Opinion
18-C-1716
10-10-2022
BENSHOT LLC, Plaintiff, v. 2 MONKEY TRADING LLC, et al., Defendants.
RULINGS ON PLAINTIFF'S OBJECTIONS TO DEFENDANTS' DEPOSITION DESIGNATIONS
WILLIAM C. GRIESBACH, UNITED STATES DISTRICT JUDGE
Plaintiff BenShot, LLC, brought this action against Defendants 2 Monkey Trading LLC, Lucky Shot USA LLC, and Douglas Ingalls, alleging that Defendants deceptively marketed and sold a line of Lucky Shot-branded products as “Made in the USA” in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and Wisconsin common law prohibitions against unfair competition. A jury trial is set to begin on October 11, 2022.
On September 27, 2022, Plaintiff submitted objections to Defendants' deposition designations. Defendants filed a response on October 7, 2022. One category of objection, in particular, warrants comment. Plaintiff has objected to a number of questions as leading questions. “[O]bjections which go merely to the form of the testimony-as on the ground of leading questions, unresponsiveness, or opinion-must be made at the original hearing when errors can be corrected. On the other hand, objections that go to the relevancy or the competency of the evidence may be asserted for the first time when the former testimony is offered at trial.” McCormick on Evidence § 306; see also Fed.R.Civ.P. 32(b), (d)(3)(A). With this in mind, the turns to Plaintiff's objections to Defendants' deposition designations. The Court's rulings on Plaintiff's objections are included in the following charts.
1. Jack Kimmel
Defendants' Designations
Plaintiffs Objections
Plaintiffs Counter-Designations
15:16-19
None
None
16:9-16
None
None
16:23-17:3
None
None
17:7-9
None
None
18:23-19:2
None
19:3-8, 10-11, 14-16, 18-22
19:23-20:3
None
None
20:17-21:9
None
22:15-22, 25; 23:2-5
23:15-22
None
23:23-24:5; 24:9-10, 12-17; 24:2125:2
28:3-14 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
28:15-16
28:17-19
None
None
31:2-14 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
31:15-21
32:3-14
None
32:18-21; 32:24-33:2
34:11-22
None
32:8-10, 13-17; 33:25-34:7
35:2-9 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness) (see Keener objections)
35:11-12; 35:15-36:1
36:25-37:3
None
37:4-6, 10-13
40:5-41:4 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay (see Keener objections)
None
45:9-24 Sustained as to Lines 14-24: His understanding is not what is relevant, the reality is. His answer is based on the hearsay statements of boxes that have not been properly introduced or offered.
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay (see Keener objections)
46:10-11, 15
46:23-47:6 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
47:8-10, 14, 17-18, 22, 24; 48:2-3
50:24-51:7 Sustained
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of
51:16-52:3
foundation; Speculation; Hearsay (see counterdesignations)
52:4-10 Sustained
Lack of foundation; Speculation; Hearsay (see Keener objections and counter-designations)
52:11-12, 16, 23-24; 53:2-3
53:8-12 Sustained
Lack of foundation; Speculation; Hearsay (see Keener objections)
53:5-7
54:20-55:5 Sustained
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed.R.Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed.R.Civ.P. 26(a)(2) and Fed.R.Evid. 701-703 (see Keener objections and counterdesignations)
56:14-25; 57:2-4; 60:3-7, 11-14; 60:20-61:7
58:12-22
None
None
61:8-18 Sustained: No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed.R.Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed.R.Civ.P. 26(a)(2) and Fed.R.Evid. 701-703 (see Keener objections and counterdesignations)
61:20-62:1; see also counterdesignations to lines 54:20-55:5 above
63:1-12
None
None
66:22-67:7 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness) (see Keener objections)
None
68:10-69:3 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness) (see Keener objections)
None
69:19-21 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
69:22-25; 70:4-10
70:13-22 - Overruled
Leading contrary to Fed. R. Civ.
