Free Declaration - District Court of Arizona - Arizona

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Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff/Counterdefendant vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants/Counterclaimants ) ) ) ) ) ) ) ) ) ) )

Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

REPLY DECLARATION OF IRA S. SACKS IN SUPPORT OF GTFM, LLC'S

MOTION TO STRIKE PLAINTIFFS' EXPERT REPORT
IRA S. SACKS declares as follows under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. I am a partner in the firm of Dreier LLP, attorneys for defendant GTFM,

LLC ("GTFM"). I submit this reply declaration in further support of GTFM's Motion to Strike Plaintiffs' Expert Report.

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1 2 3 4 5 6 7 8 9 10 11 12 13 unfounded.

2.

Other than as expressly indicated below, the matters set forth herein are

based on my personal knowledge. 3. Plaintiffs attempt to blame the deficiencies in their expert report on GTFM

by arguing that GTFM did not comply with their discovery obligations. These attempts are

4. 5.

GTFM fully complied with its discovery obligations. GTFM provided Plaintiffs with reliable sales information. However,

Plaintiffs' distorted the sales figures by including in their Expert Report sales of styles with nonplaintiffs' names, returns, samples, hangtags with no evidence how they were used and styles that were unable to be determined had any link with any Plaintiff. That is not the fault of the data. Plaintiffs chose to ignore and distort the data. Plaintiffs chose not to seek damages for the amount of their pecuniary loss, because there was none. Plaintiff chose not to seek

14 15 16 17 18 19 20 21 continued to send discovery requests up until the date their Expert Report was due. Specifically, 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 229 2 Filed 11/17/2005 Page 2 of 6
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reasonable royalty damages because the royalties for the individual plaintiffs were extremely low. 6. Plaintiffs contend that GTFM lied because it "sent disclosure packets,

including some of the exact discovery items Plaintiffs' expert was seeking, right up to the discovery cutoff." (Opp., pg. 5).1 That accusation is baseless. 7. GTFM continued to provide discovery to plaintiffs because plaintiffs

on August 18, 2005, Mr. Townsend sent the Florida Plaintiffs' Third Request for the Production

In citing to Mr. Blenden's testimony, plaintiffs incorrectly state that Mr. Blenden is the CFO of GTFM, LLC. This is incorrect. Mr. Blenden is General Counsel of GTFM, LLC and GTFM, Inc. (Blenden Tr. 8).

1 2 3 4 5 6 7 8 9 10 11 12 13 several options. Plaintiffs could have entered into meaningful discussions with GTFM and the 14 15 16 17 18 19 20 21 additional information that GTFM would seek to gather (the "Compromise Agreement"). 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 229 3 Filed 11/17/2005 Page 3 of 6 13. On August 4, 2005, I emailed Plaintiffs answers to many of the discovery parties could have agreed upon a way to narrow Plaintiffs' overbroad requests. Plaintiffs did not do so. 12. Plaintiffs also could have entered into an agreement with GTFM as to Plaintiffs' Third Request for the Production of Documents, dated August 18, 2005. 9. Attached hereto as Exhibit B is a true and correct copy of Lemon's Fourth of Documents and Lemon's attorneys sent Lemon's Fourth Request for the Production of Documents. 8. Attached hereto as Exhibit A is a true and correct copy of the Florida

Request for the Production of Documents, dated August 18, 2005. 10. GTFM produced all documents to which Plaintiffs were entitled under the

Federal Rules of Civil Procedure, in light of Plaintiffs' egregiously overbroad requests and GTFM's responses. 11. If Plaintiffs were unhappy with GTFM's document production they had

documents that GTFM would try to produce and then abide by their agreement. In fact, on August 3, 2005, after the "FUBU" depositions in New York, I met with Plaintiffs in an effort to provide specific additional information to Plaintiffs' expert. The parties agreed upon specific

requests discussed the day before. Attached hereto as Exhibit C is a true and correct copy of my email to Plaintiffs, dated August 4, 2005.

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14.

