Free Declaration - District Court of Arizona - Arizona

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

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

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 declaration in support of GTFM's Motion to Strike Plaintiffs' Expert Report.

27 28 Case 2:04-cv-00299-DGC Document 191 1 Filed 10/27/2005 Page 1 of 3

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

2.

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

based on my personal knowledge. 3. Attached hereto as Exhibit A is a true and correct copy of this Court's

Order, dated August 3, 2005. 4. Attached hereto as Exhibit B is a true and correct copy of this Court's

Order, dated August 18, 2005. 5. Attached hereto as Exhibit C is a true and correct copy of the Expert

Report of Sandra Abalos ("Plaintiffs' Expert Report"), submitted August 19, 2005, excluding exhibits. 6. In my view, Plaintiffs' Expert Report is in direct violation of the Court's

August 3 and August 18, 2005 Orders. 7. For instance, Ms. Abalos states on page 13 that "[w]e were unable to

14 15 16 17 18 19 20 21 9. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 191 2 Filed 10/27/2005 Page 2 of 3 of Plaintiffs' Expert Report, without exhibits, which illustrates the portions of the Report that (i) violate the Court's Orders; (ii) invade the province of the Court by stating legal conclusions; and/or (iii) misleadingly quote incomplete portions of documents. If Plaintiffs' Expert Report is not stricken in its entirety, all such portions should be redacted. Attached hereto as Exhibit D is a true and correct copy of a Marked Form verify the reasonableness of disclosed HGI Merchandise Sales or the gross profit representations due to the following requested information not being produced in discovery...". Ms. Abalos then proceeds to list ten items that were not produced in discovery. 8. Throughout the entire report, Ms. Abalos remarks that her findings are

only based on disclosed sales and if GTFM had produced the additional requested documentation the findings would be modified and higher.

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

10.

Attached hereto as Exhibit E is a true and correct copy of an email from

Safia Anand, counsel for GTFM, dated August 22, 2005, requesting that plaintiffs submit a revised expert report within the next week because the current report is in violation of the Court's August 18 Order. 11. 12. To date, plaintiffs have not submitted a revised report. Ms. Abalos' remarks in violation of this Court's orders throughout

Plaintiffs' Expert Report would be highly prejudicial to GTFM in this jury trial. 13. In my view, the information contained in Plaintiffs' Expert Report would

not aid a jury in determining whether each individual plaintiff is entitled to damages, and if so, how much each individual plaintiff should be awarded. 14. infringed their rights. Plaintiffs have not adduced any evidence to suggest that GTFM willfully

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 191 3 Filed 10/27/2005 Page 3 of 3 15. Attached hereto as Exhibit F 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 October 26, 2005 ____/s/ Ira S. Sacks___________ Ira S. Sacks