"The Apple iPod iTunes Anti-Trust Litigation"
MOTION to Strike Supplemental Expert Report of Dr. Michelle M. Burtis, Ph.D. filed by Melanie Tucker. (Attachments: # 1 Proposed Order)(Bernay, Alexandra) (Filed on 4/15/2011) Modified on 4/15/2011 (cv, COURT STAFF).
1 ROBBINS GELLER RUDMAN & DOWD LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) ALEXANDRA S. BERNAY (211068) 4 CARMEN A. MEDICI (248417) 655 West Broadway, Suite 1900 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) firstname.lastname@example.org 7 email@example.com firstname.lastname@example.org 8 email@example.com firstname.lastname@example.org 9 THE KATRIEL LAW FIRM 10 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 11 Washington, DC 20007 Telephone: 202/625-4342 12 202/330-5593 (fax) email@example.com 13 Co-Lead Counsel for Plaintiffs 14 [Additional counsel appear on signature page.] 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN JOSE DIVISION 18 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(HRL) 19 LITIGATION ) ) CLASS ACTION 20 ) ) PLAINTIFFSâ NOTICE OF MOTION AND This Document Relates To: 21 ) MOTION TO STRIKE THE ) SUPPLEMENTAL EXPERT REPORT OF ALL ACTIONS. 22 ) DR. MICHELLE M. BURTIS, Ph.D. 23 JUDGE: DATE: TIME: CTRM: 24 25 26 27 28 619020_1 Hon. James Ware TBD TBD 8, 4th Floor 1 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD 2 PLEASE TAKE NOTICE that as soon as the Courtâs schedule allows, in Courtroom 8, 4th 3 Floor, of the above-captioned Court located at 280 South First Street, San Jose, California 95113, 4 before the Honorable James Ware, Plaintiffs Melanie Tucker, Mariana Rosen, and Somtai Troy 5 Charoensak (collectively, âPlaintiffsâ) will and hereby do through undersigned counsel, move the 6 Court for an order striking the supplemental expert report of Dr. Michelle M. Burtis, Ph.D. 7 I. MEMORANDUM OF POINTS AND AUTHORITIES 8 On April 11, 2011, purportedly in opposition to Plaintiffsâ motion to exclude the declaration 9 of Appleâs expert, Dr. Michelle M. Burtis, Ph.D., Apple submitted a new, supplemental expert report 10 in support of its opposition to class certification. This new, supplemental expert report is improper 11 and must be stricken. On October 28, 2010, this Court signed an Order setting forth the schedule for 12 certain matters in this action. Dkt. No. 392. That October 28, 2010 scheduling Order provided that 13 briefing on Plaintiffsâ motion for class certification would be complete on March 28, 2011. Apple 14 has flouted this deadline by submitting a 15-page expert report, with detailed exhibits and more than 15 40 footnotes, that plainly addresses class-certification matters and does not respond to Plaintiffsâ 16 motion to exclude. Apple should not be allowed to submit this lengthy new report nearly two weeks 17 after briefing on class certification is over and just a week before the hearing on the motion is 18 scheduled. This back-door attempt by Apple to link this new report to its opposition to Plaintiffsâ 19 pending motion to exclude Dr. Burtis is unavailing. Apple has cavalierly ignored the Courtâs Order 20 and has provided no justification or explanation for its outrageous conduct. 21 Plaintiffs will be unfairly prejudiced if this motion to strike is not granted. At a minimum, 22 Plaintiffs must be given a full and fair opportunity to depose Dr. Burtis regarding her new report and 23 exhibits. Additionally, matters raised in the new, supplemental report should not be considered by 24 the Court in deciding Plaintiffsâ motion for class certification.1 25 26 1 Plaintiffs expect Apple will seek to justify its misconduct by claiming that it had to file an additional expert report to counter the preliminary regression analysis Professor Noll set forth in his 27 March 28, 2011 report. This argument fails for two reasons. First, Appleâs own discovery 28 misconduct is the sole reason Professor Nollâs report submitted January 18, 2011, did not contain