Copied & pasted info from doc 120 below (sorry for the change in fonts...I'm copying exactly from the PACER doc but Agora software doesn't paste correctly)  Will also post entire PDF on box.net tonight.

Defendant e.Digital Corporation ("e.Digital") hereby submits its Memorandum in Opposition to Plaintiff’s Motion to Strike Portions of the Declarations of Fred Falk, Stephen Ferguson, William Blakeley, Ken Clark, and e.Digital’s Statement of Facts.

INTRODUCTION

In its Motion to Strike, Plaintiff attempts to remove from the Court’s notice numerous facts that are both well-known and well-supported. This strategy looks past the voluminous issues of material fact that make Plaintiff’s Motion for Summary Judgment untenable, focusing instead on a number of allegations at the periphery of the dispute. While none of the challenged statements are necessary to defeat Plaintiff’s Motion for Summary Judgment, all are admissible under the rules of evidence, and therefore not subject to evidentiary challenges. For the reasons set forth herein, Plaintiff’s Motion to Strike should be denied.

ARGUMENT

A. Declarants Clark and Falk are competent to testify regarding the parties’ understandings of the 2002 NDA.

Plaintiff first challenges the foundation for the testimony by Fred Falk and Ken Clark regarding the parties’ intentions in signing the 2002 NDA. In making this argument, Plaintiff skips conveniently over the sections of the declarations that specifically set forth the foundation of each witness for the comments made. For example, Ken Clark states that his assertions regarding e.Digital’s and APS’s intentions concerning the NDA were based on his contacts with Bill Boyer and "conversations and emails with e.Digital." Such communications with both sides of the negotiation give Mr. Clark a solid foundation for commenting on how the parties viewed the nature of the NDA.1

Fred Falk’s foundation for commenting on the nature of the 2002 NDA is similarly unimpeachable. As clearly stated in his declaration, Mr. Falk was the President and CEO of e.Digital at the time the NDA was negotiated and signed. Regardless of Mr. Falk’s role in drafting the details of the NDA, he was the leader of the company at the time. There is no question that e.Digital as a company had an understanding of what the NDA meant to it when the agreement was signed. The president of the company is a competent witness to describe what

that understanding was, having run the company in accordance with his understanding of the NDA. Plaintiff’s contention that only those actually involved in the negotiations are competent to have an understanding of the agreement has no support and would not work in the practical world, where business executives must understand corporate documents to make corporate decisions. Thus, neither the testimony of Mr. Clark or Mr. Falk should be stricken.

B. Plaintiff has not met its burden of showing that the communications described in the Clark Declaration are privileged.

Plaintiff asks the Court to strike the statement of Ken Clark regarding APS’s attorney’s advice that Bill Boyer must attempt to own the rights to the digEplayer technology. Plaintiff offers no support for its argument, besides a generic citation on the general effect of the attorney-client privilege. As the party claiming the privilege, Plaintiff has the burden of showing that the privilege applies in this case, which it has failed to do. See In re Foster, 188 F.3d 1259, 1264 (10th Cir. 1999); also Lifewise Master Funding v. Telebank, 206 F.R.D. 298, 301 (D. Utah 2002).

As Plaintiff notes in its memorandum, Ken Clark was a "consultant" to APS, which is not to say he was an APS employee. Thus, unless Plaintiff can prove that Mr. Clark was an actual employee of APS, communications made in his presence were not privileged. See, e.g. U.S. v. Wade, 203 Fed. Appx. 920, 926 (10th Cir. 2006) ("the presence of a third party negatives the presumption of privacy."). Further, Plaintiff has cited no law supporting its proposition that Clark is bound by Plaintiff’s privilege rights. Having failed to carry its burden on this issue, Plaintiff should not prevail in striking this paragraph of the Ken Clark declaration.

C. Mr. Ferguson’s statements regarding e.Digital’s plans for a portable video device are based on sufficient foundation and are substantiated by many other witnesses.

Plaintiff next argues that the testimony of Steve Ferguson regarding e.Digital’s pre-existing plans to market a portable video player device is inadmissible as contradictory and lacking in foundation. It is true that Exhibit 2 to Mr. Ferguson’s declaration references Hy-Tek Manufacturing Company, rather than e.Digital. But this is perfectly consistent with the facts on the record, given that Hy-Tek was the company that e.Digital had partnered with to produce its device, as confirmed by multiple other witnesses, including Hy-Tek’s President. See Bastian Decl. ¶¶ 4-7; Falk Decl. ¶ 6; Bostenero Decl. ¶ 4. Further, it is not true, as Plaintiff alleges, that Exhibit 2 is e.Digital’s only evidence of its plans to produce its hard-drive based portable video player. Besides a number of declarations to that effect (see Falk Decl. ¶¶ 4-7; Bastian Decl. ¶¶ 4-7; Bostenero Decl. ¶ 4; Ferguson Decl. ¶¶ 2-9), Exhibit 3 to Mr. Ferguson’s declaration gives further documentation of e.Digital’s early plans to market a "Portable HDD [Hard Disk Drive] based video player." See Ferguson Decl. ¶ 7; and Exhibit 3.

