UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`
`In the Matter of
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`RESPONDENTS’ OBJECTIONS TO COMPLAINANT’S REBUTTAL EXHIBITS
`
`Respondents Phitek Systems Limited, Creative Labs, Inc., Audio-Technica U.S., Inc.,
`
`and Panasonic of North America (collectively “the Respondents”) hereby submit their
`
`Objections to Complainant Bose Corporation’s rebuttal exhibits. Respondents reserve the right
`
`to supplement, modify or withdraw any of the objections made. In addition, Respondents
`
`reserve the right to object to the limited admissibility of any exhibits and to interpose objections
`
`to exhibits that may have previously been identified as exhibits by Complainant based on pre-
`
`hearing rulings and rulings during the course of hearing and to object to any exhibit not
`
`identified by witness at trial.
`
`Dated: October 29, 2008
`
`5329328v.1 128214/00004
`
`
`
`RESPECTFULLY SUBMITTED,
`
`
`
`/s/ William B. Nash
`William B. Nash
`Daniel Chapman
`Mark A. J. Fassold
`JACKSON WALKER LLP
`112 E. Pecan, Suite 2400
`San Antonio, Texas 78205
`(210) 978-7700
`(210) 242-4620
`
`Alan Cope Johnson
`G. Brian Busey
`Cynthia Beverage
`MORRISON & FOERSTER, L.L.P.
`1
`
`

`
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`ATTORNEYS FOR PHITEK SYSTEMS LIMITED
`
`/s/ Daniel S. Ebenstien
`Daniel S. Ebenstien
`Abraham Kasdan
`Joseph M. Casino
`David A. Boag
`AMSTER, ROTHSTEIN & EBENSTEIN LLP
`90 Park Avenue
`New York, NY 10016
`(212) 336-8000
`
`Tom M. Schaumberg
`Jamie D. Underwood
`ADDUCI MASTRIANI & SCHAUMBERG
`LLP
`1200 Seventeenth Street, N.W., Fifth Floor
`Washington, D.C. 20036
`ATTORNEYS FOR PANASONIC CORPORATION
`OF NORTH AMERICA
`
`/s/ James P. White
`James P. White
`J. Aron Carnanhan
`HUSCH BLACKWELL SANDERS LLP
`120 South Riverside Plaza, 22nd Floor
`Chicago, Illinois 60606
`(312) 665-1500
`ATTORNEYS FOR AUDIO-TECHNICA U.S.
`
`5329328v.1 128214/00004
`
`2
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of RESPONDENTS’ OBJECTIONS TO COMPLAINANTS’
`REBUTTAL EXHIBITS has been served on October 29, 2008, as indicated, on the following:
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via E-File
`
`Not Served
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`Not Served
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`Not Served
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112A
`Washington, DC 20436
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E. Street, S.W., Room 317
`Washington, DC 20436
`
`Christopher Paulraj
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E. Street, S.W. Room 401-F
`Washington, DC 20436
`
`5329328v.1 128214/00004
`
`3
`
`

`
`Andrew R. Kopsidas
`Ruffin B. Cordell
`Jeffrey R. Whieldon
`FISH & RICHARDSON P.C.
`1425 K Street, N.W.
`Washington, DC 20005
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Attorneys for Complainant Bose Corporation
`
`Via Electronic Mail
`
`James P. White
`Gerald T. Shekleton
`J. Aron Carnahan
`HUSCH BLACKWELL SANDERS, LLP
`120 South Riverside Plaza, 22nd Floor
`Chicago, Illinois 60606
`
`Attorneys for Respondent Audio Technica,
`U.S. Inc.
`
`Arthur Wineburg
`Daniel E. Yonan
`Akin Gump Strauss Hauer & Feld, LLP
`1333 New Hampshire Avenue, N.W.
`Washington, DC 20036
`
`Attorneys for Respondent Audio Technica,
`U.S. Inc.
