Complete Entertainment Resources LLC v. Live Nation Entertainment, Inc. et alMEMORANDUM in Opposition to MOTION IN LIMINE to Exclude Certain Hearsay Evidence 294C.D. Cal.October 2, 20171 06603-00001/9578926.1 Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE QUINN EMANUEL URQUHART & SULLIVAN, LLP Frederick A. Lorig (Bar No. 057645) fredlorig@quinnemanuel.com Kevin Y. Teruya (Bar No. 235916) kevinteruya@quinnemanuel.com Adam B. Wolfson (Bar No. 262125) adamwolfson@quinnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Attorneys for Complete Entertainment Resources LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Complete Entertainment Resources LLC d/b/a Songkick, Plaintiff, v. Live Nation Entertainment, Inc.; Ticketmaster LLC, Defendants. CASE NO. 15-cv-9814 DSF (AGRx) PLAINTIFF COMPLETE ENTERTAINMENT RESOURCES LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE Complaint Filed: December 22, 2015 The Honorable Dale. S. Fischer Date: October 23, 2017 Time: 3:00 p.m. Crtrm.: 7D Trial Date: November 14, 2017 Ticketmaster LLC, Counter Claimant, v. Complete Entertainment Resources LLC d/b/a Songkick, Counter Defendant. Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 1 of 9 Page ID #:51335 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 06603-00001/9578926.1 -1- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE I. PRELIMINARY STATEMENT Songkick opposes Defendants’ motion in limine to categorically exclude certain broadly-defined swaths of Songkick’s evidence because Defendants’ motion misinterprets the Federal Rules of Evidence (“Rules”). Right out of the gate Defendants misstep, contending that “Songkick must prove its case . . . through admissible, non-hearsay evidence.” Def. Mot. at 1. Not true. In fact, parties in federal court are free to prove their case through several types of hearsay evidence excepted from the general rule against hearsay. To that end, the Rules expressly delineate certain categories of evidence which, although hearsay, are nonetheless admissible as trustworthy, probative exceptions to the general hearsay bar. At issue on this motion are the state-of-mind exception (Fed. R. Evid. 803(3)) and the business-record exception (Fed. R. Evid. 803(6)). Courts, of course, routinely admit evidence under these exceptions. E.g., Consol. Credit Agency v. Equifax, Inc., 2005 WL 6218038, at *2 (C.D. Cal. Jan. 26, 2005) (state-of-mind exception); MRT Const. Inc. v. Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998) (business-record exception). The only question the Court must decide on Defendants’ motion is whether Songkick’s contested evidence falls into one or more of these categories. It all plainly does. First, statements made by artist managers and venue operators directly to Songkick employees explaining their thinking in real time—which Songkick offers to prove that the reason these individuals chose not to work with Songkick was that they felt pressured by Ticketmaster—are admissible under Rule 803(3)’s state-of- mind exception. Second, similar statements made by artist managers—which Songkick offers to establish that these individuals believed their artists’ fan clubs complied with Ticketmaster’s fan club policy—are also admissible under the state- of-mind exception. And third, Songkick’s evidence of these statements in the form of Salesforce records and company emails remains admissible under Rule 803(6)’s business-record exception. Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 2 of 9 Page ID #:51336 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 06603-00001/9578926.1 -2- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE Accordingly, Songkick respectfully asks the Court to deny Defendants’ motion in its entirety. To the extent the Court believes any of Defendants’ objections to a specific piece of Songkick’s evidence has merit (which is not determinable until the Court understands the evidence along with the fact the evidence is offered to prove), they are more appropriately raised and ruled upon at trial. II. ARGUMENT At trial, Songkick may seek to introduce various evidence in one of several forms (including direct testimony, a Songkick Salesforce record, or a Songkick email) which all share one thing in common: they describe statements made by artist managers or venue operators that are relevant to Songkick’s claims or defenses in this case. Some of the statements reveal that the reason these individuals refused to work with Songkick was that they felt pressured by Ticketmaster. Others show that certain managers believed that his or her artist’s fan