Complete Entertainment Resources LLC v. Live Nation Entertainment, Inc. et al

OPPOSITION to MOTION IN LIMINE

C.D. Cal.October 2, 2017

ATTORNEYS AT LAW SAN FRANCISCO DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 2 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. 2 The Honorable Dale S. Fischer Pretrial Conference & Daubert Hearing Date: Oct. 23, 2017 Time: 3:00 p.m. Place: Courtroom 7D REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Ticketmaster LLC, Counter-Claimant, v. Complete Entertainment Resources LLC d/b/a Songkick, Counter-Defendant. Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 1 of 22 Page ID #:52183 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 ATTORNEYS AT LAW SAN FRANCISCO i DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) TABLE OF CONTENTS Page I. INTRODUCTION .......................................................................................... 1 II. BACKGROUND ............................................................................................ 2 III. ARGUMENT ................................................................................................. 4 A. Defendants Complied With Their Rule 26 Disclosure Obligations ........................................................................................... 5 B. Rule 37(c) Would Not Justify The Exclusion Of The Witnesses, Even If Rule 26 Had Been Violated .................................. 8 C. At A Minimum, The Witnesses Must Be Allowed To Testify For The Purpose Of Impeaching Mr. Yurkerwich’s Baseless Lost Profits Calculation ............................... 11 IV. CONCLUSION. ........................................................................................... 14 Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 2 of 22 Page ID #:52184 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 ATTORNEYS AT LAW SAN FRANCISCO ii DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) TABLE OF AUTHORITIES Page CASES Curet-Velàzquez v. ACEMLA de P.R., Inc., 656 F.3d 47 (1st Cir. 2011) ................................................................................ 6 Equal Employment Opportunity Comm'n v. Trans Ocean Seafoods, Inc., 2017 WL 1022781 (W.D. Wash., Mar. 16, 2017) ................................... 12 FTC v. AMG Servs., Inc., 2014 WL 317781 (D. Nev. Jan. 28, 2014) ......................................................... 6 Gribben v. United Parcel Serv., Inc., 528 F.3d 1166 (9th Cir. 2008) .................................................................... 11, 12 Guzman v. Bridgepoint Educ., Inc., 305 F.R.D. 594 (S.D. Cal. 2015) ........................................................................ 9 Halbasch v. Med-Data, Inc., 192 F.R.D. 641 (D. Or. 2000) .......................................................................... 12 Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ............................................................................ 10 United States v. Castillo, 181 F.3d 1129 (9th Cir. 1999) .......................................................................... 13 United States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001) ............................................................................ 13 Van Maanen v. Univ. of the Nations, Inc., 542 F. App’x 581 (9th Cir. 2013) ....................................................................... 9 Van Maanen v. Youth With a Mission-Bishop, 852 F. Supp. 2d 1232 (E.D. Cal. 2012) .............................................................. 9 Wanke Cascade Distribution Ltd. v. Forbo Flooring, Inc., 2017 WL 2406089 (D. Or. May 8, 2017) ......................................................... 12 Wegener v. Johnson, 527 F.3d 687 (8th Cir. 2008) ............................................................................ 13 Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 3 of 22 Page ID #:52185 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 ATTORNEYS AT LAW SAN FRANCISCO iii DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) RULES Fed. R. Civ. P. 26(e)(1)(A) ............................................................................ passim Fed. R. Civ. P. 26(a)(1)(A)(i) ......................................................................... passim Fed. R. Civ. P. 26(a)(1)(E) .................................................................................. 5, 6 Fed. R. Civ. P. 26(a)(3)(A)(i) .................................................................................. 6 Fed. R. Civ. P. 37(c) ....................................................................................... passim Fed. R. Civ. P. 37(c)(1) ........................................................................................... 2 Fed. R. Civ. P. 56(d)(1) ......................................................................................... 10 Fed. R. Civ. P. 56(d)(2) ......................................................................................... 