Christou et al v. Beatport, LLC et al

Filing 259

ORDER on Pending Motions: 1. Defendants' Motion to Strike and Exclude Supplemental Expert Opinions and Report of Jay Freedberg 197 : GRANTED IN PART, DENIED IN PART. 2. Defendants' Motion in Limine to Exclude Evidence Referring or Rela ting to Charissa Saverio, aka DJ Rap 204 : GRANTED IN PART, DENIED IN PART. 3. Defendants' Motion in Limine to Exclude Evidence of Interference with Prospective Business Expectancies Barred by the Statute of Limitations 205 : DENIED. 4. P laintiffs' Motion in Limine to Exclude Neighborhood Crime Evidence Pursuant to Rules 403, 602 and 701 206 : DENIED. 5. Defendants' Motion in Limine to Exclude the Introduction of Certain Audio Recordings at Trial 207 : GRANTED. 6. Plai ntiffs' Motion in Limine to Exclude Drug Use Evidence Pursuant to Rules 401, 402 and 403 208 : GRANTED. 7: Plaintiffs' Motion in Limine to Exclude Testimony of Scott Feiwell Pursuant to Rules 401, 402, 403, 701 and 702 211 : GRANTED. 8. Plaintiffs' Motion in Limine to Exclude Testimony of Jerry Murdock Pursuant to Rule 37 212 : DENIED. 9. Plaintiffs' Motion in Limine to Exclude Evidence of Regas Christou's Personal Financial Information Pursuant to Rules 401, 402 and 403 213 : GRANTED. 10. Defendants' Motion in Limine to Exclude Plaintiffs' Untimely Supplementa l Document Production 247 : DENIED. By Judge R. Brooke Jackson on 06/04/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 10-cv-02912-RBJ-KMT
REGAS CHRISTOU,
R.M.C. HOLDINGS, L.L.C. d/b/a The Church,
BOUBOULINA, INC. d/b/a Vinyl,
MOLON LAVE, INC. d/b/a 2 A.M.,
CITY HALL, LLC,
1037 BROADWAY, INC. d/b/a Bar Standard f/k/a The Shelter,
776 LINCOLN ST., INC. d/b/a Funky Buddha Lounge, and
1055 BROADWAY, INC. d/b/a The Living Room,
Plaintiffs,
v.
BEATPORT, LLC,
BRADLEY ROULIER, and
BMJ&J, LLC d/b/a Beta Nightclub and Beatport Lounge,
Defendants.

ORDER on PENDING MOTIONS

Once again the parties present the Court with several motions. With one exception, the
motions have been fully briefed. The case remains set for a jury trial beginning June 24, 2013.
FACTS1
This lawsuit is the result of a falling out between two friends and business colleagues. In
the 1990’s Regas Christou founded several nightclubs in Denver’s South of Colfax Nightlife
District (“SoCo”). At issue in the present case are two of these nightclubs, The Church and
Vinyl. Both clubs developed national reputations as venues for “Electronic Dance Music”
(sometimes referred to as “EDM”). Electronic Dance Music features live performances by disc
1

The Court has summarized the facts in its orders of March 14, 2012 and January 23, 2013. This more abbreviated
summary is provided to put the pending motions in context and to note the deletion of certain parties on both sides.

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jockeys who mix songs or “tracks” on expensive synthesizers and other computer based
equipment and are viewed as artists in their own right. Each year DJ Magazine produces a list of
the “Top 100” DJ’s in the EDM world. These “A-List DJ’s” command larger audiences and are
in high demand by nightclubs as well as other entertainment venues.
Mr. Christou employed Bradley Roulier as a “talent buyer” from 1998 to 2007, and he
had a significant role in Mr. Christou’s success including, among other things, by booking A-List
DJ’s to perform in his clubs. Mr. Roulier and others also conceived of the idea of creating an
online marketplace for promoting and selling (downloading) Electronic Dance Music. Mr.
Christou liked the idea and provided both financial and promotional support to Mr. Roulier and
his partners. This idea led to the creation of Beatport in 2003. Beatport was enormously
successful and has grown to become the largest online site that caters essentially exclusively to
producers and consumers of Electronic Dance Music.
Although anyone can buy music through the Beatport website, the tracks sold there are
designed especially for DJ’s. They are free of Digital Rights Management or “DRM,” which
means they can be mixed and re-mixed on the types of equipment used by DJ’s. They are meant
to be played at loud volume on expensive, high fidelity equipment that is available in the venues
in which these DJ’s work. Accordingly, the average cost of a single track is higher than tracks
that can be downloaded on mass-market sites such as Apple’s iTunes. Although many of the
same DJ’s do sell tracks on iTunes and various other online sites, Beatport considers itself to set
the standard in the market that it serves.
In 2007 Mr. Roulier left Mr. Christou, and in 2008 he founded his own competing club
called Beta in the Lower Downtown area of Denver (“LoDo”). The gist of the present suit is
plaintiff’s claim that Mr. Roulier has been threatening A-List DJ’s that their tracks will not be

