DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

(additional counsel listed on next page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

LORI WAKEFIELD, individually and 

on behalf of a class of others similarly 

situated, 

 Plaintiff,

 v.

VISALUS, INC.,

a Nevada corporation,

 Defendant.

No. 3:15-cv-01857-SI

Plaintiff’s opposition to Defendant’s 

motion to exclude Plaintiff’s exhibits 

36a, 36b, 36c, and 64

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 1 of 15
EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the Certified Class

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 2 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 1

I. Introduction. 

Exhibits 36, 36a, 36b, and 36c are all summaries of the same data: the call data in 

406 contact lists that Mr. Gidley identified as being relevant to this case. ViSalus has had 

this call data for years, because it is ViSalus’ own data. And we told ViSalus in early 

January that we planned to present a summary of this data at trial, through Mr. Davis.

Exhibits 36a and 36b are summaries of exactly this same data and nothing more. 

They simply (1) provide additional summary information about the same underlying call

data; and (2) update the call counts to exclude certain calls that ViSalus contends should 

not be counted. Moreover, we presented the new summary information to respond to 

new arguments and objections—and a new witness—that ViSalus did not disclose to us 

until a few days ago. And we updated the call counts to address new objections ViSalus 

never before raised. (Notably, the adjustment lowers the total number of violative calls 

we are alleging.)

Exhibit 36c adds one more piece of information: whether each of the numbers 

identified in the contact lists are cellular or landline numbers. We added this information 

because the verdict form asks us to identify how many calls to mobile numbers we have 

proven. And ViSalus is the one who brought up the need for us to do this, and who 

insisted on separately asking the jury about this information. 

Finally, all of the underlying information is admissible.

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Plaintiff’s opposition to Defendant’s motion to exclude 2

II. The late disclosure of exhibits 36a-c is ViSalus’ own doing and is not 

prejudicial. 

ViSalus contends that the Court should exclude exhibits 36a, 36b, and 36c because 

their late disclosure to ViSalus is prejudicial. This argument fails on two levels. 

First, the only reason these exhibits were not disclosed months ago is that ViSalus 

waited until the eve of trial to disclose new objections, new arguments, and new 

witnesses that we needed to rebut. We presented the underlying data and the summary to 

ViSalus months ago. We answered every question that ViSalus had about the summary. 

And then we asked ViSalus if it had any objections. ViSalus responded only with general 

“foundation” and “hearsay” objections, and stated that it would “reserve” further 

objections. It chose to withhold its specific objections until the eve of trial. ViSalus 

cannot lay behind the log with its objections until the last minute and then complain that 

we addressed them at the last minute.

Second, ViSalus cannot show prejudice. It had the vast majority of the underlying 

data for years, and understands it well. (Indeed, it is ViSalus’ own data). The new 

information—which is found only in exhibit 36c and consists of numbers on the list 

which are cellular and which are landlines—can easily be processed and understood.

A. Exhibits 36a-c respond to new arguments and objections ViSalus 

raised for the first time at (or after) the pretrial conference. 

We disclosed exhibit 36 to ViSalus in early January. At that time, we explained 

exactly how we prepared it and the data on which it was based.

In its objections to our exhibits, ViSalus did not raise any specific objections to 

exhibit 36. Instead, it stated:

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Plaintiff’s opposition to Defendant’s motion to exclude 3

Dkt. 212.

(Notably, by the time these objections were filed on February 15, 2019, ViSalus 

had exhibit 36, the underlying data, and an explanation of how exhibit 36 was prepared 

for over a month). 

Until the April 3 pretrial conference, ViSalus never updated these objections. Nor

did it raise any other objections. 

Then, at the pretrial conference, ViSalus—for the first time—raised a new 

objection: that the KCC list that Mr. Davis had used to exclude from the count of calls 

ones to non-class members was hearsay. Then on April 6—in response to repeated 

requests from Plaintiff—ViSalus provided additional specific objections in an email. 

Finally, at the April 8 pretrial conference, ViSalus identified additional objections to 

exhibit 36. ViSalus’ new objections included that the summary counted calls to 

businesses and that they included calls to Canadian numbers and invalid numbers.

In addition to these new objections—also on April 6—ViSalus disclosed a brand 

new witness, Blake Mallen. In its summary of his testimony, ViSalus stated that Mr. 

Mallen was going to testify that some of the campaigns Mr. Gidley identified—the ones 

other than winbacks—were not actually telemarketing campaigns after all. This is the 

first time in the entire case that ViSalus had ever made this argument. Indeed, Mr. 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 5 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 4

Gidley submitted that declaration as part of the class notice process specifically to 

identify those contact lists that were relevant.

