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

1 2 3 4 5 6 7 8 9 10

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 MOTION TO STRIKE OR ALTERNATIVELY RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE NEW ANALYSES OF OLIVER PHIPPS AND PLAINTIFFS' JOINT SUPPLEMENTAL DISCLOSURE STATEMENTS 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 17 18 19 20 21 Defendants' Motion, and state as follows: 22 Defendants.

Plaintiffs, Fred "Curly" Neal, Larry "Gator" Rivers, Dallas "Big D" Thornton, Robert "Showboat" Hall, Marques Haynes, James "Twiggy" Sanders, and "Meadowlark" Lemon (collectively referred to as "Plaintiffs"), hereby file their Motion to Strike or Alternatively Response to Defendants' Motion to Strike Plaintiffs' Joint Supplemental Disclosure Statements. Plaintiffs move this court for an order 1) striking Defendants' improper Motion to Strike the New Analyses of Oliver Phipps and Plaintiffs' Joint Supplemental Disclosure Statements ("Motion") or, alternatively, file herewith their Response to

Plaintiffs' disclosures which are the object of Defendants' Motion should not be stricken. The 23 24 25 26 exclusion of highly probative evidence would work a manifest injustice to Plaintiffs: · This Court ordered that "any party that has stated that it will provide additional discovery

responses shall do so notwithstanding the passage of the September 30, 2005 discovery deadline (Order of October 7, 2005, ¶6, Doc#173). Some of Plaintiffs' disclosures exhibits are documents responsive to earlier

Case 2:04-cv-00299-DGC

Document 518

Filed 11/20/2006

Page 1 of 21

1 2 3 4

requests that were, for good cause, only recently discovered by Plaintiffs.1 Others were not in Plaintiffs' possession at all (i.e. HGI DVD's). Defendants produced nothing despite their promises.2 · The disclosures are not untimely "discovery", and are not the product of deposition,

interrogatory or requests for production made after September 30, 2005 ­ discovery efforts directed toward 5 Defendants of the kind contemplated by F.R.C.P. 26(a)(5) (depositions, interrogatories, production of 6 7 8 9 10 11 12 13 14 Corp., 736 F.2d 1341, 1347 (9th Cir. 1984) (citation omitted); cf. Seattle Times Co. v. Rhinehart, 467 U.S. 15 20, 34, 81 L. Ed. 2d 17, 104 S. Ct. 2199 (1984) (distinguishing "information obtained through use of the 16 17 18 19 20 21 22 23 24 25 26 27 28
1 Boy's

documents and requests for admission), and this Court's Rule 16 scheduling orders. Rather, they contain relevant, admissible evidence obtained independent of the discovery process. · The 9th Circuit has held in L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924, 933-934 (9th

Cir. 2002), the purpose of a discovery cutoff date is to protect the parties from a continuing burden of producing evidence and to assure them adequate time to prepare immediately before [**16] trial. A discovery cutoff date does not, however, affect admissibility of evidence obtained outside of the discovery process of the case in which the cutoff date is ordered." Whittaker Corp. v. Execuair

discovery process" from "the identical information . . . gained through means independent of the court's processes," and discuss the search for evidence on its own through means not within the meaning of "discovery" in Rule 26(a)(5) of the Federal Rules of Civil Procedure. In Kunzler v. Rubin, not reported in F.Supp.2d, 2001 WL 34053243 (D.Ariz), the court allowed "untimely" trial exhibits not disclosed in discovery as "Kunzler had to locate copies by other means when the IRS refused to produce them" (Fn.1), an "approach that presumably would have been fine so long as had supplemented his disclosures." The

Life article on Haynes from 1968 while responsive to Defendants' requests for press, as were Curly Neal's recent YMCA honors (Doc#470, Exhibit C), they were "not available." Haynes couldn't find it, and Neal's event had not even occurred until late 2006. 2 FUBU (almost comically) stated that it was "currently investigating" the Philippines sales, and "didn't even know of those sales until Plaintiff disclosed them," but Plaintiffs' are still awaiting the results of the investigation. (Defendants' Reply, Doc#304, page 13, lines 20-24).

Case 2:04-cv-00299-DGC

-2Document 518

Filed 11/20/2006

Page 2 of 21

1 2 3 4 5

court also stated citing F.R.C.P. 37(c)(1) that exclusion of evidence for failure to comport with Rule 26 is a sever sanction inappropriate unless there is bad faith or incurable prejudice. The Ninth Circuit opined that, pursuant to that rule, a party had two years' respite to search for evidence by nondiscovery means; and although L.A. News Serv. would have been unable to conduct further discovery, it would have been able to search for evidence on its own through means not within the meaning

6 of "discovery" in Rule 26(a)(5) of the Federal Rules of Civil Procedure. L.A. News Serv. v. CBS Broad., 7 8 9 10 11 12 13 14 made. See Fed.R.Civ.P. 26(e)(emphasis added); Advisory Committee Notes for 1993 Amendments to 15 Fed.R.Civ.P. 26(e). Therefore, the Advisory Committee Notes state that it may be useful for the scheduling 16 17 18 19 20 21 22 23 24 25 themselves in a store; and 2) infringing garments that Plaintiffs continued to encounter in the marketplace, 26 despite the assertions of FUBU that no sales have occurred after 2004. This assertion continues to be 27 28
Case 2:04-cv-00299-DGC

