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CACIQUE, INC. v. V&V SUPREMO FOODS

September 29, 2004.

CACIQUE, INC. AND CACIQUE DISTRIBUTORS, U.S. Plaintiffs,
v.
V&V SUPREMO FOODS, INC. AND WILFORD PARKER Defendants.



The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

Before this Court is V&V Supremo Foods, Inc. and Wilford Parker's (collectively, "Defendants") motion for summary judgment on Plaintiffs' Cacique, Inc. and Cacique Distributors, U.S.'s (collectively, "Plaintiffs" or "Cacique") complaint. In addition, Defendants and Plaintiffs have filed motions to strike certain documents and Local Rule 56.1 materials from the record. For the reasons set forth below, Defendants' motion to strike is GRANTED in part and DENIED in part. Plaintiffs' motion to strike is DENIED. Defendants' motion for summary judgment is GRANTED in part and DENIED in part.

PARTIES' MOTIONS TO STRIKE

  Before the Court can address Defendants' motion for summary judgment, it must address the motions to strike filed by the Parties, in order to determine whether certain evidence should not be considered in evaluating Defendants' motion for summary judgment. Each motion to strike will be addressed in turn. I. Defendants' Motion to Strike

  Defendants have filed a motion to strike a number of documents filed by the Plaintiffs in opposition to V&V Supremo Foods, Inc.'s ("V&V") motion to strike. Defendants move to strike several paragraphs in the declarations of William Moore ("Moore"), Ernest Ramirez ("Ramirez"), Tirso Iglesias ("Iglesias"), and Gilbert de Cardenas, Jr. ("de Cardenas, Jr."), and the entire declaration of George Salmas ("Salmas"). In addition, V&V moves to strike specific paragraphs of Plaintiffs' Rule 56.1(b)(3)(B) Statement of Additional Facts filed in opposition to Defendants' motion for summary judgment. Each of the items Defendants seek to strike from the record will be addressed in turn.

  A. William Moore

  I. Defendants' Motion to Strike Paragraphs 1, 5, 6, 8 Through 21, and the Last Sentence of Paragraph 20 of Moore's Declaration

  Defendants argue that the Court should strike the above-mentioned paragraphs of Moore's declaration because Moore does not establish personal knowledge and adequate foundation for his statements in these paragraphs pursuant to Fed.R. Evid. 602. For example, V&V contends, Moore lacks personal knowledge of Plaintiffs' alleged research, marketing or selling strategies during the time that Parker was employed with Cacique. In Paragraph 1 of his declaration, Moore states that he has been employed as the Chief Executive Officer for Sales and Marketing of Cacique, Inc. and Cacique Distributors, U.S. since January 2, 2002. (See Moore Decl., ¶ 1). However, Defendants note, Plaintiffs terminated Wilford Parker's employment on January 7, 2002. Consequently, Defendants contend, Moore lacks personal knowledge of Plaintiffs' research, marketing or sales strategies when Parker was employed — i.e., before Moore himself was employed. In addition, Defendants contend that Moore lacks personal knowledge of the steps that Plaintiffs took to protect any confidential information when Parker was employed. Defendants also assert that the above-mentioned paragraphs should be stricken because Moore does not establish any foundation. For example, Defendants argue, Moore does not provide any foundation in paragraph 5 to support his contention that, "Cacique is the only brand of Hispanic dairy products sold nationally." (See Moore Decl, ¶ 5). Plaintiffs refute V&V's contention that Moore does not provide an adequate foundation for the information contained in his declaration, and assert that Moore has adequately established his personal knowledge and foundation for any facts stated.

