Cambridge University Press et al v. Patton et al

Filing 313

MOTION for Leave to File Motion In Limine To Prevent Plaintiffs From Introducing Improper Expert Testimonyby J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miller, Richard)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, Civil Action No. 1:08-CV-1425-ODE -vMARK P. BECKER, in his official capacity as President of Georgia State University, et al., Defendants. DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO PREVENT PLAINTIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY Defendants Mark P. Becker et al. hereby file this Motion For Leave To File A Motion In Limine To Exclude Improper Expert Testimony. In their pre-trial brief and in their Memorandum Of Law To Exclude Irrelevant Evidence In Accordance With Order Of September 30, 2010 [Dkt. No. 287] (“Opposition”), filed on or after the deadline for motions in limine, Plaintiffs indicate that they planned to present evidence on the issue of market harm. Specifically, in the latter brief, Plaintiffs state they will present evidence of “the full extent of market harm that has occurred and that would be greatly magnified if GSU’s practices were to continue unabated and become widespread.” (Opp. at 2-3.) This is expert testimony under Federal Rule of Evidence 702. However, Plaintiffs did not include the purported expert they designated during discovery, Debra Mariniello, as a witness who will or may testify at trial, and Plaintiffs have not identified any other expert on market harm under Rules 702, 703, or 705, or pursuant to 26(a)(2)). Plaintiffs apparently intend to introduce such testimony through a lay witness. Because Plaintiffs’ intent only became apparent in these filings on or after the deadline for filing motions in limine, including in the briefing filed on Monday, May 9, 2011, good cause exists to allow Defendants to file the attached motion after the deadline earlier set by the Court. The proposed Motion in Limine with incorporated memorandum is attached hereto as Exhibit A and a proposed Order is attached hereto as Exhibit B. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant Defendants leave to file the Motion In Limine To Exclude Improper Expert Testimony attached hereto as Exhibit A. 2 Respectfully submitted, this 14th day of May, 2011. SAMUEL S. OLENS Georgia Bar No. 551540 Attorney General R. O. LERER Georgia Bar No. 446962 Deputy Attorney General DENISE E. WHITING-PACK Georgia Bar No. 558559 Senior Assistant Attorney General MARY JO VOLKERT Georgia Bar No. 728755 Assistant Attorney General s/ Richard W. Miller Katrina M. Quicker Georgia Bar No. 590859 Richard W. Miller Georgia Bar No. 065257 BALLARD SPAHR LLP 999 Peachtree Street, Suite 1000 Atlanta, GA 30309-3915 Telephone: (678) 420-9300 Facsimile: (678) 420-9301 Stephen M. Schaetzel Georgia Bar No. 628653 KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 3 Anthony B. Askew Special Assistant Attorney General Georgia Bar No. 025300 211 Townsend Place Atlanta, GA 30327 Telephone: (404) 262-7981 Attorneys for Defendants 4 CERTIFICATE OF COMPLIANCE Pursuant to Rule 7.1D of the Local Rules of the Northern District of Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO PREVENT PLAINIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY was prepared in a font and point selection approved by this Court and authorized in Local Rule 5.1C. /s/ Richard W. Miller Richard W. Miller UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al, Plaintiffs, Civil Action No. 1:08-CV-1425-ODE -vs.MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 14th day of May, 2011, I have electronically filed the foregoing DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO PREVENT PLAINIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY with the Clerk of the Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following attorneys of record: Edward B. Krugman krugman@bmelaw.com Georgia Bar No. 429927 Corey F. Hirokawa hirokawa@bmelaw.com Georgia Bar No. 357087 John H. Rains IV rains@bmelaw.com Georgia Bar No. 556052 R. Bruce Rich Jonathan Bloom Randi Singer Todd D. Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street N.W. Suite 3900 Atlanta, GA 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 s/ Richard W. Miller Richard W. Miller Georgia Bar No. 065257 BALLARD SPAHR LLP 999 Peachtree Street, Suite 1000 Atlanta, GA 30309-3915 Telephone: (678) 420-9300 Facsimile: (678) 420-9301