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

Filing 256

NOTICE of Motion and Motion to Admit Exhibits by Edward C. O'Bannon, Jr. (Attachments: #1 Proposed Order, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F)(Bojedla, Swathi) (Filed on 6/29/2014) Modified on 6/30/2014 (cpS, COURT STAFF). Modified on 6/30/2014 (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’ 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’ NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS Judge: The Honorable Claudia Wilken Courtroom: 2, 4th Floor Trial: June 9, 2014 Defendants. 25 26 27 28 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS 4:09-CV 3329 CW 1 2 3 PLEASE TAKE NOTICE that Plaintiffs hereby move to admit the following trial exhibits: PX 2628 (attached hereto as Exhibit A): PX 2628 is the University of Illinois student- 4 athlete release. Dr. Stiroh relied on this document, bates stamped ILLINOIS000035, in her 5 March 14, 2013 Class Certification Report as support for her statement that “student-athletes at 6 the University of Illinois, for example, grant rights to the university and/or the Big Ten 7 Conference to use their NILs in broadcasts and other media.” Stiroh Class Certification Report, ¶ 8 43 & n.53. PX 2628 is admissible as consistent with the Court’s ruling on the motion in limine 9 permitting Plaintiffs to introduce student-athlete releases so long as there is some evidence of a 10 nexus between the forms and the NCAA. Order Resolving Motions in Limine at 10, Dkt. No. 166 11 (May 30, 2014). PX 2628 states that all uses of the athlete’s NILs “shall be consistent with all 12 applicable NCAA . . . rules and regulations.” PX 2628, a legally binding release, is also 13 admissible as non-hearsay. United States v. Karr, 928 F.2d 1138 (9th Cir. 1991) (“‘Facts of 14 independent legal significance constituting a contract which is at issue are not hearsay.’”) 15 (quoting United States v. Rubier, 651 F.2d 628, 630 (9th Cir. 1981), cert. denied, 454 U.S. 875 16 (1981)). Finally, PX 2628 is admissible not for the truth but rather to show that Dr. Stiroh viewed 17 and relied upon evidence which contradicts her testimony that student-athlete releases apply only 18 to promotional uses of their NILs. See Tr. 2907:14-20. 19 PX 2623 (attached hereto as Exhibit B): PX 2623 is a summary exhibit of voluminous 20 data and is admissible under FRE 1006. It is entitled “Distribution of In-Season and 21 Rebroadcasted Football and Basketball Games” and represents a true and accurate summary of 22 voluminous Who’s Watching TV (“WWTV”) and Nielsen television data from the 2005-06 to 23 2012-13 seasons regarding the number of NCAA Division I men’s basketball and FBS football 24 games telecasted on television. These data are business records of their respective organizations. 25 Pursuant to the parties’ stipulation, Plaintiffs disclosed this summary exhibit “no less than 48 26 hours before to its anticipated use at trial.” Stipulation Regarding Exchange of Pretrial Materials, 27 Case No. 4:09-cv-1967-CW (Dkt. No. 1038) at 3. As required by the stipulation and by FRE 28 1006, Plaintiffs also made available to the NCAA the data underlying PX 2623. -1- PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS 4:09-CV 3329 CW 1 On June 27, 2014, after the last witness finished his trial testimony, counsel for the NCAA 2 represented to the Court that the NCAA would not require Plaintiffs to call the lay witness who 3 prepared this exhibit. By agreeing that Plaintiffs did not have to call the witness, the NCAA 4 waived its opportunity cross examine the witness regarding the accuracy of the chart. Thus, the 5 NCAA has no basis to contest the accuracy of this exhibit. 6 The NCAA’s main objection to PX 2623 appears to be that it is “expert” evidence, but it 7 is in fact, not. Rather, it is merely a summary of data regarding the number of broadcasts and 8 rebroadcasts of NCAA FBS football and Division I basketball games. No expert opinion based 9 on the summary of the data is offered in conjunction with the exhibit, and no expert opinion or 10 testimony is required under the Rule. See United States v. Pree, 408 F.3d 855, 869 (7th Cir. 11 2005) (“When a summary witness simply testifies as to what the . . . evidence shows, he does not 12 testify as an expert witness.”); Klaczak v. Consol. Med. Transp., 458 F. Supp. 2d 622, 666 (N.D. 13 Ill. 2006) (“Expert testimony is not necessary to summarize voluminous documents or records— 14 Rule 1006 provides such a mechanism without the use of expert testimony.”). 