Complete Entertainment Resources LLC v. Live Nation Entertainment, Inc. et alOPPOSITION to MOTION IN LIMINEC.D. Cal.October 2, 2017 ATTORNEYS AT LAW SAN F RA NCISC O DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 LATHAM & WATKINS LLP Daniel M. Wall (SBN 102580) dan.wall@lw.com Timothy L. O’Mara (SBN 212731) tim.o’mara@lw.com Andrew M. Gass (SBN 259694) andrew.gass@lw.com Kirsten M. Ferguson (SBN 252781) kirsten.ferguson@lw.com 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: +1.415.391.0600 Facsimile: +1.415.395.8095 Attorneys for Defendant Live Nation Entertainment, Inc. and Defendant and Counter-Claimant Ticketmaster LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JUDICIAL DISTRICT Complete Entertainment Resources LLC d/b/a Songkick, Plaintiff, v. Live Nation Entertainment, Inc.; Ticketmaster LLC, Defendants. CASE NO. 2:15-CV-09814 DSF (AGRX) DEFENDANTS AND COUNTER- CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 The Honorable Dale S. Fischer Pretrial Conference & Daubert Hearing Date: Oct. 23, 2017 Time: 3:00 p.m. Place: Courtroom 7D Ticketmaster LLC, Counter-Claimant, v. Complete Entertainment Resources LLC d/b/a Songkick, Counter-Defendant. Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 1 of 7 Page ID #:52091 ATTORNEYS AT LAW SAN F RA NCISC O 1 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 I. INTRODUCTION Plaintiff’s motion is a legally unsupported attempt to prevent Defendants from attacking the credibility of Songkick’s damages expert, and impeaching him if the need arises, with another court’s scathing criticism of his damages analysis, addressing the same types of flaws that plague the expert’s approach here. At trial, an expert’s credibility is a matter for the jury. Defendants expect that Songkick will attempt to establish its experts’ credibility through direct examination on their background and qualifications. If so, Defendants are entitled to attack that credibility in cross-examination. With respect to Mr. Yurkerwich, his background includes an order from the Federal Circuit, affirming an order from the Eastern District of Virginia that excluded his opinions on the basis that his report was so deficient that it “d[id] not pass the red face test.” Microstrategy Inc. v. Bus. Objects, S.A., 429 F.3d 1344, 1355 (Fed. Cir. 2005). Parties are entitled to wide latitude in testing experts’ credibility on cross- examination. See, e.g., Bey v. Tampkins, 2014 WL 334481 at *32 (C.D.Cal. Jan. 29, 2014) (“The courts have traditionally given both parties wide latitude in the cross- examination of experts in order to test their credibility.”); Sayad v. Miller, 2014 WL 492288 at *7 (N.D.Cal. Feb. 5. 2014) (same); Fed. R. Evid. 611(b) (“Cross examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.”) (emphasis added). Songkick’s Motion erroneously claims that the fact Mr. Yurkerwich has been heavily criticized in past cases is irrelevant, hearsay, and unduly prejudicial. Pl.’s Mot. In Limine No. 1 at 2- 3 (“Motion”), ECF No. 295-1. Songkick is wrong. The criticism is relevant to Mr. Yurkerwich’s credibility, it is not hearsay (as its relevance does not depend on it being true), and its probative value with respect to Mr. Yurkerwich’s credentials far outweighs any potential prejudice. Moreover, Songkick’s arguments depend on its speculation that no possible sequence of events at trial could justify allowing examination about the Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 2 of 7 Page ID #:52092 ATTORNEYS AT LAW SAN F RA NCISC O 2 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 Microstrategy case or similar judicial decisions—but the Court is not yet in a position to make that determination. See Colton Crane Co. v. Terex Cranes Wilmington, Inc., 2010 WL 2035800, at *1 (C.D.Cal. May 19, 2010) (“A court is almost always better situated during the actual trial to assess the value and utility of evidence.”). In fact, the issue may not arise at all if, for example, Mr. Yurkerwich does not deny that he has been subjected to withering criticism by courts in the past. Accordingly, Songkick’s Motion in Limine No. 1 should be denied or, at a minimum, be denied without prejudice until such time as it is ripe. II. BACKGROUND In his expert report, Mr. Yurkerwich proclaimed that he is “one of the world’s leading intellectual property strategists” and is “known for a long history of providing expert testimony on damages arising from patent infringement and many other types of commercial disputes.” Decl. of D. Yurkerwich in Supp. of Pl.’s Opp’n to Defs.’ Mot. for Partial Summ. J. Ex. 1, ECF No. 239-27 (Expert Report of David Yurkerwich ¶ 2, Ex. 1.0). He further stated that he “has served as an expert damages witness and testified in federal and state courts, as well as before arbitration panels, on forty five occasions including international matters involving companies in Asia, Europe, South America and the United States.” Id. However, at least one federal court, the Eastern District of Virginia, reviewed an expert report from Mr. Yurkerwich and concluded, in blistering language: “This report does not pass the red face test. It does not pass the Daubert test. It does not pass the Rule 702 test. I read the report before I read any of the briefs, and I, frankly, was appalled at it.” Microstrategy Inc., 429 F.3d at 1355 (quotation marks and alterations omitted). Songkick seeks to preclude Defendants from examining Mr. Yurkerwich about this or other relevant judicial criticism, and any other of its experts about similar criticism, even for purposes of attacking their credibility and impeachment. Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 3 of 7 Page ID #:52093 ATTORNEYS AT LAW SAN F RA NCISC O 3 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 III. ARGUMENT The District Court Opinion Criticizing Mr. Yurkerwich Is Relevant And May Be Used To Attack His Credibility The fact that Songkick’s damages expert has been subject to judicial criticism in the past is highly probative of the quality of Mr. Yurkerwich’s credentials as a damages expert and therefore his credibility, which will be at issue when Mr. Yurkerwich takes the stand. U.S. v. York, 933 F.2d 1343, 1365 (7th Cir. 1991) (“[T]he adequacy of professional qualifications obviously bears upon the credibility of an expert witness.”), overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir 1999). In particular, if Songkick elicits testimony from Mr. Yurkerwich about his credentials at trial, Defendants should have a fair opportunity to test those credentials by asking permissible questions about the proceedings in another federal court. See Fed. R. Evid. 611(b) (“Cross examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.”) (emphasis added); see also Bey, 2014 WL 334481 at *32 (“The courts have traditionally given both parties wide latitude in the cross-examination of experts in order to test their credibility. Thus, a broader range of evidence may be properly used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion.”). Any such examination about Mr. Yurkerwich’s experience in other federal courts is relevant, as his credibility, and therefore his credentials, are directly at issue.1 1 In its Motion, Songkick contends that if Defendants are entitled to attack Mr. Yurkerwich using a sister court’s opinion about his expert opinions there, it may attempt to attack Defendants’ damages expert Paul Meyer using a judicial opinion that criticized one of his reports as “unduly speculative” and another that characterized part of his report as “unreliable and unsupported.” Mot. at 1:19-26. Defendants have no concerns about Mr. Meyer’s qualifications, and if Songkick prefers to spend its time cross-examining Mr. Meyer on those subjects, it is its prerogative to do so, so long as Songkick complies with the Rules of Evidence. That said, to the extent the Court grants this motion in limine over Defendants’ objection, Defendants reserve the right to apply the rule the Court adopts in defense of its own experts. Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 4 of 7 Page ID #:52094 ATTORNEYS AT LAW SAN F RA NCISC O 4 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 Indeed, in both this case and the Microstrategy case, Mr. Yurkerwich is offering his expert assessment of potential damages. Songkick should not be permitted to offer an unimpeded narrative about Mr. Yurkerwich’s experience of providing expert opinions on damages that ignores even the bare fact of prior criticism of his opinions. It is the province of the jury to assess his credibility and assign the weight it believes that fact should be accorded.2 With respect to Songkick’s contention that the Microstrategy opinion is hearsay, there is no basis to conclude that Defendants will inevitably offer it for the truth of what the court said, rather than just the fact that the court said it. See Fed. R. Evid. 801(c) (“‘Hearsay’ means a statement that . . . a party offers in evidence to prove the truth of the matter asserted in the statement.”). Defendants certainly cannot predict how Mr. Yurkerwich will respond to questions about his qualifications and credentials. But if, for example, he denies the fact that the Microstrategy opinion exists, then introducing it to impeach that denial would not be hearsay use at all.3 Standing alone, that is a basis to deny the motion, because it is too early to know for what purpose, if at all, Defendants will seek to use the evidence that Songkick seeks to exclude. The law is clear that “to exclude evidence on a motion in limine the evidence must be inadmissible on all potential grounds. Unless evidence meets this high 2 Songkick’s additional claim that the Eastern District of Virginia’s opinion about Mr. Yurkerwich is “stale” is, at bottom, an issue for weight not relevance. Mot. at 2:14-16. 