposition tested very very very very briefly your honor I think the most important factors in Johnny riera boil down to willfulness and Prejudice I do understand DET teren is in there but Jus as Pickering warned in beh that deterrence is not enough for an extreme sanction well well and see I I understand and I respect that but and I figured you would which is why I said in Shand yeah but and my point is this though I think it's often overlooked it it really is the deterrence fact and actually the deterrence goes hand inand with wilfulness it does it does right I I get that well if you're deterring willfulness I got it and deterrence is important but if you're deter ing negligence that's more of an insult to the court system I I there are alternative sanctions that apply there well example Mr pober you don't have to educate me on that that's what they talked about in bass Davis presumption just make my record because I may not live through this hearing you're gonna live through this and understand this I mean of course I I would have to make a determination as to whether it was willful neg ENT I I get that I do but but my point is this and um and I don't mind saying it one of the factors where's it at uh and I don't think it was in Johnny rero whether there's a where's that one at which one did are you speaking of I'm looking here W this oh yeah number two I always think think of number two Mr penberg the extent to which the non-offending party would be prejudiced by a lesser sanction right yeah I mean no I I I get I figured that was the factor you were thinking of yeah that's exactly that that's that's it but go ahead thank you and so you I I brought this up because it says here please see and it gives a bait number and bait range produced in the Hun wartson at all case and it gives not only the name of the case but also the case number because these cases were recorded ated and they were producing things in hun wartson that affected all of the cases right and so their obligation in my opinion to produce these documents go all the way back to 2021 October 15 2021 when they did their first production pursuing to nrcp 6.1 in hws so your honor in response to this we get all of these documents several pages of documents that were never produced or identified in response to written Discovery before yesterday at 7:21 p.m. objections incorrect this was all produced weeks ago you I don't know why we can't take notes I do that for you I will take notes while you're talking and only bring it up on my rep just make an objection all right there's no need for objection there's no Witnesses well I'm objecting because it's a misstatement of so your honor this is this is what we get well you know and there's and and here's my point I mean we can object of course Mr Kevin I'll listen to you but whether it was produced yesterday or a month ago when was this case filed thank you and we had that on the first page is the Henry complaint was filed on March of 23 and the hunson was filed in March of 21 yeah and they were in it and did their first uh response uh 16.1 response October 15 21 right so what he's trying to refer what Mr Kavanaugh is trying to say is that these documents were produced as a supplement to the 16.1 on July 24th less than 20 less than 30 days ago and now they're being identified for answers to enter to request ofu documents my point still stands they didn't supplement their responses to our written requests for documents until last night at 7:21 that's number one then we go your honor to request number two it says please produce true accurate and complete copies of any all contract or agreements relating to advertising of real water product now this one I want the court to pay attention to how they responded virtually 10 months ago the first paragraph which is the initial response says at the end after the boil plate objection says responding party is not in possession custody or control and not aware of any such contracts that's what they said that's what their response was and you know why that that was their response because they did not do what was required under rule 34 or under rule 16 and that's what Kayla Adams said and then after an evidentiary hearing that's what Brian Breeden admitted to Mr kamper and Mr seon and Mr Walters all of them agreed to that and so now they supplement last night at 7:21 additional documents and they do the same for number three so y honor I I point this out to you to show again these were documents within this custody control these were documents that were supposed to be produced roughly 10 months ago under this written Discovery Quest but should have been produced over a year ago pursuing to 16.1 now your order I want to show you what we got at nine o'clock last night and I brought C thank you that was good well time your honor this is terrible responses to pl's second I'm sorry terrible second supplemental responses to pl's request for induction set to sent last night on electronically served last night at 9:00 p.m. again virtually 13 hours from from today's here I want the court to pay attention to request number 5 67 8 and 15 so number five your honor is a request says any in all emails sent to anyone at drinkwater dcom now the point is y h these words which we saw in an earlier declaration could have been searched in in any one of those uh individual's own desktop or laptop or the companywide uh computer system which Mr sex in the Chief Information officer spoke about which he said he checked those words which obviously he did not or if he did he didn't produce documents that were discovered the response the initial response to this which was given over 10 months ago roughly says after a diligent search and reasonable inquiry responding party is not in possession custody control and is not of any such emails that's what they