Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MESCHKOW & GRESHAM, P.L.C.

Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 (602) 274-6996 (602) 274-6970 (facsimile) Attorneys for Plaintiff

GILES LEGAL, P.L.C.

Nancy R. Giles (AZ Bar No. 020163) 733 West Willetta Street Phoenix, Arizona 85007 (602) 252-1788 Attorney for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., et al., Defendants. Case No.: CV-04-0621 PHX SRB

PLAINTIFF DAN COOGAN'S RESPONSE TO DEFENDANT AVNET'S MOTION FOR LEAVE TO FILE MOTION TO PRECLUDE TESTIMONY OF PLAINTIFF'S EXPERT JEFF SEDLIK

Because Defendants were unable to find a reliable expert to support their claims and damages calculations in this case, as a last-ditch effort to minimize their damages, they are trying to preclude Plaintiff's experts, with no grounds to do so. Defendant Avnet ("Defendant") misstates the parties' conversations and failed to adhere to the Scheduling Order in this case and, therefore, should not be granted leave to move to preclude expert Jeff Sedlik. This Response is based on the attached Memorandum of Points and Authorities and exhibits thereto, and the entire record in this case.

Case 2:04-cv-00621-SRB 8050-0131-193-1

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MEMORANDUM OF POINTS AND AUTHORITIES DEFENDANT DID NOT PERSONALLY MEET AND CONFER WITH PLAINTIFF REGARDING WHETHER THE TESTIMONY OF EXPERT JEFF SEDLIK SHOULD BE PRECLUDED. Pursuant to this Court's September 30, 2004 Scheduling Order, the parties are required to personally meet and confer regarding any discovery disputes. Defendants did not do so in this case. Defendant's contention that Plaintiff

"refused to ... meet and confer in an attempt to resolve this issue[,]" is astonishing. Motion at 2-3. Plaintiff's letter speaks for itself--Plaintiff's counsel merely responded to Defendant's initial request for a meet-and-confer by setting forth his legal position and ending his letter with "I await your reply." See Exhibit M to Defendant's Motion, incorporated herein by reference. The next thing

Plaintiff heard about the issue was his receipt of the instant Motion. Even if a meet-and-confer had been successful, Defendant's next step was to have arranged a joint telephonic conference with the Court on the issue, not to file a Motion for Leave to File a Motion. See Scheduling Order, September 30, 2004. On this basis alone, Defendant's Motion should be denied. II. THE ONLY REASON ANY OPINIONS BY SEDLIK WERE DISCLOSED AFTER JUNE 24, 2005 WAS DUE TO DEFENDANTS' WITHHOLDING OF THE NECESSARY INFORMATION. A. Defendants Have Continually Evaded Plaintiff's Discovery Requests Seeking Identification of All of Defendants' Infringing Uses of Plaintiff's Photographs. On September 27, 2004, Plaintiff served written discovery requests on Defendants that included requests for any documents demonstrating or evidencing any and all of Defendants' uses of Plaintiff's copyrighted photographs, and the following interrogatory: · Interrogatory No. 4: State the date (month, day, and year) and circumstances concerning Defendants' first use and all subsequent uses of Plaintiff's Photographs of Roy Vallee and the manner and extent of such first and all subsequent uses, whether on an Avnet website, a third-party website, or in any report or publication.

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See Defendants' Responses to Plaintiff's First Set of Interrogatories to Defendant Avnet, Inc. and to Plaintiff's First Request for Production of Documents to Defendants, September 27, 2004, attached as Exhibit B to Document #108, incorporated by reference herein. Since propounding this discovery in September 2004, Plaintiff has made numerous attempts to get Defendants to identify each of its infringing uses of Plaintiff's photographs. Despite numerous letters and discussions with Plaintiff, however, Defendants continued, and continue, to refuse to fully answer these discovery requests. See also the similarly obtuse and

