Fairey et al v. The Associated Press

Filing 210

MOTION in Limine NOTICE OF MOTION IN LIMINE NO. 4 TO EXCLUDE THE OPINION OF THE ASSOCIATED PRESS'S DESIGNATED EXPERT WILLIAM M. LANDES. Document filed by One 3 Two, Inc..(Crowther, Robyn)

Fairey et al v. The Associated Press

Doc. 210

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SHEPARD FAIREY AND OBEY GIANT ART, INC., Plaintiffs, v. THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff, v. SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC, STUDIO NUMBER ONE, INC., and ONE 3 TWO, INC. (d/b/a OBEY CLOTHING), Counterclaim Defendants. COUNTERCLAIM DEFENDANT ONE 3 TWO, INC.'S NOTICE OF MOTION IN LIMINE NO. 4 TO EXCLUDE THE OPINION OF THE ASSOCIATED PRESS'S DESIGNATED EXPERT WILLIAM M. LANDES ECF Case No. 09-01123 (AKH)

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that upon the accompanying memorandum of law, Counterclaim Defendant One 3 Two, Inc. d/b/a Obey Clothing ("One 3 Two") will move, before the honorable Alvin K. Hellerstein, United States District Judge at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., Courtroom 14D, New York, New York 10007, on March 16, 2011 at 10:00 a.m., to exclude testimony and reports of Plaintiff The Associated Press's (the "AP") expert, William M. Landes. One 3 Two moves in limine to exclude this evidence on grounds that Landes's testimony, which is otherwise irrelevant at this stage of litigation, has never been designated or expressed opinions on apportionment of damages with

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respect to One 3 Two and cannot be used for such purpose now. See Fed. R. Civ. P. 26(a)(2)(B)(i); Fed. R. Civ. P. 37. To the extent that Landes's reports do address the issue of apportionment, those opinions are inadmissible under Federal Rules of Evidence 702, 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).

Dated February 25, 2011 Los Angeles, California

Respectfully submitted, By: /s/ Robyn C. Crowther ___

Robyn C. Crowther Jeanne A. Fugate Laurie C. Martindale Caldwell Leslie & Proctor, PC 1000 Wilshire Boulevard, Suite 600 Los Angeles, California 90017-2463 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Theresa Trzaskoma Charles Michael Brune & Richard LLP One Battery Park Plaza, 34th Floor New York, NY 10004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Counterclaim Defendant One 3 Two, Inc. (d/b/a Obey Clothing)

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