O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 179

MOTION to Strike the Declaration of Daniel L. Rubinfeld filed by Edward C. O'Bannon, Jr.. Motion Hearing set for 7/9/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 6/18/2014. Replies due by 6/25/2014. (Attachments: #1 Proposed Order)(Gosselin, Sathya) (Filed on 6/4/2014)

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MICHAEL D. HAUSFELD (pro hac vice)
[e-mail]
HILLARY K. SCHERRER (SBN 209451)
[e-mail]
SATHYA S. GOSSELIN (SBN 269171)
[e-mail]
SWATHI BOJEDLA (pro hac vice)
[e-mail]
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]

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MICHAEL P. LEHMANN (SBN 77152)
[e-mail]
BRUCE J. WECKER (SBN 78530)
[e-mail]
HAUSFELD LLP
44 Montgomery Street, 34th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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Antitrust Plaintiffs’ Class Counsel

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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EDWARD C. O’BANNON, JR. on behalf
of himself and all others similarly situated,

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Plaintiffs,

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Case No. 4:09-cv-3329 CW
ANTITRUST PLAINTIFFS’ NOTICE OF
MOTION AND MOTION TO STRIKE THE
DECLARATION OF DANIEL L.
RUBINFELD

v.
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NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION (NCAA); ELECTRONIC
ARTS, INC.; and COLLEGIATE
LICENSING COMPANY,

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Judge:
The Honorable Claudia Wilken
Courtroom: 2, 4th Floor
Trial:
June 9, 2014

Defendants.

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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO STRIKE DECL. OF RUBINFELD
4:09-CV 3329 CW

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TO THE COURT, ALL PARTIES AND ATTORNEYS OF RECORD HEREIN:
PLEASE TAKE NOTICE that as soon as the Court’s schedule allows, in Courtroom 2,

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4th Floor, of the above-captioned Court before the Honorable Claudia Wilken, Antitrust Plaintiffs

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will and hereby do through undersigned counsel, respectfully move the Court for an order to

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strike the Declaration of Dr. Daniel L. Rubinfeld dated June 3, 2014.

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I.

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MEMORANDUM OF POINTS AND AUTHORITIES
On June 3, 2014, long after the deadline for expert discovery had passed and three

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business days before trial, the National Collegiate Athletic Association (“NCAA”) sent to the

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Antitrust Plaintiffs (“APs”) a declaration of Daniel L. Rubinfeld (“Declaration”). The

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Declaration seeks to bolster Dr. Rubinfeld’s earlier submissions with calculations purportedly

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measuring competitive balance, calculations purportedly showing the relationship between team

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financial resources and competitive performance, and calculations purportedly estimating

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compensation differentials between schools under one of the APs’ damage scenarios,

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notwithstanding that this is now a case about injunctive relief. These new calculations and

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opinions are based on raw data from the internet and data from the expert report of APs’ expert

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Dr. Daniel A. Rascher, served in September 2013. The NCAA has not provided justification or

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explanation for its blatant violation of the Court’s scheduling Order.

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This new, supplemental expert report, disguised as a declaration, is untimely and must be

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stricken. On September 10, 2013, this Court entered an Order setting forth the schedule for

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expert discovery in this action. Case No. 09-1967, Dkt. No. 855 (herafter, “Dkt. No. __”). That

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order provided that opening expert reports on the merits be exchanged on September 25, 2013,

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and that rebuttal expert reports be exchanged on November 5, 2013. The NCAA has flouted

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these deadlines and precluded the Declaration from being challenged by a Daubert motion, which

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would have been due on November 18, 2013.

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The Declaration is not based on discovery of new information. Dr. Rubinfeld states that

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the Declaration “contains additional evidence supporting my opinions on competitive balance,

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previously expressed in the Rubinfeld Merits Report and the Rubinfeld Merits Rebuttal Report.”

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Declaration, ¶1. On May 30, 2014, in accordance with the Court’s Order, APs’ expert Dr. Roger
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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO STRIKE DECL. OF RUBINFELD
4:09-CV 3329 CW
4 09 CV 1967 CW (NC)

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G. Noll submitted a supplemental report to address new facts related to the NCAA’s significant

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contemplated governance reforms. Dkt. No. 1105; Tr. of May 28, 2014 Pretrial Conference at

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60-70. The Court permitted Dr. Noll to supplement his previous reports because those new facts

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were not available when Dr. Noll prepared his previous reports. Dr. Rubinfeld’s Declaration does

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not address Dr. Noll’s supplemental report. Instead, the Declaration is based on facts that were

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available to Dr. Rubinfeld a long time ago.

