Preview
1 John S. Rueppel (SBN: 267467)
Ann K. Kavanagh (SBN: 260526)
2 Angie Lam (SBN: 244719)
JOHNSTON, KINNEY & ZULAICA LLP
3 101 Montgomery Street, Suite 1600
San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
angie.lam@jkzllp.com
6
Philip J. Wang (SBN: 218349)
7 George Chikovani (SBN: 254437)
Dannielle M. Campbell (SBN: 303204)
8 PUTTERMAN | YU | WANG LLP
345 California Street, Suite 1160
9 San Francisco, California 94104
Telephone: (415) 839-8779
10 Facsimile: (415) 376-0956
Email: cyu@plylaw.com
11 pwang@plylaw.com
12 Attorneys for Plaintiff
Lisa Keith
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 IN THE COUNTY OF NAPA
16 LISA KEITH, CASE NO: 22CV001269
17 Plaintiff, PLAINTIFF, LISA KEITH’S OPPOSITION
TO DEFENDANTS’ SECOND
18 v. SUPPLEMENT TO MOTION IN LIMINE
NO. 6
19 CELESTE WHITE, an individual, ROBERT
WHITE, an individual, the VALLEY ROCK
20 FOUNDATION, aka THE BAR 49 Trial Management Conference: March 28, 2024
FOUNDATION, a charitable organization, and Time: 8:30 a.m.
21 DOES 1-50, INCLUSIVE, Judge: Hon. Scott R.L. Young
Dept.: B
22 Defendants. Trial Date: April 2, 2024
Time: 8:30 a.m.
23 Judge: Hon. Scott R.L. Young
Dept.: B
24 Complaint Filed: October 25, 2022
FAC Filed: March 8, 2023
25
26
27
28
1
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 Plaintiff, Lisa Keith, (“Plaintiff”) hereby submits her opposition (“Opposition”) to Defendants’
2 (“Defendants”) Second Supplement to Motion in Limine No. 6 to exclude testimony by Plaintiff’s expert
3 witness Jessie Stricchiola (“Second Supplement”), filed herein by Defendants and served on March 31,
4 2024 and alleges as follows:
5 I. ARGUMENT
6 1. Plaintiff generally objects to the untimeliness of this “Second Supplement”. Plaintiff’s
7 counsel received this pleading at approximately 7 pm on Sunday, March 31st, when the deadline for filing
8 of motions in limine was March 14, 2024. As such, Defendants’ additional briefing should be stricken.
9 However, if the court is inclined to consider it, Plaintiff offers this rebuttal.
10 2. Defendants’ Second Supplement seeks to exclude evidence and related testimony from
11 Plaintiff’s expert witness Ms. Jessie Stricchiola’s (“Ms. Stricchiola”) —"specifically, Plaintiff’s Trial
12 Exhibits Nos. 41, 42, 43, and 47, and testimony based thereon” on the bases that: (A) such evidence and
13 related testimony constitute inadmissible hearsay; (B) the documents do not qualify as non-hearsay; and
14 (C) other bases. These arguments fail, as set forth below.
15 A. The Meltwater Report, Trail Runner Report, and X Posts Are Not Inadmissible
16 Hearsay, Because They Are Not Statements Made By A Person.
17 3. The Meltwater Report, and the other documents objected to by Defendants, reflect
18 computer generated data, and as such, are not “statements” covered by the hearsay rules. The “X posts”
19 are not inadmissible hearsay as they are not offered for the truth of the posts, but rather as evidence of
20 publication by Defendants and/or their hired agents.
21 4. In People v. Hawkins, 98 Cal. App. 4th 1428, 1449-1450, the court found that rejection of
22 a hearsay objection to computer generated data was proper; “the true test for admissibility of a printout
23 reflecting a computer's internal operations is not whether the printout was made in the regular course of
24 business, but whether the computer was operating properly at the time of the printout.” “The Evidence
25 Code does not contemplate that a machine can make a statement. 'Hearsay evidence' is evidence of a
26 statement that was made other than by a witness while testifying at the hearing and that is offered to prove
27 the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) 'Statement' means (a) oral or written verbal
28 expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal
2
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 expression. (Evid. Code, § 225.) 'Person' includes a natural person, firm, association, organization,
2 partnership, business trust, corporation, limited liability company, or public entity. (Evid. Code, § 175.)”
3 5. The Hawkins Court cited the leading case of State v. Armstead (La. 1983) 432 So.2d 837
4 and explained: "The printout of the results of the computer's internal operations is not hearsay evidence.