3 Songkick’s authorities on the hearsay point are thus inapposite. In Blue Cross & Blue Shield of New Jersey v. Philip Morris, Inc., for example, the Court did not exclude the use of the expert testimony on hearsay grounds at all. See 141 F.Supp.2d 320, 325 (E.D.N.Y. 2001) (addressing the issue on Rule 403 grounds). But regardless, in that case, the party seeking to use the prior judicial opinion was plainly offering it for the truth of the matter asserted, not the fact of its existence. Id. at 322 (describing the intended use of the prior court’s “fact-finding”). In United States v. Sine, although the judicial criticism was not introduced as substantive evidence, the prosecution’s “strategy was little different in its impact from introducing the evidence” because it had “repeatedly incorporate[d] inadmissible evidence” into its more than 200 questions regarding that judicial criticism. 493 F.3d 1021, 1031-32 (9th Cir. 2007). There is no reason to think that anything like that will happen here. Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 5 of 7 Page ID #:52095 ATTORNEYS AT LAW SAN F RA NCISC O 5 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Classical Silk, Inc. v. Dolan Group, Inc., 2016 WL 7638112 at *6 (C.D.Cal. Mar. 21, 2016) (citations omitted); see also Colton Crane Co., 2010 WL 2035800 at *1 (“A court is almost always better situated during the actual trial to assess the value and utility of evidence.”). The parties and the Court simply do not yet know whether or how the judicial criticism will present itself at trial. Accordingly, it is only once trial has begun and the issue is ripe that the Court should rule on this issue. See Torah Soft Ltd. v. Drosnin, 2003 WL 22024074 at *2 (S.D.N.Y. Aug. 28, 2003) (denying motion in limine to exclude reference to judicial findings of fact from an earlier case on the basis that they were inadmissible hearsay because “their admissibility will be determined when and if the defendant proposes to introduce them,” and explaining that “[u]ntil then, the plaintiff’s motion is premature”). The Evidence Is Not Prejudicial, And Any Potential Prejudice Is Far Outweighed By Its Probative Value Songkick’s argument that judicial criticism of an expert is more prejudicial than probative, because it “taint[s] the jury’s consideration of the evidence,” is similarly without merit. Mot. at 2:23-24. First, as noted above, the judicial criticism of Mr. Yurkerwich concerns his credibility as an expert and is thus highly relevant to the jury’s consideration of the weight to afford his testimony. Such criticism does not “taint the jury’s consideration of the evidence” at all; it merely provides the jury with the facts necessary to fully and fairly evaluate Mr. Yurkerwich’s credibility. Just as it is not prejudicial for Songkick to qualify and bolster the credibility of its experts by reference to their background, it is not prejudicial for Defendants to test that credibility and show the jury parts of the experts’ background Songkick may wish to hide. Far from Songkick being prejudiced by reference to judicial criticism of its damages expert, Defendants would be prejudiced by its exclusion. Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 6 of 7 Page ID #:52096 ATTORNEYS AT LAW SAN F RA NCISC O 6 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 CASE NO. 2:15-CV-09814 DSF (AGRX) 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 Second, the authorities on which Songkick relies are factually distinct, extreme examples of using judicial criticism as a pillar of a party’s case, which have little relevance here because Defendants have no intention of using Microstrategy or any other judicial opinion in that way. Blue Cross, for example, concerned an effort to piggy-back on another court’s own “fact-findings” concerning subtle, substantive points in an expert’s scientific model. 141 F.Supp.2d at 322. That is not what Defendants envision doing here at all. In each of Songkick’s remaining authorities, Sine, 493 F.3d at 1027, U.S. Steel, LLC v. Teico, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001), Nipper v. Snipes, 7 F.3d 415, 416 (4th Cir. 1993), and United States v. DeSantis, 134 F.3d 760, 765 (6th Cir. 1998), the judicial criticism concerned factual findings regarding a party to the case, not an expert’s credibility. These cases are thus irrelevant to the inquiry of whether it is unduly prejudicial to test an expert’s credibility by asking about prior instances in which that expert has been criticized. IV. CONCLUSION For the reasons stated above, Defendants respectfully request that this Court deny Songkick’s Motion in Limine No. 1 “to exclude reference to any judicial opinion that criticizes a party’s expert witness.” Dated: October 2, 2017 LATHAM & WATKINS LLP By: /s/ Daniel M. Wall Daniel M. Wall Timothy L. O’Mara Andrew M. Gass Kirsten M. Ferguson Attorneys for Defendant LIVE NATION ENTERTAINMENT, INC. and Defendant and Counter- Claimant TICKETMASTER LLC Case 2:15-cv-09814-DSF-AGR Document 359 Filed 10/02/17 Page 7 of 7 Page ID #:52097