Parrish et al v. National Football League Players Incorporated, No. 3:2007cv00943 - Document 308 (N.D. Cal. 2008)

Court Description: MOTION to Strike the Declarations of Linda Castillon, Adam Sullins, Jason Brenner, Christine Finch and Steve Byrd Filed in Support of Defendants' Motion for Summary Judgment filed by Bernard Paul Parrish, Walter Roberts, III, Herbert Anthony Adderley. (Attachments: # 1 Proposed Order Granting Motion to Strike)(Hilbert, Ryan) (Filed on 7/1/2008)
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Parrish et al v. National Football League Players Incorporated 1 11 MANATT, PHELPS & PHILLIPS, LLP RONALD S. KATZ (Bar No. CA 085713) E-mail: RYAN S. HILBERT (California Bar No. 210549) E-mail: NOEL S. COHEN (California Bar No. 219645) E-mail: 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: (650) 812-1300 Facsimile: (650) 213-0260 MCKOOL SMITH, P.C. LEWIS T. LECLAIR (Bar No. CA 077136) E-mail: JILL ADLER NAYLOR (Bar No. CA 150783) E-mail: 300 Crescent Court Dallas, TX 75201 Telephone: (214) 978-4984 Facsimile: (214) 978-4044 12 Attorneys for Plaintiffs 2 3 4 5 6 7 8 9 10 Doc. 308 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT 14 SAN FRANCISCO DIVISION 15 16 17 18 19 20 21 22 23 24 BERNARD PAUL PARRISH, HERBERT CIVIL ACTION NO. C07 0943 WHA ANTHONY ADDERLEY, and WALTER ROBERTS III, on behalf of themselves and PLAINTIFFS’ MOTION TO STRIKE THE all others similarly situated, DECLARATIONS OF LINDA CASTILLON, ADAM SULLINS, JASON BRENNER, Plaintiffs, CHRISTINE FINCH AND STEVE BYRD FILED IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, a Virginia corporation, and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a PLAYERS INC, a Virginia corporation, Defendants. 25 26 27 28 M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 1 Plaintiffs ask the Court to strike the declarations of Linda Castillon, Adam Sullins, Jason 2 Brenner, Steve Byrd, and Christine Finch (the “Declarations”), filed by Defendants in support of 3 their Motion for Summary Judgment, dated June 13, 2008, from the summary judgment record. 4 BACKGROUND 5 At the outset of the case, Plaintiffs requested that the Court allow the parties to take 6 twenty depositions per side.1 Plaintiffs argued that significant discovery was warranted in this 7 case due to “the complex nature of this action and the anticipated need to conduct depositions of 8 third party witnesses.” Id. Defendants, however, opposed Plaintiffs’ request. Id. at 6-7. 9 Defendants represented to the Court that this case “was not especially complex”2 and successfully 10 argued that the Court limit each party to ten depositions. Id. 11 On the very same day that it requested that the Court limit the number of depositions in 12 this case, Defendant National Football League Players Incorporated (“Players Inc”) served its 13 Rule 26(a)(1) disclosures in which it identified nineteen present and former employees that were 14 likely to have discoverable information about the facts and circumstances of this case.3 Notably, 15 Players Inc did not provide Plaintiffs with any background information regarding the nineteen 16 witnesses that it disclosed, other than to state whether each individual was currently employed by 17 Players Inc. In addition, Players Inc did not identify any third-party witnesses as part of its June 18 7, 2007 disclosures. 19 Three weeks later, on June 29, 2007, the National Football League Players Association 20 (the “NFLPA”) and Players Inc jointly served initial disclosures.4 Defendants’ June 29, 2007 21 disclosures identified an additional thirteen (third-party) witnesses, bringing the total number of 22 23 24 25 26 27 28 1 See June 7, 2007 Joint Case Management Statement at 5-6, attached as Exhibit A to the Declaration of Brett Charhon filed herewith (“Charhon Decl.”). 2 Ironically, on June 4, 2008, Defendants reversed course and characterized this case as “varied and complex” in its request for a page extension. Defendants’ Unopposed Miscellaneous Administrative Motion to Exceed Page Limits at 2 (Rec. Doc. 284). 3 Defendant Players Inc’s Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (“Charhon Decl. Ex. B”). 4 Initial Disclosures of Defendants NFLPA and Players Inc Pursuant to Fed. R. Civ P. 26(a)(1) (Charhon Decl. Ex. C). M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 2 1 witnesses disclosed by Defendants to thirty-two. Again, Defendants failed to comply with 2 disclosure requirements by failing to disclose (i) the type of discoverable information that each 3 witness possessed and (ii) an address and telephone number for each witness. 