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

Filing 206

Plaintiffs' Bench Memorandum Regarding Expert Witness Rebuttal Testimony filed byEdward C. O'Bannon, Jr.. (Attachments: #1 Declaration of Martha Goodman, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C)(Gosselin, Sathya) (Filed on 6/11/2014) Modified on 6/12/2014 (cpS, COURT STAFF).

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1 2 3 4 5 6 7 MICHAEL D. HAUSFELD (pro hac vice) mhausfeld@hausfeldllp.com HILARY 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, D.C. 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, Suite 3400 San Francisco, California 94104 Telephone: (415) 633-1908 Facsimile: (415) 358-4980 13 Plaintiffs’ Class Counsel 8 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, Plaintiffs, 20 21 22 23 24 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (NCAA); ELECTRONIC ARTS, INC.; and COLLEGIATE LICENSING COMPANY, Case No. 4:09-cv-3329 CW PLAINTIFFS’ BENCH MEMORANDUM REGARDING EXPERT WITNESS REBUTTAL TESTIMONY Judge: The Honorable Claudia Wilken Courtroom: 2, 4th Floor Trial: June 9, 2014 Defendants. 25 26 27 28 PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT WITNESS REBUTTAL TESTIMONY 4:09-CV 3329 CW 1 The Antitrust Plaintiffs (“APs”) hereby submit this bench memorandum concerning 2 certain objections that the National Collegiate Athletic Association (“NCAA”) has lodged against 3 demonstrative aids that APs intend to present during the testimony of Dr. Daniel Rascher on 4 Thursday or Friday of this week. 5 I. FACTUAL BACKGROUND 6 As APs set forth in their motion to strike Dr. Daniel L. Rubinfeld’s supplemental 7 declaration (“Declaration”), Case No. 09-cv-3329, Dkt. No. 179 (hereinafter “Dkt. No. __”), the 8 NCAA served Dr. Rubinfeld’s Declaration on June 3, 2014. This Declaration contained entirely 9 new statistical work and was served three business days before trial and six weeks after the Court 10 expressed a desire for statistical support for Dr. Rubinfeld’s opinions regarding competitive 11 balance. See In re NCAA Student-Athlete Name & Likeness Licensing Litig., C 09-1967 CW, 12 2014 WL 1410451, at *14 (N.D. Cal. Apr. 11, 2014). 13 The Court denied APs’ motion to strike on June 6, 2014. Dkt. No. 191. The next day, 14 APs served on the NCAA and the Court the summary exhibits and demonstrative aids that APs 15 intend to use with Dr. Rascher. See Ex. A to Decl. of Martha Goodman (June 7 email) (hereafter 16 “Ex. __”). Included in this set were thirteen demonstrative aids responsive to Dr. Rubinfeld’s 17 new analyses. Of these thirteen slides, six were replicas of exhibits in Dr. Rubinfeld’s 18 Declaration, and seven were responsive to Dr. Rubinfeld’s exhibits. 19 On Sunday, June 8, APs served on the NCAA the backup to the thirteen demonstratives to 20 be used with Dr. Rascher, as well as one additional slide in response to the Declaration (and its 21 accompanying backup). See Ex. B (June 8 emails). Those responsive demonstratives are 22 attached hereto as Ex. C. 23 Although the NCAA initially expressed a concern about Dr. Rascher’s demonstratives, the 24 NCAA waited until tonight at 7:00 p.m.—after Dr. Rascher had begun his testimony—to object 25 to the use thereof on the grounds that the NCAA has been denied a report or deposition. 26 II. 27 Dr. Rascher’s testimony and use of these demonstratives is proper rebuttal evidence to 28 MEMORANDUM OF POINTS AND AUTHORITIES that which the NCAA intends to present during Dr. Rubinfeld’s testimony. Therefore, the NCAA -1- PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT WITNESS REBUTTAL TESTIMONY 4:09-CV 3329 CW 1 has no valid objection to the use of these demonstratives. The Court made clear during the May 2 28 pretrial conference that it would not entertain any rebuttal testimony that could have been 3 presented during that witness’s direct testimony. The Court stated, “Rebuttal is only true rebuttal, 4 things that you did not anticipate that they were going to say. So if you know what they are going 5 to say, you need to anticipate it in your case, not hold somebody back for rebuttal.” May 28, 6 2014 Transcript (“Tr.”) 25:15-18. Here, APs can anticipate what Dr. Rubinfeld will testify to 7 regarding competitive balance in light of the Declaration and wish to rebut that testimony with 8 Dr. Rascher’s testimony now—rather than in two weeks’ time. In order to mitigate the need to 9 recall Dr. Rascher in APs’ rebuttal case, consistent with the Court’s guidance during the pretrial 10 conference, APs should be allowed to use the demonstratives in response to the Declaration 11 during their direct examination of Dr. Rascher. 12 Moreover, APs made clear to the NCAA that they intended to rebut the Declaration 13 through Dr. Rascher’s testimony by disclosing the summary exhibits and demonstrative aids well 14 in advance of his taking the stand. No additional report or discovery is required where the 15 expert’s “supplemental opinions were made known to the Defendant” in advance of such 16 testimony at trial. Hess v. Ameristep, 06-3267, 2008 WL 4936726, at * 3 (C.D. Ill. Nov. 17, 17 2008). 18 Finally, in light of the Court’s denial of APs’ motion to strike the Declaration, APs should 19 be permitted to respond to the Declaration without any additional discovery. In Mead Johnson & 20 Co. v. Barr Labs., Inc., 38 F. Supp. 2d 289, 297 (S.D.N.Y. 1999), the court denied a motion to 21 strike expert testimony that was “in rebuttal to the assertions of plaintiff’s counsel, which [the 22 defendant] did not anticipate at the time of its expert’s report and deposition.” Because the Court 23 is allowing Dr. Rubinfeld to testify to the matters set forth in the Declaration, Mead Johnson 24 counsels that APs be allowed the opportunity to rebut the Declaration. 25 26 For these reasons, APs respectfully request that the Court overrule any objection the NCAA lodges to the demonstrative aids set forth in Ex. C. 27 28 -2- PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT WITNESS REBUTTAL TESTIMONY 4:09-CV 3329 CW 1 2 3 4 5 6 7 8 9 Dated: June 11, 2014 Respectfully submitted, By: /s/ Sathya Gosselin 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 10 11 12 13 14 15 16 Michael P. Lehmann (Cal. Bar No. 77152) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) HAUSFELD LLP 44 Montgomery St., 34th Floor San Francisco, CA 94104 Telephone: (415) 633-1908 Facsimile: (415) 358-4980 E-mail:mlehmann@hausfeldllp.com abailey@hausfeldllp.com 17 Plaintiffs’ Class Counsel 18 19 20 21 22 23 24 25 26 27 28 -3- PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT WITNESS REBUTTAL TESTIMONY 4:09-CV 3329 CW CERTIFICATE OF SERVICE 1 2 3 I hereby certify that on June 11, 2014, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification to the e-mail 4 addresses registered. 5 6 7 8 9 By: /s/ Sathya S. Gosselin Plaintiffs’ Class Counsel HAUSFELD LLP 1700 K St. NW, Suite 650 Washington, DC 20006 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT WITNESS REBUTTAL TESTIMONY 4:09-CV 3329 CW

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