Inc., 305 F.3d 924, 933-934 (9th Cir. 2002) · Plaintiffs have been diligent. Plaintiffs' Rule 26(e)(2) imposes on parties the ongoing

obligation to supplement prior disclosures if a prior response is "incomplete or incorrect," and Plaintiffs have done so. As Plaintiffs have briefed to the Court before, Rule 26(e) does not set forth a deadline for supplemental disclosures. (Plaintiffs' Response to Defendants' Motion to Strike, Doc#412, page 10-11). · Rule 26(e) does not set forth a deadline by which supplemental disclosures must be

order to specify the time or times when supplementations should be made. Id. Although this Court did not specify in the scheduling order the times when supplementations pursuant to Rule 26(f) should be made, the Court clearly has wide discretion in determining whether a disclosure is untimely. See MRO Communs., Inc. v. AT&T, 1999 U.S. App. LEXIS 32522 (9thCir.1999). Some of Plaintiffs' "disclosures" are

Defendants' undisclosed evidence. Some disclosures are exhibits that Defendants should have produced to Plaintiffs, but did not. For example: 1) HGI produced a DVD entitled "Harlem Globetrotters ­ The Team That Changed The World," copyrighted in 2005 (after this litigation started), featured some of the Plaintiffs without permission, and NEVER produced this responsive discovery to Plaintiffs who had to find it

-3Document 518

Filed 11/20/2006

Page 3 of 21

1 2 3 4 5

contradicted with independent EVIDENCE ­ recent purchases on October 17, 2006 of Curly Neal warmups bearing hang-tags ­ a style never before disclosed by Defendants as relating to Plaintiffs. (See ¶10 of Phipps' Affidavit, Exhibit B to Defendants' Motion). Not only should this evidence be admitted,

Defendants should be sanctioned for Plaintiffs' costs associated with acquiring the evidence. "Discovery cut-off" does not require that relevant, responsive evidence encountered in the marketplace be excluded

6 because of a deadline relating to "discovery". 7 8 9 10 11 12 13 14 · 15 no "smoking guns," but relate to areas intimate to Defendants (styles and sales of garments designed and 16 17 18 19 20 21 22 23 24 25 Additionally, how can it be harmful to the very Defendants that designed, manufactured, and distributed 26 them? 27 28
Case 2:04-cv-00299-DGC

·

The "new" charts are proper F.R.E. 1006 summaries which have been served long before

trial and the subject of Plaintiffs' Joint Motion for Pre-Admission of Evidence (Doc#474), which provides a foundation of admissible underlying evidence to this Court and to Defendants' Rule 26(a)(3) which contemplates identification of summaries in the pre-trial disclosures "at least 30 days before trial", and "made in writing, signed and served" (Id. at 4). Plaintiffs have done exactly this ­ and long before any trial date. The disclosures provide no surprise and impose no prejudice upon Defendants. There are

manufactured by the Defendants themselves; old articles about Marques Haynes from Boy's Life, etc.). SUBSTANTIAL JUSTIFICATION FOR ANY UNTIMELINESS AND "GOOD CAUSE" Defendants have not provided one single garment sample to Plaintiffs, nor have they stated that they possess any that Plaintiffs could have inspected. Thus, Plaintiffs' "disclosures" (an ironic twist of words) are actually Defendants' undisclosed evidence (failed disclosures). Even if some of Plaintiffs' "disclosures" (garments) were after discovery cut off, F.R.C.P. 37(c) provides that such evidence is still admissible at trial if there is "substantial justification" for the delay, or if it is "harmless." Here, Plaintiffs' encounter of garments previously withheld by Defendants provides justification for its inclusion.

-4Document 518

Filed 11/20/2006

Page 4 of 21

1 2 3 4 5

Plaintiffs' Item #126, Style HGB 3545S was purchased at Marshall's (a retailer listed in FUBU business records), and HAS NEVER been disclosed by FUBU as a garment bearing Curly Neal's name, number or hang tag before. Plaintiff would never have known about this style, but for the chance encounter at Marshall's. (¶10, Phipps Affidavit, Exhibit B to Defendants' Motion). FUBU's failure to disclose styles and sales provides substantial justification for any delay for the