4 Despite these failures, Plaintiffs identified the witnesses that they believed to be most 5 relevant to this case and diligently began noticing and taking their depositions. Plaintiffs took the 6 deposition of Doug Allen on September 7, 2007; Joel Linzner on February 8, 2008; Glenn Eyrich 7 on February 12, 2008; Gene Upshaw on February 13, 2008; and Howard Skall on February 14, 8 2008. In addition, Plaintiffs continued negotiating deposition dates for the depositions of Pat 9 Allen which it had noticed on August 6, 2007, and the Topps Company which it had subpoenaed 10 on January 4, 2008.5 By mid-February, Plaintiffs had noticed or taken seven depositions toward 11 the ten-deposition limit. 12 Nevertheless, on February 19, 2008, Defendants again supplemented their Rule 26(a) 13 disclosures, identifying ten additional third-party witnesses, for a total of forty-two disclosed 14 witnesses.6 These disclosures, for the first time, identified Linda Castillon, Adam Sullins, Steve 15 Byrd and Christine Finch -- four of the five witnesses whose declarations are the subject of this 16 motion.7 Once again, however, Defendants failed to identify the witnesses’ contact information. 17 Over the next month, Plaintiffs continued to diligently conduct depositions. Plaintiffs 18 deposed Patricia Allen on February 28, 2008 and took the depositions of two of Topps’ 30(b)(6) 19 witnesses, Warren Friss and Adam Zucker, on April 4, 2008. In addition, Plaintiffs deposed 20 Defendants’ in-house counsel, Joseph Nahra, on April 16, 2007. 21 22 Having reached the ten-deposition limit with more than thirty of Defendants’ witnesses yet to be deposed, Plaintiffs approached Defendants regarding the need for additional depositions. 23 24 25 5 See, e.g., August 6, 2007 Deposition Notice of Pat Allen (Charhon Decl. Ex. D); August 6, 2007 Deposition Notice of Howard Skall (Charhon Decl. Ex. M) and January 4, 2008 Subpoena of the Topps Company (Charhon Decl. Ex. E). 6 26 Defendants’ Supplemental Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (Charhon Decl. Ex. F). 27 7 28 strike. Defendants never disclosed Jason Brenner, the fifth declarant whom Plaintiffs seek to M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 3 1 On May 7, 2008, Plaintiffs sent Defendants a letter in which they identified all of Defendants’ 2 witnesses who had yet to be deposed, including Steve Byrd, Linda Castillon, Adam Sullins, and 3 Christine Finch.8 In an effort to streamline the remaining discovery, Plaintiffs’ May 7, 2008 letter 4 requested that Defendants stipulate which undeposed witnesses would not be called at trial, and to 5 provide deposition dates for any remaining witnesses. 6 On May 9, 2008, Defendants sent Plaintiffs a letter refusing to pare down their disclosure 7 list.9 In addition, Defendants refused to consider any agreement that allowed for Plaintiffs to take 8 more than “one or two additional depositions.” Id. Yet, on the very same day, Defendants again 9 supplemented their disclosures -- identifying two additional witnesses.10 As of May 9, 2008, 10 Defendants had disclosed a total of forty-four witnesses. 11 In the hopes of reaching some form of agreement, Plaintiffs next proposed that the parties 12 postpone any additional depositions until closer to trial, but agree that if any undeposed witness 13 were to testify at trial, that the other party would be entitled to a half-day deposition.11 Plaintiffs 14 explained that this proposal “would be both efficient and cost-effective.” Id. Defendants again 15 rejected Plaintiffs proposal.12 16 Defendants reiterated that they were only willing to permit Plaintiffs to take two 17 additional depositions despite the fact the more than thirty of the witnesses that Defendants 18 disclosed had yet to be deposed. Plaintiffs refused to agree to a proposal that allowed for 19 Defendants to ambush Plaintiffs at trial with testimony from undeposed witnesses and declined to 20 accept Defendants’ proposal. In letters dated May 22, 2008 and May 30, 2008, Plaintiffs 21 explained that Defendants’ unwillingness to be reasonable had left Plaintiffs with no choice but to 22 23 24 8 May 7, 2008 Letter from Laura Franco to David Greenspan (Charhon Decl. Ex. G). 9 May 9, 2008 Letter from David Greenspan to Laura Franco (Charhon Decl. Ex. H). 10 25 See Defendants’ (May 9, 2008) Supplemental Disclosures Pursuant to Fed. R. Civ P. 26(a)(1) (identifying Richard Berthelson and Steve Saxon for the first time) (Charhon Decl. Ex. I). 26 11 27 May 13 Email from Ron Katz to David Greenspan (Charhon Decl. Ex. J); see also May 22, 2008 Letter from Lewis LeClair to David Greenspan (Charhon Decl. Ex. K). 12 28 May 14, 2008 Letter from David Greenspan to Ron Katz (Charhon Decl. Ex. L). M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 4 1 object to Defendants’ reliance on any undeposed witness for whom proper disclosure was not 2 timely made.13 3 Despite the obvious prejudice to Plaintiffs, on June 13, 2008, Defendants filed five 4 declarations in support of their Motion for Summary Judgment from witnesses who have not been 5 deposed. 