Cohen v. Trump

Filing 258

RESPONSE in Opposition re 256 Ex Parte MOTION For Leave to Object to Evidence Filed In Support of Plaintiff's Reply to Motion to Exclude the Testimony of Dr. Joel Steckel, PH.D. filed by Art Cohen. (Pfefferbaum, Daniel)

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1 ROBBINS GELLER RUDMAN & DOWD LLP PATRICK J. COUGHLIN (111070) 2 3 X. JAY ALVAREZ (134781) 4 JASON A. FORGE (181542) 5 RACHEL L. JENSEN (211456) 6 DANIEL J. PFEFFERBAUM (248631) 7 BRIAN E. COCHRAN (286202) 8 JEFFREY J. STEIN (265268) 9 655 West Broadway, Suite 1900 San Diego, CA 92101 10 Telephone: 619/231-1058 619/231-7423 (fax) 11 ZELDES HAEGGQUIST & ECK, LLP 12 AMBER L. ECK (177882) 13 AARON M. OLSEN (259923) 14 225 Broadway, Suite 2050 San Diego, CA 92101 15 Telephone: 619/342-8000 619/342-7878 (fax) 16 Class Counsel 17 UNITED STATES DISTRICT COURT 18 SOUTHERN DISTRICT OF CALIFORNIA ) No. 3:13-cv-02519-GPC-WVG 19 ART COHEN, Individually and on Behalf of All Others Similarly Situated, ) ) CLASS ACTION 20 Plaintiff, ) ) PLAINTIFF’S OPPOSITION TO 21 vs. ) DEFENDANT’S EX PARTE ) APPLICATION FOR LEAVE TO 22 DONALD J. TRUMP, ) OBJECT TO EVIDENCE FILED IN ) SUPPORT OF PLAINTIFF’S REPLY 23 Defendant. ) TO MOTION TO EXCLUDE THE ) TESTIMONY OF DR. JOEL 24 STECKEL, Ph.D. 25 DATE: Ex Parte TIME: Ex Parte 26 CTRM: 2D JUDGE: Hon. Gonzalo P. Curiel 27 28 1162691_1 1 I. INTRODUCTION 2 Defendant’s entire ex parte application is built around the false premise that the 3 exhibits about which he complains constitute “new evidence.” Dkt. Nos. 243-1, 256 4 at 1. In reality, none of these exhibits is “new” – plaintiff cited each of these 5 documents in his opening papers. See Dkt. No. 189-1 (“Motion to Exclude”). 6 Specifically, plaintiff cited these documents in his opening brief to demonstrate why 7 defendant’s rebuttal expert, Joel H. Steckel, Ph.D. (“Steckel”) cannot reliably criticize 8 the factual support for the opinions of plaintiff’s expert, Michael A. Kamins, Ph.D. 9 (“Kamins”). That is because these documents are among the 95% of documents that 10 Kamins considered – but Steckel failed to review. Defendant’s response in his 11 opposition brief was that Steckel chose to review the “key” documents considered by 12 Kamins, even though Steckel obviously could not determine the relative importance of 13 any one document without reviewing all the others for comparison. See Dkt. No. 218 14 at 10. To refute defendant’s argument, plaintiff’s reply included a sampling of the 15 previously-cited documents considered by Kamins (but not by Steckel) for the Court 16 to independently assess defendant’s argument that Steckel had a sufficient basis for 17 his opinions because he reviewed the “key” Kamins documents. See Dkt. No. 243-1. 18 In addition to being wrong on the facts, defendant’s requested remedy of 19 striking these exhibits is also improper. Even if defendant was correct that the 20 documents constitute “new” evidence or facts, which he is not, the answer is not to 21 then “strike” it, but to give him an opportunity to respond. Here, however, defendant 22 is also undeserving of a sur-reply because the evidence of which he complains is not 23 new. Moreover, defendant failed to attach his proposed sur-reply and thus effectively 24 seeks a blank check to get in the last word on a motion for which plaintiff carries the 25 burden. This is not the first time defendants have taken this track: Trump’s attorneys 26 from three law firms ago attempted to get in the last word on class certification in the 27 related Low case, protracting the litigation and wasting many reams of paper. The 28 Court should deny defendant’s ex parte application. 1162691_1 -1- 3:13-cv-02519-GPC-WVG 1 II. ARGUMENT 2 A. 3 Plaintiff’s motion was narrowly tailored under Federal Rule of Evidence 702 Plaintiffs’ Exhibits Are Not “New” Evidence 4 and Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993), to exclude certain 5 opinions of Steckel, including his unfounded assertions that the opinions of Kamins 6 lacked sufficient factual basis. See Motion to Exclude at 5-7 (e.g., “[An] examination 7 of the materials that Dr. Kamins reviewed reveals a narrow and selective review of the 8 evidence in this case.”).1 In his opening brief, plaintiff argued that Steckel lacked the 9 necessary foundation (or really any foundation) to offer such opinions because he had 10 only reviewed fewer than 10 of the 175 documents included in the list of documents 11 that Kamins considered in his expert report. Id. at 5 (citing the Kamins report Ex. 3, 12 listing all documents considered by Kamins) & n.4 (listing eight documents that 13 appear on both Kamins’ and Steckel’s respective lists of documents considered). 