6 F.R.E. 1006 summary in addition to being it being timely under the rule. The Court should note that the 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-00299-DGC

reason Plaintiffs' investigator was retained to confirm garments in the marketplace in the first place was HGI's contention that it only sold "NINE STYLES" ­ a patent falsehood - and FUBU's first production only revealed few styles. (See Exhibit A to Plaintiffs' Motion to Pre-Admit, Doc#474). Plaintiffs' wrote Defendants on February 18, 2005 and in addition to charts, listed 58 styles in its letter to FUBU (Exhibit D). By the time of Phipps' deposition, he brought over 100 garments to Madison, Wisconsin (¶6 of Phipps' Affidavit, Exhibit B to Defendants' Motion). Plaintiffs' also diligence includes: · · · · Pressing FUBU in discovery to produce sales and styles in 13 different productions; Retaining investigators to confirm sales in the U.S., Phillipines, and China, and amassing over a hundred samples with NOT ONE sample produced by Defendants; Creating charts as early as February 16, 2005, which were shared with Defendants; Presenting the garment samples for Defendants' inspection on TWO occasions (Madison, Wisconsin on September 23, 2005 and Phoenix, Arizona on November 1, 2006). Defendants have requested to examine the samples a THIRD time, and Plaintiffs have agreed; Presenting investigators Phipps and Gallo in Madison, Wisconson upon Plaintiffs' own initiative (even though Phipps was disclosed, Defendants made no effort to set his deposition); Deposing three (3) FUBU executives in New York City; Documenting and properly disclosing ongoing infringing sales in the marketplace as late as October 17, 2006 (See ¶10 Phipps' Affidavit, Exhibit B to Defendants' Motion); Preparing F.R.E. 1006 summary of all styles and sales from FUBU business records as an aid to the jury (Id. at ¶15).

·

· ·

"Good cause" and Plaintiffs' diligence were also briefed in response to Defendants' prior attacks on Plaintiffs' 5/4/06 disclosures which Defendants' moved to strike on 5/12/06, with a supplemental on 5/16/06 (Plaintiffs' Response, Doc. # 412, Pg. 10-14). "Good cause" and Plaintiffs' diligence are also -5Document 518

Filed 11/20/2006

Page 5 of 21

1 2 3 4 5

described in Plaintiffs' response (filed on 10/5/06, Doc. # 457) to Defendants Joint In Limine Motion to Exclude the Analysis of Oliver Phipps from Trial filed by Defendants on 6/30/06 (Doc. # 427). In addition to Plaintiffs' earlier May disclosures containing Phipps' schedules and photos, it contained critical union documents from the 1980's, the exclusion of which would work the manifest injustice referenced to in this Court's order of 6/27/06. These union documents were located outside the

6 discovery process contemplated by the scheduling order. These documents were not found earlier due to 7 8 9 10 11 12 13 14 15 16 permissible F.R.E. 1006 summaries which are not discovery due by a deadline. 17 As this court noted in its order of 6/27/05, an amendment to a scheduling order must be for good 18 19 20 21 22 23 24 25 26 Deadline of Completion of Fact Discovery, (Doc. #112) listed a) depositions and b) written discovery 27 (interrogatories, requests for production and admissions). Additionally ¶3 lists discovery limitations. The 28
Case 2:04-cv-00299-DGC

"good cause" and were never produced by Defendants. They have received additional authentication by the clerk of the Arkansas court (certified copies have been listed as Plaintiffs' proposed exhibits #164-166 to the Pre-trial Order), as well as an affidavit from the former attorney for the Harlem Globetrotter's (Phillip Anderson) who filed the documents in a lawsuit in the 1980's . Plaintiffs' disclosures are timely as to the F.R.E. 1006 summary as such can be provided all the way up through trial. (Ex. A(1) to Plaintiffs' Joint Supplemental Disclosure of 8/27/06. Exhibits 2-10 of the October 27, 2006 disclosure were quite simply "not available" to Plaintiffs. As to Plaintiffs' Joint Supplemental Disclosure Statement of 10/31/06 the two exhibits are also

cause, citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), holding that "good cause" focuses on the party's diligence seeking the amendment and that prejudice to the opposing party is an additional reason to consider. Id. at [5][6][7]. Here, an amendment was not necessary, for the type of disclosures involved. In Mammoth there was an amendment cut off date in the scheduling order and a limited time to join an additional defendant. The scheduling orders do not exclude independent evidence located outside the discovery deadline. Defendants filed a Stipulated Motion to Amend Case Management Order on March 25, 2005, in which ¶4

-6Document 518

Filed 11/20/2006

Page 6 of 21

1 2 3 4 5 6

Court entered the Order on 4/5/05. This court has also ordered HGI to produce documents related to the sales transaction after the discovery cut-off date and that parties will produce discovery responses "notwithstanding the passage of the September 30, 2005 discovery deadline." (Order of 10/7/05 amending the scheduling order). In Wong v. Regents of the University of California, 410 F.3d 1052 (9th Cir. 2005), cited by this Court in its Order of 6/27/05, the Wong court excluded expert witnesses disclosed after the expert witness

7 8 9 10 11 12 13 14 15 16 The HGI produced DVD was recently encountered in the marketplace, was not in Plaintiffs' possession and 17 could not have been produced by the Plaintiffs, as in the Hostnut.Com, Inc. case. 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

deadline in the scheduling order. The facts are dissimilar here as Phipps was timely disclosed as a lay witness. This Court in Hostnut.Com, Inc. v. Go Daddy Software, Inc., 2006 WL 2573201 (D. Ariz. 2006), excluded a plaintiffs' documents for purposes of summary judgment because the documents were responsive to defendants' first discovery requests, were "not unavailable," but were produced after the discovery cutoff date in the Rule 16 case management schedule, and used for the first time as exhibit to summary judgment briefings. Here, the non F.R.E. 1006 disclosures (i.e. DVD's, etc.) were not available to Plaintiffs. Again, Marques Haynes is 82 and simply just found the old newspaper articles (Exhibit C to Defendants' Motion).