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The NCAA’s gambit cannot be permitted on the ground that it is some type of

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supplemental disclosure under Rule 26(e). “[S]upplementary disclosures do not permit a party to

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introduce new opinions after the disclosure deadline under the guise of a ‘supplement.’” Plumley

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v. Mockett, 836 F.Supp.2d 1053, 1062 (C.D. Cal. 2010) (“Plumley”). Permissible

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supplementation “means correcting inaccuracies, or filling the interstices of an incomplete report

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based on information that was not available at the time of the initial disclosure.” Diaz v. Con-Way

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Truckload, Inc., 279 F.R.D. 412, 421 (S.D. Tex. 2012).

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These requirements for permissible supplementation are not satisfied here and the

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Declaration should be stricken. “Although Rule 26(e) obliges a party to ‘supplement or correct’

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its disclosures upon information later acquired, this ‘does not give license to sandbag one’s

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opponent with claims and issues which should have been included in the expert witness’ report . .

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. . To rule otherwise would create a system where preliminary reports could be followed by

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supplementary reports and there would be no finality to expert reports . . . .’” Plumley, 836

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F.Supp.2d at 1062.

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Accordingly, “a supplemental expert report that states additional opinions or seeks to

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strengthen or deepen opinions expressed in the original expert report is beyond the scope of

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proper supplementation and subject to exclusion under Rule 37(c).” Plumley, 836 F.Supp.2d at

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1062 (citing Cohlmia v. Ardent Health Servs., LLC, 254 F.R.D. 426, 433 (N.D. Okla. 2008))

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(internal quotation marks omitted); see also East West, LLC v. Rahman, 1:11CV1380 JCC/TCB,

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2012 WL 4105129, at *7 (E.D. Va. Sept. 17, 2012) (defendants’ expert report was not “true

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supplementation” because it was intended to expand their earlier expert report and impermissibly

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broaden the scope of the expert opinions and was not based on discovery of new information);
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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO STRIKE DECL. OF RUBINFELD
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Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., Ltd., 769 F. Supp. 2d 269, 277-78

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(S.D.N.Y. 2011) (“[i]f an expert’s report ‘does not rely [on] any information that was previously

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unknown or unavailable to him,’ it is not an appropriate supplemental report”). Put simply,

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“experts are not free to continually bolster, strengthen, or improve their reports by endlessly

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researching the issues they already opined upon, or to continually supplement their opinions.”

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Advanced Analytics, Inc. v. Citigroup Global Markets, Inc., 04 CIV. 3531 LTS HBP, 2014 WL

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1243685, at *11 (S.D.N.Y. Mar. 26, 2014), reconsideration denied, 2014 WL 1855259 (S.D.N.Y.

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May 7, 2014).

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This is exactly what happened here. Dr. Rubinfeld has not attempted to “supplement” his

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initial report on the basis of newly discovered information, nor has he endeavored to correct any

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errors or omissions. Rather, Dr. Rubinfeld’s new Declaration is a last-minute attempt to bolster

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and expand upon his prior reports in violation of the Court’s scheduling order. That tactic is not

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permissible under Rule 26(e). Akeva LLC v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002)

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(“[t]o construe supplementation to apply whenever a party wants to bolster or submit additional

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expert opinions would reek [sic] havoc in docket control and amount to unlimited expert opinion

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preparation”).

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Because Dr. Rubinfeld’s Declaration is improper supplementation, it is necessarily

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untimely. Pursuant to Fed. R. Civ. P. 37(c)(1), the Declaration, and any attendant testimony, must

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be excluded absent a substantial justification for the belated submission or a showing that the

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failure to make timely disclosure was harmless. See Fed. R. Civ. P. 37(c)(1) (a party failing to

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provide information required by Rule 26(a) or (e) “is not allowed to use that information ... to

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supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

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justified or is harmless”); Great American Ins. Co. of N.Y. v. Summit Exterior Works, LLC, No.

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3:10 CV 1669 (JGM), 2012 WL 459885, at *7 (D. Conn. Feb. 13, 2012) (“Rule 37(c)(l)’s

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preclusionary sanction is automatic absent a determination of either substantial justification or

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harmlessness”); Jarrow Formulas, Inc. v. Now Health Group, Inc., No. CV 10–8301 PSG (JCx),

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2012 WL 3186576, at *15 (C.D. Cal. Aug. 2, 2012) (“[e]xcluding expert evidence as a sanction

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for failure to disclose expert witnesses in a timely fashion is automatic and mandatory unless the
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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
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4:09-CV 3329 CW

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party can show the violation is either justified or harmless.”). The party facing Rule 37(c)(1)

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sanctions has the burden of proving the failure to comply was substantially justified or harmless.

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Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001). No showing

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of bad faith or willfulness is required. Id. at 1106.