said originally on and now this is the response you see as of last night we have a page we have a page two pages roughly of documents not previously identified in response to written Discovery look at our request number six any all emails received by anyone at terrible hers from the time period January 8th through March 21st 2021 and just the the Court's recollection your honor March 21 uh 2021 that is just a couple of days after the FDC CDC and Southern Nevada Health District requires a recall if you remember that and it says from anyone with a root email address of rewater time real and water we actually put real water.com in the request so this whole thing about an ESI protocol wasn't necessary because they said we'd already asked for them to be done and they said that they already did it in after declarations in your honor all misstatements all inaccurate statements because now in response and remember the original responses and I wanted to read this to the recor because this is what it was said in most of them after a diligent search and reasonable inquiry then it says again after a d diligent search and reasonable inquiry responding party is not in possession custody your control and is not aware of any such emails and then your honor we get a reference to documents and then a reference back to the documents 27174 pages that were produced on July 24th 2024 request number seven says any and all meals emails sent by Mark Walters that was one of the declarant J to anyone at drink real water from the time period January 1st 2008 to March 21st 2021 or by Mark Mark Walters to any real water employee at any other email addresses from January 1st 2008 to March 21st 2021 again their respones responding party is not in possession custody or control has not of any such emails in your honor if you look at the next page you have a full page worth of documents being identified request number eight any and all emails sent by Mark Walters from the time period January 1st 2008 to March 1st 20 21st 2021 that contain the Search terms and your honor this is why I said I knew where you were going today because these Search terms were in our prior request yes the words the names the email addresses I mean to be canid with everyone it doesn't take rocket science to formulate what the search term should be in this case right exactly that doesn't involve getting in the rocket and going up with it either I mean anybody can make statements no but I mean what I'm saying and and and let's be candid when it comes to search terms looking for documents uh it just jumped out off the page to me that the first term would be real water you know and and that could pull up a lot of documents and maybe some of the key individuals and and and that's not I don't think you need a a um data a data specialist to come in and help you with that type of inquiry especially when it's your own but this is important too and I can't we can't Overlook look this fact and we don't know it now I shouldn't say we don't overlook this potential issue we're talking about searches and protocol right what about knowledge of the individuals that's another factor and that's probably while we end up having an evidentiary hearing you know I mean I'm just telling you the way things are going now and and here's a question I don't know the answer to but I really kind of enjoy cases like this where we maybe can create new law and here's my point uh and this this is a question from Mr penberg because I don't know the answer to it but for example if you have a witness witness andle employee that makes a denial under oath what impact does that have on a determination or or factoring in a determination by a trial court when we later find that it was untrue does that mean towards negligent or intentional well I'm sure Mr to will have an answer yeah I mean also think it has to be in this case judge this was the objection I had when we were here last week okay but what about a coordinated bad acts and we've been sanctioned okay but what about coordinated Discovery cases well no the coordinated Discovery is really to have a a depository for documents it's not that everything is automatically done in every case sure did we say refer to what we produced in hunson yeah that's a smart thing to do because there is a place where the documents are already sitting there and we can tell them to go look at it it doesn't mean that that everything asked and done in another case is done in this case okay here's my next question that regard if their denials made under oath in the prior case are you saying that the lawyers in this case in a companion case don't have a right to rely upon that those denials and a coordinated Discovery case you mean Discovery request denials he's relying on denials done in this case okay but also in the in the other case too okay then why do we have Discovery things under oath right shouldn't matter what case you're in you should tell the truth no matter what case you're in Mr thank you teddy but but but you don't have to answer that right now but I'm one I understand you're saying well Jud it kind of depends on where the denial is but does it really matter if you know you take an oath in every case to tell the truth we didn't the problems we had in hunson we don't have here the 290 documents were produced in fact in this case they are trying to get you prejudiced by conduct in another case they are judge you can say you won't be prejudiced but they're trying to get you there well I understand that and and and here's let me finish my sentence Prejudice by conduct in another case we've already been sanctioned for and that I don't see in this case and um so are you telling me that I should ignore conduct and another companion case and making a determination in this case yes because no if we if we complete judge if these were