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

Filing 274

Plaintiffs' Reply to #273 NCAA's Opposition to Admission of Summary Exhibits Prepared by Dr. Rascher by Edward C. O'Bannon, Jr.. (Bojedla, Swathi) (Filed on 7/2/2014) Modified on 7/3/2014 (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’ REPLY TO DEFENDANT NCAA’S OPPOSITION TO THE ADMISSION OF SUMMARY EXHIBITS PREPARED BY DR. RASCHER Judge: The Honorable Claudia Wilken Courtroom: 2, 4th Floor Trial: June 9-27, 2014 Defendants. 25 26 27 28 PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO THE ADMISSION OF SUMMARY EXHIBITS 4:09-CV 3329 CW 1 The NCAA’s objections to the admission of summary exhibits PX 2537-2543, 2 provisionally admitted through Plaintiffs’ expert, Daniel Rascher (“Dr. Rascher”), are unfounded 3 and untimely. 4 First, Plaintiffs have not offered these exhibits as a basis for expert opinion, and no expert 5 testimony is required to explain them. See Pls.’ June 29, 2014 Mot. to Admit Exhibits (Dkt. No. 6 256) at 2 and cases cited therein. As Plaintiffs’ counsel represented at trial, “We can have [Dr. 7 Rascher] explain what the data is but not offer any opinions upon it.” Tr. 825:2-3. This is 8 precisely the purpose for Dr. Rascher’s declaration. In it, Dr. Rascher explained what data each 9 exhibit summarized. Rascher June 15, 2014 Decl. ¶¶ 9-13 (Dkt. No. 214). He offered no opinion 10 about the data. Id. Moreover, contrary to the NCAA’s contentions, no testimony—expert or 11 otherwise—beyond that which Dr. Rascher set forth in his declaration is required to explain the 12 exhibits. The exhibits present simple summaries of revenues and expenses over time for FBS 13 football and Division I men’s basketball programs. See id. They do not present, and are not 14 offered to support, opinions. In fact, upon the Court’s suggestion that Dr. Rascher’s declaration 15 could offer an opinion, counsel for Plaintiffs responded, “They’re objecting to the opinion, and so 16 I’m not trying to get into that fight.” Tr. 825:6-7. Plaintiffs offered these exhibits as quintessential 17 summary exhibits admissible under FRE 1006. 18 Second, the exhibits are proper FRE 1006 exhibits because, contrary to the NCAA’s 19 claims, the data underlying them are admissible. Amarel v. Connell, 102 F.3d 1494, 1516 (9th 20 Cir. 1996) (requiring underlying information to be admissible for the admission of a summary 21 exhibit). 22 Moreover, the NCAA waived any objection to the admissibility of the data by failing to 23 object to their inclusion on the Plaintiffs’ pre-trial exhibit list. NCAA’s Objections to Plaintiffs’ 24 Exhibit List, Case No. 09-cv-1967 (Dkt. No. 1070-5) at 138. The NCAA compounded its waiver 25 when, after the Court provisionally admitted the exhibits on June 13, 2014, Tr. 828:12, it lodged 26 no objection to the Plaintiffs’ use of two of the exhibits, PX 2542 and 2543, during the 27 examination of Britton Banowsky. Tr. 2341:21-22, 2344: 8-9. The NCAA, in other words, waited 28 to file its objections until seven weeks after the due date for objections to the Plaintiffs’ exhibit -1- PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO THE ADMISSION OF SUMMARY EXHIBITS 4:09-CV 3329 CW 1 list, two weeks after the Court’s provisional ruling, and nine days after two of the exhibits were 2 used with an NCAA witness. Because of these multiple waivers, the NCAA’s objections should 3 be overruled. 4 Even absent the NCAA’s waivers, the underlying data are admissible as public records 5 under FRE 803(8). The data are “a record or statement of a public office” that set out “a matter 6 observed while under a legal duty to report,” FRE 803(8)(A), and “neither the source of the 7 information nor other circumstances indicate a lack of trustworthiness.” FRE 803(8)(B). As Dr. 8 Rascher explained, the Equity in Athletics Disclosure Act (“EADA”) requires the Department of 9 Education (“DOE”) to publish data on sport-by-sport revenues and expenditures for all U.S. 10 colleges and universities that operate athletic programs. Rascher June 15, 2014 Decl. ¶ 3 (Dkt. 11 No. 214). The statute provides that the Secretary of the Department of Education “shall compile 12 and publish a report containing the information required under paragraph (1) broken down by— 13 (A) individual institutions of higher education; and (B) athletic conferences recognized by the 14 National Collegiate Athletic Association and the National Association of Intercollegiate 15 Athletics.” 20 U.S.C. § 1092(e)(5) (emphasis added). 1 Thus, college and university athletic 16 departments are under a legal duty to report their financial data to the DOE, and the DOE in turn 17 is under a legal duty to make that data public. The DOE fulfills this duty by publishing the data 18 on its website at http://ope.ed.gov/athletics/. This website is the source of the information 19 contained in the challenged exhibits, PX 2537-2543. 20 The exhibits are thus proper summary exhibits under FRE 1006. They are based on 21 admissible evidence and summarize “voluminous writings . . . that cannot be conveniently 22 examined in court.” FRE 1006. Further, the Plaintiffs have made available the underlying EADA 23 data, as Dr. Rascher included it in his backup to his various expert reports, June 15, 2014 Decl. ¶ 24 2 (Dkt. No. 214), and Plaintiffs included it on their exhibit list and identified the DOE website 25 from which it was retrieved. See Choike v. Slippery Rock Univ. of Pennsylvania of State Sys. of 26 1 27 28 Paragraph (1), as referenced in the statute, requires the various colleges and universities offering athletics programs to report certain data. Id. § 1092(e)(1) (“Each institution of higher education which participates in any program . . . and is attended by students receiving athletically related student aid shall annually submit a report to the Secretary . . . .”). -2- PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO THE ADMISSION OF SUMMARY EXHIBITS 4:09-CV 3329 CW 1 Higher Educ., CIV A. 06-622, 2006 WL 2060576, at *3 (W.D. Pa. July 21, 2006) (admitting 2 summary exhibit of EADA data). 3 4 For each of the foregoing reasons, the Court should overrule NCAA’s objections to exhibits PX 2537-2543. 5 Dated: July 2, 2014 Respectfully submitted, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 HAUSFELD LLP 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 Michael P. Lehmann (Cal. Bar No. 77152) Bruce J. Wecker (Cal. Bar No. 78530) 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 21 22 Plaintiffs’ Class Counsel 23 24 25 26 27 28 -3- PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO THE ADMISSION OF SUMMARY EXHIBITS 4:09-CV 3329 CW CERTIFICATE OF SERVICE 1 2 I hereby certify that on July 2, 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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