Finally, at the April 8 pretrial conference, ViSalus insisted that the verdict form 

separately ask the jury to identify which calls were made to mobile numbers and which 

were made to businesses.

Exhibits 36a, 36b, and 36c were created to address these objections and arguments

as they came in. 36a excludes calls to business (to address ViSalus’ objection that we 

counted calls to businesses) and breaks out winback campaigns from other campaigns (to 

address ViSalus’ new argument that only winbacks are marketing campaigns). 36b

additionally excludes calls to invalid numbers and Canadian numbers. And 36c identifies 

specifically those calls to mobile numbers, because this is what the verdict form is going 

to ask the jury to do.

1. Exhibit 36a responded to ViSalus’ late-disclosure of objections.

Mr. Gidley, on behalf of ViSalus, identified each of the 406 contact lists in his 

declaration as ones that were used for “marketing” campaigns that were run on the POM 

machine. We asked ViSalus to explain what criteria it was using to identify something as 

a “marketing” campaign. Counsel for ViSalus responded, “we are using the regulatory 

definition of introducing an advertisement and telemarketing.” E-mail from Sarah 

Anchors, counsel for ViSalus (Mar. 23, 2018). Plaintiff reasonably relied on Gidley’s 

sworn declaration and the written representation of counsel that each of these campaigns 

was a “marketing” campaign that met the relevant “regulatory definition.” 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 6 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 5

Before the pretrial conference, ViSalus never objected that Mr. Davis’ summary 

was inaccurate because it included campaign contact lists that were not telemarketing 

campaigns. On April 6, ViSalus for the first time through Mr. O’Neal presented that 

objection. Accordingly, we promptly responded to the objection by carving the results 

into two categories: those for “winback” campaigns that ViSalus admits were 

telemarketing, and all other “marketing” campaigns identified by Mr. Gidley. That 

response was not untimely; it was done within a few days. It was ViSalus that raised the 

untimely objection to the summary. 

ViSalus also for the first time disclosed that it objected to the summary because 

some of the calls were to telephone numbers associated with a business. Counsel for 

ViSalus pointed out the names on certain contact lists were businesses with “Inc.” or 

“LLC” and the like. We promptly responded by removing call results for numbers 

associated with business names. That response was not untimely. It was ViSalus that 

raised the untimely objection to the summary.

2. Exhibit 36b responded to ViSalus’ late disclosure of objections.

At the hearing, on Monday, April 8, ViSalus again presented new objections for 

the first time. ViSalus asserted that the summaries included non-U.S. phone numbers and 

numbers to bad prefixes. ViSalus had never before raised that objection. Plaintiff 

promptly responded, within 24 hours, by presenting a revised version that removed phone 

numbers to non-U.S. numbers and numbers with bad prefixes. 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 7 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 6

3. Exhibit 36c responded to ViSalus’ late disclosure.

During the preparation for trial and the submission of pretrial documents, ViSalus 

agreed with Plaintiff that there was no reason to distinguish between mobile and 

residential numbers in counting the number of phone calls. ViSalus never objected that 

the summary should treat mobile numbers separately from residential numbers. And both 

parties submitted jury instructions and verdict forms that did not distinguish between 

mobile and residential numbers. 

On Monday, April 8, ViSalus for the first time announced that it had changed its 

position and advocated that the verdict form should ask the jury to account separately for 

mobile numbers and residential numbers. If so, Plaintiff would have to present separate 

evidence for mobile numbers. In response, Plaintiff announced at the hearing that it 

would look into determining which of the numbers were mobile numbers. Plaintiff 

promptly (the next day) obtained the data and produced to ViSalus Exhibit 64, which 

identified the cellular phones, and Exhibit 36c, which summarized the call outcomes for 

the cellular phones. There was no delay by Plaintiff.

B. Admitting Exhibits 36a, 36b, and 36c would not be prejudicial. 

There is no prejudice that results from the timing of the disclosure of exhibits 36a36c. 

There could not possibly be any prejudice to admitting exhibits 36a and 36b. 

These two exhibits are based on exactly the same data that ViSalus has had for months—

and understands well, because it is ViSalus’ own data. Moreover, exhibits 36a and 36b 

merely remove certain calls from the count of violative calls (i.e., reduce ViSalus’ 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 8 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 7

potential liability in this case). They do so specifically for reasons that ViSalus 

contended they should not be counted. And Defendants can easily check the reliability of 

this process using whatever tool they have been using to process the underlying data for 

months (and if they disagree with how it was done, they can cross Mr. Davis about it). 

