Direct Marketing Association, The v. Huber

Filing 73

RESPONSE to 72 Plaintiffs Motion to Strike Defendants Additional, Surreply Briefing on Plaintiffs Motion for Preliminary Injunction, Filed by the Defendant As an Untimely and Non-Conforming Motion to Exclude the Testimony of Plaintiffs Expert Witnesses filed by Defendant Roxy Huber. (Wesoky, Jack) Modified on 1/6/2011 to create linkage (sah, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01546-REB-CBS
The Direct Marketing Association,
Plaintiff,
v.
Roxy Huber, in her capacity as Executive Director, Colorado Department of Revenue,
Defendant.
DEFENDANT'S RESPONSE TO “PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S
ADDITIONAL, SURREPLY BRIEFING ON PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION, FILED BY THE DEFENDANT AS AN UNTIMELY AND
NON-CONFORMING MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFF’S
EXPERT WITNESSES” [#72]
Defendant, Roxy Huber in her capacity as Executive Director, Colorado
Department of Revenue ("Department"), responds to “Plaintiff’s Motion to Strike
Defendant’s Additional, Surreply Briefing on Plaintiff’s Motion for Preliminary Injunction,
Filed by the Defendant As an Untimely and Non-Conforming Motion to Exclude the
Testimony of Plaintiff’s Expert Witnesses” [Dkt.#72] as follows:
Procedural Background
The procedural history of this case to date has been unusual and somewhat
circuitous. Prior to any discovery, Plaintiff filed a Motion for Preliminary Injunction [Dkt.#
15]. Following Plaintiff’s Motion for Preliminary Injunction, the parties entered into a
scheduling order, which provided only for expert discovery, with that expert discovery
limited to the issues raised in the Motion for Preliminary Injunction [Dkt.# 40]. The

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parties exchanged expert disclosures and deposed the experts. Following briefing on
the Motion, the parties filed a Joint Status Report [Dkt.#58], in which the parties
stipulated to oral argument on legal issues raised in the Motion for Preliminary
Injunction in lieu of an evidentiary hearing. Defendant then filed her Amended Motion to
Exclude the Testimony of Plaintiff's Expert Witnesses F. Curtis Barry, Thomas Adler and
Kevin Lane Keller [Dkt.#71], , which challenges the admissibility of Plaintiff’s experts
under Rule 702 ("702 Motion") for purposes of the trial on the merits. Rather than
respond to the 702 Motion, Plaintiff moves to strike it as untimely and improper.
Defendant's 702 Motion is Neither Untimely Nor Improper Under the Court's
Practice Standards.
Plaintiff first contends that Defendant’s 702 Motion should be stricken because it
fails to conform with the Court’s Practice Standards. REB Civ. Practice Standard IV C.
2. prescribes the form of Trial Preparation Conference Order, and appears to apply
when cases are in the final stage prior to trial, with discovery complete. This case is
unusual in that expert discovery on limited issues related to the Motion for Preliminary
Injunction has been expedited before the parties have engaged in the usual discovery
process. As a result, this Court’s Practice Standards, relating to the time for filing 702
motions would not appear to apply in these circumstances.
More importantly, discovery related to these experts is complete. Expert
disclosures have been made and the parties have deposed the experts. As a result,
there is no reason to wait to file 702 motions. Moreover, the Federal Rules of Civil
Procedure do not prohibit filing a 702 motion before a Trial Preparation Conference
Order is entered. As a result, Defendant’s 702 Motion is not untimely.
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Defendant’s 702 Motion conforms to the requirements for 702 motions set forth in
the Court’s Trial Preparation Conference Order form. It is, therefore, not a
noncomplying motion as defined in REB Civ. Practice Standard V. C. 3. Accordingly,
Defendant’s 702 Motion should not be stricken under the Court's Practice Standards.
Defendant’s 702 Motion also is not an improper surreply. The 702 Motion is not
additional briefing on the Motion for Preliminary Injunction, as it addresses separate,
albeit related, issues to those raised in the Motion for Preliminary Injunction briefs.
Although Defendant referenced the deficiencies in Plaintiff’s experts’ analysis in her
response to the Motion for Preliminary Injunction, the 702 Motion is a stand-alone
challenge to the questionable methodology and facile approach employed by Plaintiff’s
experts. Plaintiff is not prejudiced by the 702 Motion, as it is free to fully brief whether
its experts meet the standards of admissibility under Daubert.
The Court May Properly Consider Defendant's 702 Motion for the Weight of
Plaintiff's Expert Testimony at the Preliminary Injunction Stage.
As outlined in Defendant’s 702 Motion, Defendant has moved to exclude the
testimony of Plaintiff’s experts for purposes of the trial on the merits. The Court,
however, may presently consider the 702 Motion to determine the weight to be afforded
the testimony for purposes of Plaintiff’s Motion for Preliminary Injunction. See Attorney
Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir. 2009) (affirming district
court’s denial of preliminary injunction when proffered expert testimony, admitted over
Rule 702 objection, was accorded little weight because, under a Daubert analysis, it
was not sufficiently reliable). When considering the Plaintiff's Motion for Preliminary
Injunction, the weight to be accorded expert testimony is left to the Court. Id.
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WHEREFORE, Defendant requests that Plaintiff's Motion to Strike be denied.
Respectfully submitted this 5th day of January, 2011.
JOHN W. SUTHERS
Attorney General
s/ Melanie J. Snyder
MELANIE J. SNYDER, 35835*
Assistant Attorney General
JACK M. WESOKY, 6001*
Senior Assistant Attorney General
Business & Licensing Section
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Telephone: [phone] (Snyder)
Telephone: [phone] (Wesoky)
FAX: [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]
STEPHANIE LINDQUIST SCOVILLE, 31182*
Senior Assistant Attorney General
Civil Litigation and Employment Law Section
Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]
*Counsel of Record
Attorneys for Defendant

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CERTIFICATE OF SERVICE
I hereby certify that on January 5, 2011, I electronically filed the foregoing
Defendant’s Response to Plaintiff’s Motion to Strike Defendant’s Additional,
Surreply Briefing on Plaintiff’s Motion for Preliminary Injunction, Filed by the
Defendant As an Untimely and Non-Conforming Motion to Exclude the Testimony
of Plaintiff’s Expert Witnesses [#71] with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to the following e-addresses:
[e-mail]
[e-mail]
Attorneys for Plaintiff

s/ Melanie J. Snyder

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