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promoted on Beatport if they perform in Mr. Christou’s clubs, and as a result, Beta has largely
taken over the Denver market for Electronic Dance Music performances by the top DJ’s.
PROCEDURAL HISTORY
Plaintiffs filed this lawsuit on December 1, 2010. They originally asserted nine claims
for relief: (1) illegal tying in violation of section one of the Sherman Act against all defendants;
(2) monopolization (section two of the Sherman Act against defendants Beta and Mr. Roulier;
(3) attempt to monopolize against Beta and Mr. Roulier; (4) conspiracy to monopolize against all
defendants; (5) conspiracy to eliminate competition by unfair means in violation of section one
of the Clayton Act; (6) theft of trade secrets; (7) violation of the Racketeer Influenced and
Corrupt Organizations Act; (8) intentional interference with prospective business expectancies
against Mr. Roulier; and (9) civil conspiracy against all defendants.
In its order of March 14, 2012 [#146] the Court dismissed the RICO claim and found that
that Mr. Christou personally lacked standing to assert the antitrust claims. With those
exceptions, however, the Court denied the motions to dismiss. It also denied defendants’ motion
for sanctions. Defendants filed their motion for summary judgment on March 15, 2012. The
Court addressed that motion and a number of other motions, including “Daubert” motions, in its
order of January 23, 2013.
On March 26, 2013 plaintiffs moved to dismiss their claims against Beatport due to an
informal resolution of their disputes and in addition voluntarily to dismiss the claims of all but
the two clubs that feature Electronic Dance Music against the remaining defendants. The
Court’s granting of those motions narrowed the parties to R.M.C. Holdings, LLC, d/b/a The
Church and Bouboulina, Inc., d/b/a Vinyl, plaintiffs v. Bradley Roulier and BMJ&J, LLC d/b/a
Beta Nightclub and Beatport Lounge, defendants.

3

PENDING MOTIONS
Defendants’ Motion to Strike and Exclude Supplemental Expert Opinions and
Report of Jay Freedberg [#197]: GRANTED IN PART, DENIED IN PART.
Defendants contend that Mr. Freedberg’s “99-page” supplemental report, dated March 4,
2013, contains “dramatically” changed opinions that, if allowed, would be so prejudicial that
either the Court should strike them or, at a minimum, continue the trial so that the defendants and
their expert can prepare to defend against them. Plaintiffs respond that there really isn’t anything
new here, and that defendants declined their offer to make Mr. Freedberg available for another
deposition two months ago. There appears to be some hyperbole on both sides of this dispute.
The Court will not permit Mr. Freedberg to repackage his damages opinion in a different
format or to reflect an “alternative” approach. This case was filed on December 1, 2010. A
scheduling order established deadlines, including for disclosure of expert opinions which were
developed and disclosed. The Court held a “Daubert” hearing on January 15, 2013 and
subsequently issued its order of January 23, 2013. In that order the Court expressed some
misgivings about Mr. Freedberg’s opinion on “lost enterprise value,” although it did not strike
that opinion. This was not intended to be an invitation to Mr. Freedberg to modify his opinions
to meet the Court’s concerns. The disclosure deadlines have to have meaning in fairness to both
parties.
On the other hand, if there is no change in methodology, for example the method of
calculating lost profits, and the supplement does nothing substantively beyond updating the
calculation to including data for the years 2011 and 2012 that literally did not exist and therefore
could not have been included by Mr. Freedberg in his initial report, then it is not a matter of
providing an untimely opinion. Nor do I find that that type of supplementation would be
prejudicial to the defendants. Their attack on Mr. Freedberg’s opinion, apart from the error that
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was disclosed during the Daubert hearing, is on his methodology, not the raw data. The
defendants are armed with their own very able expert who should have little added burden in
responding to the supplemented opinion, if that is all that it contains.
Likewise, I am not persuaded that the lost profits calculation must stop on the date of the
complaint as a matter of law. While that might be a general rule in private antitrust litigation, the
cases cited by the defendants make it clear that “in appropriate cases, the trial court, following
the filing of a supplemental complaint, may permit the recovery of damages resulting from
wrongful acts committed subsequent to the filing of the action.” William Inglis & Sons Baking
Co. v. ITT Continental Baking Company, Inc., 668 F.2d 1014, 1057 (9th Cir. 1981). Accord,
Borger v. Yamaha International Corp., 625 F.2d 390, 398 (2d Cir. 1980). I see no reason why,
at least in a tying/attempt to monopolize case such as this one where the alleged misconduct has
continued to the present time, there is something magic about the date the complaint was filed.
If there is a rational basis for such a cutoff, the defendants have not provided it to me.
The cases cited above are conditioned upon the plaintiff’s filing a “supplemental
complaint.” The Court grants leave to the plaintiffs to file an amended or supplemental
complaint. Again, however, Mr. Freedberg will be limited to the methodology used and
illustrated in his original opinion. He may “update” the damages by including data for the years
2011 and 2012 that did not exist when he prepared his report, and he may correct the error that
was disclosed at the January 15, 2013 hearing, but that is all. It is too late for “alternative”
approaches. Expert opinions are not a moving target. The Court requests and expects that Mr.
Freedberg strictly comply with these limitations.