10 Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 4 of 22 Page ID #:52186 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 ATTORNEYS AT LAW SAN FRANCISCO 1 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) I. INTRODUCTION Songkick’s Motion in Limine No. 2 seeks to exclude 11 witnesses (the “Witnesses”) who will directly contradict alleged facts underlying the damages calculation offered by Songkick’s expert, Mr. David Yurkerwich. Pl.’s Mot. in Limine No. 2 at 1 & n.1 (“Motion”), ECF No. 296-1. The Witnesses are managers of performing artists with whom Songkick wishes it had done business. They became significant to this litigation in March 2017—after the close of fact discovery—when Songkick served Mr. Yurkerwich’s expert report. That report based a substantial portion of its “lost profits” calculation on the suggestion that Songkick would have serviced many millions of dollars’ worth of artist presales from these managers’ clients, but for Defendants’ unlawful conduct. Defendants responded by appending sworn declarations from the Witnesses in support of Defendants’ summary judgment motion, saying, in essence: “Mr. Yurkerwich’s suggestion that the reason we didn’t do business with Songkick has anything to do with Ticketmaster ‘bullying’ is, frankly, ludicrous.” Songkick now feigns surprise that Defendants plan to call the Witnesses at trial, and it has asked the Court to prevent the jury from hearing what they have to say. Songkick’s desire to shield the jury from the Witnesses’ testimony—which is devastating to its lost profits theory—is entirely understandable but without basis. Defendants did not violate their Rule 26 disclosure obligations. Songkick put these people at issue. Two of them, in fact, were on Songkick’s initial Rule 26 disclosure list, and the rest were made known to Songkick through the rebuttal report filed by Defendants’ experts and Defendants’ subsequent summary judgment papers. All of them offer views that contradict contentions first propounded in Songkick’s expert report, served after the close of fact discovery. In any event, Rule 37(c) does not authorize exclusion of an undisclosed witness in circumstances where the non-disclosure was “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). Songkick cannot seriously purport to be Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 5 of 22 Page ID #:52187 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 ATTORNEYS AT LAW SAN FRANCISCO 2 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) surprised or prejudiced by the fact that Defendants did not formally disclose the Witnesses under Rule 26. Although Songkick claims that it did not believe Defendants intended to call the Witnesses to testify at trial, that representation makes no sense: The Witnesses substantially vitiate Songkick’s lost profits theory, and Defendants expressly indicated to Songkick and the Court that they would be called at trial. And even if Songkick could show prejudice—which it cannot— Rule 26(a)(1)(A) would still allow Defendants to use the Witnesses in order to impeach Mr. Yurkerwich’s testimony. The motion should be denied. II. BACKGROUND Songkick’s damages theory claims nearly $130 million in lost profits that Songkick allegedly suffered as a result of Defendants’ conduct. On March 13, 2017—after the close of fact discovery—Songkick served Defendants with the expert report of David Yurkerwich. Decl. of W. Friedman in Supp. of Defs. and Counter-Claimant’s Mot. to Exclude Testimony of Pl.’s Damage Expert D. Yurkerwich (“Friedman Decl.”) Ex. 1 (“Yurkerwich Report”), ECF No. 277-3. The Yurkerwich Report purported to have and to have provided a in its Exhibit 9.5. Yurkerwich Report ¶ 43. But Songkick and Mr. Yurkerwich failed to perform the barest minimum of diligence by actually speaking to the artists or their managers— including the Witnesses—before building a damages theory around them. Decl. of A. Gass in Supp. of Defs. and Counter-Claimant’s Opp’n to Pl.’s Mots. in Limine Nos. 1-5 (“Gass Decl.”) Ex. 1, D. Yurkerwich Dep. 31:6-10, 42:8-15, 56:16-20. Instead, Mr. Yurkerwich relied solely on Songkick’s sales records, interviews with Songkick personnel, and email communications to and from Songkick employees. E.g., id. at 112:1-17.1 1 All of this is inadmissible hearsay, as Defendants have pointed out in their summary judgment brief, Daubert motion, and motion in limine. See Mem. in Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 6 of 22 Page ID #:52188 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 ATTORNEYS AT LAW SAN FRANCISCO 3 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) After receiving the Yurkerwich Report, Defendants proceeded to test Songkick’s lost profits theory by seeking out the Witnesses and asking them a simple question—can they confirm that Songkick’s characterization of their