a 619020_1 PLAINTIFFSâ NOTICE OF MOTION AND MOTION TO STRIKE THE SUPPLEMENTAL EXPERT REPORT OF DR. MICHELLE M. BURTIS, Ph.D. - C-05-00037-JW(HRL) -1- 1 Appleâs gambit is contrary to the law in this Circuit. As the court in Plumley v. Mockett, No. 2 CV 04-2868-GHK (Ex), 2010 U.S. Dist. LEXIS 57254 (C.D. Cal. May 26, 2010), recently 3 explained, âAlthough Rule 26(e) obliges a party to âsupplement or correctâ its disclosures upon 4 information later acquired, this âdoes not give license to sandbag oneâs opponent with claims and 5 issues which should have been included in the expert witnessâ report (indeed, the lawsuit from the 6 outset). To rule otherwise would create a system where preliminary reports could be followed by 7 supplementary reports and there would be no finality to expert reports . . . .ââ Id. at *6 (quoting 8 Beller ex. rel. Beller v. United States, 221 F.R.D. 696, 701 (D.N.M. 2003)). To allow this âpattern 9 of behavior âwould surely circumvent the full disclosure requirement implicit in Rule 26 and would 10 interfere with the Courtâs ability to set case management deadlines.ââ Id. (quoting Beller, 221 11 F.R.D. at 701-02).2 12 Here, Appleâs actions are especially egregious. It provides no explanation for its attempted 13 end-around the Courtâs scheduling Order and instead it seeks to pull one over on the Court and 14 opposing counsel by submitting the new, supplemental report by Dr. Burtis as an attachment to its 15 opposition to Plaintiffsâ motion to exclude the opinions of Dr. Burtis. See Dkt. No. 580. While the 16 new, supplemental report states on the cover sheet that it is in support of Appleâs opposition to 17 Plaintiffsâ motion to exclude (which would still be improper) the report is exclusively concerned 18 with Appleâs arguments related to class certification. 19 The fact that Dr. Burtisâs report, submitted February 28, 2011, in conjunction with Appleâs 20 opposition to Plaintiffsâ motion for class certification, was so obviously devoid of detail does not 21 excuse or ameliorate the problem here. Plaintiffs moved to exclude Dr. Burtisâs February 28, 2011 22 regression analysis. Appleâs failure to produce Plaintiffsâ 23 preliminary pending motion to compel (Dkt. Nos. 556, 589)data critical to an ongoingexpert is the subject of a and has been and serious issue in this litigation. Second, as Plaintiffs have repeatedly explained, a full-blown damage analysis 24 is not required at class certification. See Dkt. No. 550, Reply Memorandum in Support of Plaintiffsâ Renewed Motion for Class 25 unnecessary, regardless of Certification, at 3-5. Thus, Dr. Burtisâ analysis at this point in the case is the context. 26 2 See also Trilogy Commcâns, Inc. v. Times Fiber Commcâns, Inc., 109 F.3d 739, 744-45 (Fed. Cir. 1997) (exclusion justified where party fails to provide adequate explanation for failure to 27 timely provide expert disclosure in accordance with scheduling order). 28 619020_1 PLAINTIFFSâ NOTICE OF MOTION AND MOTION TO STRIKE THE SUPPLEMENTAL EXPERT REPORT OF DR. MICHELLE M. BURTIS, Ph.D. - C-05-00037-JW(HRL) -2- 1 report precisely because it failed to provide any basis for the opinions expressed in the report. 2 Appleâs transparent last-ditch effort to try to cure the infirmities in Dr. Burtisâs February 28, 2011 3 report by submitting an entirely new report with its opposition is pure gamesmanship and highlights 4 why Dr. Burtisâs original declaration should be excluded. 