incomplete answer to Interrogatory No. 4 in Defendants' Supplemental Responses to Plaintiff's First Set of Interrogatories to Defendant Avnet, Inc., attached as Exhibit E to Document #108 (and dated March 30th, 2004 (sic), but served under Document # 53, dated 3/30/2005). When Plaintiff produced his expert reports on June 24, 2005, Defendants still had not identified all of their uses of Plaintiff's photographs. In both the Expert Report of Richard Weisgrau, and the Expert Report of Jeff Sedlik, the expert preparing the Report was adamant that a calculation of actual damages was dependent upon knowing each infringing use and that, because Defendants' productions were deficient, the expert reports may require supplementation in the future if and when Defendants were to identify additional infringing uses. See Expert Report of Richard Weisgrau, attached as Exhibit B to Defendants' instant Motion, incorporated by reference herein, at 7-15, and Expert Report of Jeff Sedlik, attached as Exhibit A to Defendants' Motion ("Sedlik Report"), incorporated by reference, at 15-16. After expert reports were disclosed on June 24, 2005, Defendants began planning to take Plaintiff's experts' depositions. 1 Defendants soon let this plan go When dates for such depositions were discussed between counsel via telephone in September 2005, Plaintiff sent Defendants a letter addressing such. See Meschkow & Gresham, P.L.C. September 9, 2005 letter, attached as Exhibit A.
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by the wayside, however, presumably when they realized that, due to their own deficient productions, Plaintiff's experts would have to supplement their reports. Plaintiff made numerous attempts to get Defendants to produce the documents they were hiding. See Plaintiff's Motion to Compel, Document 91, September 27, 2005, incorporated herein by reference. Finally, on October 17, 2005, Defendants made a supplemental production in a letter at the instruction of this Court, but the production still did not identify all of Defendants' infringing uses. Less than two months ago, on March 14, 2006, a year and a half after Plaintiff issued his first document requests and interrogatories to Defendants, and over eight months after the experts had finished their first reports, and after the discovery deadline was long past, Plaintiff received Avnet's Second Supplemental Response to Plaintiff's First Set of Interrogatories, attached as Exhibit D to Plaintiff's Motion in Limine, incorporated by reference herein, in which Defendants purport to finally identify each of their multiple infringing uses of Plaintiff's photographs. Plaintiff, immediately upon receiving Defendants' disclosures identifying additional infringing uses of Plaintiff's photographs, relayed the information to his experts so they could begin work on supplementary calculations in light of this newly revealed information. Plaintiff's disclosed these supplemental reports just one week after Defendants disclosed the information. Because of Defendants' unreasonably delays, there was no conceivable way Plaintiff could not have had his expert calculations completed prior Defendants' disclosures on March 16, 2006. In short, Defendants have sought to first deny Plaintiff's experts the

information they needed to complete their damages calculations, and then penalize Plaintiff for supplementing his expert's reports when Defendants finally produced the information. Defendants should not be permitted to engage in such tactics. Were there any question as to Defendants' gamesmanship, Defendant's Motion makes much of the fact that Plaintiff's supplemental expert reports were
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not only disclosed after the expert deadline, but were also disclosed after Defendants' opportunity to depose Plaintiff's experts had expired. Again,

Defendants set up this situation themselves. They knew, and had been repeatedly told, that Plaintiff's experts could not complete their damages calculations until all of the infringing uses had been disclosed. See Exhibits A, B, and I to Defendant's Motion, incorporated herein by reference. Yet Defendants waited until one day after their time period for deposing Sedlik expired and long after the discovery deadline expired before they produced the newly revealed information. Defendants appear to have purposely set the stage to make it impossible for Plaintiff's experts to complete their reports until after the deposition deadline had passed, so Defendants could argue that the calculations, based on Defendants' late production, were not timely! Defendants' shell game must be stopped. III. CONCLUSION As stated herein, Defendants have been playing games with discovery throughout this lawsuit and should not be entitled to benefit from their gamesmanship. The only reason Defendant gives for seeking to preclude the testimony of Jeff Sedlik is that his Supplementary Report was disclosed after the expert disclosure deadline. As Plaintiff and Sedlik have emphasized to

Defendants, repeatedly, however, Sedlik could not possibly have completed any calculations without having the benefit of Defendants' documents and information, which was not disclosed to Plaintiff until approximately a year and a half after it should have been disclosed. Therefore, Defendant's Motion for Leave to File Motion to Preclude Testimony of Plaintiff's Expert Jeff Sedlik should be denied in its entirety. Respectfully submitted this 24th day of April, 2006, s/Jordan M. Meschkow Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street
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Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street
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Suite 409 Phoenix, Arizona 85014 Telephone: (602) 274-6996 Facsimile (602) 274-6970 ATTORNEYS FOR PLAINTIFF

Phoenix, Arizona 85007 Telephone: (602) 252-1788 ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on 24 April 2006 I electronically transmitted the attached document and its Exhibits to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jordan Greene FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants s/ Jordan M. Meschkow

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