own conduct is accurate? Or is it instead inaccurate to suggest, as Songkick does, that their choice not to do business with Songkick was the product of strong-arming by Ticketmaster or some other wrongful conduct, rather than the product of Songkick’s own shortcomings or other factors? Across the board, the Witnesses responded with a clear and unqualified no, there is no basis for what Songkick is saying, and yes, what Mr. Yurkerwich is asserting is false. On April 24, 2017, Defendants served Songkick with the Rebuttal Report of Paul K. Meyer. Decl. of T. O’Mara in Supp. of Defs. and Counter-Claimant’s Mot. for Partial Summ. J. Ex. 118 (“Meyer Rebuttal”), ECF No. 220-103. In response to Exhibit 9.5 to the Yurkerwich Report, the Meyer Rebuttal concluded: “Mr. Yurkerwich has not shown that these artists . . . would have necessarily conducted artist presales with Songkick. Inclusion of these artists in Songkick’s lost profits analysis is inappropriate speculation.” Meyer Rebuttal ¶ 64. In support of this conclusion, the Meyer Rebuttal relayed the content of interviews conducted with representatives of many of the artists listed in Exhibit 9.5 to Yurkerwich Report. See Meyer Rebuttal ¶¶ 66-82 and Schedule 10. Those interviews made clear that the artists’ decision not to conduct presales with Songkick was unrelated to any alleged interference from Defendants. Id. In May 2017, Defendants obtained declarations from the Witnesses directly refuting the claims made in Mr. Yukerwich’s report. They then relied on those Supp. of Defs. and Counter-Claimant’s Mot. for Partial Summ. J. (“MSJ”) at 64:4- 28, ECF No. 220-1; Defs. and Counter-Claimant’s Mot. to Exclude Testimony of Pl.’s Damages Expert D. Yurkerwich at 14:13-17, ECF No. 277-1; Defs. and Counter-Claimant’s Mot. in Limine to Exclude Certain Hearsay Evidence at 2:13- 9:12, ECF No. 290-3. If the Court agrees, Songkick’s Motion in Limine No. 2 will largely become moot, because there will be nothing left for the Witnesses to impeach and/or rebut. Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 7 of 22 Page ID #:52189 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 ATTORNEYS AT LAW SAN FRANCISCO 4 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) declarations in their May 29, 2017 motion for summary judgment, to contradict Mr. Yurkerwich’s baseless lost profits theory. See MSJ at 59:15-61:7. Thus by the end of May 2017, • Two of the Witnesses had been listed on Songkick’s own Rule 26(a) disclosures, served on February 26, 2016. See Gass Decl. Ex. 2, Pl.’s Initial Disclosures (“Pl.’s Initial Disclosures”) at 21-22 • Five had been directly referenced in the Yurkerwich Report (with the rest indirectly referenced, through Exhibit 9.5’s listing of their artist clients). See Appendix A • Eight had been directly referenced in the Meyer Rebuttal, as Mr. Yurkerwich acknowledges. See Friedman Decl. Ex. 3, Reply Expert Report of David Yurkerwich (“Yurkerwich Reply”) ¶ 29, ECF No. 277-5 (Cahill, Maher, Margolis, Feldstein, Flick, Lebeis, Oseary, and Wright). • All had submitted declarations in support of Defendants’ motion for summary judgment. Appendix A to this opposition provides references to the specific pages of the Yurkerwich reports, Meyer reports, and summary judgment motion and supporting statement of undisputed facts that reference (directly or indirectly) the Witnesses. III. ARGUMENT Songkick’s motion now seeks to bar the Witnesses from testifying at trial. Songkick argues that Defendants failed to disclose the Witnesses under Rules 26(a)(1)(A)(1) and 26(e)(1)(A), and that this failure was “severely prejudicial” to Songkick “because it foreclosed Songkick from even seeking to expand discovery to address” their claims. Motion at 5:8-11. Although Songkick acknowledges that it had notice of these Witnesses’ testimony from Defendants’ summary judgment Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 8 of 22 Page ID #:52190 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 ATTORNEYS AT LAW SAN FRANCISCO 5 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) papers, it now asserts—incredibly—“there was no reasonable basis for Songkick to expect that they would be called as trial witnesses.” See Motion at 3:13-16; cf. Defs. and Counter-Claimant’s Reply in Supp. of Mot. for Partial Summ. J. (“MSJ Reply”) at 35 n.1, ECF No. 249-13 (explaining that in the event the Court were to reject Defendants’ hearsay arguments, a trial would feature these specific Witnesses, “appearing in court,” contradicting the assertions in the Yurkerwich reports). This Court should reject Songkick’s effort to blind the jury to the fatal flaws in Mr. Yurkerwich’s lost profits calculation, for three reasons. First, the Witnesses at issue are not covered by Rule 26’s disclosure requirements, because they were made known to Songkick promptly after Defendants learned of their significance. Second, the non-disclosure of the Witnesses was both “substantially justified” and “harmless,” and so they are not subject to exclusion under Rule 37(c). Finally, Rule 26(a)(1)(A)(i) itself unambiguously allows Defendants to call the Witnesses in order to impeach Mr. Yurkerwich’s baseless testimony. A. Defendants Complied With Their Rule 26 Disclosure Obligations Rule 26(a)(1) requires parties to make initial disclosures of individuals likely to have discoverable information. Specifically, that rule requires a party to provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.] Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). Those initial disclosures must be made “based on the information then reasonably available to [each party].” Fed. R. Civ. P. 26(a)(1)(E). Rule 26(e)(1)(A) then requires the party to “supplement or correct its disclosure[s] . . . in a timely manner,” but only if (1) “the party learns that in some material respect the disclosure or response is incomplete or incorrect,” and (2) “the additional or corrective information has not otherwise been made Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 9 of 22 Page ID #:52191 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 ATTORNEYS AT LAW SAN FRANCISCO 6 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A) (emphasis added). The obvious purpose of Rule 26’s disclosure requirements is to ensure that all parties are on notice as to potential sources of discoverable information that might be relied upon at trial. See, e.g., Curet-Velàzquez v. ACEMLA de P.R., Inc., 656 F.3d 47, 56 (1st Cir. 2011); FTC v. AMG Servs., Inc., 2014 WL 317781, at *20 (D. Nev. Jan. 28, 2014) (“[I]nitial disclosures prevent ‘unfair surprise,’ ‘sandbagging,’ and ‘trial by ambush.’”).2 Songkick argues that Defendants violated Rule 26 by failing to include the Witnesses in their initial disclosures and supplemental disclosures. The irony in this argument is manifest: Songkick is complaining that Ticketmaster failed to provide it with notice of witnesses whose conduct Songkick itself is relying on to establish its own entitlement to damages. This Court should reject that complaint out of hand. Rule 26 is designed to give all parties a fair opportunity to obtain relevant evidence, prepare for trial, and avoid prejudicial surprises. It is not intended to protect parties from unhelpful testimony from witnesses that they already know about through other means. Songkick is plainly wrong to argue that Defendants violated Rule 26(a)(1)(A)(i) by failing to identify the Witnesses in their initial disclosures. Those disclosures were filed on February 26, 2016, more than a year before Mr. Yurkerwich made those Witnesses relevant by basing his lost profits calculation on Songkick’s failure to win their business. As of February 2016, Defendants did not believe, based on the information “then reasonably available,” Fed. R. Civ. P. 26(a)(1)(E), that the Witnesses would provide discoverable information relevant to 2 Rule 26(a)(3)(A)(i) and (B) separately requires a party to disclose, at least 30 days before trial, “the name . . . of each witness . . . the party expects to present and those it may call if the need arises.” Defendants have already complied with this disclosure requirement, see Defs. and Counter-Claimant’s Witness List (“Defs.’ Witness List”), ECF No. 305, and Songkick has not argued otherwise. Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 10 of 22 Page ID #:52192 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 ATTORNEYS AT LAW SAN FRANCISCO 7 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) Songkick’s claims. Defendants did not violate Rule 26(a)(1)(A)(i) by failing to disclose the Witnesses at that time.3 Nor did Defendants violate Rule 26(e)(1)(A) by failing to supplement or correct their disclosures after being served with Mr. Yurkerwich’s expert report the following year, on March 13, 2017. Upon receiving the report, Defendants and their own expert, Mr. Paul Meyer, began investigating the basis for Mr. Yurkerwich’s lost profits calculations. As part of that effort, Mr. Meyer interviewed eight of the Witnesses, whom he specifically identified in the written rebuttal report that Defendants served on Songkick on April 24, 2017. Meyer Rebuttal ¶¶ 8, 66-82 (describing those interviews). Mr. Meyer’s rebuttal report plainly put Songkick on notice that the identified Witnesses potentially possessed information that could be helpful to Defendants at trial. Mr. Yurkerwich’s reply report (filed on May 8, 2017) expressly acknowledged the interviews that Mr. Meyer had conducted of those Witnesses. Because eight of the Witnesses had been “made known [to Songkick] . . . in writing” through Meyer’s rebuttal report, there was no violation of Defendants’ Rule 26(e)(1)(A) obligation to supplement their initial disclosures. In the weeks that followed, Defendants continued their investigation of