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Defendants’ Motion in Limine to Exclude Evidence Referring or Relating to
Charissa Saverio, aka DJ Rap [#204]: GRANTED IN PART, DENIED IN PART.
Despite listing Ms. Saverio as a may-call witness in the Final Pretrial Order, defendants
now ask the Court to exclude her testimony entirely.2 They claim that her testimony is irrelevant
because she is not an A-List DJ. Evidence is “relevant” if it has any tendency to make a fact that
is of consequence to the resolution of a case more or less probable than it would be without the
evidence.” Fed. R. Evid. 401. The fact that she has not been an A-List DJ in recent years does
not render her testimony irrelevant.3 If, for example, the defendants pressured her to play at Beta
and not at The Church or Vinyl as a condition of being promoted on Beatport, that would be
have some tendency to show that defendants were willing to use their Beatport leverage to cause
prominent DJ’s to stay away from plaintiffs’ clubs.
Defendants’ hearsay objection is more problematic. Ms. Saverio made some statements
during a surreptitiously recorded telephone conversation with plaintiffs’ talent buyer, Jonny
Shuman, that tend to indicate that she thought that her ability to be promoted on Beatport would
be jeopardized if she played at plaintiffs’ clubs rather than Beta. She repeated many of the same
comments in a surreptitiously recorded telephone conversation with Mr. Christou. I have
listened to both recordings, and although transcripts of these recordings (and other recordings
that are the subject of motion #207, discussed below) have not yet been provided to the Court, a
portion of the recording of the Shuman conversation was played during Ms. Saverio’s deposition
[#226-3] and transcribed contemporaneously by the reporter as part of the deposition. Id. at
2

Defendants listed Ms. Saverio “to testify about her relationships with Mr. Roulier and Jonny Shuman, her personal
observations of the EDM industry, the DJ Magazine Top 100, the threats and promises alleged by Plaintiffs, and any
matter raised during her deposition.” Final Pretrial Order [#169] at 18 (¶b(2)(xx)).
3
Plaintiffs suggest that Ms. Saverio is an A-List DJ even though she is not listed in DJ Magazine’s Top 100 DJs.
The use of that list to define an A-List DJ has previously been accepted by the parties, the experts and the Court, and
plaintiffs may not now adopt a new definition to facilitate their argument about Ms. Saverio.

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deposition pages 36-49. I have read that transcription as well as the other excerpts from the
deposition that are included in docket #226-3.
These are out of court statements. Plaintiffs suggest, but do not in response to this
motion do much to support, the idea that the statements can be offered to show the declarant’s
(Ms. Saverio’s) state of mind. I will address that idea in detail in discussing motion #207.
Suffice it to say that I am not persuaded that the relevance of the statements can be separated
from the truth of what they assert.
Plaintiffs also suggest in a footnote that the statements can be admitted as non-hearsay
verbal acts, citing Nobody in Particular Presents, Inc. v. Clear Channel (“NIPP”), 311 F. Supp.
2d 1048, 1095 (D. Colo. 2004) In that case the court found that “[c]onversations as to the
making and terms of an oral agreement” likely would be admissible as verbal acts, not hearsay,
because the words spoken have independent significance, i.e., they constituted the tying
agreement and were admissible to establish that they were spoken, not to establish their truth. Id.
However, Ms. Saverio’s recorded statements were not made to the alleged tying company. Their
admission would not constitute the tying agreement, and I cannot see how they would be
considered to be a verbal act. Rather, they would be relevant only to the extent that they
supported the truth of the implied statement that Ms. Saverio was the victim of a tying
arrangement forced upon her by the defendants.
Therefore, I conclude that the recorded statements are inadmissible hearsay unless the
rules either define them as non-hearsay or there is an applicable exception to the hearsay rule.
Plaintiffs argue that Fed. R. Evid. 801(d)(2)(e), which provides a co-conspirator exception to the
definition of hearsay, applies. They suggest that Ms. Saverio is a “co-conspirator” with the

