Free Objection - District Court of Arizona - Arizona

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

Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Objections to Defendant GTFM, LLC's (hereinafter GTFM) Newly Submitted Exhibits 1094a, 1095a, and 1096a. In a cover letter dated November 21, 2006 (and just recently received by Plaintiffs), GTFM disclosed copies of three brand new exhibits. Since Defendants just recently disclosed these new exhibits, Plaintiffs were unable to list their objections to such in Section "F" of the Joint Proposed Final Pretrial Order. Therefore, Plaintiffs submit the following objections to Exhibits 1094a, 1095a, and 1096a, and request that this Court preclude GTFM from introducing them at trial. I. GTFM'S NEW EXHIBITS VIOLATE THIS COURT'S JULY 26, 2006 `ORDER RESETTING FINAL PRETRIAL CONFERENCE DEADLINES'. In its Order of July 26, 2006, this Court stated "The Court will not allow the parties to offer any exhibit, witness, or other evidence that was not disclosed in accordance with the provisions of this Order and the Federal Rules of Civil Procedure..." This Court then went on Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' JOINT OBJECTIONS TO DEFENDANT GTFM, LLC'S NEWLY SUBMITTED EXHIBITS 1094a, 1095a, AND 1096a

Case 2:04-cv-00299-DGC

Document 557

Filed 11/30/2006

Page 1 of 8

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

to state; "The parties shall...(b) meet in person and exchange marked copies of all exhibits to be used at trial no later than 14 days before the submission deadline for the Proposed Final Pretrial Order (any exhibit not marked and exchanged at this meeting shall be precluded at trial)..." (emphasis added). The parties met and exchanged marked copies of exhibits on October 31, 2006. However, GTFM never gave Plaintiffs copies of their Exhibits 1094a, 1095a, and 1096a. In fact, prior to Plaintiffs receiving the mailing of November 21, 2006, GTFM never indicated to Plaintiffs that it would be submitting brand new exhibits nearly one-month after the deadline to submit exhibits. Furthermore, in his cover letter included with the new Exhibits, GTFM counsel Ira Sacks does not give any explanation or reason as to the delay in submitting these new exhibits. Instead, Mr. Sacks simply states, "Enclosed, please find Defendants Exhibits 1094a1096a...GTFM may add these exhibits to replace, or in addition to, Defendants' Exhibits 10941096." (See Letter from Ira Sacks dated November 21, 2006, attached as Exhibit "A"). For clarification, there is no indication whatsoever that Exhibits 1094a, 1095a, and 1096a are simply updated or revised versions of earlier submitted exhibits. completely new, never before seen Exhibits. Plaintiffs have already objected to, and filed a Motion in Limine to exclude, Defendants' Exhibits 1094, 1095, and 1096 (Doc. #487). Fearing that those exhibits regarding Defendants costs are likely to be excluded pursuant to Plaintiffs' Motion in Limine, Defendants now belatedly seek to introduce these new "summary" charts as evidence of costs in order to reduce their profits that may be disgorged. Furthermore, Defendants conveniently waited until long after the deadline to submit Motions in Limine before disclosing these new exhibits to Plaintiffs, Instead, these Exhibits are

Case 2:04-cv-00299-DGC

-2Document 557

Filed 11/30/2006

Page 2 of 8

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

without any explanation as to why they were disclosed for the first time one-month after the deadline to exchange exhibits. Allowing the new exhibits to be offered at trial would work a manifest injustice against Plaintiffs. As a result, the exhibits should be precluded at trial.1 As Defendants' Counsel Garvey, argued in a Motion in Limine (Doc. #509), the Court should preclude Defendants "from introducing their late-submitted exhibits ... at trial. The Federal Rules require parties to make mandatory disclosures under Rules 26(a) and 26(e)(1). The appropriate remedy for failure to comply with Rule 26(e)(1) is exclusion. Fed. R. Civ. P. 37(c) (unless there is a substantial justification, a party who fails to disclose information under Rule 26(e)(1), "is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or in a motion any witness or information not so disclosed")." As Counsel Garvey has pointed out, since Defendants failed to comply with their duty of disclosure, failed to produce Exhibits 1094a, 1095a, and 1096a in any form of a Rule 26 disclosure (or anytime prior to November 21, 2006 for that matter), and failed to provide a substantial justification for their failure to do so, exclusion is the proper remedy. The difference between Plaintiffs' summary charts and Defendants' newly disclosed "summary' charts is that Plaintiffs disclosed copies of all of their exhibits to Defendants, including drafts of their summary charts, in Rule 26 Disclosures long before the exhibit exchange on October 31, 2006. Furthermore, Defendants had all of Plaintiffs' exhibits prior to the deadline of November 1, 2006. Although Defendants have argued that Plaintiffs'

1

It is interesting that Defendants object so vehemently to Plaintiffs' charts that were supported by evidence produced and depositions conducted during discovery. Plaintiffs charts and all underlying evidence was served on Defendants as a timely Rule 26 Disclosure.

