Free Trial Brief - District Court of Arizona - Arizona

1 MESCHKOW & GRESHAM, P.L.C. 3 Suite 409 4
5727 North Seventh Street

2 Lowell W. Gresham (AZ Bar No. 009702)
Phoenix, Arizona 85014-5818 (602) 274-6996

Jordan M. Meschkow (AZ Bar No. 007454)

5 (602) 274-6970 (facsimile)
Attorneys for Plaintiff

6

7 Nancy R. Giles (AZ Bar No. 020163) 8 Phoenix, Arizona 85007 9 (602) 252-1788 10 11 12 13 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CV-04-0621 PHX SRB
Attorney for Plaintiff 733 West Willetta Street

GILES LEGAL, P.L.C.

DAN COOGAN, doing business as 14 COOGAN PHOTOGRAPHIC, 15 16 17 v. 18 AVNET, INC., ROY VALLEE and CINDY VALLEE, husband and wife, and 19 AL MAAG and MICHAELLE MAAG, husband and wife, 20 21 22 Defendants. Plaintiff,

PLAINTIFF DAN COOGAN'S TRIAL MEMORANDUM

Plaintiff Dan Coogan ("Coogan") hereby submits his Trial Memorandum,

23 including his response to Defendants' Trial Memorandum, setting forth the questions of 24 law and evidentiary issues relevant to trial. 25 26 27 28 1. Response to Defendants' Trial Memorandum Issues Maag can be held individually liable for breach of contract because he agreed to the contract, signed the contract, and was a party to the contract. The contract between Plaintiff and Defendants states, "`Client' refers to the
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 1 Filed 06/26/2006 Page 1 of 14

1 commissioning party or company named above, its representatives, successors, assigns, 2 agents and affiliates." The contract itself identifies both Al Maag and Avnet, Inc. as 3 "client[s]". Therefore, Maag was a voluntary party to the contract between Plaintiff and 4 Avnet and has individual liability for its breach. See Kuehn v. Stanley, 208 Ariz. 124, 5 131, 91 P.3d 346, 353 (App. 2004); Stratton v. Inspiration Consolidated Copper Co., 140 6 Ariz. 528, 531, 683 P.2d 327, 330 (App. 1984); see also Taylor v. Creditel Corp., 2006 7 U.S. Dist. LEXIS 2253 (E.D. Pa. 2006). 8 9 10 2. Defendant Maag and Defendant Vallee each are jointly and severally liable for the copyright infringements at issue in this case. As stated by Defendants, the prerequisites for individual liability are (1) the right

11 and ability to supervise the infringing activity and (2) a financial interest in the infringing 12 activity. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001); see 13 also Chi-Boy Music v. Towne Tavern, Inc., 779 F. Supp. 537, 530 (N.D. Ala. 1991). This 14 issue is partially briefed in Plaintiff's Motion for Holding Allen Maag Jointly and 15 Severally Liable As To Any Damages (Docket #120). Such briefing is incomplete, 16 however, because (1) it does not address Vallee's individual liability and (2) as 17 recognized by the Court's October 24, 2005 Order (Docket #100), at the time the Motion 18 was filed, Defendants had not yet produced the existing information showing Maag's 19 direct financial interest in Avnet and in the infringement(s). This issue is also addressed 20 in detail in the parties' Joint Proposed Pretrial Order. 21 22 a. Maag is individually liable. The Court previously found that Maag possessed the right and power to supervise

23 the infringing activity, leaving only the question of whether Maag had a "direct financial 24 interest in" the infringing activities as the only showing necessary for Maag to be held 25 jointly and severally liable for Defendants' willful copyright infringement. 26 From Maag's deposition there is sufficient evidence of a direct financial interest in

27 the infringement to impose individual liability. For example, in his deposition at 33:1528 16, Maag testified as follows: "Q. So the difference in the amount that you get paid
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 2 Filed 06/26/2006 Page 2 of 14