totally separate cases and I say they are it doesn't matter to you whether something was done in another case you can't penalize us in every case for that you need to look at this case okay and so I'm looking at this case and I'm looking at are the discovery responses Mr Parker he's been reviewing those are in this case right yes okay so and I'm so happy that he's he's produc going to these and going to them you know Corey's been telling me sit down Dan just stay seated but it's you know I I complained last week about the terms of the indictment he's bringing these things in today he's bringing these things in the other day the ground keeps shifting under me what their complaint is so I haven't objected I'm I'm fuming but I hav't objected and we'll let him present all this and then you can decide what the terms of the com of the uh indictment are I said terms of the complaint what's the indictment where you're issuing an order to show cause that we should not be sanctioned and I don't think they've done it yet judge they can't just come in and say look here are things that weren't produced then they were produced that's bad that's not enough to get an extreme sanction if you want to sanction us $10,000 for producing things late and then I can get back out of the case that would be wonderful yeah well here's here's the here's the issue with that though is this and and this is often overlooked I think from a sophisticated Discovery perspective we're going to trial when October 7th right and so and here's my point in today's August 16th is that correct that's okay um and discovery's closed Clos next week Clos next week how do we you guys really should go on the road no no but he's answering my questions and that's kind of my point my point is this what do I do because it would be one thing say hypothetically the documents this whole I'll call it the dust up for now is that fair I'll whole dust well um I don't know I'm still I'm still focusing on the word dump from last week okay well I I corrected that but but but that's up that's okay I did but you know I 20 270,000 pages of documents or a lot of documents and we're and we're gonna get to that when Jim gets the chance to talk yeah but but but that's still a lot of documents Mr pober and we can agree we can agree on that that one point but but here's my Point what do you do uh because I have to factor this in into whatever decision I make say hypothetically there was a discovery violation or alleged violation or or a problem or a dustup I'll call it that as far as production of documents and specific testimony and it was done a year ago okay that gives me a lot more flexibility as to how I proceed from from a uh decision-making perspective because for example there could be enough time cure you see where I'm going on that I do and here's here's what I think um I think you need to look which is why I'm saying you need to look at willfulness and Prejudice upfront and not deterrence if you say look it's early enough uh just give these documents to your experts if they haven't been deposed they can be deposed if they need to come up with a a new opinion they we've got time to get a new opinion if you're saying they can't have the time to review these documents then you're looking at a different issue so that's the stuff you need to address threshold but but those are all the issues I've been considering and that's why I brought it up because here we are uh less than 60 days before trial right judge and they made the motion they presented a certain thing it keeps shifting now they're the ones I think who are trying to make it bigger the issue before you you can handle from a prejudicial point of view by saying they've got the information now they've got the information that we ran the request that they asked us to run even though we provided the database for them to be able to run the searches themselves and they didn't under those circumstances there this can all be handled but if we're going to be distracted by this and have an evidentiary hearing I think it's designed to consume the amount of time we have left and the oxygen in the room so that the issue becomes critical only through strategic raising of issues why should we have to recalibrate Discovery at this stage I don't think you have to well you you just ask for you ask for a recalibration you got the information now okay they have to come in anyway if they're doing an evidentiary hearing and say Here's the information we have now here's how we would have had to have used it this is why and I understand would would um which Justice was it in the other case would pick I understand her point and she talks about Prejudice and those types of things but um that's why I think in many respects it's overlooked the need to deter future conduct because if we're going to just sit back as a trial court and at this stage we less than six days before trial and say well they got it now too bad so sad no harm just give it to expert that'll happen in every case that's right no yes yes well that's how I look at it I mean I I don't mind saying it but then consider a sanction geared only to deterrence and it isn't something that affects the trial in this case well well well see here's the thing and understand this and Jenny rer we have seven factors and just because I I I discussed the impact of potential deterrence on future uh conduct uh doesn't mean I've said look I'm not going to consider degree of wolfiness of the offended party I'm of course consider that I'm not going to consider the extent of the non-offending party would be prejudiced by lesser sanctions I'm going to consider all those factors but I do think uh when you look at Factor number seven what it does is this and this is this is this is really a a significant issue as far as I'm concerned um if you start producing