Had Plaintiffs

intentionally or carelessly withheld the new evidence as suggested by Defendants, exclusion may be appropriate absent good cause and prejudice. DEFENDANTS' MOTION IS AN IMPROPER MOTION IN LIMINE Defendants' Motion is improper as any objections to Plaintiffs' disclosures containing proposed exhibits should be in the form of a three page motion in limine.3 Defendants' Motion violates this Court's order dated July 26, 2006 (¶ 7, Doc. # 436) as it is sixteen pages and includes an eighteen page Declaration of Ira Sacks, that is improper "expert testimony". Additionally, Defendants have already attacked Plaintiffs'

-7Document 518

Filed 11/20/2006

Page 7 of 21

1 2 3 4 5

proposed Summary in several other pleadings: Defendants Response to Plaintiffs' Motion for Preadmission of Summary (Doc. #515), Defendant GTFM's First Motion In Limine to Exclude the Analysis of Oliver Phipps from Trial (Doc. #427), Defendants' Joint In Limine Motion to Exclude Any Evidence of Sales Allegedly Violating Plaintiffs' Rights Other Than As Expressly Set Out In The June 27, 2006 Order (Doc. # 458).

6 7 8 9 10 11 12 13 14 15 16 been briefed by Plaintiffs, has a proper foundation and is permissible under F.R.E. 1006. 17 The Second Joint Supplemental Disclosure of 10-31-06 (the so called "Phipps III Analysis") 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC
3 This

PLAINTIFFS DISCLOSURES ARE NOT EXPERT REPORTS AND ARE TIMELY, ALTERNATIVELY, UNTIMELINESS, IF ANY, IS HARMLESS The Joint Supplemental Disclosure of 10-27-06 (the so called "Phipps II Analysis") The first exhibits in this disclosure (Ex. A, Doc. #470) are exhibits that have been provided to Defendants as part of Plaintiffs' Motion for Preadmission (Doc. #474). The remaining disclosures are HGI DVD's copyrighted by HGI (of which Defendants are aware and should have produced), articles, brochures, and posters of Haynes, Rivers, and Neal which were recently discovered by the Plaintiffs and should have been provided by Defendants in response to Plaintiffs' requests for production, but were not, and some papers of Marques Haynes going back to the 1960's. The Summary proffered by Plaintiffs has

On page one of Defendants' Memorandum, Defendants assert that they received a "new expert report" from Plaintiffs, increasing Plaintiff's alleged damages from under $2 million to over $12 million." This assertion is false on two levels. First, Plaintiffs' proposed Summary (Motion to Pre-Admit Exhibits, Doc#474), is not an expert report by any stretch. It contains no report, opinion or scientific analysis but merely adds up styles and sales using FUBU's own business records produced during discovery. This is not a situation where a Rule 702 "expert" is providing new opinions, new documents or reports, or revising or "increasing" damages after an expert disclosure deadline.

Court ruled Defendants "may raise objections to such evidence in pre-trial motions in limine" (Order, of June 27, 2006, page

-8Document 518

Filed 11/20/2006

Page 8 of 21

1 2 3 4 5

Secondly, the so-called increase in damages to over $12 million are actually the total of sales as reported by FUBU, the supporting numbers for which the jury will see with or without Plaintiffs' Summary. These numbers are gross revenues reported during discovery by FUBU (Ex. A to Plaintiffs' Motion to PreAdmit, Doc#474). These very business records will be presented to the jury at trial from which a jury can assess how much of the revenues, if any, should be paid to the Plaintiffs after a reduction of these revenues

6 by what expenses the Defendants can prove.4 7 8 9 10 11 12 13 14 15 16 ¶21." (Motion Pg. 11). But, Plaintiffs have never been informed of any such thing despite attorney Sacks' 17 "testimony" in his declaration. Regardless, discovery was directed toward all the HGI/FUBU sales, even 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC
30, Doc#425). 4 Interestingly as much as Defendants complain, Defendants have filed four new exhibits never before seen that have absolutely no foundation purporting to calculate the costs associated with these very revenues. Plaintiffs have moved to strike Defendants'

As for the absurd assertion of an "increase in the number of alleged infringing styles" from 9 to 78, the styles come directly from the FUBU documents, and Plaintiffs' first chart and letter of February 18, 2005 to Defendants' list 58 styles, not including the charts attached. (Exhibit D). Any "increase" comes from FUBU records or off the racks of FUBU documented retailers (i.e. Marshall's). Plaintiffs' emphasize that NONE of the complained of "new" sales information came from Plaintiffs, but rather from Defendants' own discovery documents. The same is true for the dilatory disclosure FUBU made for sales in Japan. Defendants state that "GTFM and HGI did not sell in Japan," and "as Plaintiffs' are well aware, the Japanese sales were by a licensee and GTFM only received a royalty, not sales revenues. See Sacks Decl.

