Free Motion for Miscellaneous Relief - 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, a married man, Plaintiff, vs. PLAINTIFFS' JOINT MOTION FOR PREADMISSION OF EXHIBITS AND EVIDENCE AND NOTICE OF INTENT TO USE SUMMARY OF VOLUMINOUS EVIDENCE PURSUANT TO FEDERAL RULE OF EVIDENCE 1006 Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 FRED "CURLY" NEAL, et al. Plaintiffs, Defendants.

15 vs.

16 HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; 17 Defendants. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona 19 corporation, 18 20 21 22 23 24 25 26 "Plaintiffs"), pursuant to Fed. R. Civ. P. 16(c), (d) and F.R.E. 104(a), 401, 402 and 1006 hereby file this Motion for Preadmission of Exhibits and Evidence and Notice of Intent to Use Summaries of Voluminous
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Counter-claimant, vs. MEADOWLARK LEMON, a married man, Counter-defendant. 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

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Evidence directed to Defendants' Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., Mannie L. Jackson and Catherine Jackson's (collectively referred to as the "HGI Defendants") and Defendant GTFM, LLC (referred to as "FUBU") (the HGI Defendants and FUBU Defendants are collectively referred to as "Defendants"), and state as follows: This Court has the discretion to make preliminary determinations of relevancy under F.R.E. 104(a). Plaintiffs have served, along with this Motion, notice to Defendants of their intent to use charts, summaries

7 8 9 10 11 12 13 14 15 16 17 up the FUBU sales), if the Court believes that the Summary requires an expert for the calculations, Plaintiffs 18 19 20 21 22 23 24 25 26 27 28
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and calculations (hereinafter the "Summary," Exhibit H) pursuant to F.R.E. 1006. The 9th Circuit has recognized that summaries may offer advantages to the courts, and may be admitted. U.S. v. Leon-Reyes, 177 F.3d 816 (9th Cir. 1999)(finding summaries of testimony from prior trials relevant). Plaintiffs seek a ruling that the Summary is admissible as substantive evidence given that it revises previously produced charts, and that the Summary involves simply adding sales data from FUBU business records that are admissible evidence. Alternatively, Plaintiffs move that the Summary be, at a minimum, admitted for trial as demonstrative evidence (i.e. a pedagogical exhibit) that will aid the jury, and that a limiting instruction could be made to the jury that the Summary is not to be utilized as independent evidence. While the Plaintiffs do not believe the Summary requires an expert (i.e. that a lay witness without specialized knowledge could add

request leave to permit an expert for the limited purpose of adding up FUBU's numbers. Plaintiffs also seek to pre-admit is Ex. A hereto (which is filed under seal), FUBU Sales Data which consists of thirteen different FUBU productions ranging from January 7, 2005 through September 30, 2005 provided to the Plaintiffs in discovery, and Plaintiffs' Merchandise Schedule previously introduced as Ex. 13A to their summary judgment pleadings (Ex. B). The Summary and merchandise schedule were

accompanied by Plaintiffs' investigator's affidavits served to Defendants in Joint Rule 26 Disclosures on October 28, 2006 and a supplement on October 31, 2006 (Ex. B). Previous versions were served on Defendants going back to early 2005.

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Plaintiffs' Summary and the underlying evidence are relevant evidence and should enjoy a favorable presumption of admissibility under F.R.E. 401. The Summary poses no danger of confusion of the issues, misleading the jury or unfair prejudice of the type contemplated by F.R.E. 403. Plaintiffs have established a proper foundation for admission of the Summary by utilizing five foundational requisites. See U.S. v. Bray, 139 F.3d 1104 (6th Cir. 1998): 1. Plaintiffs' Summary summarizes admissible underlying documents that are voluminous. It is