Mr. Yurkerwich’s claims, and they began collecting written declarations expressly refuting Mr. Yurkerwich’s baseless assertions that the Witnesses or their clients would have done business with Songkick but for Defendants’ allegedly wrongful conduct. On May 29, 2017, Defendants filed their motion for partial summary 3 If anything, the Witnesses should all have been included in Songkick’s initial disclosures (as some of them were). After all, Songkick was directly relying on those Witnesses (or their clients) as the basis for their request for lost profits. Songkick in fact disclosed two of the witnesses (Adam Flick and Irving Azoff) as such persons, but the remaining nine Witnesses were entirely absent from Songkick’s disclosures. See Pl.’s Initial Disclosures at 21-22. Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 11 of 22 Page ID #:52193 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 ATTORNEYS AT LAW SAN FRANCISCO 8 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) judgment, which attached declarations from all 11 of the Witnesses. That written filing expressly identified the Witnesses as sources of directly relevant testimony. It too was sufficient to alert Songkick to the existence and identify of the Witnesses, “in writing,” for purposes of Rule 26(e)(1)(A). The bottom line is that Songkick has obviously known—for quite some time—that the Witnesses possess discoverable information that is potentially relevant to the claims and defenses to be presented at trial. Songkick itself disclosed two of the 11 witnesses in February 2016; its own expert relied on those Witnesses (or the clients they represent) in his March 2017 expert report; Defendants’ expert directly identified eight of the Witnesses in his April 2017 rebuttal report; and Defendants’ May 2017 summary judgment papers incorporated declarations from all 11 of the witnesses. In these circumstances, Songkick has no credible argument that Defendants violated either the letter or spirit of Rule 26. B. Rule 37(c) Would Not Justify The Exclusion Of The Witnesses, Even If Rule 26 Had Been Violated Even if Rule 26 required the disclosure of the Witnesses at an earlier time (it does not), the exclusionary remedy Songkick seeks has no basis in law. As Songkick itself acknowledges, the exclusion of witnesses is improper where the failure to disclose pursuant to Rule 26 “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c) (emphasis added); Motion 2:3-11. Here, the “non-disclosure” was both. The omission of the Witnesses from Defendants’ Rule 26 disclosures was substantially justified. Defendants had no way of knowing the Witnesses’ relevance to Songkick’s damages case prior to service of the Yurkerwich Report in March 2017. Songkick itself offered no discoverable information of value in the damages-related disclosures it served on February 26, 2016, which stated that Pl.’s Initial Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 12 of 22 Page ID #:52194 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 ATTORNEYS AT LAW SAN FRANCISCO 9 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) Disclosures at 43-44. Songkick never supplemented those damages-related disclosures pursuant to Rule 26(e). Instead, Songkick first disclosed the facts underlying its damages claims—including the identities of the Witnesses and the artists they represent—only when it issued the Yurkerwich Report in March 2017.4 Defendants were substantially justified in identifying the majority of the Witnesses in the following month (in the Meyer Rebuttal), and in identifying all of the other Witnesses shortly afterward (in their summary judgment papers). See Motion at 5:6-7 (acknowledging that the Witnesses were disclosed no later than “two-and-a- half months” after service of the Yurkerwich Report). In any event, Songkick suffered no harm from any non-disclosure. “[W]here a witness has been alluded to in the same litigation . . . a party’s failure to disclose [that] witness has been considered harmless.” Guzman v. Bridgepoint Educ., Inc., 305 F.R.D. 594, 607 (S.D. Cal. 2015) (citing Van Maanen v. Youth With a Mission-Bishop, 852 F. Supp. 2d 1232, 1237 (E.D. Cal. 2012), aff’d sub nom. Van Maanen v. Univ. of the Nations, Inc., 542 F. App’x 581 (9th Cir. 2013)). That rule applies with full force to this case. Here, the Witnesses have not merely “been alluded to,” they are in fact the pillars (albeit crumbling ones) of Songkick’s lost profits theory. Songkick does not cite a single case, and Defendants are aware of none, in which a witness was excluded under these circumstances, where experts on both sides referenced the witness in support of their opinions. Instead, Songkick points to plainly distinguishable cases involving 4 Songkick asserts that it “disagrees” with Defendants’ view that the Witnesses were not put at issue until the Yurkerwich Report, but it provides absolutely no explanation for the basis of its disagreement. See Motion at 5:3-5. Similarly, Songkick asserts that “Defendants had numerous opportunities to identify” the Witnesses, but it ignores the fact that Defendants did identify the Witnesses in April and May 2017 (and fails to articulate how or why Defendants should have done so sooner). Id. at 4. Songkick makes no attempt to explain—because it cannot explain—how Defendants should have foreseen that Mr. Yurkerwich would rely on the Witnesses and their clients in constructing his entirely speculative lost profits theory, when Songkick itself never updated its own Rule 26 disclosures to list these people. Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 13 of 22 Page ID #:52195 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 ATTORNEYS AT LAW SAN FRANCISCO 10 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) obvious sandbagging. See Motion at 2:21-3:3 (collecting cases). Those precedents have no application here, both because Songkick itself first put these Witnesses at issue after the close of fact discovery, and because Defendants flagged the Witnesses upon learning of their potential significance. Songkick’s claims of prejudice are also unsupported. Songkick asserts that Defendants’ use of the Witnesses’ declarations in the May 2017 summary judgment motion “is irrelevant” because “those declarations were submitted months after the close of fact discovery.” Motion at 3:13-15. But Rule 56(d) authorized Songkick “to take discovery” on the Witnesses after submitting an affidavit of necessity in opposition to summary judgment. Fed. R. Civ. P. 56(d)(2). When made in good faith, such requests are commonly granted; in the Ninth Circuit, “summary judgment in the face of requests for additional discovery is appropriate only where such discovery would be ‘fruitless’ with respect to the proof of a viable claim.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). But Songkick never even made such a request, and its argument that discovery had closed is therefore completely hollow.5 Songkick has also been delinquent in the three months since its summary judgment briefing was completed in June 26, 2017. At no point has Songkick made any effort to depose any of the 11 the Witnesses—not even the two Witnesses that Songkick itself included in its Rule 26 disclosures filed in February 5 Songkick’s assertion that it was simply too busy to depose the witnesses “at a time that Songkick had four weeks to respond” to Defendants’ summary judgment motion is equally meritless. Songkick ignores that Rule 56(d) authorizes courts to (1) “defer consideration” of a summary judgment motion or (2) “allow time . . . to take discovery.” Fed. R. Civ. P. 56(d)(1)-(2) (emphasis added). Rather than forcing Songkick to “shift time and resources . . . [away from] dispositive briefing,” Rule 56(d) depositions could have extended Songkick’s briefing schedule. Motion at 3:20-25. Songkick is choosing to try to expedite the trial in this case. See Pl.’s Opp’n to Defs.’ Ex Parte Appl. to Continue Trial Date and Related Deadlines, ECF No. 263. It has every right to make that tactical choice. But it cannot simultaneously pursue that path and appropriately complain that it doesn’t have enough time to litigate the case properly. Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 14 of 22 Page ID #:52196 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 ATTORNEYS AT LAW SAN FRANCISCO 11 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) 2016. Songkick tries to justify its failure to act on the grounds that “there was no reasonable basis for Songkick to expect that [the Witnessses] would be called as trial witnesses,” and that Defendants themselves somehow “gave [Songkick] comfort” to that effect. Motion at 1:6-9, 3:13-18. That is simply false. Songkick had every reason to believe that Defendants would call the Witnesses at trial. Defendants’ summary judgment reply brief expressly stated that the Witnesses would be “appearing in court” if this case proceeds to trial. See MSJ Reply at 35 n.13. Indeed, the Witnesses’ testimony is absolutely devastating to Songkick’s lost profits theory, as it reveals that the factual assumptions underlying that theory—that the Witnesses’ clients would have hired Songkick but for Defendants’ conduct—are completely false. The Witnesses were a core component of Defendants’ challenge to Mr. Yurkerwich’s theory at summary judgment. See MSJ at 59:15-61:7. If Songkick actually believed that Defendants had no intention to call the Witnesses at trial (and we seriously doubt that is true), that was a misconception squarely of Songkick’s own making. C. At A Minimum, The Witnesses Must Be Allowed To Testify For The Purpose Of Impeaching Mr. Yurkerwich’s Baseless Lost Profits Calculation By Contradiction For the reasons explained above, Defendants have every right to call the Witnesses to testify at trial. But even