those of sub-licensees and even those in remote Asian island countries. FUBU counsel stated in a telephonic hearing of September 2005 that it allowed sub-licensees to copy samples, manufacture garments and pay a royalty with NO PAPERWORK: "the way that licensees work is that they see samples from GTFM, LLC and if they like those samples they go and they manufacture those samples and they sell those samples and they pay a royalty to FUBU. There's no paperwork, there's no purchase orders." (Exhibit C, Transcript of 9/30/05 Hearing, page 30, 35). They also

-9Document 518

Filed 11/20/2006

Page 9 of 21

1 2 3 4 5

stated Samsung had stacks of documents but never produced them despite this Courts' Order that the obligation to produce is not relieved (Id. at 36). Plaintiffs' proposed Japanese Summary is a chart which should aid a juror in locating the style and the sale in the FUBU documents associated with the Japanese sales.5 The underlying document to the chart is one that FUBU never produced, but which came from HGI. (See ¶6 of Phipps' Affidavit, which is Exhibit N of Defendants' Motion). Defendants may impeach

6 and rebut at trial, as Sacks has done in his Declaration. 7 8 9 10 11 12 13 14 15 16 discovery cut-off, and produced schedules and charts used as Plaintiffs' Exhibit 13(d) to Summary Judgment 17 briefing. (See Exhibit A to Phipps Affidavit, Exhibit B to Defendants' Motion). 18 19 20 21 22 23 24 25 26 27 28
charts in a Motion In Limine Doc#487, the primary ground of which is because these charts have no required foundation. See Defendants' Exhibit J, K and L to Defendants' Motion ). 5 It is noteworthy that Japanese sales were finally disclosed on September 13, 2005, merely days before discovery cutoff after FUBU represented that there were no overseas sales and then finally fessed up that there may have been "some" Japanese sales. 6 Plaintiffs have further briefed to this Court the efforts that Plaintiffs went to to grant access to Phipps by flying Phipps and his Philippines investigator, Peter Gallo, to Madison, Wisconsin--a deposition attended by both HGI and GTFM, LLC attorneys.

Plaintiffs have briefed extensively the case law and F.R.E. 1006 which permit a party to provide helpful charts and summaries. Plaintiffs' proposed Summary simply is not the type which requires an expert. Plaintiffs' investigator Phipps participated in the endeavor as he has been involved in analyzing styles and sales in this litigation, was disclosed to Defendants, and deposed by Defendants prior to the September 30, 2005 discovery cutoff.6 Investigator Phipps satisfies the F.R.E. 1006 requirement of an adequate foundation for exhibits such as summaries and charts. Phipps' Affidavit (Ex. B, Doc#474) establishes exactly where the underlying admissible information came from--primarily FUBU discovery documents. Phipps produced all the garments listed thru items 113 on his schedule at his deposition before

Phipps stated in his deposition that he is not an expert, nor scientist, nor mathematician. Phipps is an investigator. Federal courts have admitted as lay opinion far more complex summaries than those in Plaintiffs' disclosures. In Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1121 (10th Cir.2005), the court held that a declaration and calculations were improperly excluded by the trial court. There the evidence was presented in a response to a summary judgment motion after extensive discovery. The district court

Case 2:04-cv-00299-DGC

-10Document 518

Filed 11/20/2006

Page 10 of 21

1 2 3 4 5

improperly excluded the analysis of 103 audit reports that included spreadsheets, calculations of average compliance and leakage scores, the result of which were percentage ranges and averages of scores. The 10th Circuit held the exclusion improper as the calculations of the "non-disclosed expert" were lay opinions under F.R.C.P. 701 involving "mathematical calculations well within the ability of anyone" and clearly permitted by F.R.E. 1006.

6 Phipps is not testifying (and did not at his deposition testify) as an expert. F.R.E. 701 permits a 7 8 9 10 11 12 13 14 15 16 underlying records on which the chart was based were introduced and made available to opponents as 17 required by F.R.E. 1006; and United States v. Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied, 441 U.S. 946, 18 19 20 21 22 23 24 25 26 Plaintiffs' erstwhile expert Sandy Abalos--an issue which is long past. Defendants state it is the purpose of 27 the "Phipps Analysis" to correct the inaccuracies in the Abalos report. This statement is false. Abalos is an 28
Case 2:04-cv-00299-DGC

witness' testimony in the form of opinions or inferences which are a) rationally based on the perception of the witness, and b) helpful to a clear understanding of the witnesses' testimony or the determination of the fact in issue, and c) not based on scientific technical or other specialized knowledge within the scope of Rule 702. The 9th Circuit has also held that testimony and summaries of voluminous tax records were properly permitted as "no expert opinions or conclusions were offered." Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir.1986), citing F.R.E. 1006 and United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.) cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979). See also United States v. Jennings, 724 F.2d 436, 443 (5th Cir.), where the court concluded that the summary witness was not an expert, and that

