Opinion
Case No. 00-CV-74841-DT
May 1, 2002
Table of Contents
I. OPINION ........................................................... 2
A. Procedural history ............................................. 2
B. Plaintiffs motion to strike the Zilliox deposition and the Hori and Wils declarations from the evidentiary record .............. 3
C. Applicable law ................................................. 4
1. Depositions and discovery ................................... 4
2. Judgment .................................................... 7
D. Analysis ....................................................... 8
1. Whether the Zilliox deposition is made on "personal knowledge" as required by Fed.R.Civ.P. 56(e)? ........... 8
2. Whether the Hori and Wils declarations are made by previously undisclosed witnesses? ..................................... 10
II. ORDER ........................................................... 14
I. OPINION
A. Procedural history
On November 2, 2000, plaintiff filed its complaint and jury demand. (Doc. Ent. 1). Plaintiff alleges copyright infringement by defendant in violation of 17 U.S.C. § 101, et seq. Plaintiff asserts that its "Witch Crash" and "Witch Smash" patterns are works containing original material which is copyrightable subject matter. Compl. at ¶¶ 12-13. Plaintiffs complaint alleges that defendant "has reproduced, distributed, promoted, sold, and offered for sale illegal and unauthorized copies, including derivative works, of the "Witch Crash" and/or "Witch Smash works and thus has infringed [plaintiffs] copyright(s) in and relating to the copied works." Compl. at ¶ 14. Defendant filed its answer and affirmative defenses on February 20, 2001. (Doc. Ent. 8).
On June 13, 2001, the Winfield Collection, Ltd. filed another lawsuit naming, among others, LTD Commodities, Inc. and Taylor Gifts, Inc. (alleged customers of Sun Hill). See Winfield Collection, Ltd. v. Meredith Corporation, et al. [Case No. 01-CV-40157-FL]. According to the docket sheet, the only remaining defendants in this case are Meredith Corporation; New Creative Enterprises, Inc.; and Lillian Vernon Corp.
The named defendants included Meredith Corporation; McCall Pattern Company; Taylor Gifts, Inc.; LTD Commodities, Inc.; New Creative Enterprises, Inc.; Potpourri Collection, Inc.; Lillian Vernon Corporation; Fun World Division; and Impact Plastics, Inc.
On August 1, 2001, defendant filed a motion to amend its answer in the instant case to include counterclaims. (Doc. Ent. 27). On November 14, 2001, Judge Woods granted in part and denied in part defendant's motion. (Doc. Ent. 56). On November 30, 2001, plaintiff filed a conditional motion for summary judgment on Sun Hill's tortious interference counterclaim. (Doc. Ent. 60). Defendant filed a counterclaim of tortious interference with jury demand on December 7, 2001. (Doc. Ent. 69). On December 26, 2001, defendant filed a response to plaintiffs conditional motion. (Doc. Ent. 79). The exhibits to this response included excerpts of the deposition transcript of William Zilliox (Sun Hill's CEO); the declaration of Michael Hori (VP Merchandising at LTD Commodities, Inc.); and the declaration of Mark F. Wils (Director of Purchasing and Operations for Taylor Gifts, Inc.). On January 11, 2002, plaintiff filed a reply to defendant's response. (Doc. Ent. 86).
The Wils declaration is dated August 28, 2001, and the Hori declaration is dated December 20, 2001. (Doc. Ent. 79 Exhibits 4, 2).
B. Plaintiffs motion to strike the Zilliox deposition and the Hori and Wils declarations from the evidentiary record
On January 11, 2002, plaintiff filed a motion to strike (1) the Zilliox deposition, (2) the Hori declaration, and (3) the Wils declaration from the evidentiary record presented by Sun Hill Industries in opposition to the motion for summary judgment on Sun Hill's tortious interference counterclaim pursuant to Fed.R.Civ.P. 26(e) and 37(c)(1). (Doc. Ent. 84 [Mtn.]). Plaintiff contends that the Zilliox deposition testimony is not made on "personal knowledge" as required by Fed.R.Civ.P. 56(e) and the Hori and Wils declarations are made by previously undisclosed witnesses.