7 8 9 10 11 12 13 14 15 16 17 summary judgment pleadings)(Ex. D), and Plaintiffs' investigator was disclosed in a September 15, 2005 18 19 20 21 22 23 24 25 26 27 28
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based upon record evidence and FUBU's sales data, GTFM, LLC's Bates #'s 0001 through 1690. (Ex. A, FUBU Sales Data). Other underlying record evidence includes HGI's letter to Plaintiffs reporting

purported FUBU sales (Ex. C), and actual garments acquired, listed, and photographed by Plaintiffs and their investigator (Plaintiffs' Merchandise Schedule and photos, originally Plaintiffs' Exhibit 13A to the summary judgment pleadings with supplemental photos #126-133) that has been sent to Defendants with Plaintiffs' Joint Supplemental Rule 26 Disclosure. This Court considered Plaintiffs' counsels' declaration of June 5, 2006 (Doc# 420), which described the underlying evidence for purposes of summary judgment. 2. A copy of the Summary has been served on Defendants. Previous versions of the Summary

have been served on Defendants as early as February 2005 (Ex. I)(originally Plaintiffs' Ex. 13D to the

Rule 26 disclosure, and deposed by Defendants prior to discovery cut-off. 3. Plaintiffs' Summary identifies underlying documents on the Summary and cross-references

the data to the exact FUBU document date and Bates stamp number. 4. The underlying documents are both admissible and previously considered for purposes of

summary judgment. The primary underlying documents are Defendants' discovery responses. Plaintiffs' earlier charts (sometimes referred to as "Sales Chart") were filed in the summary judgment pleadings as Exhibit 13D (Ex. D), utilizing the same format of the HGI report of FUBU sales sent to Plaintiffs on October 8, 2004 (Ex. C).

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5.

All underlying documents are, and have been, available for examination by Defendants.

Defendants produced the underlying documents themselves, and the garment samples were produced on September 23, 2005, in Madison, Wisconsin (during discovery Defendants did not produce one single garment to Plaintiffs for examination--Plaintiffs had to go out and purchase samples), and again on October 31, 2006. All underlying materials are available for further examination and copying before trial as no trial date has been set.

7 8 9 10 11 12 13 14 15 16 17 sales as a result of the failure to promote, the district court was obligated pursuant to Rule 401 to admit all 18 19 20 21 22 23 24 25 26 27 term for Plaintiffs' charts used in discovery and summary judgment briefs) was not disclosed during 28
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6.

Plaintiffs previously agreed with Defendants to provide access to all garment samples

referenced in 9/29/05 (Ex. E, e-mail), and arranged for Defendants' inspection on October 31, 2006 in Phoenix, Arizona. 7. F.R.E. 401 permits the pre-admission of evidence. See Contemporary Mission Inc. v.

Famous Music Corp., 557 F.2d 918 (2d Cir. 1977), where in an action for breach of contract for failure to promote a record album, a statistical analysis of record industry sales figures offered by the plaintiff to prove how successful its record might have been if the defendant had not breached was improperly excluded as too speculative. The fact that the study lacked several indicia of reliability affected its weight as evidence and not its admissibility. Once the plaintiff had established with certainty that it had suffered some loss of

relevant evidence of the amount of loss unless it determined that the probative value of the proffered evidence would be substantially outweighed by its tendency to mislead. In Famous Music, the judge permitted plaintiffs' exhibit summary sales history of 324 records after a plaintiffs' witness laid a proper foundation for the exhibit's admission. I. Plaintiffs' First "Sales Chart"

Defendants have filed two Motions In Limine seeking to exclude Plaintiffs' original "Sales Chart" exhibit. (Ex. C, originally Plaintiffs' Ex. 13D to summary judgment pleadings), as well any other evidence of damages. These Motions are pending. Defendants' grounds are: 1) the "Phipps' Analysis" (Defendants'

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discovery in violation of Rule 26, and thus Plaintiffs are not permitted to use the information at trial under FRCP 37(c)(1); and 2) the "Phipps Analysis" was not disclosed under Federal Rules of Evidence Rule 1006 as to the documents upon which the summary data was based or who participated in its preparation. Even if Defendants' Motion In Limine is granted as to the original "Sales Chart" (which it should not be), a history of the "Sales Chart" and the underlying materials support that Plaintiffs' Summary should still be admissible for trial under F.R.E. 1006.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 denying summary judgment as to the publicity claims after extensive briefing. (Doc. #'s 419, 420, ¶9 24 25 26 27 28
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Defendants' assertion that they were "ambushed" and "have not had any disclosure of the underlying documents which support the summaries in the "Sales Chart"" is false. Plaintiffs sent