5 A number of courts in the Ninth Circuit, in deciding whether to impose Rule 37(c)(1)âs 6 exclusion of evidence sanction, follow the five factors laid out in Wendt v. Host International, Inc., 7 125 F.3d 806, 814 (9th Cir. 1997). These same factors are used by courts in the Ninth Circuit in 8 considering whether to strike an untimely expert report. AZ Holding, L.L.C. v. Frederick, No. CV9 08-0276-PHX-LOA, 2009 U.S. Dist. LEXIS 74515 (D. Ariz. Aug. 10, 2009). Those factors instruct 10 the court to consider the following: (1) the publicâs interest in expeditious resolution of 11 litigation: (2) the courtâs need to manage its docket; (3) the risk of prejudice to the other parties; (4) 12 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 13 sanctions. Id. at *15. A finding of willfulness or bad faith is not required in order to impose the 14 exclusion of evidence sanction. CCR/AG Showcase Phase I Owner, L.L.C. v. UA Theatre Circuit, 15 Inc., No. 2:08-cv-00984-RCJ-GWF, 2010 U.S. Dist. LEXIS 56137 (D. Nev. May 13, 2010). 16 Here, each of the Wendt factors support exclusion, particularly the second and third factors, 17 the risk of prejudice factor and the courtâs need to manage its docket. Plaintiffs will be severely 18 prejudiced if the new material in Dr. Burtisâs untimely report is considered. It is unfair and 19 inappropriate for Apple as the non-moving party to have the last word. This is particularly so here 20 where Apple has submitted a completely new expert report containing specific calculations and 21 economic models that Plaintiffs and their experts are unable to test. This factor weighs heavily in 22 favor of exclusion. Additionally, Appleâs flouting of the Courtâs scheduling Order demonstrates the 23 second Wendt factor is met because surely a partyâs purposeful disregard of the Courtâs need to 24 manage its docket satisfies this factor. The fourth factor, which considers the public policy favoring 25 merits-based decisions, also supports exclusion because if Plaintiffs are unable to question Dr. Burtis 26 to delve into the basis for her new opinions, the case will not be decided on its merits, but instead 27 may hinge on a one-sided presentation of evidence Plaintiffs have not been entitled to explore with 28 Appleâs expert. The first Wendt factor, which accounts for the publicâs interest in expeditious 619020_1 PLAINTIFFSâ NOTICE OF MOTION AND MOTION TO STRIKE THE SUPPLEMENTAL EXPERT REPORT OF DR. MICHELLE M. BURTIS, Ph.D. - C-05-00037-JW(HRL) -3- 1 resolution of litigation is either neutral or inapplicable in this case which has been pending for 2 several years. Likewise, the fifth factor supports Plaintiffs as there are no less drastic sanctions 3 which would fairly maintain the Courtâs current scheduling Order. All of the Wendt factors favor 4 exclusion of the new, supplemental report by Dr. Burtis. See Lindner v. Meadow Gold Dairies, Inc., 5 249 F.R.D. 625, 642 (D. Haw. 2008) (striking untimely report where majority of the Wendt factors 6 favor exclusion, including delay and prejudice). In Lindner, despite finding that less drastic 7 sanctions (such as payment of attorneysâ fees) were available, the court struck the untimely expert 8 report, holding that the majority of factors weighed in favor of exclusion. Here, a less drastic 9 sanction, such as allowing Plaintiffs to depose Dr. Burtis and respond to her new report may serve as 10 a less drastic sanction than full exclusion, although in this case, where the conduct is so egregious, 11 exclusion should be granted. Moreover, given the timing of the Courtâs hearing on Plaintiffsâ 12 motion for class certification, this option is not available. 13 Under any standard, the submission of this new, supplemental report is improper and should 14 be stricken from the record. See Storage Tech. Corp. v. Cisco Sys., No. C 00-1176 SI, 2001 U.S. 15 Dist. LEXIS 25876, at *10-*11 (N.D. Cal. Nov. 27, 2001) (striking submission of untimely expert 16 report where opposing party claimed the late submission prevented it from being able to properly 17 respond to it); see also OâConnor v. Boeing N. Am., Inc., No. CV 97-1554 DT (RCx), 2005 U.S. 18 Dist. LEXIS 46233, at *34-*35 (C.D. Cal. Sept. 12, 2005) (âTo permit these reports into evidence 19 would improperly widen the trial issues at the eleventh hour, and would unduly prejudice [the party] 20 in preparing for trial. Moreover, the new opinions appear based on