On January 31, 2002, Judge Woods referred plaintiffs motion to me for hearing and determination. (Doc Ent. 96).
On January 28, 2002, defendant filed a response in opposition to plaintiffs motion to strike. (Doc. Ent. 94). Defendant argues that the Zilliox testimony and the Wils and Hori declarations should not be stricken from the record, because (1) Zilliox "testified as to how [defendant's] business has been harmed by [plaintiffs] disruption of [defendant's] business," and (2) "Sun Hill's customers Taylor Gifts (Mark Wils — Director of Operations) and LTD Commodities (Mike Hori — Vice President), were sued by Winfield in June of 2001, for copyright infringement based upon sales of [defendant's] products, and where Wils and Hori gave declarations that were properly based on their own personal knowledge supporting the elements of [defendant's] tortious interference counterclaim that was filed on December 7, 2001 [.]" (Doc. Ent. 94 at 2).
On January 31, 2002, plaintiff filed a reply to defendant's response. (Doc. Ent. 95 [Rpl.]). Plaintiff contends that "there is no loophole for deposition testimony under Rule 56(e)[;]" "[t]here was no 'waiver' for failure to have objected on the grounds of hearsay during the Zilliox deposition[;]" "the August, 28, 2001 Wils declaration in the Flint case is totally unrelated to Sun Hill's tortious interference claim in this case[;]" "[t]here was no impediment . . . to Sun Hill's later obligation to disclose Mr. Hori under Rule 26(e)(1)[;] "Sun Hill's "cropping of interrogatory No. 9" distorts it; and "Messrs. Hor and Wils are not 'rebuttal witnesses' on Sun Hill's tortious interference counterclaim[.]" Rpl. at 1-4.
On February 25, 2002, I heard oral argument, after which I took plaintiffs motion under advisement.
C. Applicable law
1. Depositions and discovery
Part V of the Federal Rules of Civil Procedure, Rules 26 through 37, governs depositions and discovery. Rule 26(a), which addresses required disclosures and methods to discovery additional matter states in pertinent part:
(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties: (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information[.] . . .
(3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to other parties and promptly file with the court the following information regarding the evidence that it may present at trial other than solely for impeachment:
(A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises;
(B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and
(C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and promptly file a list disclosing (I) any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(B), and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of materials identified under Rule 26(a)(3)©). Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, are waived unless excused by the court for good cause.
Fed.R.Civ.P. 26(a)(1)(A); Fed.R.Civ.P. 26(a)(3). Rule 26(e), which addresses the supplementation of disclosures and responses, states:
A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
Rule 30 governs "depositions upon oral examination[.]" As to the "[n]otice of [e]xamination: [g]eneral [r]equirements; [m]ethod of [r]ecording; [p]roduction of [d]ocuments and [t]hings; [d]eposition of [o]rganization; [d]eposition by [t]elephone[,]" Rule 30 states, in pertinent part:
A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
Rule 37 governs sanctions and the "failure to make disclosure or cooperate in discovery[.]" It states, in pertinent part:
(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.
(1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and ©) and may include informing the jury of the failure to make the disclosure.
2. Judgment
Part VII of the Federal Rules of Civil Procedure, Rules 54 through 63, governs judgment.
Rule 56, which addresses summary judgment, states as follows:
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); accord United Steelworkers of America, AFL-CIO, CLC v. United Engineering, Inc. et al, 52 F.3d 1386, 1390 (6th Cir. 1995), Smith v. Freland, 954 F.2d 343, 345 (6th Cir. 1992).