14 In his opposition, defendant did not contest plaintiff’s assertion that Steckel 15 reviewed only eight of the identified Kamins documents. Dkt. No. 218. Instead, 16 defendant argued that Steckel’s opinions were adequately supported because those 17 eight documents that he reviewed were “the key documents reviewed by Kamins.” Id. 18 at 10. This was news to plaintiff. This rationale did not appear in Steckel’s rebuttal 19 expert report, Steckel did not testify as such when asked about the bases of his opinion 20 at his deposition, nor did Steckel submit any declaration that would support such a 21 representation to the Court. For example, when asked why he did not review the 22 Trump University advertisements considered by Kamins in formulating his expert 23 opinions, Steckel stated simply: “I didn’t need to.” See Dkt. No. 218 at 14. 24 Of course, Steckel cannot credibly assert that he reviewed the “key” documents 25 considered by Kamins because he reviewed just 8 of those 175 documents and thus 26 lacks any basis to make such a claim. So as to further demonstrate the fallacy of 27 28 1162691_1 1 Here, and throughout, unless otherwise noted, internal quotation marks and citations are omitted, and emphasis is added. -2- 3:13-cv-02519-GPC-WVG 1 defendant’s newfound argument, plaintiff provided the Court on reply a sampling of 2 the evidence cited by Kamins to support his Opinion No. 2 – an opinion of Kamins 3 that Steckel suggested lacked sufficient evidentiary support in his rebuttal expert 4 report. See Dkt. No. 184-2 (Cochran Decl.), Ex. 6, Steckel Rpt., ¶51. These 5 documents undermine defendant’s assertion that Steckel reviewed the “key” 6 documents in this section of his rebuttal expert report and show that, had he bothered 7 to do so, they would have directly undermined his rebuttal opinion. See Dkt. No. 243 8 at 3-4; Dkt. No. 243-1 (Exhibits 4-42). 9 Given this backdrop, it seems that the only party trying to sandbag is defendant, 10 who is using this excuse to get the last word on plaintiff’s Motion to Exclude. See 11 Dkt. No. 256 at 1. As pointed out above, each of the 39 exhibits filed with plaintiff’s 12 reply were cited in his opening papers and, even before that, they were referenced in 13 the Kamins expert report, which was served on defendants months ago, on January 29, 14 2016. In his opposition to plaintiff’s Motion to Exclude, defendant could have gone 15 through each and every one of the 167 documents that were considered by Kamins but 16 foregone by Steckel and explained why these documents were irrelevant to Steckel’s 17 analysis or otherwise unnecessary to review in forming Steckel’s opinions. Defendant 18 chose to simply ignore them. Defendant’s ‘head in the sand’ approach to his 19 opposition does not justify granting him leave for a do-over now. 20 B. Striking Plaintiff’s Exhibits Is Not the Answer 21 Defendant’s requested relief – striking plaintiff’s exhibits and argument – is 22 improper as it effectively asks the Court to ignore relevant evidence (i.e., documents 23 referenced in the Kamins expert report) that was previously cited in plaintiff’s opening 24 papers. Dkt. No. 256 at 1. None of the cases relied upon by defendant suggest that 25 evidence cited in the opening motion and then filed with the court on reply constitutes 26 “new” evidence. And even in cases cited by defendant where the court found the 27 evidence at issue to be “new,” the courts did not strike it. For example, in Lewis v. 28 Gotham Ins. Co., No. 09cv252 L (POR), 2009 U.S. Dist. LEXIS 103044 (S.D. Cal. 1162691_1 -3- 3:13-cv-02519-GPC-WVG 1 Nov. 5, 2009), the court did not even consider striking the new evidence to be a viable 2 option: “[T]he Court may cho[o]se to not consider that evidence, provide oral 3 argument to the non-moving party, or allow the non-moving party to file a sur-reply.” 4 Id. at *3. Accordingly, even if the evidence was “new,” which it is not, the answer is 5 not to strike it. 6 C. Defendant Should Not Get the Last Word 7 Nor should the Court grant defendant’s alternative request to file a sur-reply. In 8 addition to the fact that defendant’s request is not justified because the evidence is not 9 new, defendant’s proposed objection and motion to strike are meritless. See United 10 States v. Murphy, No. 15-10053-02-EFM, 2016 U.S. Dist. LEXIS 61515, at *4 (D. 11 Kan. May 9, 2016) (denying leave to file motion to dismiss where meritless); In re 12 Motor Fuel Temperature Sales Practices Litig., No. 07-1840-KHV, 2012 U.S. Dist. 13 LEXIS 100493, at *53 n.1 (D. Kan. July 18, 2012) (denying leave to file reply brief 14 asserting meritless arguments). 