Cambridge University Press et al v. Patton et al

Filing 313

MOTION for Leave to File Motion In Limine To Prevent Plaintiffs From Introducing Improper Expert Testimonyby J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miller, Richard)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY PRESS,
et al.,
Plaintiffs,

Civil Action No.
1:08-CV-1425-ODE

-vMARK P. BECKER, in his official
capacity as President of Georgia State
University, et al.,
Defendants.

DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION IN LIMINE
TO PREVENT PLAINTIFFS FROM INTRODUCING
IMPROPER EXPERT TESTIMONY
Defendants Mark P. Becker et al. hereby file this Motion For Leave To File
A Motion In Limine To Exclude Improper Expert Testimony. In their pre-trial
brief and in their Memorandum Of Law To Exclude Irrelevant Evidence In
Accordance With Order Of September 30, 2010 [Dkt. No. 287] (“Opposition”),
filed on or after the deadline for motions in limine, Plaintiffs indicate that they
planned to present evidence on the issue of market harm. Specifically, in the latter
brief, Plaintiffs state they will present evidence of “the full extent of market harm

that has occurred and that would be greatly magnified if GSU’s practices were to
continue unabated and become widespread.” (Opp. at 2-3.)
This is expert testimony under Federal Rule of Evidence 702. However,
Plaintiffs did not include the purported expert they designated during discovery,
Debra Mariniello, as a witness who will or may testify at trial, and Plaintiffs have
not identified any other expert on market harm under Rules 702, 703, or 705, or
pursuant to 26(a)(2)). Plaintiffs apparently intend to introduce such testimony
through a lay witness. Because Plaintiffs’ intent only became apparent in these
filings on or after the deadline for filing motions in limine, including in the briefing
filed on Monday, May 9, 2011, good cause exists to allow Defendants to file the
attached motion after the deadline earlier set by the Court. The proposed Motion
in Limine with incorporated memorandum is attached hereto as Exhibit A and a
proposed Order is attached hereto as Exhibit B.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court
grant Defendants leave to file the Motion In Limine To Exclude Improper Expert
Testimony attached hereto as Exhibit A.

2

Respectfully submitted, this 14th day of May, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General
s/ Richard W. Miller
Katrina M. Quicker
Georgia Bar No. 590859
Richard W. Miller
Georgia Bar No. 065257
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]
Stephen M. Schaetzel
Georgia Bar No. 628653
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

3

Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
211 Townsend Place
Atlanta, GA 30327
Telephone: [phone]
Attorneys for Defendants

4

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’
MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO PREVENT
PLAINIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY
was prepared in a font and point selection approved by this Court and authorized in
Local Rule 5.1C.

/s/ Richard W. Miller
Richard W. Miller

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,

Civil Action No.
1:08-CV-1425-ODE

-vs.MARK P. BECKER, in his official
capacity as Georgia State University
President, et al.,
Defendants.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 14th day of May, 2011, I have
electronically filed the foregoing DEFENDANTS’ MOTION FOR LEAVE TO
FILE A MOTION IN LIMINE TO PREVENT PLAINIFFS FROM
INTRODUCING IMPROPER EXPERT TESTIMONY with the Clerk of the
Court using the CM/ECF system, which will automatically send e-mail notification
of such filing to the following attorneys of record:

Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
Corey F. Hirokawa
[e-mail]
Georgia Bar No. 357087
John H. Rains IV
[e-mail]
Georgia Bar No. 556052

R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: [phone]
Facsimile: [phone]

BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street N.W.
Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

s/ Richard W. Miller
Richard W. Miller
Georgia Bar No. 065257
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]