Parrish et al v. National Football League Players Incorporated

Filing 326

Reply Memorandum re 308 MOTION to Strike the Declarations of Linda Castillon, Adam Sullins, Jason Brenner, Christine Finch and Steve Byrd Filed in Support of Defendants' Motion for Summary Judgment filed byBernard Paul Parrish, Walter Roberts, III, Herbert Anthony Adderley. (Hilbert, Ryan) (Filed on 7/17/2008)

Parrish et al v. National Football League Players Incorporated

Doc. 326

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MANATT, PHELPS & PHILLIPS, LLP
A T T O R N E Y S A T LAW LO S A N G E L E S

MANATT, PHELPS & PHILLIPS, LLP RONALD S. KATZ (Bar No. CA 085713) E-mail: [e-mail] RYAN S. HILBERT (California Bar No. 210549) E-mail: [e-mail] NOEL S. COHEN (California Bar No. 219645) E-mail: [e-mail] 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] MCKOOL SMITH, P.C. LEWIS T. LECLAIR (Bar No. CA 077136) E-mail: [e-mail] JILL ADLER NAYLOR (Bar No. CA 150783) E-mail: [e-mail] 300 Crescent Court Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT SAN FRANCISCO DIVISION

BERNARD PAUL PARRISH, HERBERT CIVIL ACTION NO. C07 0943 WHA ANTHONY ADDERLEY, and WALTER ROBERTS III, on behalf of themselves and PLAINTIFFS' REPLY BRIEF IN SUPPORT all others similarly situated, OF THEIR MOTION TO STRIKE THE DECLARATIONS OF LINDA CASTILLON, Plaintiffs, ADAM SULLINS, JASON BRENNER, CHRISTINE FINCH, AND STEVE BYRD NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, a Virginia corporation, and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a PLAYERS INC, a Virginia corporation, Defendants.

PLAINTIFFS' REPLY BRIEF CASE NO. C07 0943 WHA

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Plaintiffs files this reply brief in response to Defendants' July 10, 2008 Opposition to Plaintiffs' Motion to Strike. The content and timing of Defendants' disclosures, in light of the ten-deposition limit, prevented Plaintiffs from obtaining necessary discovery, and as such, the Court should strike the declarations and Linda Castillon, Adam Sullins, Jason Brenner, Steve Byrd, and Christine Finch from the summary judgment record.1 I. Plaintiffs Did Not Avoid, And, Indeed, Actively Pursued Discovery Defendants claim that Plaintiffs could have taken tens of additional depositions but wanted to avoid discovery. This is untrue. Plaintiffs have diligently conducted discovery

throughout this case and pursued numerous depositions of key witnesses all across the country. Defendants cite the resulting amended complaints as justifying the late disclosure of their witnesses (even though they never informed the Court of this change in their approach to depositions), while simultaneously refusing additional depositions for those same witnesses. The current motion results from Defendants' failure to allow sufficient discovery in light of the changing circumstances surrounding this case. Plaintiffs have used all ten of their allotted depositions. However, more than thirty of Defendants' disclosed witnesses have yet to be deposed. Plaintiffs diligently noticed and took depositions throughout 2007 and 2008, but carefully chose a selection of those key witnesses to depose, based on the information gleaned from Defendants' disclosures. Plaintiffs have not "adopted a strategy of not taking additional depositions as a cost savings," as Defendants contend.2 Moreover, if there were any question as to Plaintiffs' desire to depose these witnesses, Plaintiffs sent Defendants a letter requesting that Defendants provide deposition dates for any and

Plaintiffs have simultaneously filed a request for oral argument with this Reply, designating a third-year attorney to argue this motion.
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See Defs.' Resp. Br. at 11.

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all remaining witnesses that Defendants wished to call at trial.3 Defendants refused to agree, and instead identified two additionally witnesses that day.4 Defendants also claim that Plaintiffs should have requested additional depositions from the Court. This solution is unsatisfactory. Defendants identified over forty witnesses, even though they successfully prevailed upon this Court to limit Plaintiffs to ten depositions. As a practical matter, the Court would have needed to allow over thirty additional depositions in order to depose each of Defendants' identified witnesses. Many of these witnesses could have been of dubious value. And Plaintiffs still do not know which of these witnesses, if any, Defendants will ultimately use in this case or call at trial. The better solution lay with the parties. Plaintiffs