`
`Tom M. Schaumberg
`Jamie D. Underwood
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventeenth Floor, NW, Fifth Floor
`Washington, DC 20036
`
`Attorneys for Panasonic Corporation of North
`America
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
` Via Electronic Mail
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`5329328v.1 128214/00004
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`4
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`

`
`Daniel Ebenstein
`Abraham Kasdan
`Joseph Casino
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`New York, NY 10016
`
`Attorneys for Panasonic Corporation of North
`America
`Alan Cope Johnston
`G. Brian Busey
`Cynthia Lopez Beverage
`MORRISON FOERSTER
`2000 Pennsylvania Ave., NW
`Washington, D.C. 20006-1888
`
`Attorneys for Phitek Systems Limited and
`Creative Labs, Inc.
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`/s/ William B. Nash
`William B. Nash
`
`_
`
`5329328v.1 128214/00004
`
`5
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`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`CX-798C
`
`The New York
`Times article titled
`“Headphones to
`Eliminate Travel
`Noise”
`
`CX-1474
`
`Letter from Dan
`Gauger to Voyager
`Aircraft
`
`CX-1475
`
`Letter from Dan
`Gauger to EAA
`Aviation
`Foundation
`
`CX-1476
`
`Letter from Dan
`Gauger to National
`Air & Space
`Museum
`
`CX-1477C
`
`The Bose Aviation
`Headset background
`
`Hearsay in Exhibit or Testimony: The testimony or exhibit contains, is the result of, or is based upon hearsay. Fed. R. Evid.
`801-802.
`
`Authentication Lacking: The exhibit is objectionable because the exhibit has not been properly authenticated. Fed. R. Evid.
`901.
`Lacks Relevance: The testimony or exhibit is objectionable because it is not relevant. Fed. R. Evid. 402.
`Misleading/Confusion of Issues/Waste of Time: The testimony or exhibit is objectionable because its probative value is
`substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste
`of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.
`Authentication Lacking: The exhibit is objectionable because the exhibit has not been properly authenticated. Fed. R. Evid.
`901.
`Lacks Relevance: The testimony or exhibit is objectionable because it is not relevant. Fed. R. Evid. 402.
`Misleading/Confusion of Issues/Waste of Time: The testimony or exhibit is objectionable because its probative value is
`substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste
`of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.
`Authentication Lacking: The exhibit is objectionable because the exhibit has not been properly authenticated. Fed. R. Evid.
`901.
`Lacks Relevance: The testimony or exhibit is objectionable because it is not relevant. Fed. R. Evid. 402.
`Misleading/Confusion of Issues/Waste of Time: The testimony or exhibit is objectionable because its probative value is
`substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste
`of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.
`Authentication Lacking: The exhibit is objectionable because the exhibit has not been properly authenticated. Fed. R. Evid.
`901.
`Lacks Relevance: The testimony or exhibit is objectionable because it is not relevant. Fed. R. Evid. 402.
`Misleading/Confusion of Issues/Waste of Time: The testimony or exhibit is objectionable because its probative value is
`substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste
`
`5330665v.2 128214/00004
`
`1
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.
`
`CX-1478C
`
`Rebuttal Witness
`Statement of
`Durand Begault
`Question and
`Answer No. 1
`Question and
`Answer No. 2
`Question and
`Answer No. 3
`
`Question and
`Answer No. 4
`Question and
`Answer No. 5
`
`Leading Question: The question is objectionable because it is leading in that the question suggests the desired answer. Fed. R.
`Evid. 611.
`
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`
`5330665v.2 128214/00004
`
`2
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`Question and
`Answer No. 6
`
`Question and
`Answer No. 7
`
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`Leading Question: The question is objectionable because it is leading in that the question suggests the desired answer. Fed. R.
`Evid. 611.
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`
`5330665v.2 128214/00004
`
`3
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`Question and
`Answer No. 8
`
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`Leading Question: The question is objectionable because it is leading in that the question suggests the desired answer. Fed. R.
`Evid. 611.
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`
`5330665v.2 128214/00004
`
`4
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`
`Question and
`Answer No. 9
`Question and
`Answer No. 10
`Question and
`Answer No. 11
`Question and
`Answer No. 12
`Question and
`Answer No. 13
`Question and
`Answer No. 14
`Question and
`Answer No. 15
`Question and
`Answer No. 16
`Question and
`Answer No. 17
`
`Hearsay in Exhibit or Testimony: The testimony or exhibit contains, is the result of, or is based upon hearsay. Fed. R. Evid.
