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

Filing 273

RESPONSE to re #214 Declaration in Opposition re Admission of Summary Exhibits Prepared by Dr. Rascher by National Collegiate Athletic Association. (Miller, Jeslyn) (Filed on 7/1/2014)

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 CAROLYN HOECKER LUEDTKE (State Bar No. 207976)
[e-mail]
4 ROHIT K. SINGLA (State Bar No. 213057)
[e-mail]
5 MUNGER, TOLLES & OLSON LLP
560 Mission Street
6 Twenty-Seventh Floor
San Francisco, California 94105-2907
7 Telephone:
[phone]
Facsimile:
[phone]
8
GREGORY L. CURTNER (Pro Hac Vice)
9 [e-mail]
ROBERT J. WIERENGA (State Bar No. 183687)
10 [e-mail]
KIMBERLY K. KEFALAS (Pro Hac Vice)
11 [e-mail]
SCHIFF HARDIN LLP
12 350 Main St., Suite 210
Ann Arbor, MI 48104
13 Telephone:
[phone]
Facsimile:
[phone]
14
Attorneys for Defendant
15 National Collegiate Athletic Association
16
UNITED STATES DISTRICT COURT
17
NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION
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19
EDWARD O’BANNON, et al.,

Case No. 4:09-CV-3329-CW

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Plaintiffs,

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v.

23 NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE
24 LICENSING COMPANY; and
ELECTRONIC ARTS INC.,
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Defendants.
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DEFENDANT NCAA’S OPPOSITION TO
THE ADMISSION OF SUMMARY
EXHIBITS PREPARED BY DR.
RASCHER
Judge: Hon. Claudia Wilken
Judge:
Hon. Claudia Wilken
Courtroom: 2, 4th Floor
Trial:
June 9, 2014

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09-CV-3329-CW
NCAA’S OPPOSITION TO ADMISSION OF SUMMARY EXHIBITS

1

On June 13, 2014, the NCAA objected to the presentation of certain “summary exhibits”,

2 TX 2537-2543, prepared by Plaintiffs’ expert Dr. Daniel A. Rascher. Trial Tr. at 826:10-829:4.
3 The Court ruled that it would provisionally admit these summary exhibits provided that Plaintiffs
4 file a declaration from an expert explaining the purported use of the exhibits, and subject to
5 NCAA’s response. Id. On June 15, 2014, Plaintiffs submitted the Declaration of Daniel A.
6 Rascher in Opposition to NCAA’s Objections to Plaintiffs’ Summary Exhibits. Dkt. No. 214. As
7 prescribed by the Court, the NCAA hereby responds to Dr. Rascher’s declaration and respectfully
8 requests that the Court deny admission of TX 2537-2543 on the grounds that these exhibits were
9 not timely disclosed and are not admissible summary exhibits under Federal Rule of Evidence
10 1006.
11

Plaintiffs concede that these materials were not included in Dr. Rascher’s four lengthy

12 expert reports, and argue instead that the data are admissible under Federal Rule of Evidence 1006
13 as “summary exhibits” of voluminous data. There are three separate problems with this theory.
14

First, an exhibit is admissible under Rule 1006 only if the underlying data are themselves

15 admissible, and here the underlying data are inadmissible hearsay. See Amarel v. Connell, 102
16 F.3d 1494, 1516 (9th Cir. 1996) (“A proponent of a summary exhibit must establish a foundation
17 that . . . the underlying materials on which the summary exhibit is based are admissible in
18 evidence”); United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989) (same). The underlying
19 data for the proffered summary exhibits are from a Department of Education database populated
20 by individual colleges with summaries of their own athletic department accounting records.
21 Regardless of whether this data may be relied on by experts, the data are double hearsay for
22 admissibility purposes. Plaintiffs have made no effort to demonstrate that the underlying data are
23 themselves admissible.
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Second, these charts and data represent quintessential expert analysis that was not timely

25 disclosed. See Fed. R. Civ. P. 26(a), 37(c)(1). Dr. Rascher provided similar charts and data as
26 part of his testimony, which were admitted. But Plaintiffs are seeking to supplement and expand
27 the scope of Dr. Rascher’s expert testimony with this new data. Indeed, Plaintiffs have argued that
28 the Court could interpret and rely on these new data by applying Dr. Rascher’s opinions regarding
-1NCAA’S OPPOSITION TO ADMISSION OF SUMMARY EXHIBITS

09-CV-3329-CW

1 the analyses he actually did to these new data and charts. That seriously undermines the
2 disclosure requirements of Rule 26. An expert could disclose analysis and opinions regarding, for
3 example, just one college, and then at trial introduce similar data on 350 colleges as a “summary
4 exhibit.” Plaintiffs had ample opportunity to develop their expert testimony and should be bound
5 by their disclosures. See, e.g., Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106
6 (9th Cir. 2001) (“exclusion is an appropriate remedy for failing to fulfill the required disclosure
7 requirements of Rule 26(a)”).
8

Third, the voluminous data Plaintiffs seek to introduce as “summary exhibits” are neither

9 useful nor relevant without admissible testimony to explain them. The Court cannot rely on
10 counsel’s arguments regarding the meaning of the data and charts. The very purpose of Rule 1006
11 is to enable a witness when presenting his or her testimony to “use a summary, chart, or
12 calculation to prove the content of voluminous writings, recordings, or photographs that cannot be
13 conveniently examined in court.” Fed. R. Evid. 1006. Without admissible testimony, the
14 proffered exhibits serve no summarizing purpose, lack foundation and relevance, and are likely to
15 mislead.
16

Rule 1006 was not intended as an end run around Rule 26 and the rules of evidence, to

17 permit parties to introduce the contents of voluminous unexplained and inadmissible data into
18 evidence without a witness. For these reasons, TX 2537-2543 should not be admitted into
19 evidence.
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DATED: July 1, 2014

Respectfully submitted,
MUNGER, TOLLES & OLSON LLP

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By:
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/s/ Jeslyn A. Miller
JESLYN A. MILLER

Attorneys for Defendant
National Collegiate Athletic Association

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09-CV-3329-CW