club was compliant with Ticketmaster’s fan club policy. As an initial matter, Defendants are correct to assume that all of these statements have the potential to become hearsay simply because they are out-of-court statements (which could, theoretically, be offered for their truth). However, to the extent certain statements are offered as circumstantial evidence of the declarant’s state of mind or another relevant fact, they are not offered for their truth and are not hearsay. United States v. Garcia-Villanueva, 855 F.2d 863 (9th Cir. 1988) (“The theory that out-of-court statements may be admissible not for their truth, but instead as circumstantial evidence of the declarant's state of mind, has been accepted in this circuit and others.”); United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988) (“[T]he statements Kirk objects to are not hearsay at all. See Fed. R. Evid. 801(c). These statements are not offered for the truth of the matter asserted, but were admitted to establish that the statement was made or to demonstrate the effect the statement had on the hearer.”). For example, where statements reveal that an artist was prepared to work with Songkick one day and the next day abruptly announced his need to work Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 3 of 9 Page ID #:51337 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 06603-00001/9578926.1 -3- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE with Ticketmaster, those statements are non-hearsay circumstantial evidence that the artist was motivated to change his mind due to pressure from Ticketmaster and that Ticketmaster actually applied such pressure. The truth of the statements need not be judged for the statements to be probative evidence of the circumstances surrounding their utterance. To the extent, however, Defendants contend that Songkick does not dispute that many of these statements are hearsay, Def. Mot. at 31, Defendants are incorrect that this is inadmissible hearsay under the Rules. In fact, each of these categories of statements represents admissible hearsay under Rule 803(3)’s “state-of-mind” exception. And, where a statement is offered as evidence through one of Songkick’s Salesforce records or company emails, Rule 803(6)’s business-record exception preserves its admissibility. A. The State-Of-Mind Exception Applies Rule 803(3) renders admissible “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.” 1. An Artist Manager’s Or Venue Operator’s Statements Offered To Prove His or Her Then-Existing Motive For Choosing Not To Work With Songkick Are Admissible Federal appeals and district courts from around the country have consistently recognized that “testimony concerning the motivation of customers for ceasing to deal with a business is admissible under the state of mind exception to the hearsay rule, 1 Defendants devote the next section of their motion to arguing that these statements are not admissible as prior inconsistent statements. Def. Mot. at 5-6 (arguing that Rule 801(d)(1), which provides that certain prior inconsistent statements are not hearsay, does not apply). Songkick has never argued Rule 801(d)(1) applies. Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 4 of 9 Page ID #:51338 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 06603-00001/9578926.1 -4- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE provided there is otherwise admissible proof that business was lost.” Celebrity Cruises Inc. v. Essef Corp., 478 F. Supp. 2d 440, 447 (S.D.N.Y. 2007) (citation omitted); see also, e.g., KW Plastics v. U.S. Can Co., 130 F. Supp. 2d 1297, 1299 (M.D. Ala. 2001); Don Post Studios, Inc. v. Cinema Secrets, Inc., 124 F. Supp. 2d 311, 320 (E.D. Pa. 2000); Callahan v. A.E.V., Inc., 182 F.3d 237, 252 (3d Cir. 1999); Hydrolevel Corp. v. Am. Soc. of Mech. Engineers, Inc., 635 F.2d 118, 128 (2d Cir. 1980), cert denied, 456 U.S. 556 (1982); Herman Schwabe, Inc. v. United Shoe Mach. Corp., 297 F.2d 906, 914 (2d Cir. 1962). In Consolidated Credit Agency v. Equifax, Inc., 2005 WL 6218038 (C.D. Cal. Jan. 26, 2005) (“CCA II”), a court in this district rightly applied this rule to deny the defendant’s motion in limine in a case nearly identical to this one. There, California Credit Agency (“CCA”) brought antitrust claims against Equifax alleging Equifax attempted to collude with CCA to fix the price of Equifax credit reports and wrongly terminated its contract with CCA when CCA refused to collude. Consol. Credit Agency v. Equifax, Inc., 2004 WL 5644363, at *1 (C.D. Cal. Aug. 5, 2004) (“CCA I”). CCA claimed Equifax’s