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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1 2 3 4 5 6 7 8 MICHAEL D. HAUSFELD (pro hac vice) mhausfeld@hausfeldllp.com HILLARY K. SCHERRER (SBN 209451) hscherrer@hausfeldllp.com SATHYA S. GOSSELIN (SBN 269171) sgosselin@hausfeldllp.com SWATHI BOJEDLA (pro hac vice) sbojedla@hausfeldllp.com HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 12 MICHAEL P. LEHMANN (SBN 77152) mlehmann@hausfeldllp.com BRUCE J. WECKER (SBN 78530) bwecker@hausfeldllp.com HAUSFELD LLP 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 633-1908 Facsimile: (415) 358-4980 13 Antitrust Plaintiffs’ Class Counsel 9 10 11 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 18 19 EDWARD C. O’BANNON, JR. on behalf of himself and all others similarly situated, 20 Plaintiffs, 21 Case No. 4:09-cv-3329 CW ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE THE DECLARATION OF DANIEL L. RUBINFELD v. 22 24 NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (NCAA); ELECTRONIC ARTS, INC.; and COLLEGIATE LICENSING COMPANY, 25 Judge: The Honorable Claudia Wilken Courtroom: 2, 4th Floor Trial: June 9, 2014 Defendants. 23 26 27 28 ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 1 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, 2 3 4th Floor, of the above-captioned Court before the Honorable Claudia Wilken, Antitrust Plaintiffs 4 will and hereby do through undersigned counsel, respectfully move the Court for an order to 5 strike the Declaration of Dr. Daniel L. Rubinfeld dated June 3, 2014. 6 I. 7 MEMORANDUM OF POINTS AND AUTHORITIES On June 3, 2014, long after the deadline for expert discovery had passed and three 8 business days before trial, the National Collegiate Athletic Association (“NCAA”) sent to the 9 Antitrust Plaintiffs (“APs”) a declaration of Daniel L. Rubinfeld (“Declaration”). The 10 Declaration seeks to bolster Dr. Rubinfeld’s earlier submissions with calculations purportedly 11 measuring competitive balance, calculations purportedly showing the relationship between team 12 financial resources and competitive performance, and calculations purportedly estimating 13 compensation differentials between schools under one of the APs’ damage scenarios, 14 notwithstanding that this is now a case about injunctive relief. These new calculations and 15 opinions are based on raw data from the internet and data from the expert report of APs’ expert 16 Dr. Daniel A. Rascher, served in September 2013. The NCAA has not provided justification or 17 explanation for its blatant violation of the Court’s scheduling Order. 18 This new, supplemental expert report, disguised as a declaration, is untimely and must be 19 stricken. On September 10, 2013, this Court entered an Order setting forth the schedule for 20 expert discovery in this action. Case No. 09-1967, Dkt. No. 855 (herafter, “Dkt. No. __”). That 21 order provided that opening expert reports on the merits be exchanged on September 25, 2013, 22 and that rebuttal expert reports be exchanged on November 5, 2013. The NCAA has flouted 23 these deadlines and precluded the Declaration from being challenged by a Daubert motion, which 24 would have been due on November 18, 2013. 25 The Declaration is not based on discovery of new information. Dr. Rubinfeld states that 26 the Declaration “contains additional evidence supporting my opinions on competitive balance, 27 previously expressed in the Rubinfeld Merits Report and the Rubinfeld Merits Rebuttal Report.” 28 Declaration, ¶1. On May 30, 2014, in accordance with the Court’s Order, APs’ expert Dr. Roger -1- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 4 09 CV 1967 CW (NC) 1 G. Noll submitted a supplemental report to address new facts related to the NCAA’s significant 2 contemplated governance reforms. Dkt. No. 1105; Tr. of May 28, 2014 Pretrial Conference at 3 60-70. The Court permitted Dr. Noll to supplement his previous reports because those new facts 4 were not available when Dr. Noll prepared his previous reports. Dr. Rubinfeld’s Declaration does 5 not address Dr. Noll’s supplemental report. Instead, the Declaration is based on facts that were 6 available to Dr. Rubinfeld a long time ago. 7 The NCAA’s gambit cannot be permitted on the ground that it is some type of 8 supplemental disclosure under Rule 26(e). “[S]upplementary disclosures do not permit a party to 9 introduce new opinions after the disclosure deadline under the guise of a ‘supplement.’” Plumley 10 v. Mockett, 836 F.Supp.2d 1053, 1062 (C.D. Cal. 2010) (“Plumley”). Permissible 11 supplementation “means correcting inaccuracies, or filling the interstices of an incomplete report 12 based on information that was not available at the time of the initial disclosure.” Diaz v. Con-Way 13 Truckload, Inc., 279 F.R.D. 412, 421 (S.D. Tex. 2012). 