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defendants. However, her recorded statements make her out to be an unwilling “victim” of
pressure exerted alleged by or on behalf of the defendants, not a conspirator with them.
I am aware that in NIPP, the court suggested that communications between the alleged
tying company, on the one hand, and the artists, agents or labels who allegedly were the victims
of the tying arrangement, on the other hand, might be admissible under the co-conspirator
“exception” to the hearsay rule. Id. at 1095. Tying arrangements are illegal conspiracies under
Section 1 of the Sherman Act, and the court held that the co-conspirator “exception” to the
hearsay rule may be applied to correspondence confirming a tying agreement if the other
requirements of the exception are met. Id. Again, however, it seems significant to me that in
NIPP the communications were directly between the tying company and the “victims,” and that
they evidenced the victims’ agreement to the arrangement. The recording at issue here is not of a
communication between Ms. Saverio (or her representatives) and Mr. Roulier (or his
representatives). Rather, construing the recording(s) to plaintiffs’ benefit, they reflect Ms.
Saverio’s description to Mr. Shuman and Mr. Christou of what she interpreted to be a threat of
the loss of promotional opportunities on Beatport if she played plaintiff’s clubs rather than Beta.
I do not disagree with Judge Nottingham’s application of the co-conspirator “exception” in that
case, but in my view, it is not on point.
Alternatively, plaintiffs suggest that these hearsay statements are admissible under the
residual exception, Rule 807. Plaintiffs argue that there is a sufficient circumstantial guarantee
of trustworthiness because Ms. Saverio confirmed the statements during her deposition. I do not
agree. After testifying that she was “disgusted” that the call had been taped, Ms. Saverio
acknowledged the voices but refused to say much more. When asked whether she thought she
would get in trouble if she did not perform at Beta, she said “everything is on that tape that you

8

need to hear.” Deposition [#226-3] at deposition page 49. But, when counsel followed up with
the question, “I’m just asking you to tell me,” she responded, “I don’t recall.” Counsel then
asked, “[w]as it implied that your labels would be harmed if you did not perform,” she again
responded, “I don’t recall.” Id. Counsel then tried the question, “[d]id you talk to other DJs
about being coerced by Beatport,” again generating the answer, “I don’t recall.” Id. at 50. Even
when she was asked whether she remembered the phone conversation she responded, “I don’t
recall.” Id.
During the recorded conversation Ms. Saverio said, “And the people who’ve said this
stuff to me, who are very high up the ladder on this, who aren’t agents, who, you know, it’s not
Brad, the people who are like Brad’s bosses and things like that, you know, I’m friends with, are
like you’re about to fucking make some serious enemies, needlessly.” Depo. at 41 [#226-3 at
15](transcription of recording as it was played). Nowhere did Ms. Saverio specifically attribute
any threats to Mr. Roulier. Some of her statements were made in response to leading questions.
They were made in the context of her explaining and justifying to Mr. Shuman why she had
booked an appearance at Beta and why she was not presently able to commit to plaintiffs’ clubs.
When I combine the vagueness of Ms. Saverio’s statements as to who said what to whom, the
context in which the statements were made, her refusal to discuss the underlying facts during her
deposition, and therefore, the defendants’ inability to engage in any meaningful cross
examination concerning those facts, I conclude that there are sufficient questions that I cannot
find that it is in the interest of justice to admit these statements under the residual exception.
As another alternative plaintiffs suggest that the “recorded recollection” exception to the
hearsay rule applies. Fed. R. Evid. 803(5). That exception covers a matter that the witness once
knew about, now cannot recall, but was made at a time when the matter was fresh in the witness’

