1st Technology LLC v. Rational Enterprises Ltda. et al

Filing 69

OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO PLAINTIFF'S EXHIBIT 1, SCOTT LEWIS TABLE PURPORTING TO SHOW ROYALTIES filed by Defendants Bodog Entertainment Group S.A., Bodog.net, Bodog.com. (McCrea, Jr., Charles)

1st Technology LLC v. Rational Enterprises Ltda. et al

Doc. 69

Case 2:06-cv-01110-RLH-GWF

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Filed 10/01/2007

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Charles McCrea (NV State Bar No. 104) LIONEL SAWYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Tel [phone] Fax [phone] [e-mail] James D. Nguyen (CA State Bar No. 179370) Victor de Gyarfas (CA State Bar No. 171950) Uleses C. Henderson, Jr. (CA State Bar No. 225246) Pro Hac Vice Applications To Be Submitted FOLEY & LARDNER LLP 2029 Century Park East, 35th Floor Los Angeles, California 90067-3021 Tel: [phone]; Fax: [phone] [e-mail] [e-mail] Attorneys for Specially Appearing Defendants BODOG ENTERTAINMENT GROUP S.A., and erroneously named Specially Appearing Defendants BODOG.NET and BODOG.COM UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1ST TECHNOLOGY LLC, Plaintiff, vs. RATIONAL ENTERPRISES LTDA., RATIONAL POKER SCHOOL LIMITED, BODOG ENTERTAINMENT GROUP S.A., BODOG.NET, BODOG.COM, AND FUTUREBET SYSTEMS LTD., Defendants. Case No: 2:06-cv-1110-RLH-GWF DEFENDANT'S EVIDENTIARY OBJECTIONS TO PLAINTIFF'S EXHIBIT 1, SCOTT LEWIS TABLE PURPORTING TO SHOW ROYALTIES Date: October 11, 2007 Time: 9:00 a.m. Courtroom: 6C

LACA_876478.1

Dockets.Justia.com

Case 2:06-cv-01110-RLH-GWF

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LACA_876478.1

Specially appearing defendants, Bodog Entertainment Group S.A. (Costa Rica), Bodog.net, and Bodog.com ("Defendants") (who challenge jurisdiction), hereby submit the following objections to Exhibit 1, submitted in support of 1st Technology LLC's Response to Motion to Set Aside Default Judgment. Defendants preserve all previous objections with regards to the Declaration of Scott Thomas that were raised in Defendant's Opposition to Plaintiff 1st Technology LLC's "Emergency Motion for Permanent Injunction." Additionally, Defendant objects to the admissibility of the Table purporting to establish an evidentiary basis for determining a reasonable royalty rate: 1. Plaintiff's "TABLE 1, Bodog Damages" should be excluded because it does not satisfy the requirements imposed upon testifying experts under FRE 702 ("Testimony by Experts") (codifying Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). FRE 702 requires that one testifying to "specialized knowledge" must base their opinions on sufficient facts and data that is the product of reliable principles and methods. Federal courts have identified a "comprehensive list of evidentiary facts" as the source of reliable principles and methods necessary to the determination of reasonable royalty rates. GeorgiaPacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970). The basis of Scott Lewis's table--that "one simply needs to multiply the royalty rates as set forth in the IGT/MGM Agreement by the number of user downloads"--lacks the sophistication required by federal law in determining reasonable royalty rates. Lewis's table includes only one of the 15 factors required by courts as a basis for determining a reasonable royalty rate. Among the missing facts are whether Defendant used other patents "comparable to the patent in suit," an explanation of Plaintiff's "marketing program to maintain [its] patent monopoly," a description of "the commercial relationship between licensor and licensee," and the "commercial success" and "current popularity" of the patent. Id. The deficiencies in Mr Lewis's principles and methods are fatal under both FRE 702 and Georgia Pacific v. United States Plywood Corp.

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Case 2:06-cv-01110-RLH-GWF

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2.

Additionally, Defendant objects to the "TABLE 1, Bodog Damages" that is contained in Exhibit 1. The table is the product of hearsay because it is based on out-of-court statements by Forbes Magazine and Alexa.com (FRE 801). Plaintiff is offering these statements to prove the truth of the matter asserted: the number of Bodog downloads and the percentage of these downloads that occurred in the United States, Bodog's transaction revenue, aftertax profits, and estimated 2006 valuation. Thus, the table contained in Plaintiff's Exhibit 1, Table 1, should be excluded under FRE 802.

Dated: October 1, 2007

By:

/s/ Charles McCrea Charles McCrea LIONEL SAWYER & COLLINS Attorneys for Specially Appearing Defendants BODOG ENTERTAINMENT GROUP S.A., and erroneously named Specially Appearing Defendants BODOG.NET and BODOG.COM

LACA_876478.1

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