Defendants a letter on February 16, 2005, with charts and styles that appear on the "Sales Chart" that Defendants claim in their motion in limine surprise them. (Ex. I). Defendants not only reviewed Plaintiffs' charts on February 16, 2005 but wrote back on April 8, 2005 and stated: "we will not review the accuracy of the worksheet you prepared...we have no obligation to review opposing counsel's work product and confirm its accuracy." (Ex. F, 4-8-05 FUBU letter.)1 Defendants' multiple attempts to exclude what they call the "Phipps Analysis" in its entirety have already been extensively briefed to this Court and ruled upon prior to Defendants' new motion in limine. Defendants moved to strike this evidence several times on numerous grounds such as untimeliness, lack of foundation, hearsay, etc. (Ex. G, filings relating to Plaintiffs' sales charts and investigation), and the motions were denied. (Doc. #425, Order). See Plaintiffs' 16 page Response (Doc #412) to Defendants' attack on grounds of timeliness, violation of this Court's orders, FRCP 56(e) as to meeting evidentiary standards for trial, FRCP 26(e), and FRCP 37(c). This Court also considered and relied upon these "Sales Charts" in

contains an extensive list of citations to these exhibits, 422 and 424). Thus, the first "Sales Charts" provide a proper foundation for the proffered Summary.

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II.

The Summary is a Permissible Exhibit under F.R.E. 1006

Plaintiffs' Summary (Ex. H) is a permissible exhibit. The Ninth Circuit has held that "information obtained by investigation or other means outside formal discovery (even if obtained after the "cut-off" date) may nonetheless be admissible at trial." Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002). Here, Defendants have an opportunity to rebut this evidence (in addition to all their past

objections), and all exhibits are available for examination and copying pursuant to F.R.E. 1006.2 Even FUBU admits in its briefs and in open court at the summary judgment hearing that it is relatively easy to use their evidence to calculate individual damages. Defendant FUBU asserted in its Reply in Further Support of its Motion to Strike Plaintiffs' Expert Report (Doc. #228, pg. 5-6) that: "GTFM produced data that reliably quantified sales. Although GTFM did not specifically track the sales of styles by individual Plaintiffs names and/or numbers, Ms. Abalos could have reasonably calculated or estimated sales by individual plaintiff based on GTFM's document production. She chose not to do so. For example, for some styles, the alleged players' numbers were actually shown in the sales detail reports produced by GTFM.3 Ms. Abalos ignored that detail. For some styles, the players' names were used on different color garments, and sales by specific plaintiff could have been tallied from the produced sales detail for each color..4 Ms. Abalos ignored that detail. For some styles, sales could have been allocated among plaintiffs and non-plaintiffs, and Plaintiffs could have only sought to recover profits for that portion of sales fairly attributable to plaintiffs.5 Ms. Abalos ignored that detail.
FN3: FN4: For example, Style H3352 (Sacks Decl. Ex. J) identified sales by player's numbers. For example, the CAD for Style H3351 (Sacks Decl. Ex. K) illustrates that there are seven players involved ­ only 5 of which are plaintiffs ­ each related to a different color. The sales for each individual color are clearly listed in the Sales Detail Report (Sacks Decl. Ex. L). Ms. Abalos could have used that data to exclude sales of non-plaintiffs and could have used that data to divide sales by individual plaintiff. She did not do so. For example, 4 nicknames were used on Style #P266FJ (Sacks Decl., Ex. M) ­ three plaintiffs and one nonplaintiff. Instead of allocating the total sales among the 4 players, and only seeking to recover profits for the 3 plaintiffs, Ms. Abalos sought to recover profits for all sales, including the non-plaintiff."

