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)
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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