D. Analysis
1. Whether the Zilliox deposition is made on "personal knowledge" as required by Fed.R.Civ.P. 56(e)?
Zilliox, defendant Sun Hill's CEO, was deposed on November 5, 2001. The following is a summary of the deposition testimony at issue:
When questioned by defense counsel, Zilliox testified that defendant has been harmed by the lawsuit naming LTD and Lillian Vernon, because Lillian Vernon cancelled its order with Sun Hill and LTD, although it gave defendant an order, has not sold their products and did not give defendant a re-order. Rsp. Br. Ex. 1 at 67-68. Zilliox also testified that LTD's initial 2000 order was for $220,000-$250,000, and this year the order was approximately $150,000 with no repeat business (as had previously been the case) due to the lawsuit. Rsp. Ex. 1 at 68, 78. Zilliox's explanation for the absence of a re-order is that LTD was not able to sell the product. Id. at 69. Furthermore, he testified that Lillian Vernon cancelled its order (purchase order D000846) because of the pending lawsuit. Id. at 69, 78. When questioned by plaintiffs counsel, Zilliox testified that he has never spoken directly to LTD or Lillian Vernon about order status. Mtn. Br. Ex. H at 75. He stated that he received his knowledge about LTD and Lillian Vernon through other channels and does not have firsthand knowledge of their failure to reorder. Id. at 75. To Zilliox's knowledge, defendant has not made an independent infringement determination and has not disclosed to any customer any opinion of counsel regarding the same. Id. at 76. Zilliox does not know whether defendant's customers have conducted an infringement assessment on the products in question. Id. at 76-77. He agreed that if a responsible customer had reached an opinion that the products infringed it would not reorder. Id. at 77, 79. He further testified that if a customer had been sued for copyright infringement it would be normal to make such an investigation. Id. at 78. He also testified that he could not articulate under oath the underlying reasons for the lack of re-orders. Id. at 79.
Plaintiff raises two primary objections to the inclusion of the Zilliox deposition in the Court's consideration of its summary judgment motion. First, plaintiff contends that the Zilliox deposition testimony is not made on "personal knowledge" as required by Fed.R.Civ.P. 56(e) and is pure hearsay. According to plaintiff, "[i]t is clear that Mr. Zilliox lacked any 'personal knowledge' concerning the tortious interference claim." Mtn. Br. at 5. Defendant argues that Zilliox testified based on his personal knowledge of how defendant has been harmed, his testimony is relevant and admissible, and his testimony properly rebuts plaintiffs attorney's questions on unsupported theories of harm. Defendant correctly notes that Rule 56(e)'s first sentence (regarding personal knowledge) applies to affidavits and not sworn deposition testimony. However, plaintiff claims that defendant's interpretation of Rule 56(e) is in conflict with Fed.R.Evid. 602 ("Lack of Personal Knowledge"), which states, in pertinent part, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony."
Second, plaintiff argues that the deposition testimony is pure hearsay. Defendant mistakenly argues that the failure to make a hearsay objection during the testimony constitutes waiver. As plaintiff points out in its reply, "[o]bjections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objections is one which might have been obviated or removed if presented at that time." Fed.R.Civ.P. 32(d)(3)(A).
Upon consideration, I conclude that plaintiffs opposition to the Zilliox deposition testimony does not constitute an argument that defendant has not complied procedurally with the rules for summary judgment. In essence, plaintiff argues that the deposition does not raise a genuine issue of material fact — the purpose for which a summary judgment motion is filed. Therefore, plaintiffs motion as it relates to the Zilliox deposition is denied without prejudice to plaintiff renewing the argument in its motion for summary judgment.
2. Whether the Hori and Wils declarations are made by previously undisclosed witnesses?
Plaintiff contends that the Hori and Wils declarations are made by previously undisclosed witnesses. According to plaintiff, these declarations were not disclosed in (1) the Rule 26(a)(1)(A) disclosures (dated April 23, 2001 — Mtn. Ex. C); (2) defendant's witness list (on or about October 26, 2001 — Mtn. Ex. G); (3) defendant's response to plaintiffs interrogatory No. 9, which directly addressed the names of witnesses on the tortious interference claim (on or about October 8, 2001 — Mtn. Ex. F); and (4) the Fed.R.Civ.P. 30 (b)(6) deposition testimony of Zilliox regarding the personnel names of defendant's customers with whom plaintiff has allegedly interfered (November 5, 2001 — Mtn. Ex. H). Plaintiff argues that defendant should have had the names of supporting witnesses and documentation when it filed its August 1, 2001 motion for leave to amend and it is immaterial that leave to amend was not granted until November 14, 2001. Mtn. Br. at 6. Plaintiff claims that "[t]he disclosure of Messrs. Hori and Wils for the first time on December 26, 2001, well past the close of discovery, is extremely prejudicial to Winfield Collection[,]" because defendant kept plaintiff from deposing these individuals; kept plaintiff from seeking related discovery; and from cross-examining the veracity of the declarations. Mtn. at 1, Mtn. Br. at 7. In support of its position, plaintiff cites Provident Life Accident Insurance Company v. Adie, 176 F.R.D. 246 (E.D. Mich. 1997) (Gadola, J.).