information that was available to 21 these experts at the time of their initial Rule 26 disclosuresâ).3 22 In sum, Apple should not be rewarded for its failure to file a timely expert report in this 23 matter. Consideration of the untimely new report by Dr. Burtis would prejudice Plaintiffs and 24 provide Apple an unfair and improper litigation advantage. Plaintiffsâ motion to strike must be 25 3 Apple has made no showing, nor could they, that any 26 of the new, supplemental report by Dr. Burtis. Cf. Vnus Med.good cause exists to allow submission Techs. Inc. v. Biolitec, No. C 08-3129 MMC (JL), 2010 U.S. Dist. LEXIS 70555 (N.D. Cal. June 29, 2010) (denying motion to strike late 27 report where good cause specifically demonstrated and no prejudice shown). 28 619020_1 PLAINTIFFSâ NOTICE OF MOTION AND MOTION TO STRIKE THE SUPPLEMENTAL EXPERT REPORT OF DR. MICHELLE M. BURTIS, Ph.D. - C-05-00037-JW(HRL) -4- 1 granted. Should the Court determine not to strike the new, supplemental report by Dr. Burtis, 2 Plaintiffs request an opportunity to depose Dr. Burtis and a chance to respond to the new material in 3 the new, supplemental report. 4 DATED: April 15, 2011 5 6 7 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK ALEXANDRA S. BERNAY CARMEN A. MEDICI 8 9 s/ Alexandra S. Bernay ALEXANDRA S. BERNAY 10 11 12 13 14 15 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) THE KATRIEL LAW FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 Washington, DC 20007 Telephone: 202/625-4342 202/330-5593 (fax) 16 Co-Lead Counsel for Plaintiffs 17 18 19 20 21 22 23 24 25 BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. ANDREW S. FRIEDMAN FRANCIS J. BALINT, JR. ELAINE A. RYAN TODD D. CARPENTER 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012 Telephone: 602/274-1100 602/274-1199 (fax) BRAUN LAW GROUP, P.C. MICHAEL D. BRAUN 10680 West Pico Blvd., Suite 280 Los Angeles, CA 90064 Telephone: 310/836-6000 310/836-6010 (fax) 26 27 28 619020_1 MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 PLAINTIFFSâ NOTICE OF MOTION AND MOTION TO STRIKE THE SUPPLEMENTAL EXPERT REPORT OF DR. MICHELLE M. BURTIS, Ph.D. - C-05-00037-JW(HRL) -5- 1 2 3 4 5 New York, NY 10016 Telephone: 212/682-1818 212/682-1892 (fax) GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Telephone: 310/201-9150 310/201-9160 (fax) 6 Additional Counsel for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 619020_1 PLAINTIFFSâ NOTICE OF MOTION AND MOTION TO STRIKE THE SUPPLEMENTAL EXPERT REPORT OF DR. MICHELLE M. BURTIS, Ph.D. - C-05-00037-JW(HRL) -6- 1 2 CERTIFICATE OF SERVICE I hereby certify that on April 15, 2011, I authorized the electronic filing of the foregoing with 3 the Clerk of the Court using the CM/ECF system which will send notification of such filing to the 4 e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I 5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF participants indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the 8 foregoing is true and correct. Executed on April 15, 2011. 9 s/ Alexandra S. Bernay ALEXANDRA S. BERNAY 10 13 ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) 14 E-mail: 11 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 619020_1 firstname.lastname@example.org CAND-ECF- Page 1 of 2 Mailing Information for a Case 5:05-cv-00037-JW Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Francis Joseph Balint , Jr email@example.com Alexandra Senya Bernay firstname.lastname@example.org Michael D Braun email@example.com Michael D. Braun firstname.lastname@example.org,email@example.com Todd David Carpenter firstname.lastname@example.org,email@example.com,firstname.lastname@example.org Andrew S. Friedman email@example.com,firstname.lastname@example.org,email@example.com Alreen Haeggquist firstname.lastname@example.org,email@example.com Roy Arie Katriel firstname.lastname@example.org,email@example.com Thomas J. 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