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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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’ 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.

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PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION
TO THE ADMISSION OF SUMMARY EXHIBITS
4:09-CV 3329 CW

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The NCAA’s objections to the admission of summary exhibits PX 2537-2543,

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provisionally admitted through Plaintiffs’ expert, Daniel Rascher (“Dr. Rascher”), are unfounded

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and untimely.

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First, Plaintiffs have not offered these exhibits as a basis for expert opinion, and no expert

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testimony is required to explain them. See Pls.’ June 29, 2014 Mot. to Admit Exhibits (Dkt. No.

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256) at 2 and cases cited therein. As Plaintiffs’ counsel represented at trial, “We can have [Dr.

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Rascher] explain what the data is but not offer any opinions upon it.” Tr. 825:2-3. This is

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precisely the purpose for Dr. Rascher’s declaration. In it, Dr. Rascher explained what data each

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exhibit summarized. Rascher June 15, 2014 Decl. ¶¶ 9-13 (Dkt. No. 214). He offered no opinion

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about the data. Id. Moreover, contrary to the NCAA’s contentions, no testimony—expert or

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otherwise—beyond that which Dr. Rascher set forth in his declaration is required to explain the

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exhibits. The exhibits present simple summaries of revenues and expenses over time for FBS

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football and Division I men’s basketball programs. See id. They do not present, and are not

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offered to support, opinions. In fact, upon the Court’s suggestion that Dr. Rascher’s declaration

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could offer an opinion, counsel for Plaintiffs responded, “They’re objecting to the opinion, and so

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I’m not trying to get into that fight.” Tr. 825:6-7. Plaintiffs offered these exhibits as quintessential

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summary exhibits admissible under FRE 1006.

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Second, the exhibits are proper FRE 1006 exhibits because, contrary to the NCAA’s

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claims, the data underlying them are admissible. Amarel v. Connell, 102 F.3d 1494, 1516 (9th

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Cir. 1996) (requiring underlying information to be admissible for the admission of a summary

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exhibit).

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Moreover, the NCAA waived any objection to the admissibility of the data by failing to

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object to their inclusion on the Plaintiffs’ pre-trial exhibit list. NCAA’s Objections to Plaintiffs’

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Exhibit List, Case No. 09-cv-1967 (Dkt. No. 1070-5) at 138. The NCAA compounded its waiver

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when, after the Court provisionally admitted the exhibits on June 13, 2014, Tr. 828:12, it lodged

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no objection to the Plaintiffs’ use of two of the exhibits, PX 2542 and 2543, during the

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examination of Britton Banowsky. Tr. 2341:21-22, 2344: 8-9. The NCAA, in other words, waited

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to file its objections until seven weeks after the due date for objections to the Plaintiffs’ exhibit
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PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION
TO THE ADMISSION OF SUMMARY EXHIBITS
4:09-CV 3329 CW

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list, two weeks after the Court’s provisional ruling, and nine days after two of the exhibits were

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used with an NCAA witness. Because of these multiple waivers, the NCAA’s objections should

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be overruled.

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Even absent the NCAA’s waivers, the underlying data are admissible as public records

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under FRE 803(8). The data are “a record or statement of a public office” that set out “a matter

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observed while under a legal duty to report,” FRE 803(8)(A), and “neither the source of the

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information nor other circumstances indicate a lack of trustworthiness.” FRE 803(8)(B). As Dr.

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Rascher explained, the Equity in Athletics Disclosure Act (“EADA”) requires the Department of

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Education (“DOE”) to publish data on sport-by-sport revenues and expenditures for all U.S.

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colleges and universities that operate athletic programs. Rascher June 15, 2014 Decl. ¶ 3 (Dkt.

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No. 214). The statute provides that the Secretary of the Department of Education “shall compile

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and publish a report containing the information required under paragraph (1) broken down by—

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(A) individual institutions of higher education; and (B) athletic conferences recognized by the

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National Collegiate Athletic Association and the National Association of Intercollegiate

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Athletics.” 20 U.S.C. § 1092(e)(5) (emphasis added). 1 Thus, college and university athletic

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departments are under a legal duty to report their financial data to the DOE, and the DOE in turn

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is under a legal duty to make that data public. The DOE fulfills this duty by publishing the data

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on its website at http://ope.ed.gov/athletics/. This website is the source of the information

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contained in the challenged exhibits, PX 2537-2543.

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The exhibits are thus proper summary exhibits under FRE 1006. They are based on

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admissible evidence and summarize “voluminous writings . . . that cannot be conveniently

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examined in court.” FRE 1006. Further, the Plaintiffs have made available the underlying EADA

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data, as Dr. Rascher included it in his backup to his various expert reports, June 15, 2014 Decl. ¶

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2 (Dkt. No. 214), and Plaintiffs included it on their exhibit list and identified the DOE website

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from which it was retrieved. See Choike v. Slippery Rock Univ. of Pennsylvania of State Sys. of

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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 . . . .”).
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PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION
TO THE ADMISSION OF SUMMARY EXHIBITS
4:09-CV 3329 CW

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Higher Educ., CIV A. 06-622, 2006 WL 2060576, at *3 (W.D. Pa. July 21, 2006) (admitting

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summary exhibit of EADA data).

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For each of the foregoing reasons, the Court should overrule NCAA’s objections to
exhibits PX 2537-2543.

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Dated: July 2, 2014

Respectfully submitted,

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

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Plaintiffs’ Class Counsel

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PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION
TO THE ADMISSION OF SUMMARY EXHIBITS
4:09-CV 3329 CW

CERTIFICATE OF SERVICE

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I hereby certify that on July 2, 2014, I electronically filed the foregoing document with the

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Clerk of the Court using the CM/ECF system, which will send notification to the e-mail addresses

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registered.

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/s/ Swathi Bojedla
Swathi Bojedla
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006

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CERTIFICATE OF SERVICE
4:09-CV 3329 CW