FN5:

In the summary judgment hearing of June 2, 2006, FUBU counsel Sacks stated it could have been done "with a calculator" (Exhibit J, page 41 line 21, Hearing Transcript), and on pages 44 through 46 of the transcript he explains how to simply add up revenue for style numbers 3352, 3351 in the FUBU Sales Reports, which he stated he used exhibits in summary judgment briefings (Exhibits J, K, and L to Sacks'

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1 Interestingly, FUBU counsel also stated in the same letter "we have produced all responsive documents," but thereafter produced documents eight more times, even after the expert deadline, and on the last day of discovery.

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Reply Declaration, (Exhibit J, page 44, lines 20-22)). Sacks stated "so if you wanted to add up, if you wanted to add up all the sales of Mr. Lemon for that style, you could do it. If you wanted to add up all the sales of each of the other Plaintiffs, although not all of them were in that style, you could do it." (Exhibit J, page 45 lines 22-25, page 46 line 1). Thus, FUBU in their own words tells the Court that a summary can be done and how to do it. The Summary does not require complicated calculations requiring an expert for accuracy. U.S. v. Scales, 594 F.2d 558 (6th Cir. 1979). Evidence of Plaintiffs' damages is in the record, and was in the record at the time of the summary judgment pleadings. All of the underlying FUBU evidence can be presented at trial by FUBU

representatives who have knowledge of the FUBU sales data and styles, the Plaintiffs themselves (who personally bought some of the samples), and by Plaintiffs' investigator. The letter and charts referenced in the Order denying Defendants' motion for summary judgment as to Plaintiffs' right of publicity claim are part of Plaintiffs' Exhibit 13 to their summary judgment pleadings and is comprised of several documents. HGI's letter breaking down sales by all individual Plaintiffs was Plaintiffs' Exhibit 13C in the summary judgment pleadings. Plaintiffs' Exhibit 13 also included charts showing each individual Plaintiffs' styles (Ex. 13A & D) which had the following sections that have been incorporated into the Summary to reference all underlying style and sales documents from FUBU:

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2 Plaintiffs agreed before discovery "cut-off" to FUBU's request to inspect all infringing garment exhibits in a mutually agreeable manner and FUBU admits in an e-mail of 9-28-05 "Joel Herz sent us a list of garments that your

A. "HGI Report 6/02-5/03" ­ These styles and sales came from HGI's letter to the players on 10/31/03. (Ex. 13C in the summary judgment pleadings, and 9A to Phipps' deposition). The styles reported are far fewer than what was actually made and sold (i.e. Twiggy Sanders only had two jersey styles reported by HGI whereas FUBU documents show many more). B. "FUBU Report 1/1/02 ­ 12/31/04" ­ These styles and sales came from FUBU's first discovery responses in the case (Ex. 1/7/05 and 2/4/05). The documents produced by FUBU showed there were more styles and sales than HGI reported to Plaintiffs. Plaintiffs wrote FUBU on 2/16/05 and told them

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that the responses were NOT complete as Plaintiffs had located in the marketplace and acquired many more styles than FUBU was disclosing (Ex. I). FUBU responded with a letter on 4/8/05, and with additional production on 4/8/05 (Ex. F). A total of 13 productions came from FUBU over the period from January 7, 2005 through September 30, 2005. From the start, FUBU stated that no "summary of styles and sales by players' names exists" (Ex. F, (¶ 8, FUBU Letter of 4/8/05), and that "no sales detail reports (by style) exist for the women's line" But,

7 8 9 10 11 12 13 14 15 16 17 themselves and their investigator listed on Plaintiffs' original Exhibit 13A. Many of these styles had not 18 19 20 21 22 23 24 25 26 27 28
investigator purchased." (Ex. D). Thus, HGI counsel Herz could not be too "surprised."