5 It does not represent the output of statements placed into the computer by out of court declarants. Nor can
6 we say that this printout itself is a 'statement' constituting hearsay evidence. The underlying rationale of
7 the hearsay rule is that such statements are made without an oath and their truth cannot be tested by cross-
8 examination. Of concern is the possibility that a witness may consciously or unconsciously misrepresent
9 what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or
10 occurrence. With a machine, however, there is no possibility of a conscious misrepresentation, and the
11 possibility of inaccurate or misleading data only materializes if the machine is not functioning properly."
12 (Id. at p. 840; cf. Ly v. State (Tex.App. 1995) 908 S.W.2d 598, 600.) "The role that the hearsay rule plays
13 in limiting the fact finder's consideration to reliable evidence received from witnesses who are under oath
14 and subject to cross-examination has no application to the computer-generated record in this case. Instead,
15 the admissibility of the computer tracing system record should be measured by the reliability of the system,
16 itself, relative to its proper functioning and accuracy." (State v. Meeks (Tenn.Crim.App. 1993) 867 S.W.2d
17 361, 376; cf. State v. Dunn (Mo.Ct.App. 1999) 7 S.W.3d 427, 431-432.)
18 6. Defendants argue, under Franzen, that some information on internet databases is
19 unreliable, but also quotes Franzen’s finding that “some information is as reliable as any traditional source
20 of information.” Despite Defendants’ continuing misrepresentation of the nature of Ms. Stricchiola’s
21 testimony, she testified that Meltwater was reliable, and was similar to several other reliable sources she
22 was familiar with:
23 I think, for my purposes, the reliability and the data that I was relying on was really just the
content and the articles that they showed as currently showing, press releases published to
24 these sites and, you know, that are currently live, and I went through the majority of them,
and they all appeared to be live, and it is also something that can be validated right now. You
25 could sit and go search yourself and validate that those are actually published as of now.ꞏ So
for me, I found that to be reliable enough.
26
27 (Stricchiola Depo 51:14-24.)
28
3
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 And when I say reliable enough, actually, I'll clarify that; reliable enough to rely on
Meltwater being able to say, yes, this is currently an article, a press release we found
2 published on these sites. ꞏ I'm not saying it's the reliable measure of the total distribution of
press releases.
3
(Stricchiola Depo 52:6-16.)
4
Q.ꞏ Have you used -- do you know if there are competitor services that do
5 substantially the same thing?
6 A.ꞏ Yeah.ꞏ I believe Sprout Social, HubSpot. There are a number of other applications
that do similar things, but they all kind of have their own differentiators. ꞏ Some function
7 more at scale and are geared towards very large enterprise applications and agencies, and
others are geared towards individuals or…
8
(Stricchiola Depo 49:11-23.)
9
7. In other words, Ms. Stricchiola, a qualified expert, has testified at length to the reliability
10
of the Meltwater data, and that reliability has been verified by her personal investigation. Thus, the
11
concerns expressed in Franzen do not apply. Because the Meltwater data is both reliable and not a
12
“statement” under the hearsay rules, the reports and Ms. Stricchiola’s testimony based on them should not
13
be excluded.
14
B. Ms. Stricchiola’s Statements About The Number Of Press Releases Would Not Be
15
Case-Specific Facts About Which She Has No Independent Knowledge.
16
8. Defendants’ analysis under People v. Sanchez (2016) 63 Cal.4th 665 is inapplicable and
17
deliberately omits the proper analysis of this issue under People v. Veamatahau (2020) 9 Cal. 5th 16. In
18
Veamatahau (supra), a case in which the expert relied upon a database of imprints to identify certain drug
19
capsules as containing alprazolam. The Supreme Court clarified that the knowledge the expert obtained
20
from the database was not hearsay, because the expert had personally examined the capsules and identified
21
their markings using the database. In this case, Ms. Stricchiola testified that she had personally verified
22
the gleaned from the database by viewing the news organizations’ websites to confirm the press releases
23
were indeed posted there. Thus she was not testifying to case specific facts “about which the expert has
24
no independent knowledge.” (Id. at 26.)
25
9. “Not all information stored or generated by a computer is hearsay. Printouts of computer-
26
generated information … are not hearsay based on the Evidence Code definitions.” People v. Rodriguez,
27
(2017) 16 Cal. App. 5th 355.
28
4
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 C. Meltwater is a Measurement Tool Used By Experts Like Ms. Stricchiola.
