Aniplex, Incorporated v. Upper Deck Company

Filing 268

MINUTES OF PROCEEDINGS - Telephonic Status Conference held on 9/7/2011 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Michael Firestein, Joshua Pollack and James Murphy; Def Counsel: J. Stephen Peek, Robert Cassity, Craig Nicholas and Alex Tomasevic; Court Reporter: Kathryn French; Time of Hearing: 11:00 AM to 12:51 PM; Courtroom: 4; SEE ATTACHED MINUTES. Jury Trial remains set for Monday, 9/12/2011 at 9:30 AM in LV Courtroom 7C before Judge Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

ANIPLEX, INCORPORATED,
a Japanese corporation,
Plaintiff and
Counter-Defendant,
vs.
THE UPPER DECK COMPANY,
a Nevada corporation,
Defendant and
Counterclaimant.

PROCEEDINGS:

)
)
)
)
)
)
)
)
)
)
)
)
)
/

2:08-cv-00442-HDM-PAL

MINUTES OF THE COURT

September 7, 2011

Telephonic Status Conference

PRESENT:
THE HONORABLE HOWARD D. McKIBBEN, SENIOR U.S. DISTRICT JUDGE
Deputy Clerk: Paris Rich

Court Reporter: Kathryn French

Counsel for Plaintiff:

Michael Firestein, Joshua Pollack and James Murphy

Counsel for Defendant:

J. Stephen Peek, Robert Cassity, Craig Nicholas and
Alex Tomasevic

At 11:00 a.m., the Court convenes.
On behalf of the Plaintiff, Mr. Firestein, Mr. Murphy and Mr. Pollack are present
telephonically. Mr. Firestein further clarifies his client, Asa Suehira, is also present
telephonically.
On behalf of the Defendant, Mr. Peek is present in Reno Courtroom 4, and Mr. Cassity,
Mr. Nicholas and Mr. Tomasevic are present telephonically.
The Court states it will addresses the parties’ pending motions in limine this date. Further,
the Court will also tentatively rule on the objections to depositions as set forth in [248]
Pretrial Order and [216] Supplement.

ANIPLEX v. THE UPPER DECK
September 7, 2011
2:08-cv-00442-HDM-PAL
Page 2 of 4
________________________________________________________________________
As to [222] Defendant’s Motion in Limine Regarding Expert Masaki Kaifu’s Translation
of Japanese Documents, the Court recites findings. IT IS ORDERED, [222] Motion is
GRANTED in part and DENIED in part. IT IS FURTHER ORDERED, there shall
be no mention in the opening statement of anything related to Mr. Kaifu’s
testimony.
As to [228] Plaintiff’s Motion in Limine No. 2 to Exclude the Proposed Expert Testimony
of Jason Meyers, the Court recites findings. IT IS ORDERED, [228] Motion is
GRANTED in part and DENIED in part. IT IS FURTHER ORDERED, there shall
be no mention in the opening statement of anything related to Mr. Meyers’
testimony.
As to [230] Plaintiff’s Motion in Limine No. 3 to Exclude Testimony of Rajiv Gokhale
Regarding the Upper Deck Company’s Alleged Out-of-Pocket Damages, the Court recites
findings. IT IS ORDERED, [230] Motion is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED, there shall be no mention in the opening statement of
anything related to Mr. Gokhale’s testimony.
As to [223] Defendant’s Motion in Limine Regarding Kiba Wikipedia Article, the Court
recites findings. IT IS ORDERED, [223] Motion is DENIED without prejudice to be
renewed at the time of trial. IT IS FURTHER ORDERED, any reference to the
evidence and testimony is excluded in the opening statements, or at any other time,
until the Court has had opportunity to hear the evidence, if renewed, outside the
presence of the jury.
As to [224] Defendant’s Motion in Limine Regarding Licensing Agreements with Third
Parties, the Court recites findings. IT IS ORDERED, [224] Motion is DENIED.
As to [225] Defendant’s Motion in Limine Regarding the Yu-Gi-Oh! Trading Card Game
and the Litigation with Konami Digital Entertainment, Inc., the Court recites findings. IT
IS ORDERED, [225] Motion is GRANTED. IT IS FURTHER ORDERED, any
reference to Yu-Gi-Oh! evidence and testimony as it relates to the Konami litigation
and settlement shall be excluded in the opening statements, or at any other time, until
the Court has had opportunity to hear the evidence outside the presence of the jury.
Mr. Firestein requests clarification regarding the Court’s ruling as to [225] Motion and the
reference of Yu-Gi-Oh! at any time of trial. Mr. Pollack requests further clarification
regarding Mr. Sepenuk’s deposition testimony in the Konami case and whether Plaintiff’s
will be allowed to present such testimony to the jury if there is no reference to the Konami
litigation. Mr. Peek responds. The Court confirms, at this point, the ruling on [225]
Motion does not cover this issue and requests counsel to be vigilant and raise the issue at
the time of trial.