documents that you potentially had an obl ation to to produce uh maybe a year before litigate I mean a year earlier or two years earlier whatever it might be and you produce those documents 60 days before trial that's an issue you know and I don't know what I'm going to do with it and I want to make sure the record's real clear I'm not saying and and this is to the Supreme Court I'm not saying that I ignore the seven factors in Johnny rero I'm saying this that I feel that any in many respects and I can say this as a trial judge that factor number seven is overlooked in that what happens when documents are produced at a late date uh that should have been produced earlier um and you're less than 60 days before trial under those circumstances do you get a doover and that's basically what we're talking about here and and so in order to uh emphasize the duties and responsibilities as it relates to Discovery amongst parties and their joint obligations um I feel that you have to consider that right because if if you don't then everyone would say oh well you know Judge Williams here this L your producer 60 days before trial go take some depositions and things like that that's not how our processes work and that's kind of my still in the discovery time I understand but I but but but the way we're going we're not even going to get to an evidentiary hearing before the discovery time period Cuts I think we can do it next week but but here's we can no no but here's my point we we can talk about that later I haven't made a decision on that but my point is is this um that just underscores my concern because the close the discoveries next week judge deterr is in every case all right anytime somebody produces something late I'm going to have a district judge say to me well we can't put up with this we we need to make an example of this character so that this doesn't happen in any other cases would I have to look at well you know that's something I should consider I don't mind saying it but secondly I have to look at the reason for the delay goes to willfulness and exactly do you notice how you notice how I didn't Overlook that I have to look at the reason for yes I have I do and you know you and I get into this discussion in every case I know I'm not saying you're overlooking those but judge this this transcripts pretty clear that you're focusing on deterrence so I I I know you I know you will look at the two main factors and I that's why I say I boil all of the seven factors down to two thank you your honoring and I teach you for asking me a question I always like to listen Mr yeah absolutely but but and it's really important because I do feel this is overlooked when it comes to and that's why I 's an example this was a year ago slightly different scenario right but we're we're less than 60 days before trial the discovery cut off is in in in a week and but Mr Pepperman go ahead sir you're I just want to just add one fact to the conversation here in terms of willfulness and deterrence because it's not just oh we found these additional documents at this late stage and here you go this goes back to the requests that were denied in November of 2023 and remember the most important fact that we haven't been discussing is the inadvertent disclosure of the 290 Pages they didn't produce those documents they inadvertently copied us on an email that included those documents that's what uh tipped us off that all those Discovery responses those prior declarations saying these documents don't exist were wrong that's what the evidentiary hearing was in on wson that's when they all came in and said oh this was in inadvertent we didn't know they were in an archived email we didn't think to search that now we've searched it and you have everything you have everything they've said it under oath in relation to those 220 290 documents last time this came up and they said oh inadvertent not willful don't sanction us it was unintentional now we found them now we've given you everything and then in this case they supplement their responses to just reflect those 290 documents nothing else and then July 24th we get 270,000 more pages okay and this is what I hate about stream of Consciousness allegations that's the argument they made in hws and because we didn't produced them in hunson we produced them in Henry and that's the case we're in now sorry to interrupt okay and no problem I have have a I have a question in 290 Pages not the 270,000 that we're talking about today they engineered would be over Brad and not relevant all right I'm gonna I'm gonna show you documents from them said give us your over Brad production and we're going to let our experts do reduce search that's a July letter your honor okay and that's why I haven't made a decision yet I all wait I'm trying to get the fact but here's a question I have and Mr penberg can answer this more for me are you saying that in a coordinated Discovery case such as this case and uh the deposition is taken of a witness in uh the Hun wson case is that the other case yes yes okay are you saying that in in this companion coordinated Discovery case the plaintiff would have to take that deposition over again or can they rely okay so they can rely upon that deposition testimony in this case but if we're talking about the underlying merits of the case of course but what they're coming in and you know I haven't objected today and said no that evidentiary hearing took place in that other case I'm saying that Discovery violation took place in that other case this case has been handed handled in a different way yeah and and and what I'm really trying to focus on when it comes to relying upon uh for example in this case I mean in the hun hson hun wartson case uh there were specific denials made regarding the documents and depositions are you saying and I just want to make