if this Court concludes both (1) that there was a violation of Rule 26(a) and (e), and (2) that the violation was unjustified and prejudicial under Rule 37(c), it still cannot prohibit Defendants from using the Witnesses to impeach Mr. Yurkerwich’s trial testimony by contradiction. That result follows directly from the plain language of Rule 26(a)(1)(A)(i). By its terms, Rule 26(a)(1)(A)(i) does not require disclosure of witnesses who will be used “solely for impeachment.” See, e.g., Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1171-72 (9th Cir. 2008) (“[I]mpeachment evidence does not have to be revealed in pretrial disclosures.”). Because Rule 26’s disclosure requirement does not apply to impeachment testimony, Rule 37(c)’s Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 15 of 22 Page ID #:52197 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 ATTORNEYS AT LAW SAN FRANCISCO 12 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) exclusionary remedy cannot prevent a party from presenting such testimony. After all, Rule 37(c)’s purpose is to enforce compliance with Rule 26(a), and a party does not violate Rule 26(a) to the extent that a non-disclosed witness is used only to impeach the other side’s witnesses. The Ninth Circuit’s decision in Gribben recognizes that Rule 37(c)’s exclusionary remedy only bars a witness’s testimony for nonimpeachment purposes. Gribben, 528 F.3d at 1171-72. As one district court has subsequently explained, Gribben supports the conclusion that “where evidence has both substantive and impeachment value, but was not disclosed in accordance with Rule 26(a), district courts must nevertheless admit the evidence solely for impeachment purpose.” Equal Employment Opportunity Comm’n v. Trans Ocean Seafoods, Inc., 2017 WL 1022781, at *4–5 (W.D. Wash., Mar. 16, 2017); see also Halbasch v. Med-Data, Inc., 192 F.R.D. 641, 649–50 (D. Or. 2000) (admitting testimony “offered to impeach . . . even though it can be characterized as relevant to substantive issues in the case.”); accord Wanke Cascade Distribution Ltd. v. Forbo Flooring, Inc., 2017 WL 2406089, at *1–2 (D. Or. May 8, 2017) (same). Here, Defendants’ primary use of the Witnesses at trial will be to impeach Mr. Yurkerwich’s flawed lost profits calculation by contradiction. Specifically, the Witnesses will establish (as their declarations in support of Defendants’ motion for summary judgment already show) that Songkick’s damages expert rendered opinions that are inaccurate and unsupported insofar as they rest on the false assumption that the Witnesses’ artist clients would have signed contracts with Songkick but for Defendants’ allegedly unlawful conduct. See Separate Statement of Uncontroverted Facts and Conclusions of Law in Supp. of Defs. and Counter- Claimant’s Mot. for Partial Summ. J. (“Separate Statement”) ¶ 188, ECF No. 220-2 (citing the Witnesses’ declarations); Defs.’ Witness List at 1, 5, 9-10, 13-15, 17, 21-22, 28 (describing the Witnesses’ testimony). Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 16 of 22 Page ID #:52198 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 ATTORNEYS AT LAW SAN FRANCISCO 13 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) Defendants’ use of the Witnesses in this way plainly constitutes “impeachment” under the standard meaning of that term. Indeed, the Ninth Circuit has repeatedly recognized that “impeachment by contradiction” is a valid method of showing that “specific testimony” offered by an opposing party “is false, because contradicted by other evidence.” United States v. Castillo, 181 F.3d 1129, 1132–33 (9th Cir. 1999) (emphasis added). The law is crystal clear that Defendants may offer “extrinsic evidence to impeach specific errors or falsehoods” in Mr. Yurkerwich’s testimony. United States v. Antonakeas, 255 F.3d 714, 724 (9th Cir. 2001); see also Wegener v. Johnson, 527 F.3d 687, 690–91 (8th Cir. 2008) (rejecting argument that witness should be excluded under Rule 26 and explaining that “[t]o attack the credibility of witnesses by the presentation of evidence showing that facts asserted or relied upon in their testimony are false is to impeach by contradiction”). At a minimum, then, Rule 26(a)(1)(A)(i) entitles Defendants to call the Witnesses for purposes of impeaching Mr. Yurkerwich’s flawed damages calculation by contradiction. This Court should reject Songkick’s attempt to keep the jury from learning that Mr. Yurkerwich’s estimate of nearly $130 million in lost profits is squarely contradicted by easily knowable facts. // // // // // // // // // // Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 17 of 22 Page ID #:52199 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 ATTORNEYS AT LAW SAN FRANCISCO 14 DEFENDANTS AND COUNTER-CLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 CASE NO. 2:15-CV-09814 DSF (AGRX) IV. CONCLUSION. For the foregoing reasons, Songkick’s Motion in Limine No. 2 should be denied. 