Thus, the facts detailed in Mr. Ferguson’s testimony and exhibits are perfectly consistent, both internally and with the testimony of several other witnesses on the record. For these reasons, Plaintiff’s arguments miss their mark and Mr. Ferguson’s testimony should be admitted.

D. Fred Falk’s statements regarding the IFE industry’s development of portable video players are not hearsay.

Plaintiff next attacks the testimony of Fred Falk on the grounds that his statements regarding the state of his industry lack foundation and contain hearsay. Again, in making this argument, Plaintiff skips past the very language that answers its objections. Mr. Falk’s statement in Paragraph 12 that Bill Boyer’s idea was not new or confidential is supported by the exhibits

and allegations of paragraphs 13 and 14, which show that others possessed the same idea at the same time. The exhibits submitted show that there were many other companies marketing or developing similar products, and some commentators were already envisioning their use in the airline industry. Thus, the statements based on the exhibits have a strong foundational basis.

Plaintiff’s dismissal of this documentary evidence on the basis of hearsay is untenable. Mr. Falk’s exhibits are not offered to show any specific company offered any specific product at a certain date. Rather, these articles illustrate generally that the idea of marketing a portable video device, sometimes to airlines, was quite broadly disseminated in the public square at the time Bill Boyer approached e.Digital with his "confidential" idea. This is exactly the same type of evidence as that presented by Plaintiff in support of Brent Wood’s affidavit testimony regarding the issue of confusion— i.e., Internet articles submitted simply to show the existence of a general notion in the public. See Boyer Affidavit, ¶¶ 42, 64, 69. Because the Falk exhibits are not offered for the truth of the matter they assert, but for the proposition that Boyer’s idea was not confidential, they should not be stricken from the record, but should be admitted for the great probative value they bring to the debate about the alleged novelty of Boyer’s proposal.

E. Mr. Falk is competent to testify regarding the company for whom he served as President and CEO.

Fred Falk was the President and CEO of e.Digital. Based on that position, he is competent to testify that e.Digital was an established company in 2002, that it had produced significant goodwill, and that part of its goodwill was its reputation. Plaintiff asserts, without support, that only a company outsider could possibly know what e.Digital’s reputation was. On the contrary, as the person responsible for managing that reputation, Fred Falk is perfectly competent to testify on what he perceived regarding the topic.

Plaintiff’s further attempts to remove from the record facts that are plainly true and widely-known are baffling. The ideas that technology is a rapidly evolving field, and that new companies benefit by partnering with established companies, are so non-controversial as to be conventional wisdom. Regardless, Fred Falk has worked for e.Digital for over a decade, and is qualified to make statements about the general state of the industry in which he works. Plaintiff’s unsupported challenge to his statements summarizing his concrete experience in the industry should be rejected.

F. e.Digital’s Statements regarding the labeling of the digEplayer are accurate and based on clear foundation.

Plaintiff argues that paragraphs 31, 39, 64, and 67 all make statements without foundation. This is incorrect. These paragraphs all rebut Plaintiff’s contention that the public is likely to be confused about who made and sold the digEplayer, by asserting that all digEplayers bear a label showing that they were designed by e.Digital for APS. Each paragraph cites to the Falk Declaration and two of its exhibits, which describe and show the labeling of the players. These exhibits, combined with Mr. Falk’s obvious knowledge about the labeling and packaging of his company’s products, provide clear foundation for these statements.2

Finally, Plaintiff argues that the Blakeley Declaration lacks foundation for the statement that JetStar solicited proposals from many other parties. Again Plaintiff overlooks the obvious foundation for this statement. Mr. Blakeley’s foundation is provided in Exhibit 1 to his declaration, which is a "Request for Proposals" distributed by JetStar- clear evidence that others in the industry were approached to submit proposals to provide IFE devices. Plaintiff’s refusal to

note this foundation creates an insurmountable weakness in its argument. All of the testimony of Mr. Falk and Mr. Blakeley should be admitted.

CONCLUSION

For the reasons stated above, the Motion to Strike should be denied.

DATED this 3rd day of August, 2007.

RAY QUINNEY & NEBEKER P.C.

/s/ Ryan B. Bell

James S. Jardine

Samuel C. Straight

Ryan B. Bell

Attorneys for Defendant e.Digital Corporation