99 S.Ct. 2168, 60 L.Ed. 2d 1049 (1979), holding that when a chart does not contain complicated calculations required in the need of an expert for accuracy, no special expertise is required in presenting the chart; and also Eastern Trading Company v. Refco, Inc., 1999 U.S.Dist. LEXIS 962 6-7 (D.Ill.1999), where the court permitted a previously undisclosed witness to testify as to thirty summary exhibits relating to voluminous documentary evidence because the proponent did not act in bad faith and the opponent could demonstrate no prejudice. Defendants' attempt to taint Plaintiffs' proper F.R.E. 1006 exhibit disclosures with the old issue of

-11Document 518

Filed 11/20/2006

Page 11 of 21

1 2 3 4 5

expert C.P.A. who compiled global sales and rendered opinions. Phipps totaled styles and sales that he confirmed. In an effort to keep all evidence of Defendants' infringing activities from the eyes of the jury, Defendants now ask this Court to declare Phipps an expert who is filing late expert reports. This is utterly false as Phipps has testified he is not an expert, and as stated before, Phipps was disclosed to, and deposed by, Defendants over a year ago.

6 7 8 9 10 evidence has been produced by FUBU, and that they may attack the accuracy of Plaintiffs' Summary at trial 11 and rebut it. (As noted, Defendants have already filed their own charts with no underlying support, 12 13 14 15 16 17 18 19 20 21 established by identifying the admissible underlying documents (i.e. who prepared them and what is their 22 basis?). Otherwise, Plaintiff could agree that it is fair game for the Defendants to, pursuant to F.R.E. 1006, 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

Defendants' Alleged Prejudice Defendants state that Plaintiffs' disclosures are prejudicial to Defendants ability to try this case, but Plaintiff has briefed this issue to this Court in its F.R.E. 1006 pre-admission motion that the underlying

Defendants' Exhibits 1044, 1094-1096 which are the subject of Plaintiffs' Motion In Limine, Doc#487, and Exhibits J, K and L to Defendants' Motion). As to Defendants' not having sufficient time to properly analyze and respond to the so-called Phipps analyses, there is not even a trial date set in this matter. Additionally, Defendants have had ample time to prepare responsive exhibits and have already done so, and have continued editing their charts up through November 17, 2006 (two days after the November 15, 2006 deadline) (Exhibit B). (The Sacks Declaration is a lengthy and improper "expert" rebuttal to the "weight" of the evidence and should not be considered for the issue of admissibility). Plaintiffs' only complaint with Defendants' responsive exhibits are that they do not satisfy the requirement that an adequate foundation be

prepare its own charts and summaries. Defendants complain that a responsive analysis could take a great deal of time as the analysis already prepared by Defendants "took over two months to accomplish" (Pg. 4 Memo, Doc#469). This assertion is puzzling given that FUBU Defendant representative, Weisfeld testified on August 2, 2005 what their

-12Document 518

Filed 11/20/2006

Page 12 of 21

1 2 3 4 5

anticipated manufacturing costs would be and they already had a chart they introduced as Exhibit 11 to the depositions. (Exhibit A, Blenden Excerpt page 168-170). Thus Defendant, GTFM may arguably still use their expert on the issue of costs associated with revenues, so there is no prejudice. Most noteworthy is that FUBU Defendants also complain that they "would have done a survey regarding the marking impact of hang tags" (which it did not do...) (page 4-5, Memo, Doc#469). Again

6 Plaintiffs have documented ad nauseam their efforts to obtain hang tag data from Defendants. The assertion 7 8 9 10 11 12 13 14 15 16 is briefed at page 4-5 in Plaintiffs' Motion for Pre-Admission, Doc#474). Plaintiffs have submitted this 17 exhibit previously to this Court showing that numerous styles had already been identified as of February 18 19 20 21 22 23 24 25 26 months to disclose." Phipps affidavit confirms that Defendant FUBU made MORE productions of styles 27 and sales AFTER Phipps' deposition (¶7 Phipps Affidavit, Ex. B to Defendant's Memo). 28
Case 2:04-cv-00299-DGC

in Defendants' Motion is especially troubling given FUBU counsel Sacks' statement that "I don't think hang tag data exists." (Plaintiffs' Response at page 8, Doc#220). How could they now say they could have obtained the long requested hang tag data now that is benefits them in their defense of Plaintiffs' F.R.E. 1006 Summary? Next, Defendants complain that had they known about Plaintiffs' disclosures they "would have taken the deposition of Mr. Phipps regarding his analysis" (Pg. 5 Memo, Doc#469). Defendants DID take the deposition of Mr. Phipps and Defendants were in possession of Plaintiffs proposed charts as early as February 18, 2005, many months before they had Mr. Phipps in the witness chair. (This sequence of events

2005, and Plaintiffs' continued to press for the sales associated with those styles from FUBU. PURPORTED VIOLATIONS OF THIS COURT'S ORDER Plaintiffs have not violated the Orders of this Court in proffering its exhibits. The only basis offered by Defendants for their assertion that Plaintiffs' violated this Court's Order is an assumption they ask this Court to make--that Phipps is an expert that was untimely disclosed. But Phipps was timely disclosed and deposed as an investigator while Plaintiffs had an expert (Abalos), as opposed to cases where experts are disclosed late. Defendants state it is a "mystery" why it took "13