  Defendants argue that Plaintiffs' declarations do not comply with the requirements of Fed.R. Civ. P. 56(e). In relevant part, Rule 56(e) states:
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.
  Defendants are correct when they assert that Moore has no personal knowledge concerning whether the policies in question were in place prior to Parker's termination. Moore cannot personally attest to the policies in place prior to his tenure with Cacique. While he may have had an awareness of those policies, that awareness is not based on his personal knowledge, as he was not employed by Cacique during the relevant time period. Therefore, Cacique's motion to strike the aforementioned paragraphs of Moore's declaration is granted, with the exception of paragraphs 10, 12, 17 and 21, for the reasons explained in the section below. 2. Motion to Strike Portions of Moore's Affidavit Pursuant to Fed.R. Evid. 1002
  In addition to its motion to strike portions of Moore's declaration, based on lack of foundation and personal knowledge, Cacique moves to strike other paragraphs of Moore's declaration (paragraphs 9, 10, 12, 17 and 21), because V&V contends that these paragraphs are not based upon admissible facts. Defendants argue that these paragraphs attempt to prove the contents of specific documents which are not attached as exhibits to Moore's declaration. Specifically, in these paragraphs of his declaration, Moore states:
9. Before a person is hired as a Cacique employee, he or she must sign a document entitled, CACIQUE, INC., CONFIDENTIALITY AND INVENTION ASSIGNMENT AGREEMENT. Any person who declines to sign this document will not be hired by the company. When a person is hired, he or she is given a copy of the Cacique Employee Handbook which contains a section on the duty to not divulge company information to third parties.
10. Cacique has policies that restrict the use of computers, office e-mail systems and internet e-mail systems. Employees are told in writing that all information contained in Cacique's computer systems is Cacique's property and none of it is the employee's personal property. Employees are instructed that they should have no expectation of privacy respecting information contained in Cacique's computers.
* * * * *
12. At the end of each employee's employment with Cacique, the former employee receives a letter from Caciques' attorneys reminding him or her they the duty to protect Caciques' confidential information extends beyond the end of employment with Cacique.
* * * *
17. Visitors are permitted to Caciques' facilities for business purposes only after making an appointment at least 24 hours before the visitor is schedule [sic] to arrive. Upon arrival, the visitor is required to sign a "visitors log" which states his or her name, company affiliation, time of arrival, and the name of the Cacique employee with whom the visitor has come to confer. Visitors are required to sign visitor confidentiality agreements before gaining access to Cacique's premises. Visitors to Cacique's properties are escorted during their visit by Cacique's employee with whom the visitor has come to meet.
* * * * 21. Companies that supply goods or services to Cacique are required to sign a Vendor Nondisclosure Agreement before they are permitted to do business with Cacique. This agreement obligations them to maintain the confidentiality of Cacique's confidential information to which they may be exposed while providing goods or services to Cacique. The employees of the suppliers are required to sign visitor confidentiality agreements when they come to Cacique premises.
(See Moore, Decl., ¶¶ 9-10, 12, 17 and 21). According to Fed.R.Evid. 1002, "To prove the content of a writing, recording or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." Federal Rule of Civil Procedure 56(e) requires that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Fed.R. Civ. P. 56(e). However, documents that are relied upon, but not referred to, do not need to be attached. Lennon v. Christoph, No. 94 C 6152, 1997 WL 57150 at * 14 (N.D. Ill. Feb. 7, 1997) (quoting Chicago Dist. Council of Carpenter's Pension Fund v. Anthony Floor and Wall Covering Co., No. 93 C 7246, 1994 WL 65004 at *2 (N.D. Ill. 1994)).

  Defendants are correct that in his declaration, Moore refers to the specific documentation relied upon in paragraph 9, 17 and 21 yet failed to attach the documents which are referred to in making the assertions in paragraph 9. However, in paragraphs 10 and 12, Moore does not refer to any specific documentation in making the assertions in those paragraphs. Consequently, the Court will strike paragraphs 9, 17 and 21, but will not strike paragraphs 10 and 12. The Court will note, however, that since Moore does not have personal knowledge of the policies when Parker was employed, they may only be used to establish Cacique's policies since Moore has been employed with Cacique, and not any time prior to that. B. Ernest Ramirez