1 depends on business? A. Yes." Maag was paid a salary, a bonus tied to company 2 performance during the entire infringement term, and received stock options, a pension 3 plan, and major health benefits. Maag's compensation packages with significant bonuses 4 all depend on the performance of Avnet and its profits and values. Since Maag directed 5 Avnet to use Plaintiff's photographs for public relations, and Maag's compensation 6 package depended on such, he has a direct financial interest sufficient for individual 7 liability and the infringement in this case had a significant impact on Maag's 8 compensation with Avnet. Thus, Maag had a direct financial interest in the infringement 9 and, as such should be held jointly and severally liable for Defendants' willful 10 infringement. 11 12 b. Vallee is individually liable. At a minimum, Vallee became responsible for knowledge of the relevant

13 infringement(s) once sued. He had the power to stop the infringement as co-Board 14 Members of Avnet and GCIT, and he saw fit to not stop the infringement, despite the fact 15 that he had "the right and ability to supervise the infringing activity" and should have 16 stopped the infringement. 17 Moreover, Vallee's community service and image figures well into his

18 compensation, which rises and falls as Avnet does and, thus, when Vallee received notice 19 of the suit, he, as concurrent GCIT Board Member. Vallee's overall compensation is 20 based on his appearance in and relationship with, the community; which has huge value 21 to Avnet. That Vallee volunteers for seminar appearances or news interviews, and that 22 Avnet sent out a newsletter to announce his appointment to the GCIT are but two 23 examples of his community persona's value to Avnet. Vallee's membership in the GCIT 24 and his biography on the GCIT site clearly adds value to his worth as a CEO of Avnet, or 25 Avnet would not promote it. Because Vallee had "the right and ability to supervise the 26 infringing activity" and because his compensation rises and falls on the perceived value 27 of Avnet, Avnet's infringement had a significant impact on Vallee's CEO compensation 28 so as to give Vallee a direct financial interest in the infringement. Thus, Vallee should be
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 3 Filed 06/26/2006 Page 3 of 14

1 held jointly and severally liable for Defendants' willful infringement. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 4 Filed 06/26/2006 Page 4 of 14

3.

Computation of Damages a. Plaintiff neither understands, nor agrees with, Defendants characterization of his computation of damages. Plaintiff has briefed his position relating to damages (including statutory damages, actual damages, and indirect profits damages) repeatedly in this case, including in the pending Motion to Preclude Trotto (Docket # 163) and Reply thereto (Docket # 173), Response to Motion to Preclude Weisgrau (Docket # 192), and Response to Motion to Preclude Sedlik (Docket # 214), in Plaintiff's Proposed Findings of Fact and Conclusions of Law (Docket #242), and in the parties' Joint Proposed Pretrial Order. b. In calculating damages, Avnet is not entitled to the bundling of time rates, group rates, or any other bundles or discounts from any stock photography fair market valuation because the test of "what a willing buyer would have been reasonably required to pay a willing seller" Frank Music Corp. v. Metro-GoldwynMayer, Inc., 772 F.2d 505, 512 (9th Cir. 1985) must be tempered with a willful infringement defendant "cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law." Iowa State University Research Foundation, Inc. v. ABC, Inc., 475 F. Supp. 78, 83 (S.D.N.Y. 1979), aff'd, 621 F.2d 57 (2d Cir. 1980). Moreover Avnet, with its pre-license use of not just two issues of Avnet Global Perspective, but also post discovery disclosed prior uses in the first feature of an 8,000 plus copy newsletter distribution with a PDF link to a PDF downloadable version of a pre-license scan of the July 2001 Upside Magazine with Plaintiff's photograph in 2/3 page view on the first page, and all of its unlicensed third party, annual report, and post term of license use, fits the "Taken together, these incidents paint a picture of a businessman who believes either that he is not subject to the copyright laws of the United States or that he

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4.