sure that doesn't have doesn't the plaintiff have a right to rely upon those specific denials that were made by key Witnesses in the uh hun wartson case no they've had they and you notice today they're coming in with the separate Discovery requests in this case yeah but I'm talking about that I'm not focusing on that I'm focusing on the deposition testimony that was taken under oath in the Hun wartson case if the deposition testimony is uh we have this contract they can use it if it's that here's why we answered the question in unws in the way we did that's irrelevant that's irrelevant judge you need to be focusing on what happened in this case but that's my my but where's the line of where's the distinction where's the distinction I I I have to follow up on Mr fenberg say is he trying to suggest that in a coordinated case you can lie or misrepresent the truth to get around one case but on the other coordinated case that lie can't be used against when it comes to Discovery you cannot be saying that you cannot be saying that you know I'm not saying that you've know me 40 years there's no way on we just want to make sure we're clear that's all we can take it we can take it item by item I haven't interrupted Teddy because Teddy's GNA call me old and tell me to take notes so so we will handle it as we go along a lot of the stuff he said today you should be paying attention to he's been much more focused I don't want him to hear this he's been much more focused today than he was last week so um you know we could we could be out of here today but we haven't even I I can I can I share Jim's frustration we have a story to tell and you haven't heard it yet and I'm I'm not saying you won't listen to it I'm G to listen to that I hear you but it's law motion remember this one of the things I've done a little bit differently because normally we don't pingpong I've been permitting ping ponging you know and I think it's important as we kind of go through it well you know in my day job people only get 15 minutes so I don't have to sit there as long waiting for the other side to finish talking saying that while I was watching you in Jim go ahead but and here's this is what's important too I mean I'm looking at this and I we can't Overlook uh the thrust and scope of the request and um I always feel it's a little better to spend more time than not enough time to make sure I'm truly educated on what's going on here that's all and I understand what you're doing but but but my other frustration is I don't know what the request is it keeps changing I think the request now it appears to me an evidentiary hearing absolutely yeah that's I no I need to know what the evidential hearing is about I need to know the specific things that we're talking about but you need to go through today first to say whether it's enough to have an evidential hearing it's not enough that there is an alleged Discovery violation if it's a discovery violation where you say look you know you were late I'm going to hit you up with the monetary F I got you thank you so left off we were going through request number eight if you put that back on the screen for me Shane request number eight says any and all emails sent by Mark Walters from the time period January uary 1st 2008 to March 21st 2021 that contain the Search terms real water real water together or drink Rew water.com and again response is after diligent search and reasonal inquiry responding party is not in possession custody or control of and not aware of any such emails the reason I'm putting these in front of you because you don't have to take my word for it this is their own respons showing that they gave inaccurate responses to request production of documents and then they list your honor and what was the date of this production again the original production your honor I'll put can you put that back on screen uh page three of our presentation there go there we go so y honor this is a response to our second set of request reduction of documents and our second request went out March 3rd 2023 so 11 months before the trial in this case was scheduled and they did not respond to it other than to say they didn't have anything that had that fit those Search terms and we know that what dat again was at once is that 11 sent November 3rd 2023 and their original responses to our second set of request reduction of documents is 124 202 so roughly 9 months ago objection leaves out the first supplemental response February 2024 listed the 290 documents that were produced so in Henry January 2020 listen U Mr kav again because I believe in being completely for right I have when you WR the 290 Pages it doesn't equates it doesn't uh absolve you of having failed to produce 271,000 24 pages last month that's that's a different topic so you honor if you look at now the responses we have four pages of documents identified when I say four pages each page has I don't know 15 to 20 documents identified at least that were not identified in responses to our written request back in December of 201 23 and then if you go to number 15 yor again we ask for any agreements from January 1st 2008 to 21 and we're referred to the July 24th production so that was served at 9 o'clock last night joh so in the last month we've gotten 271,000 third I'm sorry ter terrible supplemental respons first set reduction last night at 7:21 and then there SEC the responses are a second set of request from D documents at 9:00 last night Clos the discovery is next Friday dispositive motions and motions of elimin are required on August 26 2024 the honor just by way of a visual this binder so in in 10 days motions elimon are exactly POS y just by way of a a visual example here on this desk this binder has about 550 pages I filled it to the brim about a 4 inch bind 271,000 pages of documents couldn't be held by all