Giganews, Inc. et al v. Perfect 10, Inc. et al

BRIEF

C.D. Cal.March 27, 2019

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 PLAINTIFFS’ BRIEF RE SEQUESTRATION OF EXPERT WITNESSES 2:17-cv-05075-AB (JPR) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W ANDREW P. BRIDGES (CSB No. 122761) abridges@fenwick.com FENWICK & WEST LLP 801 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.928.5200 JEDEDIAH WAKEFIELD (CSB No. 178058) jwakefield@fenwick.com TODD R. GREGORIAN (CSB No. 236096) tgregorian@fenwick.com SAPNA MEHTA (CSB No. 288238) smehta@fenwick.com ERIC B. YOUNG (CSB No. 318754) eyoung@fenwick.com FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Telephone: 415.875.2300 Facsimile: 415.281.1350 RONALD P. SLATES, SBN: 43712 rslates2@rslateslaw.com RONALD P. SLATES, P.C. 500 South Grand Avenue, Suite 2010 Los Angeles, CA 90071 Telephone: 213.624.1515 Facsimile: 213.624.7536 Attorneys for Plaintiffs/Judgment Creditors, GIGANEWS, INC. and LIVEWIRE SERVICES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION GIGANEWS, INC., a Texas Corporation; LIVEWIRE SERVICES, INC., a Nevada Corporation, Plaintiffs, v. PERFECT 10, INC., a California Corporation; NORMAN ZADA, in individual; and DOES 1-50, inclusive, Defendants. Case No.: 2:17-cv-05075-AB (JPR) PLAINTIFFS’ BRIEF REGARDING SEQUESTRATION OF EXPERT WITNESSES Trial Date: March 26, 2019 Courtroom: 7B Judge: Hon. André Birotte, Jr. Case 2:17-cv-05075-AB-JPR Document 223 Filed 03/27/19 Page 1 of 4 Page ID #:11269 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 PLAINTIFFS’ BRIEF RE SEQUESTRATION OF EXPERT WITNESSES 1 2:17-cv-05075-AB (JPR) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W Plaintiffs Giganews, Inc. and Livewire Services, Inc. submit this brief in accordance with the Court’s request on March 26, 2019 to provide authority permitting Plaintiffs’ expert witnesses to remain in the courtroom during trial. I. FEDERAL RULE 615 EXEMPTS FROM EXCLUSION PLAINTIFFS’ EXPERT WITNESSES WHO ARE ESSENTIAL TO PRESENTING THEIR CLAIMS. Although Federal Rule of Evidence 615 requires the Court to exclude witnesses from the courtroom, at a party’s request, during other witnesses’ testimony, the rule “does not authorize excluding . . . a person whose presence a party shows to be essential to presenting the party’s claim or defense.” Fed. R. Evid. 615(c). The Ninth Circuit interprets Rule 615(c)’s exemption to include expert witnesses, unless the expert witness is also a percipient witness. United States v. Seschillie, 310 F.3d 1208, 1213 (9th Cir. 2002) (citations omitted) (observing that the Rule’s advisory committee notes contemplate expert witnesses under this exemption). Courts generally exempt expert witnesses because “[t]he purpose of exclusion is to prevent witnesses from ‘tailoring’ their testimony to that of earlier witnesses,” id., and there is thus “little, if any, reason for sequestering a witness who is to testify in an expert capacity only and not to the facts of the case,” Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 629 (6th Cir. 1978). A party need only make a “fair showing” that the expert witness is “required for the management of the case,” and courts are “bound to accept any reasonable, substantiated representation to this effect by counsel.” Id. at 630. Courts exempt expert witnesses as essential when they will provide important opinion testimony based on evidence in the case. Seschillie, 310 F.3d at 1214 (finding the district court abused its discretion in excluding expert witness). Courts also exempt expert witnesses as essential when they may assist counsel’s cross-examination of another party’s witness. Malek v. Fed. Ins. Co., 994 F.2d Case 2:17-cv-05075-AB-JPR Document 223 Filed 03/27/19 Page 2 of 4 Page ID #:11270 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 PLAINTIFFS’ BRIEF RE SEQUESTRATION OF EXPERT WITNESSES 2 2:17-cv-05075-AB (JPR) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W 49, 54 (2d Cir. 1993) (finding the district court erred in sequestering expert witness). Both bases for the exemption apply here. First, Plaintiffs’ expert witnesses Steven Boyles and Mark Eskridge will offer opinion evidence essential to presenting Plaintiff’s claims. Neither is a percipient witness. Plaintiffs served expert disclosures for both Mr. Boyles and Mr. Eskridge disclosing their respective expert opinions. Mr. Boyles has extensive experience as a forensic accountant and his opinions are critical to helping the jury understand the transfers and the voluminous financial records at issue. Mr. Eskridge is a computer forensic expert and his opinions are critical to helping the jury understanding Defendant Norman Zada’s and Melanie Poblete’s creation of “demand note” and “repayment of principle [sic]” documents after the Court’s final judgment and beginning the night of the fee award in the underlying case. Mr. Boyles and Mr. Eskridge based their opinions on “facts or data in the case,” see Fed. R. Evid. 703, and their presence in the courtroom is thus “beneficial, for [they] will be more likely to base [their] expert opinion[s] on a more accurate understanding of the testimony as it evolves before the jury,” see Morvant, 570 F.2d at 629–30. Second, both expert witnesses will assist Plaintiffs in assessing the testimony of Defendants’ witnesses. Specifically, Mr. Boyles will assist in identifying accounting issues and assumptions in John Cooper’s testimony. See Malek, 994 F.2d at 54 (2d Cir. 1993) (finding a ten-minute recess to confer with expert an inadequate “substitute for his presence” during other party’s expert’s testimony). Mr. Eskridge will assist in identifying technical discrepancies in Mr. Zada’s and Ms. Poblete’s testimony regarding the backdating of the documents. For these reasons, Rule 615(c) exempts Plaintiffs’ expert witnesses from exclusion. Plaintiffs respectfully request that the Court permit Mr. Boyles and Mr. Eskridge to remain in the courtroom during trial. Case 2:17-cv-05075-AB-JPR Document 223 Filed 03/27/19 Page 3 of 4 Page ID #:11271 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 PLAINTIFFS’ BRIEF RE SEQUESTRATION OF EXPERT WITNESSES 3 2:17-cv-05075-AB (JPR) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W Dated: March 27, 2019 FENWICK & WEST LLP By: /s/ Sapna S. Mehta Sapna S. Mehta Attorneys for Plaintiffs/Judgment Creditors, GIGANEWS, INC., and LIVEWIRE SERVICES, INC. Case 2:17-cv-05075-AB-JPR Document 223 Filed 03/27/19 Page 4 of 4 Page ID #:11272