6 ARGUMENT A. The Court has Discretion, Under Rule 37, to Fashion Appropriate Sanctions to Support the Discovery Process 7 8 Under Rule 37(c)(1), if a party does not properly disclose its witnesses, the party is 9 precluded from using the testimony of that witness, unless the failure to properly disclose was 10 harmless or substantially justified.14 See Yeti by Molly Ltd. v. Deckers Outdoors Corp., 259 F.3d 11 12 13 14 15 16 17 18 19 20 21 22 13 May 22, 2008 letter from Lew LeClair to David Greenspan (Charhon Decl. Ex. K) and May 30 Letter for Lew LeClair to David Greenspan (Charhon Decl. Ex. N). See also Plaintiffs’ June 10, 2008 letter to Defendants (“As I have repeatedly explained, Defendants position of ‘hide the ball’ has left Plaintiffs with little choice but to insist that Defendants use only those witnesses who were fully and adequately disclosed and to challenge the adequacy and timeliness of Defendants’ disclosures. Had Defendants properly disclosed its witness and/or agreed to a reasonable number of depositions from the outset, none of this would be an issue.”) (Charhon Decl. Ex. O). 14 Rule 37(c)(1) states: If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and 23 24 25 26 27 28 (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Rule 26(a)(1)(A) states, in part: (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, 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 M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 5 1 1101, 1106 (9th Cir. 2001) (“Rule 37(c)(1) gives teeth to these requirements by forbidding the use 2 at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.”). 3 The burden rests with Defendants to prove that such failure was harmless or substantially 4 justified. See id. at 1107 (citing Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st 5 Cir. 2001) (“It is the obligation of the party facing sanctions for belated disclosure to show that its 6 failure to comply with [Rule 26] was either justified or harmless . . . .” )). B. Defendants Failed to Timely Disclose the Names and Contact Information of their Witnesses, Prejudicing Plaintiffs 7 8 At Defendants’ request, the Court limited the parties to ten depositions per side. After 9 Plaintiffs had already chosen and deposed multiple individuals identified on Defendants’ 10 disclosures, Defendants belatedly disclosed four of the five witnesses who authored Declarations. 11 Courts recognize the prejudice wreaked by such late disclosure: 12 Here, the harm to defendant in plaintiff’s failure to disclose Molina as a potential witness is not that he does not now have access to her, but that he did not know plaintiff viewed Molina as a potential witness in the case. At this late stage in the proceedings, he does not have the opportunity to propound discovery to plaintiff to determine his view of Molina's relevance or what he may seek to elicit from her as a witness. 13 14 15 16 Green v. Baca, 226 F.R.D. 624, 655-56 (C.D. Cal. 2005).15 Here, the prejudice is heightened: 17 Defendants had already identified thirty-two witnesses by June 29, 2007, forcing Plaintiffs to 18 choose, to the best of their ability, the few most appropriate for deposition.16 After engaging in 19 that analysis, and after serving deposition notices for seven of those depositions, Defendants 20 changed the playing field by identifying an additional ten witnesses. 21 22 information -- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. 23 24 25 26 27 28 15 The Court in Sender v. Mann noted similar problems caused by late disclosure of witnesses. See 225 F.R.D. 645, 656-57 (D. Colo. 2004) (suggesting that belated disclosures prevent opposing litigants to make intelligent decisions regarding how they will efficiently use the limited number of depositions permitted under a scheduling order, and increase the time before a litigant can depose that witness, allowing the witness’s memory to further dim). 16 This choice was also hampered by Defendants’ failure to provide the type of discoverable information that each witness possessed, and an address and telephone number for each witness. M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 6 1 Given the deposition limits advocated by Defendants, they cannot credibly claim surprise 2 that this late addition would prejudice Plaintiffs. All the same, Plaintiffs informed Defendants of 3 their prejudice, and asked for additional depositions to cure this prejudice. See Exs. G, J. 4 Defendants refused Plaintiffs’ overtures. 5 Furthermore, Plaintiffs are specifically prejudiced by their inability to question these 6 witnesses on the substance of the Declarations. For example, the declaration of Adam Sullins 7 states that “the 2004 [Upper Deck] License Agreement includes the rights of active players only.” 8 See Defs.’ MSJ Ex. 28. At a deposition, Plaintiffs would have asked Mr. Sullins to explain this 9 statement, in light of the representations to the contrary in the license agreement. See Defs.’ MSJ, 10 Ex. MM to the Hilbert Decl.17 11 Similarly, the declaration of Linda Castillion states that “Fathead’s and Players Inc’s 12 mutual understanding that the 2005 License Agreement only included active players was 13 discussed orally and is also reflected in the language of the 2005 License Agreement.” See Defs.’ 14 MSJ Ex. 11. At deposition, Plaintiffs would have asked Ms. Castillon to describe what she and 15 Defendants discussed about Defendants’ ability to license the group rights of 2,100 retired 16 players, including the price of such a license grant. Plaintiffs would also ask Ms. Castillon to 17 explain how her discussion with Defendants concerning retired player rights is reflected in the 18 parties’ agreement when there is absolutely no mention of the parties’ discussions. 19 As yet another example, Steve Byrd -- who was never disclosed by Defendants -- wrote 20 that “The fantasy games operated by STATS under the 2006 License Agreement did not involve 21 any retired players.” See Defs.’ MSJ Ex. 31. However, according to STAT’s own website 22 (, STATS offers an in-depth historical database consisting of 23 retired NFL player data, including “player and team statistics, leaderboards, schedules, standings, 24 awards, draft information, injuries and transactional data.” See Defs’ MSJ, Ex. CCC to the 25 17 26 27 28 “NFLPA represents that the NFLPA has been duly appointed and is acting on behalf of the active and retired football players . . . who have entered into a Group Licensing Assignment . . . . NFLPA also on occasion secures authorization . . . from players, including but not limited to retired players, who . . . nevertheless, authorize NFLPA to represent such players for designated NFLPA licensed programs.” M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 7 1 Hilbert Decl. At a deposition, Plaintiffs could have explored these seemingly contradictory 2 positions; now, Plaintiffs have no such opportunity. 3 Defendants’ failure to identify the five witnesses listed above on a timely basis violates 4 Rule 26 and precluded Plaintiffs’ ability to obtain timely discovery. Defendants are gaming the 5 system: Plaintiffs embarked on their discovery plan based on a potential pool of thirty-two 6 witnesses, and Defendants slipped in ten additional witnesses once the majority of Plaintiffs’ 7 deposition slots had been filled. It is no wonder that Defendants only submitted declarations from 8 three of their originally-disclosed thirty-two witnesses, while submitting declarations from four of 9 the ten late-disclosed witnesses. Plaintiffs’ inability to cross examine the witnesses that 10 Defendants now rely on in support of Summary Judgment is prejudicial. 11 C. Striking the Declarations Is an Appropriate Sanction 12 Rule 37 sets out the appropriate sanction for failure to properly disclose witnesses: 13 forbidding the use of the testimony of these witnesses. This is supported by Ninth Circuit 14 authority. See Yeti, 259 F.3d at 1106 (Rule 37 is a “self-executing, automatic sanction” (internal 15 citations omitted) (quoting Fed. R. Civ. P. 37 Advisory Committee Notes 1993)). As Summary 16 Judgment briefing is pending, ordering further depositions of third parties at this point presents 17 logistical issues, and implicitly rewards Defendants for their actions. Cf. Sender, 225 F.R.D. at 18 657 (“To suggest that sanctions are not appropriate simply because the trial court can provide a 19 further extension of time or delay the trial would effectively reward Sender’s non-compliance.”). 20 Thus, Plaintiffs respectfully request that the Court apply Rule 37 and strike the declarations of the 21 late-disclosed witnesses.18 22 CONCLUSION 23 Plaintiffs respectfully request that the Court strike the declarations of Linda Castillon, 24 Adam Sullins, Jason Brenner, Steve Byrd, and Christine Finch from the summary judgment 25 record. 26 18 27 28 Plaintiffs expect that Defendants may attempt to call a number of these late-disclosed witnesses at trial. As a result, Plaintiffs intend to request similar relief at that time. Alternatively, Plaintiffs are amenable to exploring the possibility of the Court ordering depositions of any witnesses Defendants plan to call at trial, so that Plaintiffs may adequately prepare for their testimony. M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 8 1 2 Respectfully submitted, Dated: July 1, 2008 MANATT, PHELPS & PHILLIPS, LLP 3 4 By:______/s/ Ryan S. Hilbert_______________ Ronald S. Katz (SBN 085713) Ryan S. Hilbert (SBN 210549) Noel S. Cohen (SBN 219645) 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: (650) 812-1300 Facsimile: (650) 213-0260 MCKOOL SMITH, P.C. Lewis T. LeClair (SBN 077136) Jill Adler Naylor (SBN 150783) 300 Crescent Court Dallas, TX 75201 Telephone: (214) 978-4984 Facsimile: (214) 978-4044 Attorneys for Plaintiffs 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & P HILLIPS , LLP ATTORNEYS AT LAW LOS ANGELES 20203327.1 9