2 10. It is very common for expert witnesses to use measurement tools in developing their
3 opinions. One example would be the expert who measures the skid marks on the pavement and then applies
4 her expertise to determine the speed of the vehicle. As Ms. Stricchiola testified, Meltwater is a reliable
5 tool commonly used by persons in her field to research the dissemination of press releases. The results of
6 the measurement, i.e. the numbers of pick-ups of the press releases, is not hearsay; it is the results of the
7 expert’s own personal investigation. Furthermore, Ms. Stricchiola does not rely on the Meltwater Report
8 nor the Trail Runner Report to formulate her opinion, thus Ms. Stricchiola should be allowed to testify as
9 to these figures. (See Stricchiola Decl. ¶7.)
10 D. Even If None Of The Above Arguments Prevail, A Hearsay Exception Applies.
11 11. As argued by Plaintiff last week, Evidence Code section 1340 would apply to the
12 information at issue.
13 12. “Evidence of a statement, other than an opinion, contained in a tabulation, list, directory,
14 register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is
15 generally used and relied upon as accurate in the course of a business as defined in section 1270.” (Evid.
16 Code § 1340.)
17 13. The Meltwater data is just that, a published compilation, albeit published on a website. And
18 as, Ms. Stricchiola has testified, the data from Meltwater is reliable and it (or similar sources) is relied
19 upon in her field. Accordingly, this hearsay exception would apply to the data at issue.
20 14. Defendants’ argue that the evidence proffered has no relevance “given the Court’s ruling
21 on Defendants’ Motion in Limine No. 1” will not stand up to scrutiny, in spite of their attempt to
22 deliberately misconstrue the Court’s ruling by cherry picking which portion they site to support their
23 argument that “the Meltwater Report is irrelevant” – quoting: “The Court held that, for purposes of the
24 liquidated damages provision, “communication” is not “the number of recipients” of a press release.”
25 15. What the Court specifically says at 109:13-20 of Defendants’ Attachment J [Rough
26 Transcript of Trial Management Conference] is that if some third party captured something off of Singer’s
27 website and sent it out, “that would not be a subsequent communication.” This was following the Court
28 stating (109:7-12 of Defendants’ Attachment J) “… if Singer hired these third-party press PR
5
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 companies to disseminate the press release for them knowing that that's what they would do in my
2 mind that's exactly the same as if they did it themselves and each would be a communication.”
3 16. Again, what the Court actually says at 114:7-14 of Defendants’ Attachment J is that what
4 counts as communications is every time Singer “as the agent of defendants … sent it out or someone who
5 he hired to send it out, sent it out.”
6 17. Defendants admit in their Second Supplement (11:1-4) that “evidence … will show that
7 Singer paid PR Newswire to send the Press Release one time to PR Newswire’s subscribers …”
8 The Meltwater Report is relevant to the precise issue of how many subscribers of PRNewswire,
9 and other services, received the Press Release at the direction of Singer as agent for the Defendants.
10 “Where the evidence relates to a critical issue, directly supports an inference relevant to that issue, and
11 other evidence does not as directly support the same inference, the testimony must be received over a
12 section 352 objection absent highly unusual circumstances.” (Kelly v. New West Federal Savings (1996)
13 49 Cal.App.4th 659, 675.) As previously indicated in Plaintiff’s opposition to Defendants’ Motion in
14 Limine No. 1, the jury should hear evidence about the number of recipients of the press release to properly
15 gauge the extent of Defendants’ breach. Absolute data about the number of news organizations to whom
16 the press release was offered to is impossible to obtain as this piece of information is only available to the
17 entity or person that arranged for the publishing of the press release1, namely, Singer Associates, Inc.,
18 whom the Defendants hired to publish the two at-issue press releases. Ms. Stricchiola’s opinion as to the
19 number of outlets that picked-up the press release directly supports an inference as to the issue of how
20 many recipients received the two at-issue press releases. Thus, there is no reasonable basis to exclude the
21 research upon which she bases her opinion on as to the number of outlets that received the two at-issue
22 press releases, as it is directly relevant to the issue at hand. As no other evidence can directly support the
23 same inference, Defendants’ Second Supplement must be denied.
24 Lastly, Defendants argue that Plaintiff should not be permitted to introduce the Meltwater Report
25 or Trail Runner Report or X posts—or any of Stricchiola’s other late-produced documents—because
26
27
1
28 Business Wire further confirmed that any data related to the at-issue press release published on August 24, 2021 is no longer
available as it is only retained for two (2) years. (See Lam Declaration ¶4.)