three of these desk here and they would expect that we would have to go through all of those documents in time to complete Discovery prepare preliminary uh pre-trial motions forms of dispositive motions and motions of limit and somehow incorporate that into everything we've done to prepare this case for trial it is impossible we don't no I don't think there's a firm in town that has the bandwidth to do that and even if they did they wouldn't have time to redo all the depositions redo the discovery it's impossible and they knew it when they did it so your honor if we go to the depositions next slide these are the depositions that we've taken at this point it's too late to do any new ones got Chris keer October 3rd 2023 and I put that there in your honor because these documents should have been produced in May of 2023 so that we could have questioned him on those documents but we didn't have them Brian Breeden November 23rd 2023 Tre again we didn't have the documents we did the written Discovery expecting to have those documents if they were available but we were told they were not in their possession they didn't have them and so that's what we got Anthony Randolph December 11 20123 Kayla Adams which we just went over yor January 8 2024 next slide we have the evidentiary hearing on and these people from terrible hers Chris camper Christopher camper Executive Vice VP of administration testify Brian Green did I've given you exerts from his testimony Mark Walters and Brad SE Chief Information officer next SL they all gave declarations saying that they've searched it they've produced it all the 290th pages is it there's no more there's nothing else that was as of November 23rd third I'm sorry November 2023 they all signed their affidavits Mr ker did a second Affidavit of January 19 2024 indicating under oath that everything's been produced now keeping in mind we had all that written Discovery out there and also keeping in mind your honor doing the evident hearing they indicated that their discovery of the two 290 Pages related to this case so if they found the 290 they certainly should have found 27,7 14 pages in addition which they they didn't at that point and Y I'll just refer you quickly to the evidentiary hearing just so you can see the references to the Henry case if you could uh Shane could you go to day six of the trial January 23rd 20 24 for the court don't worry about it I'm going to get i'll picture a different way go to the next slide so your honor after that December 4th 2023 this was what Mr Breeden the uh other members executive staff go to the next this is what we informed judge Kish of in terms of all of these Witnesses giving false responses and Discovery now I bring this up just because I want to draw a line of distinction between hun wartson in terms of why we're here today because that's something that Mr penberg said in response to one of the Court's questions the 290 Pages was a problem that was produced late the 271,000 pages is what prompted us to be here when we originally filed our motion is because we knew based upon or we could we believe based upon the deposition testimony and the written Discovery the documents all documents had not been produced and we were determined to be right and we were also determined to be right in terms of their responses our written Discovery that's why we are here now the continuation of false uh testimony both under oath in the courtroom or in declarations or responses to interrogatories that is a stream of Discovery abuses that's culminated now with this 271,000 Pages if you could you do can you refer to the page you've showing the court right here right now specifically what is this from you like that yeah could you go to the the preceding page is from our uh your benefit is go back to the first page you can see volume can you see it now J I cannot maybe just read screen front read in the record the the the the volume of the day of trial or the hearing date of that page you just showed cour well it's electronically flowed December 4th 2023 there was our initial um testimony from the hearing or from the trial that was quoted there go back to that page and you'll see the quote I just don't see the the top of the page yeah this is this is taken from our PL of document referencing the Declarations we talked about earlier no no this this is terrible her's reply in support of its motion for summary judgment filed in the wson case terrible moved for summary judgment on Plain if's punitive damages claim and said you guys have no punitive damages claim there's no evidence because there's no evidence of the commercials and that's where this is from remember are you fine with that uh Jim uh yes thank you for clarifying that no worries I appreciate that ER now your honor we also attached interrogatories which we thought were persuasive in that case but it's a continuation and we wanted to show it for purposes of this case the interrogatory number six says State whether or not any of your employees had any Communications with any employee of real water company in the Years 2018 19 and 20 if so ST which case is this this is unw this is unw and if so State the name of the employees of each entity and describe we've been sanctioned for this I think we should focus on what took place in this case okay so your honor they indicate the answer is no that they've had no Communications with anyone from real for 2018 1920 the reason I bring that up is because in this case we asked questions similar to those by Mr km of Miss Adams we asked questions doing the evidentiary hearing and it's been determined that there were Communications so when you're responding to our written Discovery you each of those individuals Mr Sexton Mr Walters Mr keer and Mr Breeden could have easily checked their emails using those Search terms that we had in our