can ignore them with impunity" of Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 914 (D. Conn. 1980). Plaintiff Has Shown the Requisite Causal Nexus to Recover Avnet's Indirect Profits From the Infringement(s). a. The owner of an infringed copyright can recover the amount of the infringer's "direct" and "indirect" profits causally related to the infringement. 17 U.S.C. § 504(c)(1); Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 707 (9th Cir. 2004); Mackie v. Riser, 296 F.3d 909, 914 (9th Cir. 2002). "Direct profits", which do not apply in this case, are generated by sales of the infringed product. Mackie, 296 F.3d at 914; Polar Bear, 384 F.3d at 707-08. "Indirect profits", however, are where the infringer "used the copyrighted work to sell another product". Brian Andreas v. Volkswagen of America, Inc., 336 F.3d 789, 796 (8th Cir. 2003). Here, indirect profits apply, as Defendants certainly derived vicarious and/or contributory value from them. Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, LTD, 125 S. Ct. 2764 (2005). Avnet is jointly and severally liable for each and all such infringements (Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir. 1996)), and Plaintiff has shown the requisite causal nexus for recovering Avnet's indirect profits, as shown in Plaintiff's Response to Motion for Leave to file Motion for Summary Judgment (Docket # 195), Motion to Preclude Trotto (Docket # 163) and Reply thereto (Docket # 173), Response to Motion to Preclude Weisgrau (Docket # 192), and Response to Motion to Preclude Sedlik (Docket # 214), Plaintiff's Motion in Limine to Exclude Defendants' Evidence Related to Gross Revenue of Avnet, Inc., Deductible Expenses from Gross Revenue, and/or Its Profit(s) Attributable to Factors Other Than the Copyrighted Work (Docket # 209), Plaintiff's Proposed Findings of Fact and Conclusions of Law (Docket #242), and the parties' Joint Proposed Pretrial Order.

Case 2:04-cv-00621-SRB 8050-0131-243-1

Document 244 5

Filed 06/26/2006

Page 5 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 5.

b. Moreover, in a case clearly distinguishable from this one, the court reasoned that "if the use of the Flying B logo to designate the Ravens could not reasonably be found to have affected the amount of revenue obtained from an activity, the revenue from that activity could not reasonably be found attributable to the infringement." Bouchat v. Baltimore Ravens, Inc., 215 F. Supp. 2d 611, at 617-618 (D. Md. 2002). Here, Avnet used Annual Reports with Plaintiff's

Photographs identifying its one and only CEO as marketing collateral to sell all of itself and its products and services, while advertising all of itself and its products and services directly and indirectly in placed large-scale distribution news media, third party seminar brochures and websites, on the Arizona Governor's Council on Innovation and Technology website, on its own home page, its board of directors pages, and in its Press Room, in multiple email newsletters and in printed magazines used for advertorial purposes, and watching its revenues rise. Plaintiff is Precluded Only From Recovering Overlapping Damages. Defendants' statement that "Plaintiff cannot recover both copyright an contract

16 damages[]" is patently false. See Defendants' Trial Memorandum (Docket #237 at 3). In 17 actuality, Plaintiff may recover damages for both breach of contract and copyright 18 infringement, so long as the damages for each claim do not overlap, i.e., do not allow 19 Plaintiff to recover twice for the same injury. See Paramount Pictures Corp. v. Metro 20 Program Network, Inc., 962 F.2d 775 (8th Cir. 1992) ("Because the damage awards for 21 breach of contract and copyright infringement were for completely separate injuries, the 22 district court correctly awarded both breach of contract damages and copyright 23 infringement damages to appellees."); see also Joseph J. Legat Architects, P.C. v. United 24 States Dev. Corp., No. 84- C-8803, 1991 U.S. Dist. LEXIS 3358 [**15] (N.D. Ill. Mar. 25 20, 1991) (holding that damages for copyright infringement are not synonymous with 26 damages for breach of contract, and claims that seek to redress two distinctly different 27 injuries, where breach of contract claim seeks to enforce rights under contract to receive 28 monies due for preparation and use of plans while copyright claim seeks to recover for
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 6 Filed 06/26/2006 Page 6 of 14

1 use of plans in way that exceeded rights under the contract, are permissible); Edwin K. 2 Williams & Co. v. Edwin K. Williams, Etc., 542 F.2d 1053, 1055 (9th Cir. 1976) (tacitly 3 approving district court award of separate damages for breach of contract and copyright 4 infringement where awards based on different transactional facts)" Id. at 780. 5 Here, because the facts of the pre-contract and post-contract infringements are for

6 completely separate injuries, the Court can correctly award "both breach of contract 7 damages and copyright infringement damages to" Plaintiff, if it so chooses. Paramount 8 Pictures, 962 F.2d 775 (citing Joseph J. Legat Architects 1991 U.S. Dist. LEXIS 3358). 9 Plaintiff may make this election any time before final judgment is entered. 10 11 12 6. Experts a. Plaintiff's Expert Weisgrau Should Not Be Precluded. This issue is fully briefed in Plaintiff's Response to Defendants' Motion to