6
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 Defendants “did not have their statutorily-required time to analyze, examine, and question the purported
2 expert about the documents” is unfounded and unsupported by any statute or case law, and therefore must
3 be denied.
4 Defendants’ argument that they haven’t had time to analyze the documents is particularly
5 disingenuous given the fact that their own purported expert, Ms. Killeeen, herself ran the same Meltwater
6 Report and has refused to produce it in spite of repeated requests. She did not state it was unreliable. See
7 deposition transcript, Killeen, 40:8-20:
8 Q.ꞏ ꞏThank you.ꞏ Are you familiar with Meltwater?
A.ꞏ ꞏYes, I am.
9 Q.ꞏ ꞏWould you agree that they are a reliable source of analytics for tracking publication of
news coverage and social media?
10 A.ꞏ ꞏIt's one source.
Q.ꞏ ꞏDid you pull a report from Meltwater on these press releases?
11 A.ꞏ ꞏYes, I did.
Q.ꞏ ꞏDid you provide that in your disclosure documents?
12 A.ꞏ ꞏNo, I did not, but I will.
13 In Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950, the court determined that
14 the failure to turn over discoverable writings on a specified date is not a violation of § 2034.270 since the
15 reports and writings were not in existence on that date. Defendants’ argument that Ms. Stricchiola’s
16 documents were not produced three court days before the deposition as required by statute and so her
17 testimony must be excluded fails. The report was not completed or shared with Plaintiff’s counsel until
18 the morning of the deposition, and so could not have been previously produced. When questioned by
19 Defendants’ counsel as to when Ms. Stricchiola provided her written report, Ms. Stricchiola testified “This
20 morning moments, I think, before the deposition.” (Kizer Decl., Ex. A, 44:15-14:16.) As Ms. Stricchiola
21 provided her written report at the time when it was completed, she would not have been able to submit
22 her written report at least three court days before the deposition as it was not in existence. Thus,
23 Defendants’ basis for excluding Ms. Stricciola’s testimony fails pursuant to Boston.
24 Defendants also do not identify any particular prejudice from the purported untimely production.
25 All four of the parties’ experts were deposed in the last 10 days, pursuant to dates agreed to by both sides.
26 Both counsel agreed to the timing of the expert witness deposition. During Ms. Stricciola’s
27 deposition, she noticed that there was an oversight made with respect to the documents that she had
28 produced and thus proceeded to rectify the oversight during the lunch break. (Kizer Decl., Ex. A, 105:14-
7
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 105:16.) Thus, Defendants’ Second Supplement must be denied.
2 II. PRAYER
3 WHEREFORE, Plaintiff requests the following:
4 1. That the Court deny the Defendant’s Motion in Limine No. 6 in its entirety and deny all
5 relief requested;
6 2. That the Court deny the Second Supplement in its entirety and deny all relief requested;
7 and
8 3. For such other and further relief as the Court may deem proper.
9
10 Respectfully submitted,
11 JOHNSTON, KINNEY & ZULAICA LLP
12
13 Dated: April 1, 2024 By:
John S. Rueppel, Esq.
14 Ann K. Kavanagh, Esq.
Angie Lam, Esq.
15
Attorneys for Plaintiff, Lisa Keith
16
17
18
19
20
21
22
23
24
25
26
27
28
8
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, CITY AND COUNTY OF NAPA
3
I am employed in the City and County of San Francisco, State of California. I am over the age of
4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP, 101
Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is
5 carolina@jkzllp.com.
6 On April 1, 2024, I served the foregoing document(s):
7
PLAINTIFF, LISA KEITH’S OPPOSITION TO DEFENDANTS’ SECOND
8 SUPPLEMENT TO MOTION IN LIMINE NO. 6
9 I served the documents on the person or persons listed below as follows:
10 Jeffrey E. Tsai
Kathleen S. Kizer
11 DLA PIPER LLP (US)
555 Mission Street, Suite 2400
12 San Francisco, CA 94105
Jeff.tsai@us.dlapiper.com
13 Katy.kizer@us.dlapiper.com
Attorneys for Defendants
14
15 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to be
electronically transmitted by me to the persons listed in the above email address(es). I did not receive
16 within a reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
17
I declare under penalty of perjury under the laws of the State of California that the foregoing is
18
true and correct.
