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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MICHAEL D. HAUSFELD (pro hac vice)
[e-mail]
HILARY 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, D.C. 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, Suite 3400
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]

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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,
Plaintiffs,

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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.

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PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT
WITNESS REBUTTAL TESTIMONY
4:09-CV 3329 CW

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The Antitrust Plaintiffs (“APs”) hereby submit this bench memorandum concerning

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certain objections that the National Collegiate Athletic Association (“NCAA”) has lodged against

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demonstrative aids that APs intend to present during the testimony of Dr. Daniel Rascher on

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Thursday or Friday of this week.

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I.

FACTUAL BACKGROUND

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As APs set forth in their motion to strike Dr. Daniel L. Rubinfeld’s supplemental

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declaration (“Declaration”), Case No. 09-cv-3329, Dkt. No. 179 (hereinafter “Dkt. No. __”), the

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NCAA served Dr. Rubinfeld’s Declaration on June 3, 2014. This Declaration contained entirely

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new statistical work and was served three business days before trial and six weeks after the Court

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expressed a desire for statistical support for Dr. Rubinfeld’s opinions regarding competitive

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balance. See In re NCAA Student-Athlete Name & Likeness Licensing Litig., C 09-1967 CW,

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2014 WL 1410451, at *14 (N.D. Cal. Apr. 11, 2014).

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The Court denied APs’ motion to strike on June 6, 2014. Dkt. No. 191. The next day,

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APs served on the NCAA and the Court the summary exhibits and demonstrative aids that APs

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intend to use with Dr. Rascher. See Ex. A to Decl. of Martha Goodman (June 7 email) (hereafter

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“Ex. __”). Included in this set were thirteen demonstrative aids responsive to Dr. Rubinfeld’s

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new analyses. Of these thirteen slides, six were replicas of exhibits in Dr. Rubinfeld’s

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Declaration, and seven were responsive to Dr. Rubinfeld’s exhibits.

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On Sunday, June 8, APs served on the NCAA the backup to the thirteen demonstratives to

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be used with Dr. Rascher, as well as one additional slide in response to the Declaration (and its

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accompanying backup). See Ex. B (June 8 emails). Those responsive demonstratives are

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attached hereto as Ex. C.

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Although the NCAA initially expressed a concern about Dr. Rascher’s demonstratives, the

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NCAA waited until tonight at 7:00 p.m.—after Dr. Rascher had begun his testimony—to object

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to the use thereof on the grounds that the NCAA has been denied a report or deposition.

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II.

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Dr. Rascher’s testimony and use of these demonstratives is proper rebuttal evidence to

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MEMORANDUM OF POINTS AND AUTHORITIES

that which the NCAA intends to present during Dr. Rubinfeld’s testimony. Therefore, the NCAA
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PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT
WITNESS REBUTTAL TESTIMONY
4:09-CV 3329 CW

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has no valid objection to the use of these demonstratives. The Court made clear during the May

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28 pretrial conference that it would not entertain any rebuttal testimony that could have been

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presented during that witness’s direct testimony. The Court stated, “Rebuttal is only true rebuttal,

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things that you did not anticipate that they were going to say. So if you know what they are going

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to say, you need to anticipate it in your case, not hold somebody back for rebuttal.” May 28,

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2014 Transcript (“Tr.”) 25:15-18. Here, APs can anticipate what Dr. Rubinfeld will testify to

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regarding competitive balance in light of the Declaration and wish to rebut that testimony with

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Dr. Rascher’s testimony now—rather than in two weeks’ time. In order to mitigate the need to

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recall Dr. Rascher in APs’ rebuttal case, consistent with the Court’s guidance during the pretrial

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conference, APs should be allowed to use the demonstratives in response to the Declaration

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during their direct examination of Dr. Rascher.

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Moreover, APs made clear to the NCAA that they intended to rebut the Declaration

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through Dr. Rascher’s testimony by disclosing the summary exhibits and demonstrative aids well

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in advance of his taking the stand. No additional report or discovery is required where the

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expert’s “supplemental opinions were made known to the Defendant” in advance of such

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testimony at trial. Hess v. Ameristep, 06-3267, 2008 WL 4936726, at * 3 (C.D. Ill. Nov. 17,

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2008).

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Finally, in light of the Court’s denial of APs’ motion to strike the Declaration, APs should

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be permitted to respond to the Declaration without any additional discovery. In Mead Johnson &

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Co. v. Barr Labs., Inc., 38 F. Supp. 2d 289, 297 (S.D.N.Y. 1999), the court denied a motion to

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strike expert testimony that was “in rebuttal to the assertions of plaintiff’s counsel, which [the

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defendant] did not anticipate at the time of its expert’s report and deposition.” Because the Court

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is allowing Dr. Rubinfeld to testify to the matters set forth in the Declaration, Mead Johnson

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counsels that APs be allowed the opportunity to rebut the Declaration.

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For these reasons, APs respectfully request that the Court overrule any objection the
NCAA lodges to the demonstrative aids set forth in Ex. C.

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PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT
WITNESS REBUTTAL TESTIMONY
4:09-CV 3329 CW

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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: [phone]
Facsimile: [phone]
E-mail:[e-mail]
[e-mail]
[e-mail]
[e-mail]

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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: [phone]
Facsimile: [phone]
E-mail:[e-mail]
[e-mail]

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Plaintiffs’ Class Counsel
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PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT
WITNESS REBUTTAL TESTIMONY
4:09-CV 3329 CW

CERTIFICATE OF SERVICE

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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

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addresses registered.
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By: /s/ Sathya S. Gosselin
Plaintiffs’ Class Counsel
HAUSFELD LLP
1700 K St. NW, Suite 650
Washington, DC 20006

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PLAINTIFFS’ BENCH MEMORANDUM ON EXPERT
WITNESS REBUTTAL TESTIMONY
4:09-CV 3329 CW