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memory. Having reviewed the entirety of the deposition excerpts filed as #225-3, I am not
satisfied that the witness could not recall the matters discussed during the surreptitiously
recorded telephone call. Rather, the Court finds that it is more likely than not that she refused to
answer follow-up questions or to have her memory refreshed by the recording because she did
not wish to take sides in the Christou-Roulier fight or to make additional statements that could
harm her career.
The Court holds only that the surreptitious recording is inadmissible (unless the
defendants were somehow to open the door to it). If Ms. Saverio is not produced as a live
witness by one party or the other at trial, and if portions of her deposition will be used by one or
both parties, the Court will rule on objections in due course. That is not before the Court on
motion #204.
Defendants’ Motion in Limine to Exclude Evidence of Interference with Prospective
Business Expectancies Barred by the Statute of Limitations [#205]: DENIED.
In its order of January 23, 2013 [#190] the Court expressly addressed this issue. It held,
and the parties did not dispute, that the applicable period of limitations was two years from the
date plaintiffs knew or should have known all material facts essential to support the elements of
the claim, and that this presented an issue of fact for the jury. Id. at 22. See C.R.S. § 13-80108(6).
Notwithstanding that order, defendants ask the Court to exclude evidence, most notably,
the same surreptitious recording of the Saverio-Shuman telephone call. The Court addressed that
call, and mooted defendants’ obvious anxiety, in ruling on motion #204. But if the recording
were otherwise admissible, the fact that it occurred before the period of limitations would not
make it inadmissible. The fact that a tort claim arising before that the limitations period is barred
does not require the preclusion of evidence that pre-dated that period, whether that evidence
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relates to the tort claim or the antitrust claim or both. On the contrary, if the defendants press
their limitations defense, then they presumably will have to introduce evidence that supports a
finding that plaintiffs should have discovered their tort claim more than two years before
December 1, 2010.
Plaintiffs’ Motion in Limine to Exclude Neighborhood Crime Evidence Pursuant to
Rules 403, 602 and 701 [#206]: DENIED.
The apparent concern is that defendants will present evidence that DJs shy away from the
SoCo clubs (such as The Church and Vinyl) because of the reputation that SoCo is a high crime
area. I would like to have a better idea of what the actual evidence is, and its context, and
therefore I elect not to rule on this issue in limine. However, for guidance to the parties, I will
say that evidence as to whether DJs are concerned about crime in their decision-making will
likely have to come from DJs. What the defendants think about what motivates the DJs is
probably inadmissible as speculation, and DJs’ comments to the defendants about their fear of
the criminal activity in the area are probably inadmissible as hearsay.
Incidentally, I would be surprised if these parties could select a jury on which not one
juror is aware that there is crime in SoCo and in LoDo, particularly during the late night and
early morning hours when the clubs are hopping and when the bars are letting out. Jurors bring
their background, experience and common sense with them. However, whether crime in either
location has anything to do with DJs’ decisions as to where to play is likely a matter of
speculation unless it comes “straight from the horse’s mouth.”
Defendants’ Motion in Limine to Exclude the Introduction of Certain Audio
Recordings at Trial [#207]: GRANTED.
Defendants ask the Court to exclude recordings of statements of eight witnesses: David
Brady, Lainie Copicotto, Thomas Havens, Charissa Saverio, Steve Goodgold, Alex Chaykin,

11

Ryan Saltzman and Matt Rodriguez. The “normal” way that parties present witnesses is by
calling them to testify at trial. If a witness cannot be compelled to come to court, and cannot be
persuaded to do so either, then the “normal” way is to take a deposition and to present the
deposition testimony at trial. Plaintiffs seem not willing, or perhaps not able, to use these
“normal” procedures. I do understand that these people do not want to become involved in this
nasty spat between Mssrs. Christou and Roulier, and it’s hard to blame them. Nevertheless, the
evidence by surreptitious recording method is not a particularly savory process.
But the question remains, savory or not, can they do it? As for the Saverio recording, I
have answered the question: “no.” With respect to the other seven recordings, defendants offer
three arguments. First, they argue that plaintiffs cannot authenticate the records of Brady,
Copicotto or Goodgold, because they have no one who has sufficient personal knowledge to
identify the speaker or provide the date of the recording. Plaintiffs respond that Jonny Shuman
participated in the conversations and can provide the authenticating information. That is a matter
that more properly would be determined by the Court after hearing Mr. Shuman’s testimony.
Second, defendants argue that the recordings contain inadmissible lay opinions. That
objection is overly broad. Having read the transcripts of each of the challenged recordings, I find
that there might be improper opinions in them, but even so, there are many things that are not
opinions. Defendants have made no showing on a recording by recording, line by line, basis of
what they consider to be improper opinions. As such, the Court declines to rule on that objection
in the abstract.
Third, defendants object on grounds of hearsay and hearsay-within-hearsay. The
recorded statements were, of course, made outside the court. If they are offered for their truth
they are “hearsay” unless the rules define them not to be hearsay; and if they are hearsay, they