As for exhibit 36c, the only new information is an identification of which numbers 

are mobile numbers and which numbers are landlines. The data is easy to understand. If 

it wants to, ViSalus can check the reliability of our results quickly through public sources 

(indeed, we were able to do this in less than 24 hours after first hearing about ViSalus’ 

insistence on splitting out the mobile numbers). And ViSalus is of course welcome to 

cross Mr. Davis about this data (a simple cross that should not require more than a couple 

of hours to put together). 

In sum, it would not be prejudicial to admit exhibits 36a, 36b, 36c. To the 

contrary, it would be prejudicial to preclude Plaintiff from responding to ViSalus’ latedisclosed arguments about an exhibit it has had for months. 

III. The underlying documents are admissible.

ViSalus cannot reasonably object to the admissibility of the contact lists that are 

summarized in the exhibits. The Court has already ruled that it intends to admit those 

contact lists in evidence if Plaintiff offers them. The only other data used was (1) a 

commercially available list of area codes and prefixes (the Google checker), and (2) a 

commercially available line type list for phone numbers (exhibit 64). Due to limited time 

available to prepare this brief, we will focus our arguments on exhibit 64, the line type 

list. But these arguments also readily apply to the list of area codes and prefixes. 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 9 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 8

A. The Court should take judicial notice of the relevant facts. 

The Court can and should take judicial notice that the numbers identified as 

“cellular” lines are cellular lines. 

The Court may take judicial notice of “a fact that is not subject to reasonable 

dispute because it” “can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). An example of such a 

fact is what geographic area is covered by a particular telephone area code. Hernandez v.

Levy Premium Foodservice, LP, No. CV 13-08790 MMM (SHx), 2014 U.S. Dist. LEXIS 

190401, at *16 n.53 (C.D. Cal. Apr. 29, 2014) (“The court takes judicial notice of the fact 

that area code 415 is an area code covering the San Francisco area.”); Glob. Mfr. Grp.,

LLC v. Gadget Universe.com, 417 F. Supp. 2d 1161, 1174 n.4 (S.D. Cal. 2006) (“The 

Court takes judicial notice of the fact that the 758 area code serves Hays and Topeka, 

Kansas.”). A court can take judicial notice of this fact because the geographic area

covered by an area code can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned. 

The same is true for the fact of whether a particular telephone number is a mobile 

phone or a landline. The fact of whether a particular telephone number is a mobile 

number is not subject to reasonable dispute: it either is or it is not (there are no 

ambiguous gray areas of a “semi-landline”). Moreover, that information can be 

accurately and reliably obtained, because data services, such as Searchbug, maintain 

accurate and reliable compilations of that data for just that purpose. 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 10 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 9

Accordingly, the Court may and should take judicial notice of the line type for 

each of the telephone numbers identified in exhibit 64. 

B. Shawn Davis can authenticate exhibit 64.

“To satisfy the requirement of authenticating or identifying an item of evidence, 

the proponent must produce evidence sufficient to support a finding that the item is what 

the proponent claims it is.” Fed. R. Evid. 901(a). “[E]vidence that satisfies the 

requirement” includes “Testimony of a Witness with Knowledge,” i.e., “Testimony that 

an item is what it is claimed to be.” Fed. R. Evid. 901(b)(1). The proponent, Plaintiff 

Wakefield, claims that exhibit 64 is the line type list from Searchbug for the phone 

numbers on the ViSalus contact lists. Shawn Davis has personal knowledge sufficient to 

identify exhibit 64 as the line type list from Searchbug for the phone numbers on the 

ViSalus contact lists. 

In particular, Mr. Davis has knowledge of the set of phone numbers on the ViSalus 

contact list because he personally has worked with them in preparing summaries. 

Moreover, Mr. Davis personally uploaded the set of phone numbers to his batch account 

at Searchbug. In addition, Mr. Davis has personal knowledge that exhibit 64 is the 

Searchbug results for the phone numbers because Mr. Davis personally went to his 

account and downloaded the file from Searchbug. Also, Mr. Davis is personally familiar 

with the style and format of line type lists from Searchbug based on his experience using 

the service on prior occasions. Moreover, Mr. Davis verified that exhibit 64 is the line 

type list for the ViSalus phone numbers by personally comparing the numbers on exhibit 

64 to the numbers on the ViSalus contact lists. 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 11 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 10

Accordingly, Mr. Davis is a witness with personal knowledge who can testify that 

exhibit 64 “is what the proponent claims it is,” namely the line type list from Searchbug 

for the phone numbers on the ViSalus contact lists. Fed. R. Evid. 901(a).

