Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5

FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence Palles (No. 020263) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Attorneys for Defendants

6 7 8 9 10 11

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, No. CV2004-0621 PHX SRB

12

v.
13 14 15 16

AVNET, INC., a foreign corporation, ROY VALLEE and JANE DOE VALLEE, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

DEFENDANTS'REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE MOTION TO PRECLUDE TESTIMONY OF PLAINTIFF' S EXPERT JEFF SEDLIK

17 18 19 20 21 22 23 24 25 26
F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Defendants sought to meet and confer with Plaintiff to resolve their dispute over Mr. Sedlik' testimony. When the parties were unable to settle the dispute, Defendants s sought to arrange a joint telephonic conference with the Court. Defendants were advised that the Court would not hear any further discovery matters because discovery in this case had ended. Left with no option other than to bring this matter to the Court' attention, s Defendants filed their Motion for Leave of Court to file their Motion to Preclude Testimony of Plaintiff' Expert Jeff Sedlik. s The Court should grant Defendants' leave to file their Motion to Preclude because Plaintiff' disclosure of Mr. Sedlik' opinions after the extended deadline for Defendants s s
1789926.1/12444.027

Case 2:04-cv-00621-SRB

Document 199

Filed 05/04/2006

Page 1 of 5

1 2

to depose him was unrelated to Avnet' late supplemental disclosure. s I. LEGAL ANALYSIS A. Avnet Complied With The Court' Order And The Federal Rules Before s Seeking to File A Motion Regarding Mr. Sedlik' Testimony. s

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

On February 13, 2006, the Court authorized a 30-day extension of the discovery deadline for the sole purpose of permitting Defendants to depose Plaintiff, Mr. Sedlik, and Mr. Weisgrau. See February 13, 2006 Order. The Court' Order specifically stated, "No s further extension of discovery is permitted with the exception of taking the above depositions." Id. Defendants did not depose Mr. Sedlik because he had not offered any opinion regarding the amounts of Plaintiff' actual damages or Avnet' profits. Indeed, in s s a letter dated January 16, 2006, Plaintiff' counsel wrote "Mr. Sedlik' report says s s virtually nothing with regard to damages. Therefore, you take his deposition at your own risk." See Exhibit 1. The Court' September 30, 2004 Order prohibited the taking of s expert depositions until the mandated expert disclosures had been made. September 30, 2004 Order; Exhibits G, H, and J. After exchanging several letters with Plaintiff regarding the lack of disclosure of Mr. Sedlik' opinions and Plaintiff' intended use of him as an expert at trial, on s s March 14, 2006, Avnet' counsel requested that the parties meet and confer on the issue. s See Exhibits G-L. Plaintiff disclosed Mr. Sedlik' opinions regarding the amount of his s actual damages for the first time on March 24, 2006, nine months after his expert disclosure deadline and after the March 13, 2006 extended deadline for Defendants to depose Plaintiff and his experts had elapsed. See Exhibit D. On March 27, 2006, Plaintiff responded to Defendants' request to meet and confer, stating that such a meet and confer was "unnecessary and unwarranted." See Exhibit M. Upon receipt of Plaintiff' letter, Avnet attempted to arrange a joint telephonic s conference with the Court. See Affidavit of Jordan Green. Avnet was advised by the
1789926.1/12444.027

See

Case 2:04-cv-00621-SRB

Document 199 2 Filed 05/04/2006

Page 2 of 5

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
F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Court' Judicial Assistant that the Court would not hear argument over any further s discovery disputes because discovery in this case had ended. See Affidavit of Jordan Green. Only then did Avnet file its motion seeking leave to file a motion regarding Mr. Sedlik. B. The Late Disclosure Of Mr. Sedlik' Opinions After The Deadline To s Depose Plaintiff' Experts Passed Was Not Necessitated By Avnet' Late s s Supplemental Disclosure.