15 Here, defendant’s proposed argument is meritless because Steckel cannot 16 credibly justify his failure to review over 95% of the documents considered by 17 Kamins on a hunch that he chose the “key” ones, given that he did not bother looking 18 at the other documents in order to make such an assessment. On this basis alone, the 19 Court should deny defendant leave to file a sur-reply. See Murphy, 2016 U.S. Dist. 20 LEXIS 61515, at *4; Motor Fuel Temperatures, 2012 U.S. Dist. LEXIS 100493, at 21 *53 n.1. 22 Moreover, in the cases cited by defendant, the party seeking leave to file a sur- 23 reply attached the proposed pleading, thereby allowing the court to be a gatekeeper 24 and confine the scope of additional briefing to the new evidence or facts. See 25 Benchmark Young Adult Sch., Inc. v. Launchworks Life Servs., LLC, No. 12-cv26 02953-BAS(BGS), 2015 U.S. Dist. LEXIS 56970, at *7 (S.D. Cal. Apr. 30, 2015) 27 (granting request to file a portion of the attached proposed sur-reply). Defendant’s 28 1162691_1 -4- 3:13-cv-02519-GPC-WVG 1 failure to attach his proposed sur-reply (or even describe what it would contain) is 2 tantamount to asking this Court for a blank check to file another opposition brief. 3 This is not the first time that defendant has directed his attorneys to take this 4 tack in the related class action litigation. His attorneys from three law firms ago 5 attempted to have the last word multiple times on class certification in the related Low 6 case, needlessly protracting the litigation with multiple briefs and further delay. See, 7 e.g., Low Dkt. No. 211. Plaintiff carries the burden on his Motion to Exclude and thus 8 was afforded a reply brief. Defendant should not be permitted to upend the rules in 9 order to get in the last word. 10 III. CONCLUSION 11 Plaintiff respectfully requests that the Court deny defendant’s ex parte 12 application in its entirety. 13 DATED: July 1, 2016 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Respectfully submitted, ROBBINS GELLER RUDMAN & DOWD LLP PATRICK J. COUGHLIN X. JAY ALVAREZ JASON A. FORGE RACHEL L. JENSEN DANIEL J. PFEFFERBAUM BRIAN E. COCHRAN JEFFREY J. STEIN s/ Daniel J. Pfefferbaum DANIEL J. PFEFFERBAUM 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) ZELDES HAEGGQUIST & ECK, LLP AMBER L. ECK AARON M. OLSEN 225 Broadway, Suite 2050 San Diego, CA 92101 Telephone: 619/342-8000 619/342-7878 (fax) Class Counsel 28 1162691_1 -5- 3:13-cv-02519-GPC-WVG 1 2 CERTIFICATE OF SERVICE I hereby certify that on July 1, 2016, I authorized the electronic filing of the 3 foregoing with the Clerk of the Court using the CM/ECF system which will send 4 notification of such filing to the e-mail addresses denoted on the attached Electronic 5 Mail Notice List, and I hereby certify that I caused to be mailed the foregoing 6 document or paper via the United States Postal Service to the non-CM/ECF 7 participants indicated on the attached Manual Notice List. 8 I certify under penalty of perjury under the laws of the United States of America 9 that the foregoing is true and correct. Executed on July 1, 2016. 10 11 s/ Daniel J. Pfefferbaum DANIEL J. PFEFFERBAUM 14 ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: 619/231-1058 619/231-7423 (fax) 15 E-mail: 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 1162691_1 3:13-cv-02519-GPC-WVG CM/ECF - casd- Page 1 of 2 Mailing Information for a Case 3:13-cv-02519-GPC-WVG Cohen v. Trump Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. • Xavier Jay Alvarez, • Brian E. Cochran, • Patrick J Coughlin,, • Amber Lee Eck,, • Jason A Forge,,,, • Jeffrey L. Goldman • Alreen Haeggquist,, • Rachel L Jensen,,,,, • David Lee Kirman,, • Matthew R. Maron, • Jill Ann Martin, • Maureen E. Mueller, • Aaron M. Olsen, • Daniel M. Petrocelli • Daniel Jacob Pfefferbaum • Kelli L. Sager, • Jeffrey J. Stein • WP Company LLC d/b/a The Washington Post • Alonzo Wickers , IV,,, • Helen Irene Zeldes, Manual Notice List 7/1/2016 CM/ECF - casd- Page 2 of 2 The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. • (No manual recipients) 7/1/2016

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