C. Exhibit 64 is not excluded as hearsay because the data is a commercial 

compilation.

Contrary to Defendant’s assertion, the Searchbug database is not information 

“posted on the internet.” Mot. 7. It is a commercial database, just like Lexis-Nexis. To 

get a line type list for a batch of phone numbers, a user must have an account, and must 

pay in advance for the list. 

Rule 803(17) provides that “Market quotations, lists, directories, or other 

compilations that are generally relied on by the public or by persons in particular 

occupations” are “not excluded by the rule against hearsay.” Fed. R. Evid. 803(17). 

“That exception permits admission of facts compiled in a database as long as that 

database is ‘relied on by the public or by persons in particular occupations.’ Fed. R. 

Evid. 803(17).” Hip Hop Bev. Corp. v. Michaux, No. CV 16-03275-MWF-AGR, 2016 

U.S. Dist. LEXIS 96753, at *8 (C.D. Cal. July 25, 2016). 

“The commentary to FRE 803(17) explains that this exception is intended to allow 

the admission of information from lists of information which are generally reliable and 

contain information which is hard to prove another way, such as commodity prices 

printed in newspapers, or telephone numbers printed in telephone directories.” Amini

Innovation Corp. v. Anthony Cal., Inc., No. CV 03-8749, 2006 U.S. Dist. LEXIS 100800, 

at *8 (C.D. Cal. Sep. 21, 2006); Fed. R. Evid. 803, Advisory Committee Notes, 1972 

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 12 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 11

Revision, Note to Paragraph 17 (listing “newspaper market reports, telephone directories, 

and city directories” as types of evidence admissible under Rule 803(17)).

A list of line types for telephone numbers is a list that links telephone numbers 

with their line type—which is directly analogous to a telephone directory that links 

telephone numbers with names and addresses. Such lists are commercially available, 

and, in fact, are offered for sale by commercial organizations such as Searchbug. 

Moreover, persons in particular occupations, in particular forensic investigators such as 

Mr. Davis, generally rely upon the compilation of line types compiled by data services, in 

particular, Searchbug’s compilation. Accordingly, the line type list in exhibit 64 is 

admissible under the commercial compilation exception as “lists, directories, or other 

compilations that are generally relied on by the public or by persons in particular 

occupations.” Fed. R. Evid. 803(17). Hip Hop Bev. Corp. v. Michaux, No. CV 16-

03275-MWF-AGR, 2016 U.S. Dist. LEXIS 96753, at *7-8 (C.D. Cal. July 25, 2016) 

(“The information obtained from IRB Search falls within a well-established exception to 

the hearsay rule codified in the Federal Rule of Evidence 803(17). . . . Because Starr has

adequately shown that experts in his field regularly use and rely on IRB Search (Starr

Decl. ¶ 4), the facts contained in that database are admissible as evidence.”); United

States v. Woods, 321 F.3d 361, 362 (3d Cir. 2003) (admitting certain vehicle information

contained in a database maintained by the National Insurance Crime Bureau);

IV. Conclusion.

“Rule 1006 merely requires that the ‘underlying records for which the summaries 

are made be admissible in evidence, and available to the opposing party for inspection.’

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 13 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 12

This standard does not require expert testimony, nor does it require the proponent of 

the summary to provide its software or disclose the exact keystrokes used to perform the 

calculations.” FTC v. AMG Servs., No. 2:12-cv-00536-GMN-VCF, 2016 U.S. Dist. 

LEXIS 44625, at *17-19 n.5 (D. Nev. Mar. 31, 2016) (quoting United States v. Rizk, 660 

F.3d 1125, 1130-31 (9th Cir. 2011)). 

Here, the underlying records are ViSalus’ own records, which it has had for years. 

And all of the information that the summaries are based on is admissible. Accordingly, 

for the foregoing reasons, and additional argument to be presented at the hearing, the 

Court should deny the motion of ViSalus to exclude exhibits 36a, 36b, 36c, and 64.

Date: April 10, 2019 Respectfully submitted,

By: /s/ Simon Franzini

DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 14 of 15
Plaintiff’s opposition to Defendant’s motion to exclude 13

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the 

Certified Class

Case 3:15-cv-01857-SI Document 274 Filed 04/10/19 Page 15 of 15