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)

Download PDF
1 GLENN D. POMERANTZ (State Bar No. 112503) glenn.pomerantz@mto.com 2 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@mto.com 3 CAROLYN HOECKER LUEDTKE (State Bar No. 207976) carolyn.luedtke@mto.com 4 ROHIT K. SINGLA (State Bar No. 213057) rohit.singla@mto.com 5 MUNGER, TOLLES & OLSON LLP 560 Mission Street 6 Twenty-Seventh Floor San Francisco, California 94105-2907 7 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 8 GREGORY L. CURTNER (Pro Hac Vice) 9 gcurtner@schiffhardin.com ROBERT J. WIERENGA (State Bar No. 183687) 10 rwierenga@schiffhardin.com KIMBERLY K. KEFALAS (Pro Hac Vice) 11 kkefalas@schiffhardin.com SCHIFF HARDIN LLP 12 350 Main St., Suite 210 Ann Arbor, MI 48104 13 Telephone: (734) 222-1500 Facsimile: (734) 222-1501 14 Attorneys for Defendant 15 National Collegiate Athletic Association 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION 18 19 EDWARD O’BANNON, et al., Case No. 4:09-CV-3329-CW 20 21 Plaintiffs, 22 v. 23 NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; COLLEGIATE 24 LICENSING COMPANY; and ELECTRONIC ARTS INC., 25 Defendants. 26 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 27 28 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. 24 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. 20 21 22 DATED: July 1, 2014 Respectfully submitted, MUNGER, TOLLES & OLSON LLP 23 24 By: 25 26 27 /s/ Jeslyn A. Miller JESLYN A. MILLER Attorneys for Defendant National Collegiate Athletic Association 28 -2NCAA’S OPPOSITION TO ADMISSION OF SUMMARY EXHIBITS 09-CV-3329-CW

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?