19
20 Executed on April 1, 2024, at Napa, California.
21
22
Carolina Ramos
23 4880-0874-7187, v. 5
24
25
26
27
28
9
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6
Preview
1 John S. Rueppel (SBN: 267467) Ann K. Kavanagh (SBN: 260526) 2 Angie Lam (SBN: 244719) JOHNSTON, KINNEY & ZULAICA LLP 3 101 Montgomery Street, Suite 1600 San Francisco, California 94104 4 Telephone: (415) 693-0550 Facsimile: (415) 693-0500 5 Email: john@jkzllp.com angie.lam@jkzllp.com 6 Philip J. Wang (SBN: 218349) 7 George Chikovani (SBN: 254437) Dannielle M. Campbell (SBN: 303204) 8 PUTTERMAN | YU | WANG LLP 345 California Street, Suite 1160 9 San Francisco, California 94104 Telephone: (415) 839-8779 10 Facsimile: (415) 376-0956 Email: cyu@plylaw.com 11 pwang@plylaw.com 12 Attorneys for Plaintiff Lisa Keith 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 IN THE COUNTY OF NAPA 16 LISA KEITH, CASE NO: 22CV001269 17 Plaintiff, PLAINTIFF, LISA KEITH’S OPPOSITION TO DEFENDANTS’ SECOND 18 v. SUPPLEMENT TO MOTION IN LIMINE NO. 6 19 CELESTE WHITE, an individual, ROBERT WHITE, an individual, the VALLEY ROCK 20 FOUNDATION, aka THE BAR 49 Trial Management Conference: March 28, 2024 FOUNDATION, a charitable organization, and Time: 8:30 a.m. 21 DOES 1-50, INCLUSIVE, Judge: Hon. Scott R.L. Young Dept.: B 22 Defendants. Trial Date: April 2, 2024 Time: 8:30 a.m. 23 Judge: Hon. Scott R.L. Young Dept.: B 24 Complaint Filed: October 25, 2022 FAC Filed: March 8, 2023 25 26 27 28 1 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 Plaintiff, Lisa Keith, (“Plaintiff”) hereby submits her opposition (“Opposition”) to Defendants’ 2 (“Defendants”) Second Supplement to Motion in Limine No. 6 to exclude testimony by Plaintiff’s expert 3 witness Jessie Stricchiola (“Second Supplement”), filed herein by Defendants and served on March 31, 4 2024 and alleges as follows: 5 I. ARGUMENT 6 1. Plaintiff generally objects to the untimeliness of this “Second Supplement”. Plaintiff’s 7 counsel received this pleading at approximately 7 pm on Sunday, March 31st, when the deadline for filing 8 of motions in limine was March 14, 2024. As such, Defendants’ additional briefing should be stricken. 9 However, if the court is inclined to consider it, Plaintiff offers this rebuttal. 10 2. Defendants’ Second Supplement seeks to exclude evidence and related testimony from 11 Plaintiff’s expert witness Ms. Jessie Stricchiola’s (“Ms. Stricchiola”) —"specifically, Plaintiff’s Trial 12 Exhibits Nos. 41, 42, 43, and 47, and testimony based thereon” on the bases that: (A) such evidence and 13 related testimony constitute inadmissible hearsay; (B) the documents do not qualify as non-hearsay; and 14 (C) other bases. These arguments fail, as set forth below. 15 A. The Meltwater Report, Trail Runner Report, and X Posts Are Not Inadmissible 16 Hearsay, Because They Are Not Statements Made By A Person. 17 3. The Meltwater Report, and the other documents objected to by Defendants, reflect 18 computer generated data, and as such, are not “statements” covered by the hearsay rules. The “X posts” 19 are not inadmissible hearsay as they are not offered for the truth of the posts, but rather as evidence of 20 publication by Defendants and/or their hired agents. 21 4. In People v. Hawkins, 98 Cal. App. 4th 1428, 1449-1450, the court found that rejection of 22 a hearsay objection to computer generated data was proper; “the true test for admissibility of a printout 23 reflecting a computer's internal operations is not whether the printout was made in the regular course of 24 business, but whether the computer was operating properly at the time of the printout.” “The Evidence 25 Code does not contemplate that a machine can make a statement. 'Hearsay evidence' is evidence of a 26 statement that was made other than by a witness while testifying at the hearing and that is offered to prove 27 the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) 'Statement' means (a) oral or written verbal 28 expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal 2 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 expression. (Evid. Code, § 225.) 'Person' includes a natural person, firm, association, organization, 2 partnership, business trust, corporation, limited liability company, or public entity. (Evid. Code, § 175.)” 3 5. The Hawkins Court cited the leading case of State v. Armstead (La. 1983) 432 So.2d 837 4 and explained: "The printout of the results of the computer's internal operations is not hearsay evidence. 