`801-802.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`
`5330665v.2 128214/00004
`
`5
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`Question and
`Answer No. 18
`
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`The Exhibit Lacks a Sponsoring Witness: The exhibit is objectionable because it is not mentioned in the testimony or report of
`the sponsoring witness. Respondents reserve the right to object to the exhibit as lacking a sponsoring witness if no witness
`sponsors the exhibit through live testimony.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`
`Question and
`Answer No. 19
`
`The Exhibit Lacks a Sponsoring Witness: The exhibit is objectionable because it is not mentioned in the testimony or report of
`the sponsoring witness. Respondents reserve the right to object to the exhibit as lacking a sponsoring witness if no witness
`sponsors the exhibit through live testimony.
`
`5330665v.2 128214/00004
`
`6
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`
`Question and
`Answer No. 20
`
`Question and
`Answer No. 21
`
`Leading Question: The question is objectionable because it is leading in that the question suggests the desired answer. Fed. R.
`Evid. 611.
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Not Best Evidence: The testimony or exhibit is objectionable because it is vague and ambiguous as to whether the witness is
`summarizing his/her/its own independent understandings related to the document or the contents of a document. If the latter,
`the
`Leading Question: The question is objectionable because it is leading in that the question suggests the desired answer. Fed. R.
`Evid. 611.
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Question Calls for Hearsay: The question is objectionable because the questions ask the witness to state hearsay. Fed. R. Evid.
`
`5330665v.2 128214/00004
`
`7
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`Question and
`Answer No. 22
`
`801-802.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who has not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Not Best Evidence: The testimony or exhibit is objectionable because it is vague and ambiguous as to whether the witness is
`summarizing his/her/its own independent understandings related to the document or the contents of a document. If the latter,
`the testimony constitutes an impermissible attempt to prove the content of a document with secondary evidence. Fed. R. Evid.
`1001 - 1004.
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Question Calls for Hearsay: The question is objectionable because the questions ask the witness to state hearsay. Fed. R. Evid.
`801-802.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`
`5330665v.2 128214/00004
`
`8
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`Leading Question: The question is objectionable because it is leading in that the question suggests the desired answer. Fed. R.
`Evid. 611.
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person who was not been designated as an expert and/or who did not submit an expert report. Fed. R. Civ. P. 26.
`Legal Conclusion: The testimony or exhibit is objectionable because it constitutes a legal conclusion. “Although Federal Rule
`of Evidence 704 permits an expert witness to give expert testimony that ‘embraces an ultimate issue to be decided by the trier
`of fact,’ an expert witness is prohibited from rendering a legal opinion.” See e.g., Berckeley Inv. Group v. Colkitt, 455 F.3d
`195, 217 (3d Cir. 2006).
`Question Lacks Foundation: The question is objectionable because it lacks foundation because the question assumes facts not
`in evidence.
`Unqualified Expert Testimony: The testimony is inadmissible because (1) the witness is not a qualified expert, (2) the
`
`9
`
`Question and
`Answer No. 23
`
`Question and
`Answer No. 24
`
`5330665v.2 128214/00004
`
`

`
`In the Matter of Certain Noise Cancelling Headphones
`Inv. No. 337-TA-626
`Respondents’ Objections to Bose Corporation’s Rebuttal Trial Exhibit List
`
`Exhibit No.
`
`Exhibit
`Description
`
`Respondents’ Objections
`
`Question and
`Answer No. 25
`
`testimony is not based upon sufficient facts or data, (3) the testimony is not the product of reliable principles and methods, (4)
`the witness has failed to apply the principles and methods reliably to the facts of the case, and (5) the testimony does not
`provide scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to
`determine a fact in issue. Fed. R. Evid. 702.
`Undisclosed Expert Opinion: The testimony is objectionable because the witness failed to disclose the testimony in the
`witness’s expert report. Fed. R. Civ. P. 26(a)(2).
`Inadmissible Lay Opinion: The testimony is objectionable because the testimony constitutes an opinion or inference which is
`(a) not rationally based on the perception of the witness, (b) not helpful to a clear understanding of the witness’ testimony or the
`determination of a fact in issue, or (c) based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
`No Expert Designation: The testimony or exhibit is objectionable because it constitutes attempted to offer expert testimony
`from a person w