14 These requirements for permissible supplementation are not satisfied here and the 15 Declaration should be stricken. “Although Rule 26(e) obliges a party to ‘supplement or correct’ 16 its disclosures upon information later acquired, this ‘does not give license to sandbag one’s 17 opponent with claims and issues which should have been included in the expert witness’ report . . 18 . . To rule otherwise would create a system where preliminary reports could be followed by 19 supplementary reports and there would be no finality to expert reports . . . .’” Plumley, 836 20 F.Supp.2d at 1062. 21 Accordingly, “a supplemental expert report that states additional opinions or seeks to 22 strengthen or deepen opinions expressed in the original expert report is beyond the scope of 23 proper supplementation and subject to exclusion under Rule 37(c).” Plumley, 836 F.Supp.2d at 24 1062 (citing Cohlmia v. Ardent Health Servs., LLC, 254 F.R.D. 426, 433 (N.D. Okla. 2008)) 25 (internal quotation marks omitted); see also East West, LLC v. Rahman, 1:11CV1380 JCC/TCB, 26 2012 WL 4105129, at *7 (E.D. Va. Sept. 17, 2012) (defendants’ expert report was not “true 27 supplementation” because it was intended to expand their earlier expert report and impermissibly 28 broaden the scope of the expert opinions and was not based on discovery of new information); -2- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 1 Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., Ltd., 769 F. Supp. 2d 269, 277-78 2 (S.D.N.Y. 2011) (“[i]f an expert’s report ‘does not rely [on] any information that was previously 3 unknown or unavailable to him,’ it is not an appropriate supplemental report”). Put simply, 4 “experts are not free to continually bolster, strengthen, or improve their reports by endlessly 5 researching the issues they already opined upon, or to continually supplement their opinions.” 6 Advanced Analytics, Inc. v. Citigroup Global Markets, Inc., 04 CIV. 3531 LTS HBP, 2014 WL 7 1243685, at *11 (S.D.N.Y. Mar. 26, 2014), reconsideration denied, 2014 WL 1855259 (S.D.N.Y. 8 May 7, 2014). 9 This is exactly what happened here. Dr. Rubinfeld has not attempted to “supplement” his 10 initial report on the basis of newly discovered information, nor has he endeavored to correct any 11 errors or omissions. Rather, Dr. Rubinfeld’s new Declaration is a last-minute attempt to bolster 12 and expand upon his prior reports in violation of the Court’s scheduling order. That tactic is not 13 permissible under Rule 26(e). Akeva LLC v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002) 14 (“[t]o construe supplementation to apply whenever a party wants to bolster or submit additional 15 expert opinions would reek [sic] havoc in docket control and amount to unlimited expert opinion 16 preparation”). 17 Because Dr. Rubinfeld’s Declaration is improper supplementation, it is necessarily 18 untimely. Pursuant to Fed. R. Civ. P. 37(c)(1), the Declaration, and any attendant testimony, must 19 be excluded absent a substantial justification for the belated submission or a showing that the 20 failure to make timely disclosure was harmless. See Fed. R. Civ. P. 37(c)(1) (a party failing to 21 provide information required by Rule 26(a) or (e) “is not allowed to use that information ... to 22 supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 23 justified or is harmless”); Great American Ins. Co. of N.Y. v. Summit Exterior Works, LLC, No. 24 3:10 CV 1669 (JGM), 2012 WL 459885, at *7 (D. Conn. Feb. 13, 2012) (“Rule 37(c)(l)’s 25 preclusionary sanction is automatic absent a determination of either substantial justification or 26 harmlessness”); Jarrow Formulas, Inc. v. Now Health Group, Inc., No. CV 10–8301 PSG (JCx), 27 2012 WL 3186576, at *15 (C.D. Cal. Aug. 2, 2012) (“[e]xcluding expert evidence as a sanction 28 for failure to disclose expert witnesses in a timely fashion is automatic and mandatory unless the -3- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 1 party can show the violation is either justified or harmless.”). The party facing Rule 37(c)(1) 2 sanctions has the burden of proving the failure to comply was substantially justified or harmless. 3 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001). No showing 4 of bad faith or willfulness is required. Id. at 1106. 5 The Ninth Circuit has made it clear that late disclosure of information required by Rule 6 26(a) is not harmless when there is disruption to the court schedule and other parties. See 7 Hoffman v. Construction Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (late 8 disclosure of damages calculations excluded because “modifications to the court’s and the 9 parties’ schedules supports a finding that the late disclosure of damages analysis was not 10 harmless”); see also Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir.2005) (as 11 amended); NW Pipe Co. v. DeWolff, Boberg & Associates, Inc., EDCV 10-0840-GHK, 2012 WL 12 137585 (C.D. Cal. Jan. 17, 2012). Here, the NCAA offers no justification for its failure to timely 13 disclose Dr. Rubinfeld’s latest opinions. 