5 It does not represent the output of statements placed into the computer by out of court declarants. Nor can 6 we say that this printout itself is a 'statement' constituting hearsay evidence. The underlying rationale of 7 the hearsay rule is that such statements are made without an oath and their truth cannot be tested by cross- 8 examination. Of concern is the possibility that a witness may consciously or unconsciously misrepresent 9 what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or 10 occurrence. With a machine, however, there is no possibility of a conscious misrepresentation, and the 11 possibility of inaccurate or misleading data only materializes if the machine is not functioning properly." 12 (Id. at p. 840; cf. Ly v. State (Tex.App. 1995) 908 S.W.2d 598, 600.) "The role that the hearsay rule plays 13 in limiting the fact finder's consideration to reliable evidence received from witnesses who are under oath 14 and subject to cross-examination has no application to the computer-generated record in this case. Instead, 15 the admissibility of the computer tracing system record should be measured by the reliability of the system, 16 itself, relative to its proper functioning and accuracy." (State v. Meeks (Tenn.Crim.App. 1993) 867 S.W.2d 17 361, 376; cf. State v. Dunn (Mo.Ct.App. 1999) 7 S.W.3d 427, 431-432.) 18 6. Defendants argue, under Franzen, that some information on internet databases is 19 unreliable, but also quotes Franzen’s finding that “some information is as reliable as any traditional source 20 of information.” Despite Defendants’ continuing misrepresentation of the nature of Ms. Stricchiola’s 21 testimony, she testified that Meltwater was reliable, and was similar to several other reliable sources she 22 was familiar with: 23 I think, for my purposes, the reliability and the data that I was relying on was really just the content and the articles that they showed as currently showing, press releases published to 24 these sites and, you know, that are currently live, and I went through the majority of them, and they all appeared to be live, and it is also something that can be validated right now. You 25 could sit and go search yourself and validate that those are actually published as of now.ꞏ So for me, I found that to be reliable enough. 26 27 (Stricchiola Depo 51:14-24.) 28 3 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 And when I say reliable enough, actually, I'll clarify that; reliable enough to rely on Meltwater being able to say, yes, this is currently an article, a press release we found 2 published on these sites. ꞏ I'm not saying it's the reliable measure of the total distribution of press releases. 3 (Stricchiola Depo 52:6-16.) 4 Q.ꞏ Have you used -- do you know if there are competitor services that do 5 substantially the same thing? 6 A.ꞏ Yeah.ꞏ I believe Sprout Social, HubSpot. There are a number of other applications that do similar things, but they all kind of have their own differentiators. ꞏ Some function 7 more at scale and are geared towards very large enterprise applications and agencies, and others are geared towards individuals or… 8 (Stricchiola Depo 49:11-23.) 9 7. In other words, Ms. Stricchiola, a qualified expert, has testified at length to the reliability 10 of the Meltwater data, and that reliability has been verified by her personal investigation. Thus, the 11 concerns expressed in Franzen do not apply. Because the Meltwater data is both reliable and not a 12 “statement” under the hearsay rules, the reports and Ms. Stricchiola’s testimony based on them should not 13 be excluded. 14 B. Ms. Stricchiola’s Statements About The Number Of Press Releases Would Not Be 15 Case-Specific Facts About Which She Has No Independent Knowledge. 16 8. Defendants’ analysis under People v. Sanchez (2016) 63 Cal.4th 665 is inapplicable and 17 deliberately omits the proper analysis of this issue under People v. Veamatahau (2020) 9 Cal. 5th 16. In 18 Veamatahau (supra), a case in which the expert relied upon a database of imprints to identify certain drug 19 capsules as containing alprazolam. The Supreme Court clarified that the knowledge the expert obtained 20 from the database was not hearsay, because the expert had personally examined the capsules and identified 21 their markings using the database. In this case, Ms. Stricchiola testified that she had personally verified 22 the gleaned from the database by viewing the news organizations’ websites to confirm the press releases 23 were indeed posted there. Thus she was not testifying to case specific facts “about which the expert has 24 no independent knowledge.” (Id. at 26.) 25 9. “Not all information stored or generated by a computer is hearsay. Printouts of computer- 26 generated information … are not hearsay based on the Evidence Code definitions.” People v. Rodriguez, 27 (2017) 16 Cal. App. 5th 355. 28 4 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 C. Meltwater is a Measurement Tool Used By Experts Like Ms. Stricchiola. 