12

are inadmissible unless there is an applicable exception to the rule against the admission of
hearsay.
Plaintiffs argue that these recordings are defined as non-hearsay by the co-conspirator
“exception.” Fed. R. Evid. 801(d)(2)(E). For the same reasons discussed above as to Ms.
Saverio, I conclude that that “exception” does not apply.
Next plaintiffs argue these recordings are not hearsay because they are evidence of the
DJs’ state of mind, that is, that the DJs or their agents believed that they would suffer harm (the
loss of promotion on Beatport) if they performed at plaintiffs’ clubs, and therefore did not do so,
even if the defendants might not have actually carried out the threat. I discussed that argument
above as well. The problem with this theory is that, in substance, its relevance is the truth of the
statements. If a DJ or his agent merely speculated that Mr. Roulier might be angry if the DJ
performed at plaintiffs’ clubs, then the evidence of the DJ’s state of mind would be irrelevant
and speculative. If the DJ had received an actual threat, and formed his state of mind based on
the threat, then the evidence in reality is being offered to prove that an illegal tie-in existed. As
such, the relevance of the statement is to prove its truth, and it is hearsay.
Finally, plaintiffs argue that the recordings are admissible under the residual exception to
the hearsay rule. I discussed that exception earlier and determined that it did not justify
admission of the Saverio recording. However, it must be applied on a recording by recording
basis. The Court may admit hearsay statements under this exception as a matter of discretion if it
determines that (1) the statement has circumstantial guarantees of trustworthiness equivalent to
that of the exceptions listed in Rules 803 and 804; (2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than other evidence that the proponent
can obtain through reasonable efforts; and (4) admission of the evidence will serve the purposes

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of the rules and the interest of justice; and (5) the proponent gives the adverse party reasonable
notice of his intent to offer the statement and its particulars so that the adverse party has a
reasonable opportunity to meet it. Fed. R. Evid. 807 (a) and (b).
If, as defendants state – and plaintiffs do not dispute – plaintiffs did not depose Brady,
Copicotto or Goodgold, and they will not be present at trial, I will stop there. Plaintiffs might
not have been able to compel these three individuals to testify at trial, but they offer no reason
why they could not have obtained their testimony in a deposition. I will not impose on the
defendants a duty to take depositions of individuals whom they do not wish to call at trial and
who apparently the plaintiffs cannot produce at trial. I conclude that it is not in the interest of
justice to admit the surreptitious recordings of these individuals in that circumstance.
With respect to recordings of Havens, Chaykin, Saltzman and Rodriguez, I do not have
sufficient information to make a decision. Neither party provided transcripts of the recordings to
the Court to my knowledge. I have attempted to listen to the four recordings on the disk
provided. What purports to be the Havens recording is all but unintelligible. The Chaykin
recording (and the recording of “Paul” that is part of the Chaykin portion of the tape) is audible
but appears to provide no meaningful information. The Saltzman recording, at least in the form
provided, is relatively useless, as the Shuman end of the conversation cannot be heard. The
Rodriguez recording, like the Chaykin recording, is audible but does not seem to provide
meaningful information.
If plaintiffs persist in wanting to play those four recordings, then they will need to
provide the Court with (1) a clear and complete transcript of the recording, and (2) copies of any
portions of the depositions of those individuals where they discussed the information on the
recording. Please note, I have glanced at the deposition excerpts contained in docket #235. I did

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not immediately find portions that related to the recordings. I might have missed them, but it is
the parties’ burden to identify and provide excerpts of the depositions that they believe do or do
not support admission of the recordings under Rule 807.
Among other things, I want to know what statements were made; if statements of third
persons were quoted or summarized (the purported “hearsay within hearsay”), were those
statements of the defendants or someone else; did the defendants know of and have copies of the
recordings when the depositions were taken; if so, did defense counsel examine the deponent
about the recorded statements; was the witness asked follow-up questions about the statements or
implications in the recordings (as occurred in Ms. Saverio’s deposition); and did the witness
confirm, reject or purport not to recall the statements?
Accordingly, at this time the motion in limine to exclude the recordings is granted,
subject to reconsideration upon receipt of the information described above as to four of the
recordings.
Plaintiffs’ Motion in Limine to Exclude Drug Use Evidence Pursuant to Rules 401,
402 and 403 [#208]: GRANTED.
Plaintiff suggests, plausibly enough, that evidence that anyone consumed illegal drugs is
irrelevant to the issues in this case. Defendants’ response goes something like this: (1) Jonny
Shuman and Thomas Turner, who replaced Mr. Roulier at plaintiffs’ clubs, have made comments
that suggest that they use or condone the use of such drugs; (2) that at shows they were less
professional, less experienced and less competent than Mr. Roulier; (3) therefore, that explains
the decline in successful bookings of A-List DJs at plaintiffs’ clubs. They will have to come up
with something better than that before evidence of the use of illegal substances by anyone
involved in this case will be admitted.