As is apparent from Section I.D. 1 of this report, Hori's company (LTD Commodities, Inc.) was mentioned in Zilliox's deposition testimony.
Following the disposition of cross-motions for summary judgment, plaintiff Dr. Adie brought a "motion in limine to exclude from trial any evidence not previously provided by Provident in support of its defense that Dr. Adie is not 'totally disabled' within the meaning of the disability insurance policy." Provident Life Accident Insurance Company, 176 F.R.D. at 251. Judge Gadola held that "[u]nder a straightforward application of Rules 26(e)(1) and Rule 37(a)(1), Provident should be precluded from introducing into evidence any previously non-disclosed evidence pertaining to the 'total disability' issue." Id.
Defendant argues that the declarations of Hori and Wils support the elements of a tortious interference claim. Rsp. at 5. It claims that plaintiff should not be surprised by its December 26, 2001 attachment of the declarations to its summary judgment response, because plaintiff sued Hori's and Wils' companies last year and support for the August 31, 2001 motion for summary judgment in that case included the August 28, 2001 Wils' declaration now at issue. Rsp. at 5. As to the Hori declaration, defendant contends that Hori was not named in the April 23, 2001 Rule 26 (a) disclosure, because defendant had no basis for its tortious interference counterclaim at that point. Rsp. at 6. Furthermore, defendant contends that "[p]laintiff's interrogatory no. 9 never asked Sun Hill to identify who Sun Hill's customers were that the tortious interference claim is based on." Rsp. at 7. Finally, defendant argues that "Sun Hill's October 26, 2001 witness list expressly reserved the right to call rebuttal witnesses[,]" and "Hori and Wils' declarations rebut [p]laintiff's unsupported attorney arguments in its [November 30, 2001] summary judgment motion [at pages 7-9]." Rsp. at 7. In support of its position, defendant cites Robertson v. Johnson County, Kentucky, et al, 896 F. Supp. 673 (E.D. Ky. 1995).
Assuming that Michigan law applies, "[t]he elements of tortious interference with a contractual relationship are (1) a contract, (2) a breach, and (3) instigation of the breach without justification by the defendant." Wood v. Herndon and Herndon Investigations, Inc., 186 Mich. App. 495, 499, 465 N.W.2d 5, 8 (1990). See also Tata Consultancy Services, a Div. of Tata Sons Ltd. v. Systems Intern., Inc., 31 F.3d 416, 422 (6th Cir. 1994).
Defendant also notes that plaintiff submitted the declaration of Stephen Johnson in support of its motion for summary judgment and alleges that Mr. Johnson was not cited as a witness in the Rule 26 disclosure, the witness list, or elsewhere. Rsp. at 7.
The Court has the discretion to exclude the [expert testimony] for the plaintiffs counsel's failure to comply with the Court's scheduling Order and Rule 26." Robertson, 896 F. Supp. at 678. Further, the court considered the expert testimony in ruling on the dispositive motion "with the understanding that the defendants have not had an adequate opportunity to rebut [the expert testimony]." Id. at 679. The court reopened discovery for the limited purpose of permitting defendant to depose the expert. Id.
In reply, plaintiff argues that the August 28, 2001 Wils declaration is unrelated to defendant's tortious interference claim and the fact that it surfaced in a different case does not excuse its concealment in the case at bar. Rpl. at 2. Furthermore, plaintiff argues that Rule 26(e)(1) sets forth a party's continuing duty to supplement Rule 26 disclosures, and defendant failed to comply with this provision of the rule for seven months (beginning with the filing of the Meredith case [01-CV-40157-FL]). Rpl. at 3. Also, plaintiff argues that defendant "has interpreted Interrogatory No. 9 in an artificially restrictive or hyper-technical manner to justify its failure to disclose Messrs. Hori and Wils." Rpl. at 4. Finally, as to defendant's claim that Hori and Wils are rebuttal witnesses, plaintiff argues that "they are material witnesses on [defendant's] case-in-chief on its tortious interference counterclaim." Rpl. at 4.