2 10. It is very common for expert witnesses to use measurement tools in developing their 3 opinions. One example would be the expert who measures the skid marks on the pavement and then applies 4 her expertise to determine the speed of the vehicle. As Ms. Stricchiola testified, Meltwater is a reliable 5 tool commonly used by persons in her field to research the dissemination of press releases. The results of 6 the measurement, i.e. the numbers of pick-ups of the press releases, is not hearsay; it is the results of the 7 expert’s own personal investigation. Furthermore, Ms. Stricchiola does not rely on the Meltwater Report 8 nor the Trail Runner Report to formulate her opinion, thus Ms. Stricchiola should be allowed to testify as 9 to these figures. (See Stricchiola Decl. ¶7.) 10 D. Even If None Of The Above Arguments Prevail, A Hearsay Exception Applies. 11 11. As argued by Plaintiff last week, Evidence Code section 1340 would apply to the 12 information at issue. 13 12. “Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, 14 register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is 15 generally used and relied upon as accurate in the course of a business as defined in section 1270.” (Evid. 16 Code § 1340.) 17 13. The Meltwater data is just that, a published compilation, albeit published on a website. And 18 as, Ms. Stricchiola has testified, the data from Meltwater is reliable and it (or similar sources) is relied 19 upon in her field. Accordingly, this hearsay exception would apply to the data at issue. 20 14. Defendants’ argue that the evidence proffered has no relevance “given the Court’s ruling 21 on Defendants’ Motion in Limine No. 1” will not stand up to scrutiny, in spite of their attempt to 22 deliberately misconstrue the Court’s ruling by cherry picking which portion they site to support their 23 argument that “the Meltwater Report is irrelevant” – quoting: “The Court held that, for purposes of the 24 liquidated damages provision, “communication” is not “the number of recipients” of a press release.” 25 15. What the Court specifically says at 109:13-20 of Defendants’ Attachment J [Rough 26 Transcript of Trial Management Conference] is that if some third party captured something off of Singer’s 27 website and sent it out, “that would not be a subsequent communication.” This was following the Court 28 stating (109:7-12 of Defendants’ Attachment J) “… if Singer hired these third-party press PR 5 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 companies to disseminate the press release for them knowing that that's what they would do in my 2 mind that's exactly the same as if they did it themselves and each would be a communication.” 3 16. Again, what the Court actually says at 114:7-14 of Defendants’ Attachment J is that what 4 counts as communications is every time Singer “as the agent of defendants … sent it out or someone who 5 he hired to send it out, sent it out.” 6 17. Defendants admit in their Second Supplement (11:1-4) that “evidence … will show that 7 Singer paid PR Newswire to send the Press Release one time to PR Newswire’s subscribers …” 8 The Meltwater Report is relevant to the precise issue of how many subscribers of PRNewswire, 9 and other services, received the Press Release at the direction of Singer as agent for the Defendants. 10 “Where the evidence relates to a critical issue, directly supports an inference relevant to that issue, and 11 other evidence does not as directly support the same inference, the testimony must be received over a 12 section 352 objection absent highly unusual circumstances.” (Kelly v. New West Federal Savings (1996) 13 49 Cal.App.4th 659, 675.) As previously indicated in Plaintiff’s opposition to Defendants’ Motion in 14 Limine No. 1, the jury should hear evidence about the number of recipients of the press release to properly 15 gauge the extent of Defendants’ breach. Absolute data about the number of news organizations to whom 16 the press release was offered to is impossible to obtain as this piece of information is only available to the 17 entity or person that arranged for the publishing of the press release1, namely, Singer Associates, Inc., 18 whom the Defendants hired to publish the two at-issue press releases. Ms. Stricchiola’s opinion as to the 19 number of outlets that picked-up the press release directly supports an inference as to the issue of how 20 many recipients received the two at-issue press releases. Thus, there is no reasonable basis to exclude the 21 research upon which she bases her opinion on as to the number of outlets that received the two at-issue 22 press releases, as it is directly relevant to the issue at hand. As no other evidence can directly support the 23 same inference, Defendants’ Second Supplement must be denied. 