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Plaintiffs’ Motion in Limine to Exclude Testimony of Scott Feiwell Pursuant to
Rules 401, 402, 403, 701 and 702 [#211]: GRANTED.
This time it’s the defendants who wish to present a recorded telephone conversation. In
the conversation, apparently recorded surreptitiously by Mr. Christou, Mr. Feiwell, a Las Vegas
businessman, suggests that Christou file a suit against Roulier because Roulier was abusing his
power. So far that is harmless enough, but Feiwell, apparently viewing himself as an expert on
the psychology of litigation, assures Christou that Roulier will knuckle under rather than fight
him in court. Helpfully, he suggests that Christou “slap him” with claims of restraint of trade,
defamation, maybe “10 different things,” even throw in a racketeering claim. “How could I
prove that?” Mr. Christou wonders. “I don’t think you have to prove it,” Feiwell replies. “You
just have to scare him off.” Mr. Christou appears to like what he’s hearing, adding that Mr.
Feiwell should be quiet about it, but that “I will take care of you.” Motion [#211] at 2-3.
This reminds me of the saying, “you couldn’t make this stuff up.” I can understand why
the defendants would like the jury to hear this recording. It makes Mr. Christou out to be
someone who might be perfectly willing to file a suit, regardless of its merits, just to bring Mr.
Roulier to his knees. Maybe he is such a person, and maybe in a sense he deserves to have to
“eat his words.” But that is precisely why it will not be admitted. It is a good example of
evidence that has the potential to cause one or more jurors to make decisions on an emotional
basis rather than on the merits of the case. What Mr. Christou’s motives were when the case was
actually filed may or may not be reflected by this conversation. His motives may or may not be
germane to an abuse of process claim. However, they have little if any relevance to the issues to
be presented to the jury in this case, and to the extent there is any relevance at all, it plainly is
substantially outweighed by the danger of unfair prejudice to the plaintiffs. Fed. R. Evid. 403.

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This ruling addresses only the recorded conversation discussed above. If Mr. Feiwell has
something relevant to say that passes muster under Rule 403, fine. The juicy phone
conversation, however, is out.
Plaintiffs’ Motion in Limine to Exclude Testimony of Jerry Murdock Pursuant to
Rule 37 [#212]: DENIED.
Defendants did not disclose Mr. Murdock in their Rule 26 disclosures as an individual
likely to have discoverable information whom the defendants might use to support their claims or
defenses. It is evident from the parties’ statements about him in the motion, response and reply
that he should have been disclosed. I would have been much more impressed with the
defendants’ response if they had openly acknowledged, without equivocation, that they blew it.
Mr. Murdock is, however, disclosed as a “may call” witness for the defendants in the
Final Pretrial Order [#169], entered by Magistrate Judge Tafoya on May 15, 2012. Id. at
¶6(b)(2)(xvi). Defendants there reported that “Mr. Murdock, investor in Beta, may testify about
communications he allegedly had with Charissa Saverio and Bradley Roulier and his personal
observations of Beta’s business operations.” This disclosure was made more than one year
before trial, albeit after the passing of the discovery cutoff. It is also evident from the motion,
response and reply that plaintiffs were well aware of Mr. Murdock well before the discovery
cutoff, let alone the listing in the Final Pretrial Order. There is no evidence of any significant
prejudice to the plaintiffs. Witness preclusion is a possible sanction for non-compliance with
disclosure rules, but when there is no significant prejudice to the opposing party, this sanction
should be used only when less drastic sanctions are not practical or when the Court determines
that the more drastic sanction is necessary because of a pattern of misconduct.