  Defendants contend that paragraphs 8, 10, and the next to last sentence of paragraph 5 in Ramirez' declaration lack adequate foundation, and consequently, those paragraphs are not admissible evidence pursuant to Fed.R.Evid. 602 and should be stricken. Defendants note that from April 2001 to early 2004, Ramirez states that he lived and worked in California. V&V contends that Ramirez does not provide any foundation to establish that he had personal knowledge of the Hispanic-style cheese markets in Chicago during the period he lived in California, and therefore, Ramirez does not establish adequate foundation for paragraphs 8 and 10 of his declaration. However, the fact that Ramirez lived in California from April 2001 to early 2004 does not establish that he lacks personal knowledge of the Hispanic-style cheese markets in Chicago, Illinois during the time period when Ramirez worked in California. The fact that he possessed a general knowledge about the Hispanic-style cheese market provides an adequate foundation for Ramirez to testify about Chicago's Hispanic-style cheese market, at least for purposes of this motion. Because V&V has not established that Ramirez lacks personal knowledge of the information in the paragraphs of his declaration that Defendants move to strike, V&V's motion is denied.

  C. Tirso Iglesias
1. Defendants' Motion to Strike Paragraphs 3, 4 and 11
  As with Moore and Ramirez' declarations, Defendants move to strike portions of Iglesias' declaration, and argue that Iglesias does not establish personal knowledge and adequate foundation for his statements in these paragraphs. Specifically, V&V argues that Iglesias does not identify a basis for his statements that Plaintiffs invested a "substantial amount of time and effort" in tracking its sales volume (See Iglesias Decl., ¶ 3). Additionally, Defendants argue that Iglesias does not establish any foundation to support his assertion that Plaintiffs, "have done research into the mix of the products that its consumers purchase." Id. Similarly, V&V argues, Iglesias does not provide any foundation for his statement that, "[S]tore # 5 makes special efforts to cater to a Mexican clientele." (See Iglesias Decl., ¶ 4) Finally, V&V argues, Iglesias does not lay any foundation for his conclusion in Paragraph 11 about consumers' decisions to switch products. Therefore, Defendants argue, the Court should strike these paragraphs, because they are not based on admissible facts.

  As with its arguments about the declarations of Moore and Ramirez, Defendants' arguments to strike portions of Iglesias' declaration lack merit. In the first paragraph of his declaration, Iglesias establishes that he is Cacique Distributors, U.S.'s Vice-President of National Sales, and has been employed by Cacique, Inc. and Cacique Distributors, U.S. in various sales and marketing positions since 1982. (See Iglesias aff., ¶ 1). By testifying to his 22-year work experience with Cacique, Iglesias has laid an adequate foundation to testify to the matters which Defendants seek to strike from the record. Consequently, Defendants' motion to strike these paragraphs from Iglesias' declaration is denied.

  2. Defendants' Motion to Strike Paragraphs 9 Through 11

  Defendants also argue that the Court should strike paragraphs 9 through 11 of Iglesias' declaration, because they include facts that are not admissible evidence pursuant Fed.R. Evid. 1002. Defendants note that in paragraphs 9, 10 and 11, Iglesias attempts to prove the results of Cacique's consumer studies, yet fails to attach those consumer studies as required by Fed.R.Evid. 1002. Therefore, Defendants contend, paragraphs 9 through 11 should be stricken. Again, the Court notes that only paragraphs that make a specific reference to, as opposed to relying upon, particular documentation will be stricken for failure to adhere to Fed.R.Evid. 1002. While Iglesias relies upon Cacique's consumer studies to make the specific assertions in paragraphs 9 through 11, he does not make specific reference to the particular documentation that comprises Cacique's consumer studies. Rather than referencing what the specific consumer studies said, establishes how Cacique has relied on the studies to target their consumers in the particular manner that it does. Essentially, he speaks to the actions that Cacique took after conducting the consumer studies, rather than the specific details of the consumer studies. Consequently, he was not required to attach as documentation Cacique's consumer studies. Therefore, V&V's motion to strike these paragraphs of Iglesias' declaration is denied.

