Man 'o man, sure seems digEcor wants to get Blakeley's declaration striken badly.

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Plaintiff digEcor, Inc. submits this Reply Memorandum in Support of its Motion to Strike the Declaration of William Blakeley in Support of Defendants’ Motion for Partial Summary Judgment.

ARGUMENT

I. BLAKELEY LACKS PERSONAL KNOWLEDGE OF AND DOES NOT PROVIDE FOUNDATION FOR THE BROAD GENERALIZATIONS CONTAINED IN HIS DECLARATION.

Defendants’ Memorandum in Opposition to digEcor’s Motion to Strike the September 5, 2008 Declaration of William Blakeley argues that Blakeley has provided sufficient foundation SLC_274665 for the testimony contained in his declaration by pointing to a newly filed declaration and to a discovery response made by Blakeley last March.

As an initial matter, neither of these extraneous items can be considered by the Court in ruling on e.Digital’s Motion for Summary Judgment. DUCivR 56-1(e) (materials support a request for summary judgment “must be attached to or submitted with the memorandum when it is filed with the court and served on the other parties”). A party cannot rehabilitate its defective motion for summary judgment by providing additional materials after the filing of the motion. Doing so prejudices digEcor, as the opposing party, by preventing it from being able to respond to the new materials. The Court must examine the Blakeley declaration on its face, without reference to extraneous matters, and in this case doing so reveals that the declaration obviously suffers for a lack of lacking foundation.

e.Digital argues that foundation is laid in paragraph 3 of the Blakeley declaration. Paragraph 3 is not foundation; it merely stated that Mr. Blakeley has “been heavily involved” in the IFE industry (but only since 2006), has attended “six different industry-wide tradeshows and conferences,” and has met with some “executives” at these trade shows. Paragraph 3 says nothing of any specific experiences attributable to Mr. Blakeley that could possibly serve as foundation for the broad and sweeping statements contained in his declaration. Indeed, paragraph 3 does not say which executives Mr. Blakeley has met with, nor how he knows these persons to be executives (as opposed to them being purchasers or salesmen or some other capacity), nor what he discussed with them, nor how long these discussions lasted, nor how this informs his opinions, nor how it qualifies him to give any expert or lay opinions. In fact, the sentence in the declaration about these alleged meeting with “over 100 airline and studio IFE 2 executives” even fudges about whether it was Mr. Blakeley personally, as opposed to his staff, who supposedly had these interactions. The declaration says, “the e.Digital team and I have met with over 100 airline and studio IFE executives.” (Blakeley Dec., ¶ 3). Thus, based on the plain language of the declaration itself, we aren’t even informed which of these interactions were with team members, which were with Blakeley himself, or which were with both. The declaration does not, as e.Digital argues, contain a statement from Mr. Blakeley, “under oath, that he has met personally with over 100 airline and studio IFE executives, and has engaged in extensive negotiations and due diligence involving may of those same IFE specialists.” Opp. Memo, p. 2. The declaration says nothing about any “extensive negotiations and due diligence,” nor would one expect that to occur at a trade show or industry conference. The declaration should be stricken for lack of foundation.

Even if Blakeley is involved in the IFE industry and could offer testimony based on personal knowledge he has gained from those experiences, the problem with Blakeley’s declaration is the generalizations that it contains. Blakeley has not adequately established that he has sufficient personal knowledge on which to base such broad generalizations. Blakeley did not testify that any specific IFE coordinators or any specific airlines with which he has dealt have certain characteristics or support his sweeping conclusions. Moreover, he provides no information about the size of this market, such as the total number of IFE coordinators and the number of airlines, so there is no way to know whether he has actually dealt with enough of market to support his opinions. The unsupported statement that Blakeley has met with “over 100 airline and studio IFE executives” is therefore meaningless because it lacks context.

The two documents attached to the opposition are unhelpful. First, e.Digital cites to Mr. Blakeley’s response to Interrogatory No. 3 of March 28, 2008, saying that this discovery contains “much more detail regarding [Blakeley’s] extensive contacts in the IFE industry.” Opp. Memo, p. 2. If this response were helpful, e.Digital could have submitted it with its motion for summary judgment, but it did not, so it cannot be considered now. Likewise, e.Digital could have attached it to its Opposition, but it did not. Instead, it attached a response from Mr. Falk that sheds no light on this issue at all. We have filed herewith as Exhibit 1 to this memorandum the relevant pages of the March 28, 2008 response to Interrogatory No. 3, which e.Digital did not attach. You can see that the response to Interrogatory No. 3 is not illustrative of any foundation for Mr. Blakeley’s sweeping declaration testimony. The response shows that Mr. Blakeley has met with only 35 airlines or studios (far short of the not the “more than 100” claimed in his declaration). Also, the interrogatory response does not give any substance of any discussions that Mr. Blakeley may have had. Mr. Blakeley certainly does not say in this discovery that anything relevant to his declaration opinions was discussed. There is no evidence in this discovery response of any “extensive negotiations and due diligence,” as e.Digital now suggests. These discovery responses are not foundation.

Similarly, the new Blakeley declaration filed on October 9, 2008—which came after e.Digital’s summary judgment motion had been briefed, and which was never offered to support that motion—does not provide any foundation. In that declaration Mr. Blakeley says that he received only three RFPs (without attaching the RFPs) and then the declaration goes on to discuss and compare the technical capabilities of the digEplayer 5500 vs. e.Digital’s eVU.

Nothing in this declaration supports a foundation for the broad and sweeping statements in Blakeley’s Sept. 5 Declaration.

Defendants cannot expect the Court to accept Blakeley’s broad and general opinions without foundation. If there were any support for his declarations, which is doubtful, Blakeley could have offered a narrowly tailored declaration that was supported by personal knowledge. He did not do so; rather, he chose to make broad, unsupported generalizations about the IFE and airline industries. Blakeley’s declaration must therefore be stricken.

II. BLAKELEY’S DECLARATION DOES NOT CONTAIN ADMISSIBLE LAY OPINION TESTIMONY.

Defendants do not argue that Blakely is qualified to offer expert opinion testimony—which he is not—but argue instead that his declaration is not “expert” but “lay” opinion testimony offered under Rule 701, Fed. R. Evid. Rule 701(a) requires that lay opinions be “rationally based on the perception of the witness.” Blakeley’s opinions should be stricken because they go beyond the permissible bounds established by Rule 701. Instead of offering testimony regarding what he has specifically observed (and specifically explaining how he observed something), Blakeley instead offers opinions of broad generalizations of various alleged characteristics of the IFE and the airline industries as a whole. As discussed above, there is no foundation provided for such broad generalizations. Blakeley has not demonstrated that his experience allows him to directly perceive the operations of the industry such that he could even offer a lay opinions. Thus, the Court should strike his declaration.

CONCLUSION

For these reasons, digEcor requests that the Court strike those portions of William Blakeley’s declaration that are the subject of this motion.

DATED: November 6, 2008

DURHAM JONES & PINEGAR

/s/ David W. Tufts

David W. Tufts

Erin T. Middleton

Attorneys for digEcor, Inc.