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 361 Filed 10/02/17 Page 18 of 22 Page ID #:52200 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~• A TTORNE YS A T L AW S AN FRANCISCO Artists & Representatives Artists: Fleetwood Mac The Eagles Van Halen Bon Jovi Steely Dan John Mayer Dead & Company Earth, Wind & Fire Journey Witnesses: Irving Azoff Adam Flick Artist: Zac Brown Band Witnesses: Bernard Cahill Matt Maher APPENDIX A Songkick's References Defendants' References Artists: Artists: Yurkerwich Report Ex. Meyer Rebuttal Report 9.5 at 57, 58, 60, 61 , 63, ,r,r 8, 87, 136, 146, 147; 62, 64, 65, 56 MSJ at 60 n.24; Separate Statement ,r,r 196-99; Conclusions of Law ,r 16 Witnesses: Witnesses: Yurkerwich Report ,r 55 Meyer Rebuttal Report Yurkerwich Reply ,r 29 ,r,r 8, 87-91 & n.111 , 114, 116-22, 138, 179; Separate Statement ,r,r 188, 196-99 Artist: Artist: Yurkerwich Ex. 9 .5 at 55 Meyer Rebuttal Report ,r,r 8, 76-78, 119 & n.174; MSJ at 60 n.24; MSJ Reply at 37; Separate Statement ,r,r 207 A-207B; Conclusions of Law ,r 16 Witnesses: Witnesses: Yurkerwich Ex. 9 .5 at 55 Meyer Rebuttal Report Yurkerwich Reply ,r 29 ,r,r 8, 76-77 & n.94-95, 138-139, 179, 183; Separate Statement ,r,r 188, 207 A-207D 15 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSmON TO PLAINTIFFS MOTION IN LIM/NE NO. 2 CASE NO. 2 :IS-CV-09814 DSF (AGRx) Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 19 of 22 Page ID #:52201 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&WAT KI N S~• A TTORNEYS A T LAW SAN FRANCISCO Artists & Representatives Artists: Maroon 5 Breaking Benjamin Lana Del Rey Witness: Jordan Feldstein Artist: Guns N' Roses Witness: Fernando Lebeis Songkick's References Defendants' References Artists: Artist: Yurkerwich Ex. 9 .5 at 56 Meyer Rebuttal Report Id. at 74, 67 ,r,r 8, 73-75, 119 & n. 174; MSJ at 60 n.24; Separate Statement ,r,r 194-195; Conclusions of Law ,r 16 Witness: Witness: Yurkerwich Reply ,r 29 Meyer Rebuttal Report ,r,r 8, 174, n.88-90, 138- 139, 179, 181; Separate Statement ,r,r 188, 194- 195 Artist: Artist: Yurkerwich Ex. 9 .5 at 58 Meyer Rebuttal Report ,r,r 8, 70-72, 119 & n. 174· ' MSJ at 59-60 n.24; MSJ Reply at 37; Separate Statement ,r,r 178, 190-191; Conclusions of Law ,r 16 Witness: Witness: Yurkerwich Reply ,r 29 Meyer Rebuttal Report ,r,r 8, 71 & n. 81 -82, 138- 139, 179, 181; Separate Statement ,r,r 188, 190- 191 16 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSmON TO PLAINTIFFS MOTION IN LIM/NE NO. 2 CASE NO. 2 :IS-CV-09814 DSF (AGRx) Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 20 of 22 Page ID #:52202 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~• A TTORNE YS A T LAW SAN FRANCISCO Artists & Representatives Artists: Ariana Grande Kid Rock Keith Urban Blink 182 Demi Lovato Lady Gaga John Fogerty Panic! At The Disco Witness: Rob Light Artist: Justin Timberlake Witnesses: Brad Margolis Johnny Wright Songkick's References Defendants' References Artists: Artists: Yurkerwich Ex. 9 .5 at 66, Meyer Rebuttal Report 56, 59, 60, 62, 63, 73 , 75 ,r,r 84, 97, 143, 147 & n.107, 133-134; MSJ at 69 n.24-25; MSJ Reply at 37; Separate Statement ,r,r 207; Conclusions of Law ,r 16 Witness: Separate Statement ,r,r 188, 206-207 Artist: Artist: Yurkerwich Exh. 9.5 at Meyer Rebuttal Report 61 ,r,r 8, 67-69, 143, 145 & n.217; MSJ at 59-60 n.24; Separate Statement ,r,r 178, 180,200-201 , 204- 205, Conclusions of Law ,r 16 Witnesses: Witnesses: Yurkerwich Report ,r 51 Meyer Rebuttal Report Yurkerwich Ex. 2.0 at 12 ,r,r 8, 67-68 & n.72, 75- Yurkerwich Reply ,r 29 77, 138-139, 179, 181, 217, 225; Separate Statement ,r,r 188,200-201 , 204-205 17 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSmON TO PLAINTIFFS MOTION IN LIM/NE NO. 2 CASE NO. 2 :IS-CV-09814 DSF (AGRx) Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 21 of 22 Page ID #:52203 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~• A TTORNEYS A T LAW SAN FRANCISCO Artists & Representatives Artists: Madonna U2 Lil Wayne Nicki Minaj Witness: Guy Oseary Artists: Jay-Z Rihanna Witness: Desiree Perez Songkick's References Defendants' References Artists: Artists: Yurkerwich Ex. 9 .5 at 60, Meyer Rebuttal Report 64, 63, 70 ,r,r 8, 92-93, 119 & n.174, 279· ' MSJ at 59-60 n.24; Separate Statement ,r,r 178, 202-203; Conclusions of Law ,r 16 Witness: Witness: Yurkerwich Reply ,r 29 Meyer Rebuttal Report ,r,r 8, 93 & n.126-127, 138-139, 179, 183; Separate Statement ,r,r 188, 202-203 Artists: Artists: Yurkerwich Ex. 9 .5 at 58, Meyer Rebuttal Report 60 ,r,r 8, 79-80, 95-97, 133, 148 Separate Statement ,r,r 192-93; Conclusions of Law ,r 16 MSJ at 60 & n.24 Witness: Separate Statement ,r,r 188, 192-93 18 DEFENDANTS AND COUNTER-CLAIMANT'S OPPOSmON TO PLAINTIFFS MOTION IN LIM/NE NO. 2 CASE NO. 2 :IS-CV-09814 DSF (AGRx) Case 2:15-cv-09814-DSF-AGR Document 361 Filed 10/02/17 Page 22 of 22 Page ID #:52204