13 Preclude Weisgrau (Docket # 192). 14 15 b. Plaintiff's Expert Sedlik Should Not Be Precluded. This issue is fully briefed in Plaintiff's Response to Defendants' Motion to

16 Preclude Sedlik (Docket # 214). 17 18 c. Plaintiff's Expert Kuchta Should Not Be Precluded. Plaintiff's Expert K.J. Kuchta ("Kuchta") is expected to testify regarding his

19 analysis of Defendants' provided web logs and what constitutes separate display uses, 20 reproduction uses, and other uses, relating to web page use. Plaintiff disclosed Kuchta as 21 an expert on February 4, 2005 and Defendants made no objections until this month, June 22 2006, less than one month prior to trial. 23 Moreover, Defendants made it impossible for him to provide an expert witness

24 report by the June 24, 2005 deadline, because Defendants refused to answer crucial 25 electronic-based document requests he needed until after so ordered by this Court on 26 October 3, 2005. Even then Defendants did not produce all relevant documents, as 27 shown in part by produced documents in the March 14, 2006 Defendant-served Avnet's 28 Second Supplemental Response to Plaintiff's First Set of Interrogatories ­ Interrogatory
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 7 Filed 06/26/2006 Page 7 of 14

1 No. 4. Defendants' discovery responses continue to be incomplete and Defendants' 2 gamesmanship during discovery should not preclude Kuchta's testimony. 3 4 d. Defendants' Expert Trotto Must Be Precluded. This issue is fully briefed in Plaintiff's Motion to Preclude Trotto (Docket # 163)

5 and Reply thereto (Docket # 173). 6 7 7. Defendants Offer No Real Argument for Precluding Plaintiff's Fact Witnesses Six of the seven fact witnesses identified by Defendants in their Trial Again,

8 Memorandum were disclosed by Plaintiff long ago, on August 27, 2004.

9 Defendants' made no objection, informal or otherwise, to such witnesses until this month, 10 June 2006, less than one month prior to trial. Defendants make a severe error when they 11 say "The first time Plaintiff disclosed Mr. Condray as a witness was in his Witness List." 12 He was first disclosed before that in Plaintiff's Thirty-Third Disclosure Statement on 13 June 14, 2006, nearly a week before the witness list was filed. Moreover, Defendants 14 suddenly deem these witnesses "expert witnesses" to argue for their preclusion. The 15 identified witnesses, however, are being offered, and always have been listed, solely as 16 fact witnesses. 17 18 8. Dan Delaney Defendants also make a severe error when they say "Mr. Delany (sic) is not This hearsay testimony should be precluded

19 identified in Plaintiff's Witness List.

20 pursuant to Fed. R. Evid. 801 and 802" as Mr. Delaney is certainly identified in 21 Plaintiff's Witness List, number 23. Additionally, Mr. Delaney's testimony is being 22 offered to show Trotto's knowledge, notice, and bias, not to show the truth of the content 23 of the prior conversations; therefore, Mr. Delaney's testimony does not constitute hearsay 24 under Fed. R. Evid. 801 and/or 802 and is admissible at trial. To the extent Mr. Delaney 25 is asked to relay hearsay testimony, if at all, Defendants can make objections to 26 individual questions at trial. 27 28
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 8 Filed 06/26/2006 Page 8 of 14

1 2 3 4 5 6 7 8 9 1.

9.

Defendants Cannot Change Prior Admissions to Suit Their Position(s) at Trial. This issue is fully briefed in Plaintiff's Motion in Limine to Exclude Assertions by

Defendants Contrary to Prior Admissions (Docket # 180), and Reply thereto (Docket # 194), as well as Plaintiff's Response in Opposition re 191 MOTION to Withdraw Admission and to Enter Denials as to Request to Admit Nos. 15 and 43 of Avnet's Responses to Plaintiff's Third Requests for Admissions (Docket # 196). Plaintiff's Additional Trial Memorandum Issues Whether Avnet's Uses Are Based Upon Individual And Combinations Of Any Infringement Of Any Exclusive Rights Under 17 U.S.C. § 106. Under 17 U.S.C. §504(b), Plaintiff's actual damages and profits or statutory