Case 2:04-cv-00299-DGC

-3Document 557

Filed 11/30/2006

Page 3 of 8

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

disclosures were "late" because they were given to Defendants after the discovery deadline, such disclosures are not late simply because they were disclosed after the discovery deadline.2 Again, as Counsel Garvey argued in another Motion in Limine (Doc. #511), Defendants "were aware of this deadline for over three months" and still failed to submit all of their exhibits in a timely manner prior to November 1st, "nor did they ask the Court for additional time to do so." Plaintiffs fear that if Defendants' new exhibits are allowed at trial, Plaintiffs and the Court will be subjected to future late disclosures and new last-minute exhibits. II. GTFM'S NEW EXHIBITS VIOLATE FED.R.EVID. 1006. The proponent of a summary under F.R.E. 1006 must establish the admissibility of the underlying documents as a condition to the introduction of the summary. United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1998). If Defendants are attempting to use Exhibits 1094a, 1095a, and 1096a as a F.R.E. 1006 summaries, they should have satisfied the five foundational requirements. U.S. v. Bray, 139 F.3d 1104 (6th Cir. 1998). The requirements to admit a summary under FRE 1006 include: (1) the underlying documents must be voluminous; (2) the underlying documents must have been available for examination or copying or both; (3) the underlying documents must be admissible in evidence; (4) the summary must be accurate and nonprejudicial; and (5) the summary must be properly introduced, i.e., the proponent of the summary should present the testimony of a witness who supervised its preparation. Id.

Defendants have yet to disclose exactly which documents underlie these new charts. And,

2

Plaintiffs' have briefed the propriety of using independent evidence, which is not "discovery" and is timely under Rule 26(e) which has no deadline for supplemental disclosures. (Doc. #518; Doc. #412). "A discovery cutoff date does not affect admissibility of evidence obtained outside of the discovery process of the case in which the cutoff date is ordered." Whittaker Corp. v. Execuair Corp., 736 F.2d 1341, 1347 (9th Cir. 1984).

Case 2:04-cv-00299-DGC

-4Document 557

Filed 11/30/2006

Page 4 of 8

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

unlike Plaintiffs' summary charts, Defendants have never stated who prepared their charts 1094a-1096a, who will be testifying to the numbers contained therein, and Plaintiffs have never had the opportunity to depose such witness regarding these charts.3 Plaintiffs suspect that GTFM hastily threw together the "summary" charts after receiving Plaintiffs' objections and Motion in Limine to preclude their other cost charts (Exhibits 1044, 1094-1096) realizing Plaintiffs would likely succeed in precluding those charts due to lack of disclosure. This Circuit has recognized that summaries "are normally prepared by an interested party and therefore may not be completely accurate or may be tainted with the preparing party's bias. Additionally, juries may be misled by the summaries ... Summaries, therefore, must be scrutinized by the trial court to ensure that they are accurate, complete, not unduly prejudicial, limited to the relevant issues, and confined by the appropriate jury instructions." United States v. Leon-Reyes, 177 F.3d 816, 820 (9th Cir. 1999)(cited by Plaintiffs). However, it would be impossible for Plaintiffs or this Court to "scrutinize" GTFM's new charts to ensure that they are accurate, complete, not unduly prejudicial, etc., as GTFM has never provided to this Court the documents that are being "summarized," nor provided an explanation of the calculations that were made, including how they arrived at the numbers in their charts. III. CONCLUSION. Pursuant to ¶6 of the Order Resetting Final Pretrial Conference Deadlines, and also pursuant to Fed.R.Evid. 1006, Plaintiffs respectfully request that the Court enter an order stating that Exhibits 1094a, 1095a, and 1096a are excluded in their entirety, and the Defendants may not rely on the calculations contained therein.
3

26

Additionally, Plaintiffs filed a Motion for Preadmission together with underlying evidence and affidavits, something Defendants have not bothered to do.

Case 2:04-cv-00299-DGC

-5Document 557

Filed 11/30/2006

Page 5 of 8

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

RESPECTFULLY SUBMITTED this 30th By:

day of November 2006.

/s/ Clay M. Townsend CLAY M. TOWNSEND, ESQUIRE KEITH MITNIK, ESQUIRE Morgan & Morgan, PA Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

By:

/s/ Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES Attorneys for Plaintiff Meadowlark Lemon

Case 2:04-cv-00299-DGC

-6Document 557

Filed 11/30/2006

Page 6 of 8

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 Case 2:04-cv-00299-DGC

CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on November 30th , 2006, a true and correct copy of the foregoing JOINT OBJECTIONS TO DEFENDANT GTFM, LLC'S NEWLY SUBMITTED EXHIBITS 1094a, 1095a AND 1096a was sent by postage-prepaid first-class mail, addressed to: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225
-7Document 557 Filed 11/30/2006 Page 7 of 8

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 Case 2:04-cv-00299-DGC

Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 30th day of November 2006, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

-8Document 557

Filed 11/30/2006

Page 8 of 8