written Discovery to find out that there were Communications that is the point and now we know that there are because now and these most recent responses in this case they've identified those documents that actually prove that their original responses were incorrect that their searches were not done correctly or done at all and that their sworn testimony was false that is the point seates so if you go to the 14th slide y honor I want you to see it right there that Mr kimer was the one who actually signed this verification same person who gave two declarations and a deposition and despite all of that we get these 271,000 Pages you H what Mr um pepperon was talking about earlier how the 290 Pages were discovered go to the next slide this was the uh email that tipped us off to the 290 Pages it was an email that Brianna spitzler was actually identified on that apparently someone made a mistake but it identified 11 documents next page these are the 11 pages and once we got those documents we said wait a second and they said they discovered the documents looking for documents related to the Henry qu Cas Y and if you go to if you go to page 18 I'm sorry slide 18 this is what it says that this is this is Coen o Conor terrible hers prior counsel said during searches for documents responsive to Henry request production using the term drinkwater found those documents and yet did not produce the 271,000 pages back then now when Mr Kavanaugh decided to throw this document the May 28 2024 letter perhaps he was not aware of that letter from Ken o con perhaps he was not aware of the written discovery that says real water drink real water search these terms perhaps he wasn't because if he did he wouldn't have found this document to be so moving in my opinion because this is what terrible Herb's own Council said your honor these are coordinated cases she was looking or she Coen Conor and its staff were looking for documents related to our request production documents which we've gone through now and they did not produce these documents and should have and the reason why we know they should have because they now have been identified in responses to our previous written Discovery requests from last year that's why you honor the the next document and we've discussed this would be the videotape deposition of Chris camper again I don't believe we should go through those right now because we discussed them but I want to give you just a snippet of one of Brian Breeden if you can go to page 22 because I think this is for the evidentiary hearing this is his deposition taken November 3rd 2023 next page question is have you heard the name Brent Jones I have not how about Blaine Jones no Amy Jones no Anthony Randolph no your honor at the at the evidential hearing he agreed that he had misdated and that he remembered that you know at the evidentiary hearing under oath in front of Judge kishner that he actually gave false testony and the same was done for all of them and Mr and I went through last week how they said or admitted to having given false declarations and deposition testimony y honor that testimony when they told us at the evid hearing the 290 Pages was it and we still didn't believe them we had a reason to not believe because now in this case we got 271,000 documents we got in the last three weeks two in fact last night we got two different supplements we got one on the 24th that should have been produced virtually I believe since May of 2023 and given that they coordinated I think they should have been produced since October 15 2021 one of the things we found I want to show this document because this at least this is a document I thought was uh persuasive in terms of promotional uh and promotional materials or commercials could you go to uh slide 28 this is Amy Jones I'm Amy Jones from drink Rew water.com this should have been found originally I would like to touch base with you and see if there's any opportunity to put the real water commercial on the terrible herb gas pumps again not for the first time but again now remember all of these Witnesses denied any commercials and now as of July 24th 2024 we have proof I wanted to hit this and I this is one of the reasons why I said to miss Kavanaugh you should probably wait till I was finished go to page go put the bait stamp in the record for this one page of a string email d247 that's the Amy Jones email is that it right here Shane you see it at the bottom 2407 do not on the screen what's the you see this thing is overlaying it my bad okay um so is that the same one showed with the two popups in it I get it she get well there were there was one with two popups and then one of the popups obscured the base number so what Shan typically does it show the big one then he shows the par I want to see all right he's he not showing the rest of the response from terrible got that I just I think I'll talk to you later Shane I think there was a base number I missed all right so yor this is what Mr Kavanagh was speaking about earlier this is an emails inviting Rio water to terrible super supplier partner marketing meeting and he said there was 200 people or so invited the point is Jor that document was produced during trial in HUD wson and even given that they were able to find this document that has real water and Anthony Randolph they should have found documents that are now being produced the day before this hearing or being identified in response to written Discovery now go to exhibit 35 please oh not exhibit 35 but slide 35 so this this is what we have in terms of the facts in this case versus facts in the uh CCSD case there were two false affidavits in that case and they withheld 500 it was actually, 1500 documents uh in that case but 750 of them were particularly uh responsive to issues in the case they were all related but some of them dealing