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The Ninth Circuit has made it clear that late disclosure of information required by Rule

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26(a) is not harmless when there is disruption to the court schedule and other parties. See

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Hoffman v. Construction Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (late

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disclosure of damages calculations excluded because “modifications to the court’s and the

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parties’ schedules supports a finding that the late disclosure of damages analysis was not

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harmless”); see also Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir.2005) (as

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amended); NW Pipe Co. v. DeWolff, Boberg & Associates, Inc., EDCV 10-0840-GHK, 2012 WL

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137585 (C.D. Cal. Jan. 17, 2012). Here, the NCAA offers no justification for its failure to timely

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disclose Dr. Rubinfeld’s latest opinions.

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The Ninth Circuit has identified the following factors that the courts should consider in

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determining the appropriateness of exclusion under Rule 37 (c)(1): (1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the opposing party; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic sanctions. Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th

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Cir. 1997) (“Wendt”) (citing Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990)).

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Here, each of the Wendt factor supports exclusion, particularly the second, the third and

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the fifth. The APs will be prejudiced if Dr. Rubinfeld’s Declaration is considered. The NCAA has

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submitted a new report containing numerous calculations and economic analyses on the eve of the

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trial while the APs are preparing the presentation of their case-in-chief and after the deadlines for

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filing Daubert motions and motions in limine have long passed. The new Declaration disobeyed

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the Court’s scheduling order.

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By any standard, the submission of this Declaration is improper and should be stricken

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from the record. See Storage Tech. Corp. v. Cisco Sys., No. C 00-1176SI, 2001 U.S. Dist. LEXIS

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25876 (N.D. Cal. Nov. 27, 2001) (striking submission of untimely expert report where the late
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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
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submission prevented the opposing party from being able to properly respond to it); see also

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O’Connor v. Boeing N. Am., Inc., No. CV 97-1554 DT (RCx), 2005 WL 6035243, at *7 (C.D.

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Cal. Sept. 12, 2005) (“To permit these reports into evidence would improperly widen the trial

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issues at the eleventh hour, and would unduly prejudice [the opposing party] in preparing for trial.

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Moreover, the new opinions appear based on information that was available to these experts at the

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time of their initial Rule 26 disclosures.”).

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The NCAA offered a potential deposition of Dr. Rubinfeld later this week, strictly limited

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to issues raised in his Declaration. This, however, is too little too late. “Rule 26(e) permits

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supplemental reports only for the narrow purpose of correcting inaccuracies or adding

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information that was not available at the time of the initial report. A party’s failure to disclose in

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accordance with Rule 26 cannot be considered ‘justified’ or ‘harmless’ simply because the

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opposing party had an opportunity to depose the witness, which would shift to the opposing party

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the burden that Rule 26 indisputably places on the party calling the witness.” Palmetto

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Pharmaceuticals LLC v. AstraZeneca Pharmaceuticals LP, No. 2:11cv807, 2012 WL 4369259, at

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*2 (D.S.C. July 18, 2012); see also Estate of Gonzalez v. Hickman, 05-00660 MMM (RCx), 2007

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WL 3237635 (C.D. Cal. June 28, 2007) (offering a deposition 15 days before trial “does not

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afford defendants adequate opportunity either to prepare to meet [the expert’s] testimony at trial

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or to complete the myriad other activities to which they must attend before trial”); Baden Sports,

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Inc. v. Molten, C06-210MJP, 2007 WL 2220215 (W.D. Wash. Aug. 1, 2007) (plaintiff’s offer to

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allow defendant to depose the expert again on the supplemental report, six days before the start of

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trial, does not remedy the prejudice created by the late disclosure).

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For the reasons above, the APs respectfully request that the Court strike the Declaration
and exclude any matters raised therein from trial.

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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO STRIKE DECL. OF RUBINFELD
4:09-CV 3329 CW

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Dated: June 4, 2014

Respectfully submitted,

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By: /s/Michael P. Lehmann
Michael P. Lehmann (Cal. Bar No. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
HAUSFELD LLP
44 Montgomery Street, 34th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
E-mail:[e-mail]
[e-mail]

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Michael D. Hausfeld (pro hac vice)
Hilary K. Scherrer (Cal. Bar No. 209451)
Sathya S. Gosselin (Cal. Bar. No. 269171)
Swathi Bojedla (pro hac vice)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
E-mail:[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Antitrust Plaintiffs’ Class Counsel

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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
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4:09-CV 3329 CW

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CERTIFICATE OF SERVICE

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I hereby certify that on June 4, 2014, I served the foregoing document on counsel by filing
it via the Court’s CM/ECF system, which will send an email notice to all registered parties.

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/s/ Sathya S. Gosselin
Sathya S. Gosselin

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ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND
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