Plaintiff argues that "because of Defendants' unreasonable delays, there was no conceivable way Plaintiff could not [sic] have had his expert calculations completed prior Defendants'[sic] disclosures on March 16, 2006." See Response at p. 4. The facts belie this claim. Avnet did make some late supplemental disclosures. However, the late disclosures did not impair Plaintiff' ability to disclose Mr. Sedlik' opinions prior to s s March 2006. For instance: 1. Mr. Sedlik specifically indicated his ability to "calculate actual damages based on the information available" in June 2005. See Exhibit A at p. 15. 2. Plaintiff' other damage expert, Mr. Weisgrau, s rendered an opinion regarding Plaintiff' alleged actual s damages by the deadline based on a nearly identical methodology and available facts. See Exhibit B. 3. Mr. Sedlik' Preliminary Report identified several of s the infringements and documents he had reviewed regarding same. See Exhibit A at pp. 6 and 7, Appendix B. 4. Plaintiff' Amended Complaint, filed October 18, s 2004, detailed, with supporting exhibits, 45 alleged infringing uses of Plaintiff' photographs. See Amended Complaint at s ¶¶ 22-49. 5. Plaintiff sued Supply Chain Council, Inc. on June 24, 2005, over use of one of Plaintiff' photographs obtained s from Avnet. See CV05-0270-PHX-NVW, United States District Court, District of Arizona. Plaintiff' lawsuit against s Supply Chain Council, Inc. detailed, with supporting exhibits, three infringing uses of Plaintiff' photographs. Id. s 6. Avnet provided one of Plaintiff' photographs to a s company called CRN for use in an article regarding an
1789926.1/12444.027

Case 2:04-cv-00621-SRB

Document 199 3 Filed 05/04/2006

Page 3 of 5

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
F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

interview with Roy Vallee. Plaintiff subpoenaed documents from CRN, and deposed its representative, Scott Campbell, on January 25, 2005. See Exhibit 2. 7. On October 3, 2005, the Court conducted a telephonic hearing on a discovery dispute raised by Plaintiff. The Court ordered Avnet to produce further information within two weeks. See October 3, 2005 Order. That information was provided by letter, chart, and electronic documents. See Exhibit 3. 8. Avnet has made 10 supplemental disclosures since June 24, 2005. See Docket Entries 111, 113, 114, 128, 130, 134, 137, 140, 153, and 162. The late disclosure of alleged infringing uses was not the cause of Plaintiff' late s disclosure of Mr. Sedlik' opinions. 1 Therefore, the Court should grant Defendants leave s to file their Motion to Preclude Testimony of Plaintiff' Expert Jeff Sedlik. s III. CONCLUSION The Court should grant Avnet leave to file its Motion to Preclude Testimony of Plaintiff' Expert Jeff Sedlik because it complied with the Court' Order in attempting to s s settle this dispute before filing its Motion and Plaintiff' failure to disclose any of Mr. s
1

It appears that the reason for the late disclosure was Plaintiff' attempt to improperly correct defects in s Mr. Weisgrau' analysis that were uncovered during his deposition. As fully explained in Defendants' s Motion to Preclude Testimony of Plaintiff' Expert Witness Richard Weisgrau, Mr. Weisgrau s acknowledged that he could not offer an opinion regarding the value of Plaintiff' photographs at the time s of the infringement because his calculations were based on 2005 stock photography values. See Exhibit E at 12:15-14:7, 54:3-55:7, and 68:19-69:13. In his Supplemental Report, Mr. Sedlik attempts to cure this problem applying a 2.4% discount to his damage calculations to compensate for the change in stock photography values between 2002 and 2005. See Exhibit D at pp. 16-17. Mr. Weisgrau also admitted that no special expertise is required to price stock photography on the internet. See Exhibit E at pp. 51:10-24. Anyone with a computer can log on and select the pricing criteria to determine the current price of a stock photograph. Id. Without citation to any authority, or explanation of the expertise required, Mr. Sedlik' Supplemental Report attempted to cure this defect by simply stating: s While it is true that anyone can visit a stock agency web site and obtain a price for use of a photograph, it is also true that anyone can visit an online brokerage and invest in the stock market. Like pricing and comparing stocks in the stock market, the process of obtaining, analyzing and comparing prices for Avnet' infringing uses of Coogan' s s photography was complex and required considerable expertise. See Exhibit D at p. 13.
1789926.1/12444.027

Case 2:04-cv-00621-SRB

Document 199 4 Filed 05/04/2006

Page 4 of 5

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
F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Sedlik's opinions until after the final deadline for Defendants to depose Plaintiff' expert s was unrelated to Avnet' late supplemental disclosure. s DATED this 4th day of May, 2006. FENNEMORE CRAIG, P.C.

By /s Jordan Green Jordan Green Attorneys for Defendants

CERTIFICATE OF SERVICE I hereby certify that on May 4, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 Nancy Giles, Esq. Giles Legal PLC 733 W. Willetta Street Phoenix, Arizona 85007

s/Jordan Green

1789926.1/12444.027

Case 2:04-cv-00621-SRB

Document 199 5 Filed 05/04/2006

Page 5 of 5