15 PX 2623 shows that, of all Division I men’s basketball and FBS football games telecasted 16 during from July 1, 2005 to June 30, 2013, 80.6% of them were in-season live or rebroadcast 17 games, 10.7% of them were games originally telecasted live during each game’s respective 18 season between 2005-06 and 2012-13 and were also rebroadcast in a subsequent season, and 19 8.7% of them constitute games originally telecasted prior to the 2005-06 season but were 20 rebroadcasted between 2005-06 and 2012-13. The rebroadcasts that PX 2623 depicts demonstrate 21 that the games held in the NCAA archives have a significant future value. See PX 298 (NCAA 22 executive stating in an email that “archive rights are 10% of our TV rights (the $6 Billion deal) . . 23 . .”). 24 That the information summarized in PX 2623 is “gigabytes” of data, as counsel for the 25 NCAA argued, is beside the point. See Intel Corp. v. Am. Guar. & Liab. Ins. Co., 5:09-CV- 26 00299-JR/PVT, 2010 WL 5176088, at *2 n.5 (N.D. Cal. Dec. 7, 2010) (admitting summary of 27 17,000 pages of attorney invoices). The fact of large volume of the data is precisely the issue that 28 -2- PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS 4:09-CV 3329 CW 1 Rule 1006 addresses. See Fed. R. Evid. 1006 (permitting a party to introduce summary evidence 2 to “prove the content of voluminous writings”). 3 PX 2021 (attached hereto as Exhibit C): PX 2021 is a February-March 2007 email chain 4 among NCAA executives, including Greg Weitekamp, David Knopp, and Peter Davis, with co- 5 defendant Electronic Arts’ executives Joel Linzner and Jordan Edelstein, among others. PX 2021 6 is admissible in its entirety as statements of party-opponents under FRE 801(d)(2)(C) and/or (D). 7 EA remains a co-defendant in this case. Furthermore, PX 2021 is admissible as statements of co- 8 conspirators in furtherance of the conspiracy. See Pls.’ June 8, 2014 Bench Mem. (Case No. 9 4:09-cv-3329, Dkt. No. 197) at 8-9. 10 PX 2645 (attached hereto as Exhibit D): PX 2645 is the first page of the National 11 Association of Intercollegiate Athletics’ (“NAIA”) IRS Form 990 for 2011-12. PX 2645 is 12 admissible as a business record under FRE 803(6). 13 PX 2661 (attached hereto as Exhibit E): PX 2661 is an excerpt from Dr. Rubinfeld’s 14 September 25, 2013 merits expert report. PX 2661 is admissible as Dr. Rubinfeld’s expert 15 testimony and directly supplements Dr. Rubinfeld’s testimony on June 27, 2014 regarding the 16 NCAA’s and Knight Commission’s views and/or recommendations regarding commercialism in 17 college athletics. See June 27, 2014 Trial Tr. 3106:1-3110:24. 18 PX 2662 (attached hereto as Exhibit F): PX 2662 is a compilation of the graduation rates 19 of Conference USA member institutions. During the cross-examination of Britton Banowsky, the 20 Conference USA commissioner, counsel for Plaintiffs represented that he would try to reach 21 agreement with the NCAA on admission of this graduation data. June 23, 2014 Trial Tr. 22 2382:13-29. The parties were unable to reach a stipulation. The graduation rate reports are 23 publicly available data, filed by the NCAA on its own website. This data is highly relevant to the 24 NCAA’s procompetitive justification regarding the success of the restraint in promoting 25 integration. In fact, many other graduation rate reports from other NCAA member instutitions 26 have already been admitted, without NCAA objection. 27 28 For the foregoing reasons, Plaintiffs respectfully request that the Court admit the preceding exhibits into evidence. -3- PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS 4:09-CV 3329 CW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Dated: June 29, 2014 Respectfully submitted, By: /s/ Swathi Bojedla 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 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 Plaintiffs’ Class Counsel 18 19 20 21 22 23 24 25 26 27 28 -4- PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS 4:09-CV 3329 CW CERTIFICATE OF SERVICE 1 2 I hereby certify that on June 29, 2014, I electronically filed the foregoing document with the 3 Clerk of the Court using the CM/ECF system, which will send notification to the e-mail addresses 4 registered. 5 6 7 8 /s/ Swathi Bojedla Swathi Bojedla HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- CERTIFICATE OF SERVICE 4:09-CV 3329 CW

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