Thereafter, on August 10, 2005, Ms. Bruemmer sent an email to GTFM's

counsel requesting extensive information and documentation that was outside the Compromise Agreement. I responded to Ms. Bruemmer's email stating that her request "is far broader than what [Plaintiffs] requested and what [the parties] agreed at our `meet and confer'...[y]ou are reneging on a deal." Attached hereto as Exhibit D is a true and correct copy of the email string between Ms. Bruemmer and myself, dated August 10, 2005. 15. On August 16, 2005, this Court held a discovery conference call with the

parties in which Plaintiffs expressed concern about a variety of documents that had not been produced by Defendants. The Court stated that it "is troubled by the lateness of these

efforts...Plaintiffs should not have been undertaking critical discovery related to their expert reports in August 2005. The Court will not adjust the current expert deadline of August 19, 2005, nor will the Court permit supplementation of the report based on information that could

14 15 16 17 18 19 20 21 Compromise Agreement, please inform us immediately so that we may stop trying to locate the 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 229 4 Filed 11/17/2005 Page 4 of 6 documents you have requested." Attached hereto as Exhibit F is a true and correct copy of the letter from Safia Anand to Plaintiffs, dated August 17, 2005. have been discovered during the year-plus time that preceded the expert deadline." Attached hereto as Exhibit E is a true and correct copy of this Court's Order, dated August 18, 2005. 16. Nevertheless, on August 17, 2005, GTFM's counsel sent a letter to

Plaintiffs enclosing more documents in response to the Compromise Agreement and stating "[t]he FUBU Defendants still view the Compromise Agreement as binding and we will continue to move forward accordingly. However, if the plaintiffs no longer wish to abide by the

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17.

Plaintiffs responded to the August 17 Letter by serving additional

document requests on Defendants shortly thereafter, far broader than the Compromise Agreement, thereby abrogating the Compromise Agreement. (Exs. A and B). 18. GTFM continued to comply with its discovery obligations, although the

Compromise Agreement had been rescinded. 19. Plaintiffs again sought an Order from this Court on September 30, 2005

relating to additional documents from the FUBU Defendants. However, once again, this Court found that the FUBU Defendants were not required to produce additional documents and cited to the reasons set forth in its August 18 Order. Attached hereto as Exhibit G is a true and correct copy of the Order, dated October 7, 2005. 20. Plaintiffs state that "HGI testified that their attempts to obtain individual

data from FUBU were thwarted." (Opp., pg. 10). While there is a dispute between HGI, the 14 15 16 17 18 19 20 21 Expert Report when they know that they only have themselves to blame for their late attempts to 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 229 5 Filed 11/17/2005 Page 5 of 6 request the proper documents from GTFM. 22. Attached hereto as Exhibit H is a true and correct copy of this Court's licensor, and GTFM, the licensee, concerning unpaid royalties to HGI and unpaid indemnification payments to GTFM, Plaintiffs have all of the royalty statements that exist, as well as all documents concerning sales of styles with Plaintiffs' names and/or likenesses. 21. Plaintiffs have been tireless in their belated attempts to get more discovery In their

from the FUBU Defendants and this Court has continuously ruled against them.

Opposition, Plaintiffs are attempting to blame the FUBU Defendants for the deficiencies in their

Order, dated August 3, 2005.

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23.

Attached hereto as Exhibit I is a true and correct copy of GTFM's

Certificate of Service, wherein it states that the Motion to Strike and accompanying documents were sent via federal express on October 27, 2005. 24. Attached hereto as Exhibit J is a true and correct copy of the Sales Detail

Report (by Style) for Style H3352, which was produced by GTFM in discovery. 25. Attached hereto as Exhibit K is a true and correct copy of the Computer

Animated Design ("CAD") for Style H3351, which was produced by GTFM in discovery. 26. Attached hereto as Exhibit L is a true and correct copy of the Sales Detail

Report (by Style) for Style H3351, which was produced by GTFM in discovery. 27. Attached hereto as Exhibit M is a true and correct copy of a document

illustrating various CADS, including the CAD for Style #P266FJ, which was produced by GTFM in discovery.

14 15 16 17 18 19 20 21 22 ____/s/ Ira S. Sacks___________ 23 Ira S. Sacks 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 229 6 Filed 11/17/2005 Page 6 of 6 28. Attached hereto as Exhibit N are true and correct copies of pages from the

deposition transcript of Lawrence Blenden, dated August 2, 2005. 29. Attached hereto as Exhibit O are true and correct copies of pages from the

deposition transcript of Sandra Abalos, dated September 14, 2005. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York November 17, 2005