See counter-designations to lines
P. 30(c)(1) and Fed.R.Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay (see Keener objections and counter-designations to lines 69:19-21 above)
69:19-21 above
71:11-72:5 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay (see Keener objections and counter-designations to lines 69:19-21 above)
72:6-11; see also counterdesignations to lines 69:19-21 above
74:10-75:1 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
75:2-5
75:6-7
None
None
75:22-76:1
None
None
85:16-24 (counter-designation) Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
N/A
92:10-11(counter-designation) Sustained: irrelevant, confusing, 403, no context No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703 (see Keener objection)
N/A
92:14-15 (counter-designation) Sustained: irrelevant, confusing, 403, no context No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703 (see Keener objection)
N/A
109:9-23 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness) (see Keener objections)
None
110:10-24 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
111:1-3 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
111:8-20 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
111:25-112:6 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
112:14-21
113:17-114:19 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay (see Keener objections and counter-designations)
114:20-115:1; 115:4
2. Chad Maskill
Defendants' Designations
Plaintiff's Objections
Plaintiffs Counter-Designations
16:13-22
None
15:2-16:6; 17:5-15
21:1-8 Sustained: irrelvant
Lack of foundation; Speculation; Hearsay (see Keener objections); Violation of decision and order granting Plaintiff's motion for curative relief (DN 132)
20:17-25; 21:10-11, 15-16
27:19-25
None
22:9-22; 25:4-7, 15-25; 26:4-6, 16-20; 26:24-27:3; 27:7-16; 28:1029:2
30:6-25 Sustained Lines 16-14: irrelevant Lines 15-25: no foundation
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay (see Keener objections and counter-designations); Violation of decision and order granting Plaintiff's motion for curative relief (DN 132)
29:23-30:5; 31:2-13, 16; 31:1832:9; 32:20-33:1; 33:5-6, 8-15; 63:14-17; 63:19-64:21
34:19-35:1
None
35:5; 36:8-10; 38:1-21; 38:24-39:7, 39:11
39:13-24 Sustained: Leading
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
40:4-12 Overruled
Lack of foundation; Speculation; Hearsay (see Keener objections)
40:1-3, 13-15, 19; 40:21-41:3
42:4-8
None
41:19-24
42:18-44:8
None
See counter-designations to lines 42:4-8 above
44:19-25
None
None
45:9-24
None
None
52:19-53:9
None
52:16-18
61:12-62:1
None
61:6-11; 62:2-10
67:14-68:11
None
65:12-18; 65:21-66:1
68:16-17
None
None
70:13-71:2
None
None
72:13-25
None
None
79:14-23 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
73:1-15, 19-20; 73:22-74:4; 74:78; 75:5-6, 10, 12-13, 17; 80:3-7, 12-16, 20-21, 23-24; 81:3-6, 8-12
3. Austin Oliver
Defendants' Designations
Plaintiff's Objections
Plaintiffs Counter-Designations
6:12-21
None
6:25-7:4
8:2-4
None
None
8:9-22
None
None
9:3-10
None
None
12:5-11
None
12:12-17
12:25-13:4
None
None
14:1-3
None
None
14:6-11
None
None
14:14-22
None
None
15:2-4
None
None
15:18-23 Overruled
Lack of foundation; Speculation (see counter-designations)
15:9-12 (indicating that he does not recognize the document)
18:12-18 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
19:13-20:6 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
19:25-20:24
28:19-23
None
28:5-11
40:15-24
None
40:25-41:2
41:3-10 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
41:13-15
None
None
41:18-20
None
None
42:5-10
None
None
42:19-21 Overruled: objection waived; failure to object where question could have been corrected, no objection to form
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
45:8-10
None
45:11-13
59:19-60:2
None
None
64:9-19 Overruled (assuming email comes in)
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Hearsay
63:5-8
69:15-25 Sustained: irrelevant, speculation
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation
None
77:17-78:4 Sustained as to Lines 78:3-4: 403, unclear, ambiguous, vague But overruled as to the rest
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703
77:7-14; 78:5-7
80:20-81:1
None
None
86:12-17 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
96:7-16 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
97:1-5 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
103:19-104:6 Sustained
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly
104:7-10
Vague, no personal knowledge No response to objection by Defendants
employee-witness); Lack of foundation; Hearsay; Irrelevant; Unreasonable risks of confusing the issues and misleading the jury, contrary to Fed.R.Evid. 403, given that he cannot identify any other seller, much less any other competitor; Lucky Shot is trying to fabricate “competitors” without any expert opinion or supporting information (e.g., when they entered or exited the market, what their exact product was, where the product was made, who their target market was, what their pricing was, what their sales were (e.g., whether they were de minimis), whether the product was advertised as “Made in the USA,” etc.), contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703
108:25-109:10 Sustained No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Hearsay; Irrelevant; Unreasonable risks of confusing the issues and misleading the jury, contrary to Fed.R.Evid. 403, given that he cannot identify any other seller, much less any other competitor - Lucky Shot is trying to fabricate “competitors” without any expert opinion or supporting information (e.g., when they entered or exited the market, what their exact product was, where the product was made, who their target market was, what their pricing was, what their sales were (e.g., whether they were de minimis), whether the product was advertised as “Made in the USA,” etc.), contrary to Fed. R. Civ. P.