10 damages are mandated under 17 U.S.C. §504(a) which states: 11 12 13 14 15 16 17 18 19 An infringer of copyright is liable for either ­ (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). This follows 17 U.S.C. § 501(a) which states "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106..., is an infringer of the copyright..., as the case may be." Emphasis added. 17 U.S.C. § 106, delineates in six sub-sections (four applicable here), the

20 exclusive rights; 21 22 23 24 25 (1) to reproduce the copyrighted work in copies..., (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies... of the copyrighted work to the public...; and ... (5) in the case of... pictorial... works... to display the copyrighted work publicly. Therefore any violation of any of the above exclusive rights is an infringing action

26 accountable under the Copyright Act. "The exclusive rights accorded to a copyright 27 owner under Section 106 are `to do and to authorize' any of the activities specified in the 28 five numbered clauses." A & M Records, Inc. v. Abdallah, 948 F. Supp. 1449 (C.D. Cal.
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 9 Filed 06/26/2006 Page 9 of 14

1 1996). Plaintiff's damages may be said to equal the profits that the plaintiff might have 2 accrued but for the defendant's infringement Davis v. The Gap, Inc., 246 F.3d 152, 167 3 (2d Cir. 2001). This measure, however, is not to be confused with the related, but 4 distinguishable, right to recover defendant's profits. United States v. King Features 5 Entertainment, Inc., 843 F.2d 394, 400 (9th Cir. 1988). It is well-established that "proof 6 of industry practice inarguably is crucial to the estimation of actual damages" Bruce v. 7 Weekly World News, Inc., 310 F.3d 25 (1st Cir. 2002). 8 In Bruce, the Court found, "given the prevailing industry practice, there was no

9 realistic prospect whatsoever that Bruce could negotiate a per-use licensing fee with 10 World News. Rather, the record discloses ample evidence that such a practice is rarely, if 11 ever, indulged". Yet, here, with Avnet breaching its contract on its first infringement and 12 infringing considerably more in scope and duration the second time, no other option 13 would be applied by a photographer now. 14 Even Defendants' current photographer, now expert John Trotto, confirms that

15 pre-licensing negotiations could not be a realistic option, here, only a hypothetical one, 16 and he, himself, cannot say he would be a willing seller, here, in his deposition : 17 At 65:19-25: 18 Q. Okay. Does your report illustrate you've endorsed a hypothetical approach? A. Yes, hypothetical in the fact that we were going to go through and negotiate all of the 19 uses ahead of time. 20 Q. So it would have been an arm's length negotiation ahead of time? A. Yes. 21 22 Then he confirms twice that no other option could be applied by a photographer now: 23 At 56:5-9: Q. Have you ever been infringed, settled with that infringer, only to find out that the 24 infringement was on a much larger scale than you knew about when you settled? A. I will say no... -- no photographer knows of the use of their images. 25 And 26 At 58:7-59:5 27 Q. ... I'm asking you if you had been infringed and you settled with the infringer and then they infringed you again on a much larger scale, would you be in the position of a 28 willing seller?
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 10 Filed 06/26/2006 Page 10 of 14

... 1 THE WITNESS: I've never been in that position. I don't know. 2 In this case, first; Plaintiff knew full well of many of the Avnet and third parties

3 uses when the complaint was filed. This is because Avnet infringed before, and Plaintiff 4 needed a realistic assessment of use before calculating fees for the present infringement. 5 Second; Avnet gave Plaintiff no opportunity for an arm's length negotiation before it 6 infringed again and again. Third; even Defendants' expert does not know if he could be 7 a willing seller dealing with Avnet if he had been infringed and he settled with the 8 infringer and then they infringed him again on a much larger scale. It stands to reason, he 9 could not. 10 2. 11 12 Defendants Failed To Meet Their Discovery Burden Under Rule 26, FED. R. CIV. P. throughout this Entire Case. Defendants' Failure to Comply with Rule 26, Fed. R. Civ. P. has been well-