  3. Defendants' Arguments to Strike Paragraphs 12 Through 14 of Iglesias' Declaration

  V&V notes that paragraphs 12 through 14 of Iglesias' declaration discuss Plaintiffs' marketing strategy for their Mexican pourable cream. Defendants contend that during discovery, V&V requested that Plaintiffs identify all of their alleged trade secrets at issue in this case, including any marketing and sales strategies. Defendants contend that Cacique never disclosed this specific strategy, nor did they ever supplement their discovery responses. V&V contends that none of the documents produced describe the strategy set forth in Plaintiffs' memorandum in opposition to Defendants' motion for summary judgment (and, Defendants contend, Plaintiffs do not refer the Court to any documents). Additionally, Defendants argue, Plaintiffs' Rule 30(b)(6) corporate designee for the trade secrets at issue in this case — de Cardenas — never described this strategy at any time during his deposition. Plaintiffs counter Defendants' arguments and contend that between the Dahr report and the deposition testimony de Cardenas, Plaintiffs' pourable cream strategy was not a surprise to Defendants. Plaintiffs contend that in addition to the disclosures made during discovery by Sanjay Dhar in his 2003 expert report, in October 2003, de Cardenas testified that product mix was an important trade secret of Cacique, and that it is the particular product mix that Cacique focuses on in various areas around the country that are part of the trade secret marketing plans. Plaintiffs note that deCardenas specifically mentioned cream type cheeses. Plaintiffs contend that V&V's counsel failed ask any follow-up questions about pourable creams. Cacique believes that V&V's failure to follow-up should not result in the exclusion of Plaintiffs' evidence.

  Plaintiffs are correct when they assert that Gil de Cardenas' deposition provided notice of the pourable cream strategy, and as such, Cacique cannot be faulted for V&V counsel's failure to ask follow-up questions. Based upon the deposition testimony, this Court cannot conclude that there was a failure on the part of Cacique to disclose this information, as there was adequate notice to V&V that strategies related to cream cheeses was a topic that Cacique considered to be a trade secret. (See Dep. Tr. of de Cardenas, p. 267, line 1-p. 269, line 1). Therefore, the Court will not strike paragraphs 10 through 13 and 15 of de Cardenas' declaration.

  D. Gilberto de Cardenas, Jr.

  I. Defendants' Motion to Strike Paragraphs 10 through 13, 15, 18, 19, 21, 23, 24, 34, 44, 46, the last three sentences of paragraphs 3 and 14, and the third and last sentence of paragraph 35 of de Cardenas, Jr.'s Declarations

  Defendants argue that these paragraphs of de Cardenas Jr.'s declaration should be stricken because de Cardenas, Jr. does not establish any foundation for his statements in these paragraphs, and therefore, these statements are not admissible pursuant to Fed.R. Evid. 602. For example, Defendants contend, de Cardenas, Jr. does not provide any foundation to support his conclusions about "the vast majority of Hispanic dairy product consumers" and "independent non-national grocery chains" in the last three sentences of paragraph 3. Additionally, Defendants contend, in paragraphs 18, 19, and 21, de Cardenas, Jr. does not establish any foundation regarding what is "Cacique's proprietary research" or its "competitive advantage." Additionally, Defendants contend, de Cardenas, Jr. does not establish any foundation for his beliefs in paragraph 24 of his declaration. Finally, V&V contends, de Cardenas, Jr. does not provide any foundation to support his conclusions in paragraph 44, or the third and last sentence of paragraph 35.

  Defendants' arguments to strike these particular portions of de Cardenas, Jr.'s declaration are unavailing. By establishing that he has worked for Cacique for 20 years, and has been President of Cacique Distributors, U.S. since it was founded in 1995, de Cardenas, Jr. establishes a sufficient foundation in order to allow him to testify about these specific aspects of the Hispanic cheese market. (See deCardenas, Jr. Decl., ¶¶ 1-2). In addition, contrary to Defendants' assertions, de Cardenas, Jr. limits his testimony to his personal knowledge. Consequently, Cacique's motion to strike these portions of deCardenas Jr.'s declaration is denied.

  2. Defendants' Motion to Strike Portions the Last Two Sentences of Paragraph 14 of de ...


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