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

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Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al. Plaintiffs, vs. PLAINTIFFS' JOINT RESPONSE TO DEFENDANTS' IN LIMINE MOTION TO EXCLUDE EVIDENCE AND WITNESSES VIOLATING THE COURT'S JULY 26, 2006 ORDER Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 16 Defendants.

Plaintiffs, Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), hereby file their Response to Defendants' In Limine Motion to Exclude Evidence and Witnesses Violating the Court's July 26, 2006 Order ("Motion"), and state as follows:

17 18 19 20 21 22 23 24 25 26 1. Defendants concede that "Plaintiffs submitted their final pretrial order draft to Defendants on or before November 1, 2006." Defendants fail to mention that Plaintiffs also extended the courtesy to Defendants of over-nighting copies of all exhibits to Defendants in New York City and Madison, WI in order to expedite the process. Plaintiffs' good faith effort to meet the schedules of this Court's order are documented. Plaintiffs worked closely with Defendants in a cooperative effort to merge documents and clarify exhibits. For example, the only complaint about exhibits that Plaintiff heard until the filing of Defendants' Motion was that of FUBU counsel Safia Anand, who noted that one of Plaintiffs' exhibits appeared to be missing pages (see Ex. A, Safia Anand e-mail). This issue was addressed and "thanks" were exchanged. Similarly, FUBU counsel Anand continued serving corrected chart exhibits on 11/17/06, two

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days AFTER the 11/15/06 deadline and 17 days after the 11/01/06 meeting.1 Plaintiffs have not objected to this exhibit and are shocked at Defendants' present motion given the massive "mutual" effort. (Ex. B). 2. After November 1, 2006, the "proposed" final pretrial order went through a variety of edits

and changes, including edits and changes proposed by Defendants themselves. Plaintiffs were able to accomplish the difficult task of merging both parties' voir dire instructions, statement of the case, jury instructions and pretrial order.

7 8 9 10 11 12 13 14 15 16 17 personally participated in, or may have knowledge about.3 After years of litigation Defendants on the last 18 19 20 21 22 23 24 25 26 27 28
1 This Court ordered that "any exhibit not marked or exchanged at this meeting shall be precluded at trial." (¶ 6, 9/26/06 order). 2 E-mail of HGI's counsel Christa Westerberg announcing new counsel at 6:43 p.m. (7:43 p.m. Neal Plaintiffs' time) on 11/14/06 (Ex. D). 3 This Court ordered Garvey and HGI to produce transaction documents after the close of discovery (Order of 10/7/05, ¶¶ 1 &2). At the hearing Garvey stated that 9/29/06 was the first time he knew: "nor did I know about it until actually the same newspaper articles appeared." (9/28/05 or 9/29/05)(Ex. E, Pg. 13, lines 20-21, Transcript of Hearing 9/30/05). HGI objected to Plaintiffs' certified bankruptcy records in drafts of the PTO.

3.

As far as supposedly "thirteen witnesses not contained in Plaintiffs' proposed final pretrial

order of October 31, 2006," only the list was erroneously omitted in the first draft submitted to Defendants, but all were on the PTO as of November 15, 2006, the date referenced in ¶ 2 of this Court's 7/26/06 order. Most witnesses had been previously disclosed to Defendants. Some had been deposed before September 30, 2005. (See Ex. C, Chart of Witnesses Objected to). 4. As to Defendants' "outrageous" addition of Ed Garvey to the witness list, he was added by

the deadline of 11/15/06 referenced in the Order, and Plaintiffs' decision is justified by Defendants' last minute disclosure of "new trial counsel,"2 and their own "outrageous" efforts to exclude all evidence pertaining to the HGI purchase transaction and the bankruptcy proceedings ­ events in which Ed Garvey

day of filing for he PTO, announced for the first time that Ed Garvey and Ray Harris will NOT be lead trial counsel, but HGI has "new trial counsel" Karl M. Tilleman, Esq. and P. Bruce Converse, Esq. of Steptoe and Johnson.

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5.

Plaintiffs have accomplished exactly what the period of time between November 1st and

November 15th were intended to accomplish ­ polishing up filings and exhibits in order to make an orderly presentation to this Court, and to conduct an orderly final pretrial conference on December 6, 2006. 6. As to the so-called "19 exhibits" (#379-398), Plaintiffs had already described these exhibits

on their Exhibit List submitted on October 31, 2006, and exchanged the exhibits, but some pages were omitted from the copies that were shipped to all counsel. Accordingly, Plaintiffs' over-nighted these

7 8 9 10 11 12 13 14 15 16 17 should be apprised of the fact that they are absolutely correct that all parties may be so subjected, as there 18 19 20 21 22 23 24 25 26 27 28
4 Rule 26(e) does not set forth a deadline by which supplemental disclosures must be made. 26(e)(emphasis added); Advisory Committee Notes for 1993 Amendments to F.R.C.P. 26(e). See F.R.C.P.

missing copies per Defendants' request. (Ex. A). These exhibits were submitted timely on the draft PTO and exhibit list that was exchanged on November 1, 2006. In addition, Defendants were not prejudiced as these missing pages (Bates stamped FUBU records) were actually documents from Defendants' own production. As to Plaintiffs' supposedly "late" correct copies of exhibits 574-576 these Lemon exhibits were produced in Phoenix on 11/1/06 and listed on the early and final PTO on 11/15/05 (there was a minor issue as to the list being off by one but all exhibits were produced and relabeled and this was resolved). (Ex. A, Pg. 2). As to duplicative or redundant exhibits, different forms of some of the same documents are not redundant. Also, some exhibits were authenticated by different witnesses. 7. As to Defendants' fear that they will be "subjected to future late disclosures," Defendants

are ongoing obligations to make supplemental disclosures, according to F.R.C.P. Rule 26.4 If Defendants discover a relevant document responsive to Plaintiffs' previous discovery requests, Defendants MUST disclose it under the rules.5 Wherefore, Plaintiffs respectfully request this Court enter an order denying Defendants' In Limine Motion to Exclude Plaintiffs' Evidence and Witnesses, as Plaintiffs' adhered to this Court's rules and the Order of July 26, 2006.

5 It is interesting that Defendants have not made one supplemental disclosure and constantly harp at Plaintiffs' supplemental disclosures.

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DATED this 22nd day of November, 2006. By: ____/S/ _______________________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders ROSENQUIST & ASSOCIATES

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 -4Created by Neevia docuPrinter LT trial version 11/22/2006 Page 4 of 7 Case 2:04-cv-00299-DGC Document 541 Filed http://www.neevia.com By: ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced document have been served via first class mail on the following attorneys:

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Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Certificate of Service

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vanessa Braeley, declares as follows: 1. I hereby certify that on November 22, 2006, a true and correct copy of Plaintiffs' Response to Defendants' In Limine Motion to Exclude Evidence and Witnesses Violating the Court's July 26, 2006 Order was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on November 22, 2006, a true and correct copy of Response to Defendants' In Limine Motion to Exclude Evidence and Witnesses Violating the Court's July 26, 2006 Order was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-

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wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: November 22, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley

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Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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