unlawful conduct caused the company to lose business. To help prove its case, CCA sought to offer testimony from its employees that several customers and suppliers told them that the reason they stopped doing business with CCA was because they required Equifax credit reports. CCA II at *1. Defendants moved in limine to exclude the testimony, arguing that the Rule’s state-of-mind exception did not permit CCA to use this evidence “to show that the reason that customers refused to purchase credit reports from [CCA] after termination of the agreement with Equifax was because lenders require Equifax reports.” Id. The court rejected this argument and denied Defendants’ motion in its entirety, explaining that CCA’s proffered statements were relevant to its claims and were theoretically admissible to prove its customers’ and suppliers’ motives to cease doing business with the company. Id. at *2. Under CCA II (and the mountain of precedent it comports with), Songkick plainly is permitted to likewise offer statements from its customers Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 5 of 9 Page ID #:51339 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 06603-00001/9578926.1 -5- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE and suppliers (artist managers and venue operators) to establish the reason they cut ties with Songkick—i.e., that they felt pressured by Ticketmaster to do so. Defendants attempt to confuse this straightforward application of well- established law by pointing the Court to a quote from the Fifth Circuit’s decision in United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980). Def. Mot. at 4 (quoting Cohen). But this case is not Cohen. There, Cohen was charged with impersonating an officer as part of a criminal scheme. At trial, Cohen’s defense was duress and, in support of that defense, he sought to elicit testimony from witnesses who “would have testified to comments made by Cohen to the effect that [his co-conspirator] Galkin was threatening him.” Id. The testimony was to be offered to prove the fact that such threats were made. The district court applied the “limiting language” of Rule 803(3) to preclude the testimony and the Fifth Circuit affirmed. Id. That language provides that the state- of-mind exception does not cover “a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.” Fed. R. Evid. 803(3) (emphasis added). Thus, the Court held, under the circumstances of Cohen, “if [Rule 803(3)’s limiting clause] is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition—‘I’m scared’—and not belief—‘I’m scared because Galkin threatened me.’” Id. The ball Defendants hide is revealed by comparing the fact Cohen’s statements were offered to prove with the fact Songkick’s statements are offered to prove. In Cohen, witnesses would have testified to hearing out-of-court statements that the co- conspirator, Galkin, had threatened Cohen to prove that Galkin had threatened Cohen. Here, in contrast, Songkick’s statements concerning pressure from Ticketmaster are not offered to prove that Ticketmaster actually did any threatening. Nor are they offered to suggest any reasons why the declarants believed they did. Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 6 of 9 Page ID #:51340 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 06603-00001/9578926.1 -6- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE Instead, Songkick offers these statements for the limited, relevant,2 and permissible purpose of proving these individuals’ motives for ceasing to do business with Songkick—namely, that they felt pressured by Defendants and believed this was the reason they could not or would not do business with Songkick. CCA II, 2005 WL 6218038, at *2 (C.D. Cal. Jan. 26, 2005) (“Courts have held that statements from customers regarding their reasons for not dealing with a supplier are admissible for the limited purpose of proving customer motive, but not as evidence of facts recited as furnishing the motives in antitrust cases.”). This simple point of distinction distinguishes all of Defendants’ authority, which—not surprisingly—all originates with Cohen. Def. Mot. at 4 and n.1 (citing United States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) (quoting Cohen and affirming exclusion of statements offered to prove that co-conspirator actually made threats); Flagstar Bank v. Loan Experts, 2012 WL 4801431, at *2 (N.D. Cal. Oct. 9, 2012) (citing Emmert and excluding statements offered to prove plaintiff’s financial losses and high lock fallout); Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1038 (N.D. Cal. 2006) (quoting Cohen and excluding statements offered to establish police officers’ unlawful conduct). To be clear, at trial Songkick fully intends to prove certain facts outside of these managers’ and venue operators’ minds, including the fact that Ticketmaster engaged in unfair competitive conduct and that Songkick suffered the loss of substantial business. And, when it does, Songkick will rely on other pieces of relevant, admissible evidence. However, this does not deny Songkick the ability to prove the goings-on inside of these individuals’ heads at the time they decided not to do business with Songkick to establish their motivations for making those decisions. 2 The motivation given by major music industry players for refusing to engage Songkick in the presale ticket market is unquestionably relevant in this case. Defendants, to their credit, do not disagree. Def. Mot. at 4 (acknowledging the relevance of managers’ and operators’ “reasons [for] not do[ing] business with Songkick”). Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 7 of 9 Page ID #:51341 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 06603-00001/9578926.1 -7- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE 2. An Artist Manager’s Statements Offered To Prove His Or Her Then-Existing Mental Feeling That His Or Her Artist’s Fan Club Was Compliant With Ticketmaster Policy Are Admissible For the same reasons stated above, Songkick’s evidence of statements made by artist managers to the effect that each believed his or her artist’s fan club complied with Ticketmaster policy is admissible. Songkick offers this evidence to establish the managers’ mental feelings about their artists’ fan clubs at the relevant times, a permissible purpose under Rule 803(3). Fed. R. Evid 803(3) (including “mental feeling” under its list of permissible state-of-mind evidence). Defendants’ own example confirms this. Def. Mot. at 6 (quoting Ms. Bellin’s declaration that a manager stated “[w]e definitely feel like this is a fan club” and “[t]his feels to me like it falls in line with every other pre-sale we’ve ever done”) (emphasis added)). Such evidence is admissible to make the relevant point that managers and Ticketmaster disputed whether these fan clubs were compliant. Defendants acknowledge that this is Songkick’s purpose. Id. (Defendants acknowledging that Songkick argues only that compliance was “disputed”). Accordingly, Defendants cannot be allowed to exclude this evidence by inventing an impermissible purpose and attributing it to Songkick. Id. (arguing Songkick offers each statement to prove “that this artist did in fact have a legitimate fan club”) (emphasis added). B. The Business-Record Exception Applies To the extent Songkick seeks to introduce the above-discussed statements through its Salesforce records or company emails, that documentary evidence remains admissible under Rule 803(6)’s business-record exception. Songkick makes this point for the sake of clarity and completeness, since Defendants (rightly) do not seriously contend that Songkick’s Salesforce records and emails are not business records. See Def. Mot. at 8 (beginning their argument with “Even if the Salesforce database is a business record . . .”); Def. Mot. at 8-9 (making no argument that emails are not business records). Rather, Defendants argue only that the content of the records and Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 8 of 9 Page ID #:51342 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 06603-00001/9578926.1 -8- Case No. 15-cv-9814 DSF (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE CERTAIN HEARSAY EVIDENCE emails is not admissible under the state-of-mind exception and, therefore, the business-record exception alone does not permit the evidence. See id. at 8-9. For all the reasons discussed above, these statements are admissible under the state-of-mind exception and, thus, continue to be admissible under the business-record exception. III. CONCLUSION For the foregoing reasons, the Court should deny Defendants’ motion in limine to exclude certain hearsay evidence in its entirety. To the extent the Court believes any of Defendants’ objections to a specific piece of Songkick’s evidence has merit, they are more appropriately raised and ruled upon at trial. Dated: October 2, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Frederick A. Lorig Frederick A. Lorig Kevin Y. Teruya Adam B. Wolfson Attorneys for Plaintiff COMPLETE ENTERTAINMENT RESOURCES LLC Case 2:15-cv-09814-DSF-AGR Document 348 Filed 10/02/17 Page 9 of 9 Page ID #:51343