14 The Ninth Circuit has identified the following factors that the courts should consider in 15 determining the appropriateness of exclusion under Rule 37 (c)(1): (1) the public’s interest in 16 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 17 prejudice to the opposing party; (4) the public policy favoring disposition of cases on their merits; 18 and (5) the availability of less drastic sanctions. Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th 19 Cir. 1997) (“Wendt”) (citing Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990)). 20 Here, each of the Wendt factor supports exclusion, particularly the second, the third and 21 the fifth. The APs will be prejudiced if Dr. Rubinfeld’s Declaration is considered. The NCAA has 22 submitted a new report containing numerous calculations and economic analyses on the eve of the 23 trial while the APs are preparing the presentation of their case-in-chief and after the deadlines for 24 filing Daubert motions and motions in limine have long passed. The new Declaration disobeyed 25 the Court’s scheduling order. 26 By any standard, the submission of this Declaration is improper and should be stricken 27 from the record. See Storage Tech. Corp. v. Cisco Sys., No. C 00-1176SI, 2001 U.S. Dist. LEXIS 28 25876 (N.D. Cal. Nov. 27, 2001) (striking submission of untimely expert report where the late -4- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 1 submission prevented the opposing party from being able to properly respond to it); see also 2 O’Connor v. Boeing N. Am., Inc., No. CV 97-1554 DT (RCx), 2005 WL 6035243, at *7 (C.D. 3 Cal. Sept. 12, 2005) (“To permit these reports into evidence would improperly widen the trial 4 issues at the eleventh hour, and would unduly prejudice [the opposing party] in preparing for trial. 5 Moreover, the new opinions appear based on information that was available to these experts at the 6 time of their initial Rule 26 disclosures.”). 7 The NCAA offered a potential deposition of Dr. Rubinfeld later this week, strictly limited 8 to issues raised in his Declaration. This, however, is too little too late. “Rule 26(e) permits 9 supplemental reports only for the narrow purpose of correcting inaccuracies or adding 10 information that was not available at the time of the initial report. A party’s failure to disclose in 11 accordance with Rule 26 cannot be considered ‘justified’ or ‘harmless’ simply because the 12 opposing party had an opportunity to depose the witness, which would shift to the opposing party 13 the burden that Rule 26 indisputably places on the party calling the witness.” Palmetto 14 Pharmaceuticals LLC v. AstraZeneca Pharmaceuticals LP, No. 2:11cv807, 2012 WL 4369259, at 15 *2 (D.S.C. July 18, 2012); see also Estate of Gonzalez v. Hickman, 05-00660 MMM (RCx), 2007 16 WL 3237635 (C.D. Cal. June 28, 2007) (offering a deposition 15 days before trial “does not 17 afford defendants adequate opportunity either to prepare to meet [the expert’s] testimony at trial 18 or to complete the myriad other activities to which they must attend before trial”); Baden Sports, 19 Inc. v. Molten, C06-210MJP, 2007 WL 2220215 (W.D. Wash. Aug. 1, 2007) (plaintiff’s offer to 20 allow defendant to depose the expert again on the supplemental report, six days before the start of 21 trial, does not remedy the prejudice created by the late disclosure). 22 23 For the reasons above, the APs respectfully request that the Court strike the Declaration and exclude any matters raised therein from trial. 24 25 26 27 28 -5- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 1 Dated: June 4, 2014 Respectfully submitted, 2 3 4 5 6 7 8 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: (415) 633-1908 Facsimile: (415) 358-4980 E-mail:mlehmann@hausfeldllp.com abailey@hausfeldllp.com 16 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: (202) 540-7200 Facsimile: (202) 540-7201 E-mail:mhausfeld@hausfeldllp.com hscherrer@hausfeldllp.com sgosselin@hausfeldllp.com sbojedla@hausfeldllp.com 17 Antitrust Plaintiffs’ Class Counsel 9 10 11 12 13 14 15 18 19 20 21 22 23 24 25 26 27 28 -6- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW 1 CERTIFICATE OF SERVICE 2 3 4 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. 5 /s/ Sathya S. Gosselin Sathya S. Gosselin 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3254917v1 -7- ANTITRUST PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO STRIKE DECL. OF RUBINFELD 4:09-CV 3329 CW

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