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As a mild “sanction in this instance, the Court orders that the defendants make Mr.
Murdock available for a 90-minute deposition (not including cross examination, if any) if
plaintiffs so request, at the defendants’ expense (fees and costs).
Plaintiffs’ Motion in Limine to Exclude Evidence of Regas Christou’s Personal
Financial Information Pursuant to Rules 401, 402 and 403 [#213]: GRANTED.
The response to the motions states, “the defense will show that Mr. Christou and his
clubs are using his superior financial resources to quash competition and maintain a monopoly in
the immediate Denver area, establishing their unclean hands.” Response [#227]. Well no, they
won’t. There is no antitrust counterclaim in this case. It is doubtful, in the extreme, that this
purported evidence would establish the equitable defense of “unclean hands,” if indeed equitable
defenses will even be an issue in what is essentially a damages case. And even if “unclean
hands” were somehow established to be an appropriate defense, that does not invite the
introduction of Mr. Christou’s personal financial information, whatever it might be. It is not
relevant, at least not for the reasons suggested by the defendants in their response.
Defendants’ Motion in Limine to Exclude Plaintiffs’ Untimely Supplemental
Document Production [#247]: DENIED.
Plaintiffs have responded to this motion, but defendants’ time to reply has not run.
However, the Court has only so much time to devote to the parties’ motion practice, including
the multiple motions in limine on both sides, and that time has come. Accordingly, the Court
simply declines to rule in limine on this issue. That does not mean that the subject documents
necessarily will be admitted.
For the parties’ guidance I will say this much. There is a difference between a party’s
duty to supplement its discovery responses, which continues to and through the trial, and the
question of a document’s admissibility. However, the parties submitted their exhibit lists as

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attachments to the Final Pretrial Order. If a document was not listed there, it presumptively will
not be admitted.
The fact that videos were used by the plaintiffs in a May 13, 2013 deposition does not
make them admissible. If they were available to plaintiffs before the Final Pretrial Order but not
listed, then unless plaintiffs provide some reasonable excuse for not doing so, the Court likely
will not admit them.
Photographs of the three clubs, if they merely are intended to give the jurors an idea of
what these clubs look like, likely will be admitted. I am not sure what is accomplished by
putting the label “demonstrative” on them. All photographs are demonstrative in the sense that
they show what they show. The only “demonstrative” exhibits that counsel are never required to
produce to the opposing party in advance of trial, at least in cases I try, are such things as Power
Point slides or white-board bullet points that might be used by counsel as a form of “outline” of
counsel’s opening statement or closing argument. Beyond that, I expect documents to have been
provided to opposing counsel in a timely manner in advance of trial unless there is a good reason
not to have done so or the document is truly harmless. Photographs of the two facilities probably
fit in the latter category.
Information that did not exist at the time of the Final Pretrial Order is not necessarily
inadmissible. It depends on what it is, when plaintiffs obtained it, and when they then disclosed
it. I will make those decisions once I have seen the document and heard the explanation.
Finally, apropos the last paragraph of plaintiffs’ response, the fact, if it is a fact, that
defendants might have done the same thing doesn’t make it right. What does a parent say when
the errant child protests, “Johnny did it too”? It might be a good idea for counsel to confer again

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and reach mutually agreed resolutions of late disclosure problems on both sides. Otherwise, the
“good for the goose, good for the gander” rule will be applied.
ORDER
1. Defendants’ Motion to Strike and Exclude Supplemental Expert Opinions and Report
of Jay Freedberg [#197]: GRANTED IN PART, DENIED IN PART.
2. Defendants’ Motion in Limine to Exclude Evidence Referring or Relating to Charissa
Saverio, aka DJ Rap [#204]: GRANTED IN PART, DENIED IN PART.
3. Defendants’ Motion in Limine to Exclude Evidence of Interference with Prospective
Business Expectancies Barred by the Statute of Limitations [#205]: DENIED.
4. Plaintiffs’ Motion in Limine to Exclude Neighborhood Crime Evidence Pursuant to
Rules 403, 602 and 701 [#206]: DENIED.
5. Defendants’ Motion in Limine to Exclude the Introduction of Certain Audio
Recordings at Trial [#207]: GRANTED.
6. Plaintiffs’ Motion in Limine to Exclude Drug Use Evidence Pursuant to Rules 401,
402 and 403 [#208]: GRANTED.
7: Plaintiffs’ Motion in Limine to Exclude Testimony of Scott Feiwell Pursuant to Rules
401, 402, 403, 701 and 702 [#211]: GRANTED.
8. Plaintiffs’ Motion in Limine to Exclude Testimony of Jerry Murdock Pursuant to Rule
37 [#212]: DENIED.
9. Plaintiffs’ Motion in Limine to Exclude Evidence of Regas Christou’s Personal
Financial Information Pursuant to Rules 401, 402 and 403 [#213]: GRANTED.
10. Defendants’ Motion in Limine to Exclude Plaintiffs’ Untimely Supplemental
Document Production [#247]: DENIED.
DATED this 4th day of June, 2013.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge
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