In light of Rule 26(a)(1)(A)'s use of the words "claims or defenses", I conclude that defendant was not obligated to disclose Wils and Hori as witnesses before December 7, 2001, the date on which the tortious interference counterclaim was filed (the date on which it became a "claim"). However, this occurred past the April 23, 2001 exchange of initial disclosures, Mtn. Br. at 1, and the November 15, 2001 discovery deadline, Doc. Ent. 11. Therefore, because the deadlines in place on December 7th would have been inapplicable with regard to disclosure/supplementation on the tortious interference claim, I must consider at what point Wils and Hori should have been disclosed as witnesses.
In considering when Wils and Hori should have been disclosed as witnesses, I am confronted by the timing aspects of Rules 26(a)(1) ("Initial Disclosures") and 26(a)(3) ("Pretrial Disclosures"). Rule 26 (a)(1) requires that initial disclosures be made "at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the Rule 26(f) discovery plan." Clearly, 26(a)(1) is not applicable to defendant's tortious interference counterclaim, because it was impossible in this case for a duty which arose, at its earliest, on December 7th to be fulfilled at or within 14 days of the Rule 26(f) conference. Rule 26 (a)(3) requires that pretrial disclosures be made at least 30 days before trial. According to Judge Wood's April 17, 2001 scheduling order, the civil jury trial in this case is set for July 9, 2002. Therefore, even assuming, arguendo, that disclosure of Wils and Hori occurred on December 26, 2001 (the date of defendant's response to plaintiffs motion for summary judgment on defendant's tortious interference counterclaim), disclosure clearly occurred more than 30 days before the scheduled trial date. Therefore, an order permitting these declarations to be used in opposition to plaintiffs motion for summary judgment is not inconsistent with Rule 26.
Additionally, parties are under a "duty to supplement . . . disclosures" and a "duty . . . to amend a prior response to an interrogatory, request for production, or request for admission" as provided in Fed.R.Civ.P. 26(e)(1) and (2). Plaintiff's interrogatory no. 9 was allegedly served on defendant on August 1, 2001 — the same day as defendant's motion to amend was filed. Having decided the disclosure issue pursuant to Fed.R.Civ.P. 26(a), I need not resolve whether Wils and Hori should have been identified in a supplemental answer to interrogatory no. 9 pursuant to 26(e).
However, I am cognizant of plaintiffs argument that it is prejudiced by the "late" disclosure of Wils and Hori as witnesses. I disagree with defendant's argument that plaintiff should not be surprised by defendant's use of the Wils declaration in the case at bar on the basis that it was used in the Flint case. Defendant has not cited legal authority for the notion that disclosure in plaintiffs other lawsuit constitutes disclosure in the case at bar. Rsp. at 5-6. Furthermore, even if plaintiff was aware of these declarations as a result of its lawsuit against defendant's customers, it was not afforded the opportunity to cross-examine Wils and Hori as to defendant's counterclaim against plaintiff. Therefore, although plaintiffs motion to strike is denied as to the Wils and Hori declarations, discovery shall be reopened for the limited purpose of deposing Wils and Hori on the tortious interference counterclaim and to seek related discovery.
II. ORDER
In accordance with Section I.D. 1 of this opinion, plaintiffs January 11, 2002 motion to strike as it relates to the Zilliox deposition is DENIED without prejudice to plaintiff renewing the argument in its motion for summary judgment. Furthermore, in accordance with Section II.D.2 of this opinion, plaintiffs motion to strike is DENIED as to the Wils and Hori declarations. However, discovery shall be reopened for the limited purpose of deposing Wils and Hori on the tortious interference counterclaim and to seek related discovery.
The attention of the parties is drawn to Fed.R.Civ.P. 72(a), which provides a period of ten days from the date of receipt of a copy of this order within which to file any written appeal to the District Judge as may be permissible under 28 U.S.C. § 636(b)(1).