with uh change orders and such but in this case we got actually five false appids we got 290 pages that Mr penberg and Mr C like to speak about in terms of what was discovered in wson but back we have in this case 271,000 documents disclosed on July 24th after PL his motion for rule 37 sanctions not before but after and we still out next slide we also have in this case failure disclose Witnesses during the discovery period misrepresentations deposition by Mr keer and Mr breed misrepresentations and answers to interrogatories and figure to comply with nrcp 34 next slide in the Valley Health Systems case your honor if you're very familiar with that case they failed the defense Council and the uh defendant Identify two nurses and the witness statements those nurses provided to the uh police department and they canest a summary judgment based upon not providing in this case we have several teral employees who failed to produce documents related to their own uh laptop or desktop their emails fail to disclose witnesses that are identified in those documents fail to produce documents I'm not going to keep saying saying it you know the number of documents next SL please can you go back D sure could you go back the facts of this case yeah little point3 is saying this should have been produced October 15 2021 yeah we believe that all of these documents should have been produced as a part of coordinated Discovery efforts in this case when Henry hadt named terrible herps as a defendant until March of 2023 how could this these things don't you you can you can clearly bring it you know great if this was in writing so we had a Target to look at soad of here's here's an important point I just want to tell everybody this we're gonna break it noon we might be here all afternoon just want to let you know that and we're not rushing to judgment uh there's thoughts I thought about and I understand Mr penberg for example reminded me of I guess the two key factors Justice Pickering felt were important but uh and I when I sit back and I look at Johnny rero it says quote we set forth a non-exhaustive list of factors which the court May properly consider in deciding whether dismissal is the appropriate sanction period close quote now and here's my line of query what if I'm not considering dismissal what if I'm considering other factors or other issues and you don't have to answer that right now you don't have to answer that right now yeah go ahead oh yeah because remember that was the plain who had man manufactured false evidence in Johnny Riviera that's why he talks about dismissal so yes it is looking at uh but it's also looking at you can tell from the sanctions alternatives to the the ultimate sanctions oh yeah well that's my point what if I'm not looking at dismissal and it it's not it's a non-exhaustive list that's what the Supreme Court said we all met them about the Supreme Court they love to say here is a non exhausted list oh I understand that but but but all I'm trying to say is this maybe and and she said there were two really important factors to consider she didn't say that she said deterrence is not an important factor she didn't say there were two important fact well here's my point though if I'm considering if I if I don't consider dismissal and it's a potential Discovery issue you notice I didn't say abuse yet issue um um maybe maybe I can consider deter as one of the factors and I'm saying that if you if you should say right now I'm tired of all you lawyers talking I'm imposing $10,000 that's a lesser sanction you can do an appropriate and I'm not saying 10 10,000's appropriate but but it would be nice if I weren't in the case anymore so it it so I think you could say yes if you were doing normal sanctions you can consider deterrence if you're doing a sanction that affects the result in the case it cannot be for deterrence I understand that and I I read it slightly different than that because number one for the record I just want to make sure I'm clear that I'm not saying Terrence is the only Factor I'm considering number one number two I'm I'm looking at it through this lens maybe I'm not considering dismissing I don't know yet right but uh if I'm not considering dismissal then I can look at other factors um right though it's probably striking our answer or parts of our answer that you'd be looking at well I'm not even I'm not even saying that Mr B no I'm just saying the reason Johnny riro uses dismissal is because the it was the plaintiff I understand got it thank you I do I get it I do get it all right so y honor continuing on we're actually on the same page yeah I didn't argue with him that time then we can leave no you can't leave you can't leave because we're going to lunch in five minutes and can we actually break now I have we can break now okay good I have a 12 o'clock that just conference call I need to handle can he finish first no when can we be back Jud can be back don't give a lawyer a lunch break to come up with more stuff to talk about I understand can I have the PowerPoint presentation in the meantime no you're not have my work product yeah your work product you showed it in for judge I need a copy of the PowerPoint presentation your honor I will discuss providing him a copy after I'm done I don't think I've ever given my notes or my notes in front of the court to another attorney but you have if you were in a case with me can I at least have the PowerPoint presentations up to the point where he stopped no because some of them I didn't use I'll have to pick up the ones I'll have to pick up the he'll give you the ones he use I can do that he'll give you the ones he use I can do that can you do it before you 12 o' call no what we're gonna do we're gonna break right now thank you we're gonna break right now you guys work it out but um 130 sounds thank you for