asked Defendants to identify the witnesses it actually intended to call at trial, and to allow halfday depositions of only these witnesses. To the extent Defendants did not know at this time who they intended to call at trial, Plaintiffs even offered to conduct these additional depositions at a time closer to trial. Defendants could have avoided this impasse by reaching a compromise with Plaintiffs -- Court intervention was not required. II. Striking the Declarations Is an Appropriate Remedy; However, In the Alternative, Plaintiffs are Amenable to the Possibility of the Court Ordering Late Depositions Rule 37(c)(1) states in unambiguous terms the appropriate remedy for failure to properly disclose a witness: "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Defendants rely on two cases from the Southern District of New York to support their argument that preclusion is not an appropriate remedy except in extraordinary circumstances.5 However, in
May 7, 2008 Letter from Laura Franco to David Greenspan (Charhon Decl. Ex. G, attached to Pls.' Motion to Strike). May 9, 2008 Letter from David Greenspan to Laura Franco (Charhon Decl. Ex. H, attached to Pls.' Motion to Strike); see Defendants' (May 9, 2008) Supplemental Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (identifying Richard Berthelsen and Steve Saxson) (Charhon Decl. Ex. I, attached to Pls.' Motion to Strike). See Defs.' Opp'n to Pls.' Motion to Strike Declarations p. 11 (citing Atkins v. County of Orange, 372 F. Supp 2d 377, 396 (S.D.N.Y. 2005); Lesser v. Camp Wildwood, No. 01 Civ. 4209 (RWS), 2003 U.S. Dist. LEXIS 16921 (S.D.N.Y. Sept. 30, 2003)).
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the Ninth Circuit, "even absent a showing in the record of bad faith or willfulness, exclusion is an appropriate remedy for failing to fulfill the required disclosure requirements." Yeti by Molly, Ltd. v. Deckers Outdoors Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (calling this a "self-executing," "automatic" sanction.) If precluding the witness from testifying at trial is an appropriate remedy, then clearly, precluding a declaration at summary judgment is appropriate. Plaintiffs, however, are amenable to other remedies, and have suggested such remedies to Defendants. Rule 37(c)(1) states, "instead of [exclusion], the court . . . (C) may impose other appropriate sanctions." To the extent the Court is inclined to allow Defendants to rely on the untested and self-interested declarations they have submitted, Plaintiffs respectfully request that they be allowed to depose these witnesses for no less than a half-day before the Court decides Defendants' Motion for Summary Judgment. Plaintiffs also request that Defendants specifically identify which of these witnesses, if any, they intend to call at trial so that Plaintiffs can depose these witnesses accordingly. III. Plaintiffs Did Not Intend to Misrepresent Defendants' Disclosures. In their brief, Defendants argue that Plaintiffs misrepresent Defendants' disclosures. Plaintiffs wrote that Defendants never disclosed Jason Brenner. However, as Defendants note, a Jason Brinner was disclosed on June 29, 2007. 6 Plaintiffs were unaware of Defendants' mistake at the time of their opening brief. Additionally, Plaintiffs correctly stated that Steve Byrd was disclosed as a witness early in the brief.7 However, later in the brief, Plaintiffs mistakenly state that Steve Byrd was never disclosed.8 This was an inadvertent mistake, for which Plaintiffs apologize to the Court and to Defendants. Importantly, Plaintiffs cited to Defendants' disclosures throughout the statement of facts, attached the relevant disclosures, and in no way attempted to hide the contents of any disclosures. These mistakes were wholly unintentional.

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Defs.' Br. at 8. See Pls.' Br. at 4. See Pls.' Br. at 7.

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MANATT, PHELPS & PHILLIPS, LLP
A T T O R N E Y S A T LAW LO S A N G E L E S

IV. Conclusion Plaintiffs respectfully request that the Court (1) strike the declarations of Linda Castillon, Adam Sullins, Jason Brenner, Steve Byrd, and Christine Finch from the summary judgment record, and/or (2) order that Plaintiffs be allowed to depose these witnesses for no less than a half-day before the Court decides Defendants' Motion for Summary Judgment. Respectfully submitted, Dated: July 17, 2008 MANATT, PHELPS & PHILLIPS, LLP

By: /s/ Ryan S. Hilbert Ronald S. Katz (SBN 085713) Ryan S. Hilbert (SBN 210549) Noel S. Cohen (SBN 219645) 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] MCKOOL SMITH, P.C. Lewis T. LeClair (SBN 077136) Jill Adler Naylor (SBN 150783) 300 Crescent Court Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs

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