the first production of 1/7/05 showed some styles broken down by player number (i.e. H3352, H8501, etc.), and CAD (Computer Aided Designs of garments) showed some designation of Plaintiffs individually by name, number, and even an image of Curly Neal (Bates #0003). This situation imposed on Plaintiffs the task of doing its own breakdown with no help from FUBU. FUBU refused to even comment on Plaintiffs' chart when asked to cooperate with the discovery request. (Exhibit F, ¶ 12 of FUBU's letter of 4/8/05). There is admissible underlying evidence in the record for this FUBU Report section which shows exactly where the information came from in the FUBU documents and whether or not samples were obtained by Plaintiffs. C. "Plaintiffs' Investigation" ­ this section of the Summary shows styles located by Plaintiffs

been reported by HGI or FUBU, even though Plaintiffs' purchases were proof that the infringing garments had been made and were being sold. Plaintiffs' column of supporting data in the Summary shows where in the underlying FUBU documents these styles and sales can be found. This chart was proffered in Plaintiffs' summary judgment pleadings as part of Exhibit 13. Some style entries were determined to be duplicates but were initially believed to be different garments, and this language was left on the summaries so they will look exactly as they did when first filed with the court. Plaintiffs had to figure this out themselves. Plaintiffs' original Exhibit 13A shows many more styles that were never disclosed by HGI and FUBU, where they came from, and when acquired. Other underlying data includes the investigator's

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affidavit, sales receipts, and photographs of each garment. (FUBU provided no images of garments except a few CAD drawings, including new ones just before discovery cut off). Plaintiffs' investigator (Phipps) presented the samples and was deposed on 9/23/05 at HGI's counsel's office in Madison, Wisconsin. D(1) and D(2). "Team/Multiple Players Chart" D(1) and "FUBU Products With Names on Tags Only" D(2) ­ These charts were Plaintiffs' effort to investigate styles that exploited all of the Plaintiffs by using the Legends hangtag and/or the Legends embroidery emblem, and were pages 11 and 18 of Plaintiffs'

7 8 9 10 11 12 13 14 15 16 17 comprise six of these nine "Legends" and should each get a pro rata one sixth of these sales. 18 19 20 21 22 23 24 25 26 27 28
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Exhibit 13D proffered in summary judgment. FUBU represented that it had no data on what garments bore hang tags and provided NONE, and yet FUBU representatives testified that the hang tags were for marketing the clothes. Finally, on 8/17/05 FUBU produced several CAD's that showed hangtags (Ex. A, FUBU Bates #1242 and 1244)--the very hangtags obtained by Plaintiffs and found on numerous styles identified on this chart, and on Plaintiffs' original investigation Chart 13A. Plaintiffs' charts listed styles with hangtags and emblems--while surely not exhaustive--which now can be cross referenced to FUBU sales data on the Summary. These charts total the FUBU sales data and, because there is no individual sales data, one can divide the sales equally among the nine legendary players depicted exactly as recommended by FUBU. Plaintiffs

E. "Individual Sales From FUBU Production" (not in originally filed Ex. 13). These are styles that were extracted from FUBU documents (Ex. A) some of which were produced late after the original charts were prepared. Discovery cut off was 9/30/05, the expert report deadline was 8/19/05, and yet FUBU, after numerous requests, produced more styles after the expert report date, as late as 9/29/05 and 9/30/05. F. "FUBU Sales of Garments Bearing Hangtags and Emblems" This chart includes other styles

disclosed by FUBU some of which do not have sufficient disclosures to determine the precise sales attributable to Plaintiffs. Plaintiffs submit that this revenue is admissible underlying evidence for the Summary because the information came from FUBU, Plaintiffs have some actual samples, and it is reliable.