None
26(a)(2) and Fed.R.Evid. 701703
112:21-113:5 Sustained: lack of personal knowledge
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
116:23-117:3 Sustained No response from Defendants
Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed.R.Civ.P. 26(a)(2) and Fed.R.Evid. 701703
None
129:23-130:7 (counter designation) Sustained No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703
N/A
133:18-21
None
None
149:6-15 Sustained: irrelevant No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Relevance; Unreasonable risks of confusing the issues, misleading the jury, and wasting time, contrary to Fed.R.Evid. 403
None
4. Gina Palmer
Defendants' Designations
Plaintiffs Objections
Plaintiffs Counter-Designations
8:19-20
None
6:13-7:2; 7:19-24; 8:2-6, 11-15
9:6-9
None
9:10-18; 10:6-11; 10:24-11:3; 25:8-16
13:1-3 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
13:4-6
13:13-23 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
16:6-12 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid.
None
611(c) (Defendants' friendly employee-witness)
17:9-18 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
18:1-9
None
None
18:12-19:7 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
22:5-20 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703
None
22:24-23:1 Overruled
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Undisclosed, unsupported, and impermissible “expert” opinion contrary to Fed. R. Civ. P. 26(a)(2) and Fed.R.Evid. 701703
None
32:23-33:8 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
31:8; 31:10-32:5; 32:14-15, 17-22; 33:2-3
33:22-34:4
None
34:5-8
35:3-10 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
41:20-42:12 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
42:20-25 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
None
43:23-44:2 Sustained: lack of foundation No response from Defendants
Lack of foundation; Speculation; Hearsay; Violation of decision and order granting Plaintiff's motion for curative relief (DN 132)
44:3-15
44:16-18 Sustained: lack of foundation No response from Defendants
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed.R.Evid. 611(c) (Defendants' friendly employee-witness); Lack of foundation; Speculation; Hearsay; Violation of decision and order granting Plaintiff's motion for curative relief (DN 132)
45:13-46:10; see also counterdesignations to lines 43:23-44:2 above
45:1-2 Sustained: lack of foundation No response from Defendants
Lack of foundation; Speculation; Hearsay; Violation of decision and order granting Plaintiff's motion for curative relief (DN 132)
See counter-designations to lines 43:23-44:2 above
45:5-9 Sustained: lack of foundation No response from Defendants
Lack of foundation; Speculation; Hearsay; Violation of decision and order granting Plaintiff's motion for curative relief (DN 132)
See counter-designations to lines 43:23-44:2 above
47:10-11
None
47:12-14
53:19-54:8 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
53:9-10, 12-18; 54:12-21
55:3-8 Overruled: objection waived
Leading contrary to Fed.R.Civ.P. 30(c)(1) and Fed. R. Evid. 611(c) (Defendants' friendly employee-witness)
55:9-10, 14-18; 56:11-57:6; 60:7 10, 14-17