Plaintiffs' MIL Re Oberholzer-Gee

Case 1:03-cv-11661-NG Document 896 Filed 07/22/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
CAPITOL RECORDS, INC., et al., )
Plaintiffs, ) Civ. Act. No. 03-cv-11661-NG
) (LEAD DOCKET NUMBER)
v. )
)
NOOR ALAUJAN, )
Defendant. )
)
)
SONY BMG MUSIC ENTERTAINMENT, )
et al., Plaintiffs, ) Civ. Act. No. 07-cv-11446-NG
) (ORIGINAL DOCKET NUMBER)
v. )
)
JOEL TENENBAUM, )
)
Defendant. )
)
PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE OBERHOLZER-GEE FROM

TESTIFYING AS EXPERT WITNESS
Plaintiffs respectfully submit this Motion in Limine to Preclude Felix Oberholzer-Gee
from testifying as an expert witness, and in support state as follows:
In Defendant’s Witness List, Defendant announced, for the first time, that he may call
Felix Oberholzer-Gee as an expert witness. (Doc. 8931.) Defendant, however, has failed to
comply with the most basic principles of Rule 26(a)(2). Indeed, Defendant failed to disclose
Oberholzer-Gee as an expert until four months after the deadline to do so (doc. 759), and has not,
to date, produced an expert report. Moreover, it appears that Oberholzer-Gee has not even
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Defendant served his Witness List on Plaintiffs on July 17, 2009.
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agreed to testify on Defendant’s behalf at trial. (Doc. 893 at 2) (“Defendant cannot currently
confirm Prof. Oberholzer-Gee as an expert but intends to call him logistics and the Court
allow.”). In fact, as of July 21, 2009, Defendant’s counsel informed Plaintiffs’ counsel that he
was not even sure if Oberholzer-Gee was in Massachusetts for the summer or if he was available.
In his Witness List, Defendant acknowledges that “this is late beyond set limits,” but
appears to assume that Oberholzer-Gee’s testimony will be allowed because, according to
Defendant, “he is the best on this subject.” (Id. at 2). While Plaintiffs vehemently disagree with
Defendant’s assessment, it is of no moment, as his disclosure is “simply too late.” (Minute Entry
dated July 17, 2009). This Court previously held that “the failure to provide complete and
specific materials describing the experts’ opinions and the basis for those opinions by [June 22,
2009] and no later, will work a substantial prejudice on the Plaintiffs – one which the Court will
not allow,” (doc. 850 at 3). Indeed, the Court already denied Defendant’s motion to add Wayne
Marshall as an expert witness as “simply too late. The deadline for identifying experts was 3
months ago and the deadline for supplementing expert reports was June 22, before the witness
that was the subject of this motion was even proposed as an expert.” (Minute Entry dated July
17, 2009).
As Defendant failed to disclose Oberholzer-Gee and has not, to date, provided an expert
report, as required, Plaintiffs respectfully request their reasonable attorneys’ fees incurred in
bringing this Motion, pursuant to Fed. R. Civ. P. 37(c)(1).
Accordingly, Plaintiffs respectfully request that the Court enter an order precluding
Oberholzer-Gee from testifying at trial and awarding Plaintiffs their reasonable attorneys’ fees
incurred in bringing this Motion.
Respectfully submitted this 22nd day of July 2009
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SONY BMG MUSIC ENTERTAINMENT;

WARNER BROS. RECORDS INC.;
ATLANTIC RECORDING CORPORATION;
ARISTA RECORDS LLC; and UMG
RECORDINGS, INC.
By their attorneys,
By: s/ Eve G. Burton
Timothy M. Reynolds (pro hac vice)

Eve G. Burton (pro hac vice)
Laurie J. Rust (pro hac vice)
HOLME ROBERTS & OWEN LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
Email: [email protected]
Matthew J. Oppenheim (pro hac vice)

The Oppenheim Group
7304 River Falls Drive
Potomac, MD 20854
Telephone (301) 299-4986
Facsimile: (866) 766-1678
Email: [email protected]
Daniel J. Cloherty
DWYER & COLLORA, LLP
600 Atlantic Avenue - 12th Floor
Boston, MA 02210-2211
Telephone: (617) 371-1000
Facsimile: (617) 371-1037
[email protected]
ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-registered participants on July 22, 2009.
s/ Eve G. Burton
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Case 1:03-cv-11661-NG Document 896 Filed 07/22/2009 Page 1 of 4

UNITED STATES DISTRICT COURT

PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE OBERHOLZER-GEE FROM

Plaintiffs respectfully submit this Motion in Limine to Preclude Felix Oberholzer-Gee

from testifying as an expert witness, and in support state as follows:

appears to assume that Oberholzer-Gee’s testimony will be allowed because, according to

bringing this Motion, pursuant to Fed. R. Civ. P. 37(c)(1).

incurred in bringing this Motion.

Respectfully submitted this 22nd day of July 2009

SONY BMG MUSIC ENTERTAINMENT;

By: s/ Eve G. Burton

Timothy M. Reynolds (pro hac vice)

Matthew J. Oppenheim (pro hac vice)

ATTORNEYS FOR PLAINTIFFS

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