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There is no prejudice to Defendants as to the timing or the format of the Summary as Defendants have an opportunity to rebut Plaintiffs' Summary. Defendants may impeach Plaintiffs and Phipps at trial. Defendant FUBU's corporate representatives may testify about the evidentiary weight of the Summary, or any discrepancies. The Defendants have been given access to all of the underlying documentary evidence which was used in creating the Summary for trial. See United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988)(applying F.R.E. 1006's requirement that underlying evidence be made available to defendant before

7 8 9 10 11 12 13 14 15 16 17 "unverified" or "self-calculated", if the opponent has the opportunity to reveal any inaccuracies through 18 19 20 21 22 23 24 25 26 27 25% royalty rate, and because HGI already paid a 25% royalty to some Plaintiffs for a merchandise deal in 28
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trial). The proponent of a summary under F.R.E. 1006 must establish the admissibility of the underlying document as a condition to the introduction of the summary. Meyers, 847 F.2d at 1412. The underlying documents do not have to be admitted, but they must be established as admissible. Id. Summaries must fairly represent the underlying documents, and they may themselves be evidence for the trier of fact to weigh. United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991)(holding that summaries are evidence when admitted in lieu of underlying documents); United States v. Johnson, 594 F.2d 1253, 1257 n.5 (9th Cir. 1979)(stating that summaries must fairly represent underlying documents). Defendants may attack the Summary at trial. A summary chart is admissible despite claims that it is

cross-examination. U.S. v. LeFevbre, 29 F.3d 636 (9th Cir. 1994), citing Frank Music Corp. v. MetroGoldwyn-Mayer, Inc., 772 F.2d 505, 515 n.9 (9th Cir. 1985), cert. denied 494 U.S. 1017 (1990). Also, Defendants may seek a limiting instruction as well as attacking the factual basis of the summary at trial. See U.S. v. Whistler, 139 Fed.Appx. 1 (9th Cir.Ariz. 2005). Also, the summary totals may be reduced by Defendants witnesses to actual profits (Plaintiffs submit that Defendants must prove what reasonable costs should be deducted), or 2) Defendants may argue at trial that Plaintiffs should only receive a reasonable royalty on these sales. Plaintiffs submit that they have offered evidence of a 25% royalty rate from the Collective Bargaining Agreement entered into by HGI themselves, by Curly Neal's last contract reflecting a

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2002. Plaintiffs assert it is FUBU'S burden to prove what amount, if any, of its gross revenues were NOT due to the misappropriation of Plaintiffs' marks. J. Thomas McCarthy, The Right of Publicity and Privacy, §11.34 at 11-80 (2d Ed.2002). This Court discussed the same principle in the summary judgment hearing when citing to section 49 Restatement Third of Unfair Competition (Exhibit J, page 49-53 Transcript). III. Other Evidence of Sales or Damages Is Permissible FUBU also concedes in their Reply Memorandum in Support of its Motion for Summary Judgment

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(Doc. #312, pg. 12) that this Court may provide reasonable assistance in the damages calculations: "To be sure `plaintiff is not required to prove the amount of damages with mathematical certainty,' ... and a court `may engage in limited speculation in calculating damages' (Fl. Pl. Br. at 17, citing GTFM, Inc. v. Solid Clothing, Inc., 215 F. Supp.2d 273 (S.D.N.Y. 2002)." The 9th DCA has held that district courts may permit damages briefing in certain circumstances all the way up through trial. District courts are granted broad discretion within which to fashion remedies for violation of trademark laws. See Lindy Pen Company, Inc. v. Bic Pen Corporation, 982 F.2d 1400 (9th Cir. 1993). The district court directed further briefing subject to detailed instructions because "although Lindy had established the fact of damage, it had not proven the amount of damage." Id. The 9th Circuit has upheld a district court's reasonable approximation of damages where the court itself did the calculations. Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990)(trademark case involving the Platters musical group). See also AT&T Corporation v. MRO Communications, Inc., 205 F.3d 1350 (9th Cir.1999), reviewing the district court holding that there was no genuine issue of fact and that witnesses declaration and calculations should not have been admitted. The court held that AT&T had enough for the fact finder: "Had the question of the amount of MRO'S liability gone to trial, AT&T's burden would have been to present evidence from which the factfinder could ascertain the amount of damages with "reasonable certainty." Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co., 153 F.3d 938, 947 (9th Cir.1998). The detailed billing records and calculations introduced by AT&T in the Gatto declaration are sufficient permit a factfinder to conclude with reasonable certainty that MRO actually owed AT&T $188,870.71. We therefore conclude that AT&T met its burden of presenting evidence -11Document 474