-13Document 518

Filed 11/20/2006

Page 13 of 21

1 2 3 4 5

Again, Defendants have already attacked Plaintiffs' prior Phipps and other disclosures. Plaintiffs' previous disclosure of May 2006 did not violate this Court's Rule 16 scheduling order setting October 28, 2005 dispositive motion deadline (Doc#173, ¶3). Plaintiffs briefed this issue in their Response to

Defendants' Motion to Strike (stating that there was good cause, that Plaintiffs have been diligent and that Plaintiffs' submissions were timely supplementary evidence and affidavits that are clearly permitted "as late

6 as the date of the hearing, if they support an existing motion and do not constitute a new motion for 7 8 9 10 11 12 13 14 15 16 as evidence. AT&T Corporation v. MRO Communications, Inc., 205 F.3d 1350 (9th Cir.1999)(allowing 17 detailed billing records and calculations as a declaration established sufficient foundation despite defendants' 18 19 20 21 22 23 24 25 26 evidence. Additionally, as Defendants concede in the present Motion, FUBU attorney Sacks himself on two 27 occasions stated in open court how simple it was to do. Plaintiffs' problem for purposes of summary 28
Case 2:04-cv-00299-DGC

summary judgment on additional issues or grounds". (Plaintiffs' Response, Doc#412, page 5 citing case law and discussing F.R.C.P. 56(e) and Local Rule 56.1). Plaintiffs' good cause for the May 2006 disclosures was extensively briefed in Plaintiffs' Response to Defendants' Motion to Strike (Doc#412, ¶2 page 3, Section II, page 10-14). Again, why would Plaintiffs intentionally and improperly withhold helpful evidence? Many of these documents are old and were stored in various locations, some even with remote relations as noted in Rose Neal's affidavit. Additionally, the Ninth Circuit has held that even if a declaration (i.e. the Phipps Affidavits and Townsend Declaration) is not in an admissible form, the facts underlying the declaration may be admissible

hearsay objection). Defendants continue to attempt to force this Court to limit damages to the HGI Letter and Sales Chart referred to in the Court's Order of June 27, 2006, referencing sales amounts for just nine styles of apparel. But the sales associated with the numerous styles on the Chart are easily located in the FUBU business records which the FUBU witnesses are expected to confirm at trial. Plaintiffs have explained the simple methodology to the Court in their Motion to Pre-admit their Summary pursuant to F.R.E. 1006, as well as the erroneous reading of this Court's Order which flies in the face of liberal admissibility of relevant

-14Document 518

Filed 11/20/2006

Page 14 of 21

1 2 3 4 5

judgment was that Plaintiffs' expert had not done the simple calculation on an individual basis, but instead expended all of her somewhat extensive efforts in attempting to track down global sales which were suggested could be used to extrapolate individual sales on a percentage basis. Plaintiffs assert that it is clear that nowhere did this Court order that any and all relevant and admissible evidence of damages should be concealed from the jury. Plaintiffs' proffered evidence in question is relevant within the terms of F.R.E. 401

6 which only requires that evidence have "any tendency to make the existence of any fact that is of 7 8 9 10 11 12 13 14 15 16 Plaintiffs have submitted their Summary long before a trial date (there is not one) and by the Court ordered 17 deadline of November 15, 2006 to identify all exhibits. Defendants complain vehemently that "it took 18 19 20 21 22 23 24 25 26 discovery, September 30, 2005. (Exhibit A to Plaintiffs' Motion for Pre-Admission, Doc#474). 27 28
Case 2:04-cv-00299-DGC

consequence to the determination of the action more probable or less probable than it would be without the evidence." Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir.1980). For example, it is easy for a juror to look at FUBU's business records, and see that the sales for a dress bearing Marques Haynes' name and player number are so many units for total revenue of X. This simply requires no expertise at all, as FUBU attorney Sacks has ably pointed out. (See quotes page 6 of Plaintiffs' Motion to Pre-Admit, Doc#474). Plaintiffs have cited authority to this Court that F.R.E. 1006 exhibits may be submitted after the close of discovery all the way up through trial, even after discovery cut-off dates. L.A. News Serv. Here,

Plaintiffs 13 months to disclose the Phipps II and III analyses" (Pg 9 Memo, Doc#469). Defendants ignore the fact that Plaintiffs' have briefed to this Court that on February 18, 2005, Plaintiffs' submitted to Defendants its first attack on an analyses of styles and sales and provided a Plaintiffs' chart directly to Defendant GTFM's counsel in an effort to engage them in early efforts of analysis (Ex. D). As noted in Plaintiffs briefs, Defendants specifically rejected any comment at all on Plaintiffs' charts. Plaintiffs

continued an exchange of commentary and information regarding its search for styles and sales and FUBU ultimately thirteen different productions of styles and sales, including productions on the very last day of

