Antonick v. Electronic Arts, Inc.,

RESPONSE

N.D. Cal.February 7, 2013

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 DEFENDANT’S OPPOSITION TO ADMINISTRATIVE MOTION TO STRIKE DOCKET NO. 300 Case No. 3:11-CV-01543-CRB (EDL) 727396.02 KEKER & VAN NEST LLP SUSAN J. HARRIMAN - #111703 sharriman@kvn.com ERIC H. MACMICHAEL - # 231697 emacmichael@kvn.com R. ADAM LAURIDSEN - #243780 alauridsen@kvn.com TIA A. SHERRINGHAM - #258507 tsherringham@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Defendant ELECTRONIC ARTS INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ROBIN ANTONICK, an Illinois citizen, Plaintiff, v. ELECTRONIC ARTS INC., a California corporation, Defendants. Case No. 3:11-CV-01543-CRB (EDL) DEFENDANT’S OPPOSITION TO ADMINISTRATIVE MOTION TO STRIKE DOCKET NO. 300 Date Filed: March 30, 2011 Trial Date: April 1, 2013 Case3:11-cv-01543-CRB Document307 Filed02/07/13 Page1 of 3 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 1 DEFENDANT’S OPPOSITION TO ADMINISTRATIVE MOTION TO STRIKE DOCKET NO. 300 Case No. 3:11-CV-01543-CRB (EDL) 727396.02 On February 1, 2013, Defendant Electronic Arts Inc. (“EA”) moved, pursuant to Federal Rule of Evidence 702 and Daubert, to exclude certain testimony of Plaintiff Robin Antonick’s expert Garry Kitchen. Dkt. 300. On February 5, 2013, Antonick moved to strike EA’s motion on the basis that it should have been brought as a motion in limine and therefore violated the Court’s Guidelines for Trial and Final Pretrial Conference (“Guidelines”). Dkt. 304. Because EA’s motion to strike is a proper and timely Daubert motion that will determine the reliability of Antonick’s video game expert, the Court should deny Antonick’s frivolous motion. As this Court observed, “[i]n Daubert, the Supreme Court held that federal judges perform a gatekeeping role, and to do so they must satisfy themselves that scientific evidence meets a certain standard of reliability before it is admitted.” In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 524 F. Supp. 2d 1166, 1184 (N.D. Cal. 2007) (CRB). The Court’s gatekeeping role and Daubert inquiry are not limited to the eve of trial when motions in limine are brought to preclude specific evidence from being admitted at trial. Although the Guidelines are silent as to when parties should file Daubert motions, this Court as well as other courts in this district hear Daubert motions prior to and apart from motions in limine. See, e.g., In re Bextra, 524 F. Supp. 2d at 1184 (N.D. Cal. 2007) (CRB) (deciding standalone Daubert motion months before deciding motions in limine); Oracle America, Inc. v. Google Inc., No. C 10-03561 WHA, Dkt. No. 56 (N.D. Cal. Nov. 19, 2010) (Case Management Order, ¶9) (“Within fourteen calendar days of receipt of such damages reports, the opposing side must file any Daubert or other motion directed at the methodology, reliability or other defect, said motion to be heard on a normal 35-day track . . . One purpose of this timing is to give the party seeking damages a brief window in which to cure (if possible) any flaws in the study.”); Mformation Techs., Inc. v. Research in Motion Ltd., 2012 WL 2339762 (N.D. Cal. June 7, 2012) (denying motion in limine challenging expert opinions that relies on non-comparable licensing Case3:11-cv-01543-CRB Document307 Filed02/07/13 Page2 of 3 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 2 DEFENDANT’S OPPOSITION TO ADMINISTRATIVE MOTION TO STRIKE DOCKET NO. 300 Case No. 3:11-CV-01543-CRB (EDL) 727396.02 agreements because “[t]o the extent that Plaintiff challenges the reliability of Davis’ opinions, Plaintiff should have done so through a timely Daubert motion.”). In contrast, according to the Guidelines, motions in limine should “address a single topic, be separate, and contain no more than seven pages of briefing per side” and be subject to a truncated briefing schedule and filed a week before the pretrial conference. Dkt. 15-1 at (1)(f). The Guidelines’ provision pertaining to motions in limine is inconsistent with the scope and purpose of Daubert motions, which “is to determine the reliability of a particular expert opinion through a preliminary assessment of the methodologies underlying the opinion.” DSU Med. Corp. v. JMS Co., Ltd., 296 F. Supp. 2d 1140, 1147 (N.D. Cal. 2003). Further, because EA’s Daubert motion addresses six separate topics, it is not only logical but considerate of the Court’s and opposing counsel’s time to adopt a normal 35 day briefing schedule, with standard page limitations for non-summary judgment motions, thereby giving the parties an opportunity to fully brief the issues and the Court sufficient time before trial to rule. For these reasons, EA brought its Daubert motion—the only Daubert motion it intends to bring— as soon as practicable and well in advance of the April 1, 2013 trial date. An early ruling on EA’s Daubert motion will allow both parties to plan more efficiently for trial. For these reasons, the Court should deny Antonick’s administrative motion to strike EA’s Daubert Motion. Dated: February 7, 2013 By: KEKER & VAN NEST LLP /s/ Susan J. Harriman SUSAN J. HARRIMAN ERIC H. MACMICHAEL R. ADAM LAURIDSEN TIA A. SHERRINGHAM Attorneys for Defendant ELECTRONIC ARTS INC. Case3:11-cv-01543-CRB Document307 Filed02/07/13 Page3 of 3