ANIPLEX v. THE UPPER DECK
September 7, 2011
2:08-cv-00442-HDM-PAL
Page 3 of 4
________________________________________________________________________
The Court recites tentative rulings into the record regarding Defendant’s Objections to
Plaintiff’s Depositions and Plaintiff’s Objections to Defendant’s Depositions as set forth
in [248] Pretrial Order, pages 101 through 118 and [216] Supplement, pages 1 through 5.
The Court further states it may revisit these rulings on the best evidence rule during the
course of the trial. IT IS SO ORDERED.
Mr. Firestein inquires regarding Defendant’s live witness testimony. IT IS ORDERED,
Plaintiff shall prepare and file Mr. Oshima’s designations by Thursday, September
8, 2011. Thereafter, Defendant shall have until Monday, September 12, 2011 to file
any objections and cross designations. IT IS SO ORDERED.
Mr. Firestein recites the Plaintiff’s first three witnesses shall be as follows: 1) Mr.
Shinohara (appearing by video); Mr. Kamagata (appearing by video); and Mr. Sato
(appearing live in the Courtroom). Mr. Firestein further discusses the live testimony of
Mr. Sepenuk and Mr. Dariani and their availability in Plaintiff’s case. Mr. Peek discusses
expenses involved and possible order of witnesses. The Court and counsel further confer.
The Court addresses the trial schedule and equipment logistics. The Court and counsel
confer. IT IS ORDERED, Jury Trial shall commence on Monday, September 12,
2011 at 9:30 a.m. in LV Courtroom 7C. Thereafter, the trial will continue from 8:30
a.m. until 5:00 p.m., or later as required, on Tuesdays, Wednesdays and Thursdays.
On Fridays, trial will commence at 8:30 a.m. and adjourn at 2:00 p.m.
The Court states it will tentatively seat 15 jurors, allow 3 peremptory challenges per side,
and conclude with 9 jurors as a deliberating body. Court and counsel further confer
regarding voir dire.
Mr. Firestein discusses Mr. Dariani’s video and live testimony. The Court and counsel
confer.
Mr. Firestein inquires regarding the Defendant’s experts of Mr. Gleicher, Mr. Meyers and
Mr. Gokhale and their live appearance at trial. Mr. Firestein further inquires regarding any
testimony of Mr. McWilliam. The Court and counsel confer.
The Court confirms that the parties’ joint case statement, as ordered on August 24, 2011,
remains due. The Court and counsel confer.
Mr. Peek’s oral request for an advance designation notice of witnesses is GRANTED.
Counsel shall provide such information no later than noon the day prior. IT IS SO
ORDERED.
Mr. Firestein revisits the issue regarding the time limit for opening statements. The Court
confirms that one hour for opening statements per party appears fair and reasonable.

ANIPLEX v. THE UPPER DECK
September 7, 2011
2:08-cv-00442-HDM-PAL
Page 4 of 4
________________________________________________________________________
The Court Reporter requests clarification regarding the transcription of video deposition
testimony and the availability of digital or electronic versions. The Court and counsel
confer.
The Court states the Courtroom Deputy will be available to meet with counsel on Friday,
September 9. 2011, from 9:30 a.m. to 11:30 a.m., in LV Courtroom 7C to pre-test all
electronic equipment anticipated for trial and to store trial materials. Further, the
Courtroom Deputy will open LV Courtroom 7C at 7:30 a.m. on Monday, September 12,
2011 to allow counsel to set up for trial.
At 12:51 p.m., the Court adjourns.

LANCE S. WILSON, CLERK
By: /s/ Paris Rich
Deputy Clerk