13 documented and well-briefed throughout this case, including in the following documents: 14 Motion to Preclude Trotto (Docket # 163) and Reply thereto (Docket # 173), Response to 15 Motion to Preclude Weisgrau (Docket # 192), and Response to Motion to Preclude Sedlik 16 (Docket # 214)), Plaintiff's Proposed Findings of Fact and Conclusions of Law (Docket 17 #242), Plaintiff's Response to Motion for Leave to file Motion for Summary Judgment 18 (Docket # 195), Plaintiff's Motion in Limine to Exclude Defendants' Evidence Related to 19 Gross Revenue of Avnet, Inc., Deductible Expenses from Gross Revenue, and/or Its 20 Profit(s) Attributable to Factors Other Than the Copyrighted Work (Docket # 209), 21 Plaintiff's Proposed Findings of Fact and Conclusions of Law (Docket #242), Plaintiff's 22 Motion in Limine to Exclude Assertions by Defendants Contrary to Prior Admissions 23 (Docket # 180), and Reply thereto (Docket # 194), as well as Plaintiff's Response in 24 Opposition re 191 MOTION to Withdraw Admission and to Enter Denials as to Request 25 to Admit Nos. 15 and 43 of Avnet's Responses to Plaintiff's Third Requests for 26 Admissions (Docket # 196), and the parties' Joint Proposed Pretrial Order, among others. 27 28
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 11 Filed 06/26/2006 Page 11 of 14

1 2

3.

All Documentary Evidence and Fact Witnesses related to Assignment production of works and values therefor, should be excluded as irrelevant Plaintiff took all of the photographs at issue in this case pursuant to an assignment

3 from Upside Magazine, specifically granting it, "one-time editorial publication rights 4 only in Upside" for the July 2001 issue, on April 12, 2001. That job was finished and 5 completed in April of 2001, and thereafter Plaintiff's photographs went into his stock 6 portfolio, available to license to anyone who desired them. 7 Avnet's absolutely unlicensed and unauthorized takings of the photographs in 8 2001 were choices made by Avnet and the photographs were not licensed by Plaintiff 9 until after the takings. The images as licensed to Avnet were clearly in existence and in 10 Plaintiff's stock photography stash, and not made pursuant to an assignment from Avnet. 11 Mr. Vallee, an over $1 Million dollars annually-paid employee, did not have to sit again 12 for a photo shoot at that cost, or the cost of facilities, assistant efforts, film costs, and of 13 Plaintiff's shooting time. 14 Under the law, Plaintiff's valuation of use of his photographs must be based on 15 comparable fair market stock values, and not on assignment values, because comparing 16 assignment values to stock values "is engaging in the sort of `apples and oranges' 17 comparison that has been rejected in the past as irrelevant[.]" Baker v. Urban Outfitters, 18 Inc., 254 F. Supp. 2d 346, 354 (S.D.N.Y. 2003). Therefore, under the law, Defendants 19 witnesses Vince Adam and Ben Arnold must be excluded, and many, if not all of the 20 documents cited by Defendants in Defendants List of Numbered Exhibits D004 to D093, 21 specifically Invoices and Estimates for assignment services, not stock photography 22 licenses, must also be excluded for comparable fair market valuation evidence. This 23 issue is further discussed and briefed in Plaintiff's Motion to Preclude Trotto (Docket # 24 163) and Reply thereto (Docket # 173). 25 26 Plaintiff's issues are further set forth in the parties' Joint Proposed Pretrial Order

27 and Plaintiff's Proposed Findings of Fact and Conclusions of Law, as well as the 28
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 12 Filed 06/26/2006 Page 12 of 14

1 briefings in this case, but because Defendants filed a Trial Memorandum, Plaintiff felt an 2 obligation to respond accordingly. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 13 Filed 06/26/2006 Page 13 of 14

Respectfully submitted this 26th day of June 2006,

s/Jordan M. Meschkow Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014 Telephone: (602) 274-6996 Facsimile (602) 274-6970 ATTORNEYS FOR PLAINTIFF and Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 ATTORNEY FOR PLAINTIFF

1 2

CERTIFICATE OF SERVICE I hereby certify that on 26 June 2006 I electronically transmitted the attached document to

3 the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic 4 Filing to the following ECF registrants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00621-SRB 8050-0131-243-1 Document 244 14 Filed 06/26/2006 Page 14 of 14 /s Jordan M. Meschkow Jordan Green Lawrence Palles FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants and Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 Attorney for Plaintiff