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)

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EXHIBIT A UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Civil Action No. 1:08-CV-1425-ODE Plaintiffs, -vMARK P. BECKER, in his official capacity as President of Georgia State University, et al., Defendants. DEFENDANTS’ MOTION IN LIMINE TO PREVENT PLAINTIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY AND MEMORANDUM OF LAW IN SUPPORT THEREOF Defendants Mark P. Becker et al. hereby file this Motion In Limine To Exclude Improper Expert Testimony (“Motion”). Specifically, Plaintiffs’ briefing this week indicates they intend to introduce evidence to prove market harm. Plaintiffs have not, however, listed the expert they identified to opine about market-harm, Debra Mariniello, as a witness who will or may testify at trial. Because such testimony is properly expert testimony, and Plaintiffs’ witness list does not include a market-harm expert that has been properly identified as required 2 by this Court’s Scheduling Order Regarding Expert Discovery [Dkt. No. 123] and Federal Rule of Civil Procedure 26(a)(2), Defendants respectfully ask the Court to prevent Plaintiffs’ lay witnesses from providing expert testimony under Fed. R. Evid. 702, 703, or 705 concerning alleged market harm. BACKGROUND On September 14, 2009, the Court entered its Scheduling Order Regarding Expert Discovery (“Expert Discovery Order”). The Expert Discovery Order required Plaintiffs to submit expert reports “limited to responding to the Crews report.” (Expert Disc. Order at 1.) On October 14, 2009, Plaintiffs responded by identifying three experts—Robert Dewar, Debra Mariniello, and Steven Sheffrin— as individuals Plaintiffs may use at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. (Pls.’ Supl. Initial Disclosures [Dkt. No. 124] at 2-3.) Plaintiffs have not identified any additional experts. Each of the experts Plaintiffs identified submitted an expert report. (See [Dkt. No. 124-1, -2, and -3].) In particular, Ms. Mariniello’s expert report addressed market harm allegedly caused by GSU and other institutions. (See, e.g., Expert Report of Debra J. Mariniello at 2, 18-19 [Dkt. No. 124-2].) She specifically opined on the purported harm to the “market for the licensing of Plaintiffs’ – and other publishers’ – works,” and a “disturbing pattern” suggested 3 by “aggregate nationwide data.” (Id. at 18-19.) Defendants deposed Ms. Mariniello and the other experts. None of these experts, including Plaintiffs’ putative market harm expert, Ms. Mariniello, appear on Plaintiffs’ witness list. (Pls.’ Witness List [Dkt. No. 278-4].) In their Pretrial Brief and in their Memorandum Of Law To Exclude Irrelevant Evidence In Accordance With Order Of September 30, 2010 [Dkt. No. 287] (“Opposition”), however, Plaintiffs indicate that they still intend to present evidence on the subject of Ms. Mariniello’s expert testimony. Specifically, Plaintiffs claim that evidence relating to works not at issue here will be used to “bolster Plaintiffs’ demonstration 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. (emphasis added).) This, of course, is the subject of Ms. Mariniello’s expert report, yet Ms. Mariniello does not appear on Plaintiffs’ witness list. Apparently, Plaintiffs plan to present this evidence through a lay witness. Any such testimony, however, would be improper and should not be permitted. 4 ARGUMENT AND CITATION OF AUTHORITIES The rules of civil procedure require that, in every circumstance, parties identify anyone who will provide opinion or fact testimony under Federal Rules of Evidence 702, 703, or 705. Fed. R. Civ. P. 26(a)(2)(A). Even under the more relaxed disclosure requirements of recently-amended Rule 26(a)(2),1 experts still must be identified, and must submit either (i) a complete statement of their opinions and the basis thereof, or (ii) the subject matter on which the witness is expected to present evidence under Rules 702, 703, or 705, and a summary of the facts and opinions to which the witness is expected to testify. Fed. R. Civ. P. 26(a)(2)(B) & (C). Plaintiffs have neither (i) identified, nor (ii) submitted a report or summary of anticipated testimony under Rules 702, 703, or 705 for any potential marketharm experts other than Ms. Mariniello, whom Plaintiffs are not calling at trial. (Pls.’ Witness List [Dkt. No. 278-4].) Accordingly, there is no one on Plaintiffs’ witness list who may provide market-harm testimony under Rules 702, 703, or 705. 1 Amended effective December 1, 2010. 5 CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant this Motion and prevent Plaintiffs from presenting expert testimony regarding market harm through lay witnesses. 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: (678) 420-9300 Facsimile: (678) 420-9301 6 Stephen M. Schaetzel Georgia Bar No. 628653 KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 Anthony B. Askew Special Assistant Attorney General Georgia Bar No. 025300 211 Townsend Place Atlanta, GA 30327 Telephone: (404) 262-7981 Attorneys for Defendants 7 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 IN INTRODUCING LIMINE TO IMPROPER PREVENT PLAINTIFFS FROM EXPERT TESTIMONY AND MEMORANDUM OF LAW IN SUPPORT THEREOF 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 IN LIMINE TO PREVENT PLAINTIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY AND MEMORANDUM OF LAW IN SUPPORT THEREOF 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 krugman@bmelaw.com Georgia Bar No. 429927 Corey F. Hirokawa hirokawa@bmelaw.com Georgia Bar No. 357087 John H. Rains IV rains@bmelaw.com 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: (212) 310-8000 Facsimile: (212) 310-8007 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street N.W. Suite 3900 Atlanta, GA 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 s/ Richard W. Miller Richard W. Miller Georgia Bar No. 065257 BALLARD SPAHR LLP 999 Peachtree Street, Suite 1000 Atlanta, GA 30309-3915 Telephone: (678) 420-9300 Facsimile: (678) 420-9301

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