Free Response to Motion - District Court of Arizona - Arizona

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Morgan & Morgan, P.A. 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Clay M. Townsend, Fl. #023414 Brandon S. Peters, Fl. #022641 Keith R. Mitnik, Fl. #436127

Attorneys for Neal Plaintiffs
Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. PLAINTIFFS' JOINT RESPONSE TO HARLEM GLOBETROTTERS INTERNATIONAL, DEFENDANTS' JOINT IN LIMINE INC., et al.; MOTION TO EXCLUDE THE ANALYSIS OF OLIVER PHIPPS FROM TRIAL Defendants. Plaintiffs, Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), hereby file their Response to Defendants' Joint In Limine Motion to Exclude the Analysis of Oliver Phipps from Trial. Defendants, in a now predictable pattern to exclude all evidence of infringing sales, improperly seek rehearing of failed efforts to exclude Plaintiffs' evidence. Defendants' multiple attempts to exclude the so-called "Phipps Analysis" in its entirety has already been extensively briefed to this Court and ruled upon. Defendants moved to strike this evidence several times on numerous grounds such as untimeliness, lack of foundation, hearsay, etc. (Ex. A, list of related pleadings), 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 Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

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these exhibits in denying summary judgment as to the publicity claims after extensive briefing. (Doc. #'s 419, 420 - ¶9 contains an extensive list of citations to these exhibits , 422, and 424). Defendants' assertions that they were "ambushed", "have not had any disclosure of the underlying documents which support the summaries in the Sales Chart," and that "the Sales Chart was never mentioned until November 30, 2005" are false. Plaintiffs sent GTFM a letter on February 16, 2005 with charts and styles that appear on the "Sales Chart" that Defendants now claim surprise them. (Ex. "B"). GTFM even 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." (¶ 12, Ex. "C"). GTFM may have had no "obligation," but their failure to review the charts was at their own risk as they have waived their objections. (Defendants' first attack on the charts and Phipps came AFTER the discovery "cut-off" during dispositive motions). Phipps was timely disclosed weeks before his deposition, in a letter of 9-15-05, and in a Rule 26 Disclosure dated 9-19-05 (Ex. "D"). Plaintiffs even overnighted exhibits to Defendants before Phipps' deposition as a courtesy (Ex. "E"). Defendants never asked to depose Phipps. Plaintiffs, in an effort to make a record, set Phipps' deposition and on September 23, 2005 flew him, six boxes of exhibits, and his Asian investigator (Gallo) to Madison, Wisconsin.1 Plaintiffs went to extraordinary lengths to grant Defendants access to him and his findings. Even if Defendants were truly "surprised" by the "Sales Chart," the result is harmless as it is simply a summary of Defendants' sales reports. GTFM had stated in its 4-8-05 letter: "No summary of styles and sales organized by players' names exists" (¶ 8); "...no Sales Detail Reports (by Style) exist for the women's line" (¶ 11); and "we have produced all responsive documents..." (¶ 12). That is, the "Sales Chart" has information produced by Defendants. Defendants' subsequent disclosures of key sales data so close to the discovery deadline effectively prevented Plaintiffs from better analyzing their last minute documents.

1 Phipps deposition was originally filed in this case on 10-28-05 as Ex. 1(o) with Plaintiffs' Motion for Summary Judgment.

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(Sales data was produced 11 times, including on 9-13, 9-21, 9-29, and 9-30-2005; Ex. "F"). On September 13, 2005, Defendants finally disclosed Japanese and European sales--too late for any real investigation. As for Plaintiffs' supposed failure to disclose the documents upon which the summary data relies (purportedly in violation of FRE 1006), Phipps' Affidavit identified the underlying data located in Ex. 13 of Plaintiffs' Motion for Summary Judgment. The "Phipps analysis" lingo of Defendants' Motion places too much emphasis on Phipps and diverts attention away from the fact that the data is Defendants'. Plaintiffs are permitted to organize and present this record evidence to a jury under FRE 1006. 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). See also Lindy Pen Company, Inc. v. Bic Pen Corporation, 982 F.2d 1400 (9th

Cir. 1993)(district court directed further briefing subject to detailed instructions because, although Lindy established fact of damage, it had not proven amount of damage). Here, Defendants have an opportunity to rebut this evidence, and all exhibits are available for examination and copying pursuant to FRE 1006.2 There is no trial date yet. Exclusion of this critical evidence of damages which this Court considered for Summary Judgment would be a "manifest injustice" and highly prejudicial to Plaintiffs. Defendants state in "footnote 1" that their Motion is an "overarching objection" and they will offer further objections to the Sales Chart in the future. Plaintiffs object to Defendants' seemingly endless attempts to exclude the Sales Chart.3 Defendants' Motion in Limine should be denied. RESPECTFULLY SUBMITTED this 5th day of October 2006.

2 Plaintiffs agreed before discovery "cut-off" to GTFM's request to inspect all infringing garment exhibits in a mutually agreeable manner and GTFM admits in an e-mail of 9-28-05 "Joel Herz sent us a list of garments that your investigator purchased." (Ex. "G"). Thus, HGI counsel Herz could not be too "surprised." 3 Instead of raising all objections and grounds for exclusion of the Sales Chart in the Motion in Limine, Defendants' reserve further objections to the Sales Chart for a later date should they lose in their new attempt to have the Chart excluded. Not only is this not an efficient use of this Court's time, but it is also a violation of at least the spirit of this Court's Order Resetting Final Pretrial Conference Deadlines, which requires that motions in limine "state with precision the evidence that is subject to the proposed order and the limitation or exclusion placed on the evidence" and "be concise."

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/S/ Keith Mitnik 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 Neal Plaintiffs /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 upon the following attorneys: Joel L. Herz, Esquire 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 Edward R. Garvey, Esq. and Christa Westerberg, Esquire 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., Esquire Florence M. Bruemmer, Esquire ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorneys for Plaintiff Lemon

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Safia A. Anand, Esquire Ira S. Sacks, Esquire DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC 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 October 7th 2006, a true and correct copy of Plaintiffs' Joint Response to Defendants' Joint In Limine Motion 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.

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3. I hereby certify that on October 7th, 2006, a true and correct copy of Plaintiffs' Joint Response to Defendants' Joint In Limine Motion was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esquire 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 Edward R. Garvey, Esq. and Christa Westerberg, Esquire 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., Esquire Florence M. Bruemmer, Esquire ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorneys for Plaintiff Lemon Safia A. Anand, Esquire Ira S. Sacks, Esquire DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC 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 4. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct.

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DATED: October 7th, 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

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