-15Document 518

Filed 11/20/2006

Page 15 of 21

1 2 3 4 5

PLAINTIFFS' AND THEIR COUNSEL SHOULD NOT BE SANCTIONED Defendants asking for sanctions is a frivolous filing. Plaintiffs should not be sanctioned for filing exhibits pursuant to the rules (F.R.E. 1006; F.R.C.P. 26) and with no improper purpose. If the Court determines that the proffered Summary of Plaintiffs and the associated underlying documents and foundational material are too complex, then the Court may order that the Plaintiffs simplify it or streamline

6 it. Plaintiffs' disclosures are not "new evidence" or "new discovery." How can it possibly be prejudicial to 7 8 9 10 11 12 13 14 15 16 used for impeachment. FRCP 26(a)(3) exempts evidence used solely for impeachment because pretrial 17 disclosure would significantly diminish its impeachment value. Bearint v. Dorell Juvenile, 389 F.3d 1339, 18 19 20 21 22 23 24 25 26 summaries (FUBU's Blenden and Weisfeld are experienced garment industry lawyers who are very capable 27 "number crunchers"). Defendants have ample time to examine the accuracy of Plaintiffs' summary charts 28
Case 2:04-cv-00299-DGC

Defendants for Plaintiffs' to utilize F.R.E. 1006 to attempt to assist the jury in tabulating FUBU's own business records? Defendants have simply not adduced any harm from Plaintiffs' disclosures after the discovery deadline. See Zhang v. Gasteum, 2006 WL 726783 (D.Ariz.). A court does have discretion to impose "other appropriate sanctions," either in addition to or instead of exclusion. Fed.R.Civ.P. 37(c)(1). Even undisclosed evidence should not be excluded "if the parties' failure to disclose the required information is substantially justified or harmless." Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001)(citing Fed.R.Civ.P. 37(c)(1). Even if untimely discovery has been served (which it has not), undisclosed evidence may still be

1353 (11th Cir. 2004), citing Denty v. CSX Transp., 168 F.R.D. 549, 550 (D. Or. 2000). At worse, all disclosure exhibits could be used for impeachment (i.e. even the "Phipps analyses" can impeach FUBU's never ending assertions that there "were NO DAMAGES," and no sales attributable to Plaintiffs' identities). DISCOVERY SHOULD NOT BE REOPENED Discovery should not be reopened for six months given that Defendants have already deposed Phipps, examined HGI/FUBU apparel on two occasions, and have already prepared rebuttal charts. Defendants may rebut Plaintiffs' evidence without an expert and may impeach Phipps as to the accuracy of

-16Document 518

Filed 11/20/2006

Page 16 of 21

1 2 3 4 5

prior to trial, as no trial date has yet been set. A reasonably short period for further examination may be appropriate, but reopening expert discovery is neither necessary nor justified. It may be appropriate (and Plaintiffs would agree) to allow a new court appointed independent expert for limited purpose of confirming accuracy of the addition in the summaries. CONCLUSION

6 A hypothetical question illustrates the fallacy of Defendants' position: If a document evidencing 7 8 9 10 11 12 13 14 15 16 another prophylactic instruction appropriate under the circumstances (i.e. if this Court determines that any 17 portion of Plaintiffs' disclosures constitute expert opinion then a jury instruction may be given or the 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

$100 million dollars in sales of HGI/FUBU apparel bearing Marques Haynes' name not previously in Plaintiffs' possession was discovered after a discovery cut-off date, would it be stricken if Plaintiffs disclosed the document in a Rule 26 Disclosure, and on a pre-trial exhibit list? The answer is even an easier one if the item was a garment sample in the possession of Defendants and never disclosed after 13 different productions. Plaintiffs' disclosures should not be stricken, and Defendants should pay all costs associated with responding to their Motion. WHEREFORE, Plaintiffs' respectfully request this Court 1) strike Defendants' Motion and Sacks' Declaration, or 2) deny Defendants' Motion to Strike Plaintiffs' Disclosures, 3) Alternatively, provide

portion may be excluded, or an independent person may add the numbers, 4) sanction Defendants for failing, during discovery, to produce or disclose evidence in their possession that Plaintiffs had to locate from other sources, and for the costs of defending Defendants' Motion. DATED this 20th day of November, 2006. MORGAN & MORGAN, P.A. By: ____/S/ Clay M. Townsend______________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685
Filed 11/20/2006 Page 17 of 21

-17Document 518

1 2 3 4 5 6

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

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-00299-DGC

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: 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 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. -18Document 518

Filed 11/20/2006

Page 18 of 21

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

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 Vanessa Braeley, declares as follows: 1. I hereby certify that on November 20th, 2006, a true and correct copy of Plaintiffs' Joint Response to Defendants' Motion to Strike 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 20th, 2006, a true and correct copy of Plaintiffs' Joint Response to Defendants' Motion to Strike was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center
Case 2:04-cv-00299-DGC

-19Document 518

Filed 11/20/2006

Page 19 of 21

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
Case 2:04-cv-00299-DGC

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 20th, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 -20Document 518
Filed 11/20/2006 Page 20 of 21

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
Case 2:04-cv-00299-DGC

Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

-21Document 518

Filed 11/20/2006

Page 21 of 21