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that, if uncontraverted, would support judgment as a matter of law for AT&T in the amount of $188,870.71." Here, Defendants may, with leave of this Court, depose Phipps again, although this Court may note that Phipps was deposed on September 23, 2005, leaving seven more days until discovery cut off to question him more. Also, Phipps flew to Madison, Wisconsin with all Defendants represented by multiple counsel and they could have deposed Phipps as long as they wanted. Phipps brought six large boxes and had nearly a hundred garments laid out in attorney Garvey's office which Defendants examined. Recently, in EEOC v. Lennar Homes of Arizona, Inc., 2006 WL 1734594 (D.Ariz. June 23, 2006) your Honor ruled that the claimants could testify as to damages even though trial was "only weeks away" (two hours each for five claimants), but that plaintiffs' paralegal was not permitted to testify as to complex calculations because she had never even been deposed. Unlike the paralegal in the EEOC case, here

12 13 14 15 16 17 18 19 20 21 22 party offering the summary. See Frank Music Corp v. Metro-Goldwyn-Mayer, Inc. When a chart does not 23 24 25 26 27 28
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Plaintiffs' investigator was disclosed, was deposed before, and produced a report. In addition, Defendants are in possession of all underlying documents necessary for a computation which they themselves recommended, and there is no trial date, much less a trial "only weeks away," as in the EEOC case. The Summary is "not based upon scientific, technical, or other specialized knowledge." The Summary is an admissible exhibit under F.R.E. 1006 or as an exhibit about which Plaintiffs' investigator may testify as a lay witness. In U.S. v. Eldridge, 107 Fed.Appx. 36 (Cal)(9th Cir. 2004), the court held at [6] that the testimony explaining a chart prepared by a special agent was not expert testimony as no opinion was expressed about the summary evidence, simply an explanation. Finally, F.R.E. 1006 does not require that a summary be prepared by someone independent of the

contain complicated calculations requiring the need of an expert for accuracy, the witness who presents the summary chart needs no special expertise. See U.S. v. Jennings, 724 F.2d 436 (5th Cir. 1984). Thus, the computations in Plaintiffs' proposed Summary have been, in the words of the EEOC opinion, "otherwise made known" to Defendants.

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Exclusion of Plaintiffs' Summary would be highly prejudicial to Plaintiffs who, in fairness, should be allowed to put on evidence of sales derived from FUBU's own business records that were kept in the ordinary course of business. See City of Phoenix v. Com/Systems, Inc., 706 F.2d 1033 (9th Cir. 1983). Plaintiffs' Summary may be admitted as evidence to be considered by the fact finder, and F.R.E. 1006 even permits witnesses to give summary testimony of their review of voluminous writings. U.S. v. Caballero, 277 F.3d 1135, 1247 (10th Cir. 2002). On a ministerial matter, Plaintiffs respectfully request that the Court amend its Order of June 27, 2006 to correct what is apparently a typographical error to permit submissions of sales of 2002-2004 ­ the period reflected on the original "Sales Chart" (Ex. D) relied upon in summary judgment. The Order stated sales for 2002-2003 may be used, but the Plaintiffs' charts state "FUBU Report 1/1/02-12/31/04." DATED this 2nd day of November, 2006. 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 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 /s/Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

By:

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

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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. 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 2nd, 2006, a true and correct copy of Plaintiffs' Motion for Pre-admission of Exhibits and Evidence and Notice of Intent to Use Summary of Voluminous Evidence Pursuant to Federal Rule of Evidence 1006 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: -14Document 474

Case 2:04-cv-00299-DGC

Filed 11/02/2006

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1 Safia A. Anand ­ [email protected] 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

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 2nd, 2006, a true and correct copy of Plaintiffs' Motion for Pre-admission of Exhibits and Evidence and Notice of Intent to Use Summary of Voluminous Evidence Pursuant to Federal Rule of Evidence 1006 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 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 -15Document 474
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Case 2:04-cv-00299-DGC

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 2nd, 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 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

-16Document 474

Filed 11/02/2006

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