24 Lastly, Defendants argue that Plaintiff should not be permitted to introduce the Meltwater Report 25 or Trail Runner Report or X posts—or any of Stricchiola’s other late-produced documents—because 26 27 1 28 Business Wire further confirmed that any data related to the at-issue press release published on August 24, 2021 is no longer available as it is only retained for two (2) years. (See Lam Declaration ¶4.) 6 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 Defendants “did not have their statutorily-required time to analyze, examine, and question the purported 2 expert about the documents” is unfounded and unsupported by any statute or case law, and therefore must 3 be denied. 4 Defendants’ argument that they haven’t had time to analyze the documents is particularly 5 disingenuous given the fact that their own purported expert, Ms. Killeeen, herself ran the same Meltwater 6 Report and has refused to produce it in spite of repeated requests. She did not state it was unreliable. See 7 deposition transcript, Killeen, 40:8-20: 8 Q.ꞏ ꞏThank you.ꞏ Are you familiar with Meltwater? A.ꞏ ꞏYes, I am. 9 Q.ꞏ ꞏWould you agree that they are a reliable source of analytics for tracking publication of news coverage and social media? 10 A.ꞏ ꞏIt's one source. Q.ꞏ ꞏDid you pull a report from Meltwater on these press releases? 11 A.ꞏ ꞏYes, I did. Q.ꞏ ꞏDid you provide that in your disclosure documents? 12 A.ꞏ ꞏNo, I did not, but I will. 13 In Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950, the court determined that 14 the failure to turn over discoverable writings on a specified date is not a violation of § 2034.270 since the 15 reports and writings were not in existence on that date. Defendants’ argument that Ms. Stricchiola’s 16 documents were not produced three court days before the deposition as required by statute and so her 17 testimony must be excluded fails. The report was not completed or shared with Plaintiff’s counsel until 18 the morning of the deposition, and so could not have been previously produced. When questioned by 19 Defendants’ counsel as to when Ms. Stricchiola provided her written report, Ms. Stricchiola testified “This 20 morning moments, I think, before the deposition.” (Kizer Decl., Ex. A, 44:15-14:16.) As Ms. Stricchiola 21 provided her written report at the time when it was completed, she would not have been able to submit 22 her written report at least three court days before the deposition as it was not in existence. Thus, 23 Defendants’ basis for excluding Ms. Stricciola’s testimony fails pursuant to Boston. 24 Defendants also do not identify any particular prejudice from the purported untimely production. 25 All four of the parties’ experts were deposed in the last 10 days, pursuant to dates agreed to by both sides. 26 Both counsel agreed to the timing of the expert witness deposition. During Ms. Stricciola’s 27 deposition, she noticed that there was an oversight made with respect to the documents that she had 28 produced and thus proceeded to rectify the oversight during the lunch break. (Kizer Decl., Ex. A, 105:14- 7 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 105:16.) Thus, Defendants’ Second Supplement must be denied. 2 II. PRAYER 3 WHEREFORE, Plaintiff requests the following: 4 1. That the Court deny the Defendant’s Motion in Limine No. 6 in its entirety and deny all 5 relief requested; 6 2. That the Court deny the Second Supplement in its entirety and deny all relief requested; 7 and 8 3. For such other and further relief as the Court may deem proper. 9 10 Respectfully submitted, 11 JOHNSTON, KINNEY & ZULAICA LLP 12 13 Dated: April 1, 2024 By: John S. Rueppel, Esq. 14 Ann K. Kavanagh, Esq. Angie Lam, Esq. 15 Attorneys for Plaintiff, Lisa Keith 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, CITY AND COUNTY OF NAPA 3 I am employed in the City and County of San Francisco, State of California. I am over the age of 4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP, 101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is 5 carolina@jkzllp.com. 6 On April 1, 2024, I served the foregoing document(s): 7 PLAINTIFF, LISA KEITH’S OPPOSITION TO DEFENDANTS’ SECOND 8 SUPPLEMENT TO MOTION IN LIMINE NO. 6 9 I served the documents on the person or persons listed below as follows: 10 Jeffrey E. Tsai Kathleen S. Kizer 11 DLA PIPER LLP (US) 555 Mission Street, Suite 2400 12 San Francisco, CA 94105 Jeff.tsai@us.dlapiper.com 13 Katy.kizer@us.dlapiper.com Attorneys for Defendants 14 15 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to be electronically transmitted by me to the persons listed in the above email address(es). I did not receive 16 within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is 18 true and correct. 19 20 Executed on April 1, 2024, at Napa, California. 21 22 Carolina Ramos 23 4880-0874-7187, v. 5 24 25 26 27 28 9 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SECOND SUPPLEMENT MOTION IN LIMINE NO. 6