Preview
1 JAMES ROSENFELD (Admitted Pro Hac Vice)
SANJAY M. NANGIA (Bar No. 264986)
2 KELLY M. GORTON (Bar No. 300978)
TIFFANIE DE LA RIVA (Bar No. 309092)
DAVIS WRIGHT TREMAINE LLP ELECTRONICALLY
3
505 Montgomery Street, Suite 800 F I L E D
4 San Francisco, California 94111 Superior Court of California,
County of San Francisco
Telephone: (415) 276-6500
5 Facsimile: (415) 276-6599 04/09/2021
Email: jamesrosenfeld@dwt.com Clerk of the Court
BY: ERNALYN BURA
6 sanjaynangia@dwt.com Deputy Clerk
kellygorton@dwt.com
7 tiffaniedelariva@dwt.com
8 Attorneys for Defendant and Cross-Complainant
TWITCH INTERACTIVE, INC.
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10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
DAVIS WRIGHT TREMAINE LLP
11 IN AND FOR THE COUNTY OF SAN FRANCISCO
12 UNLIMITED JURISDICTION
13
14 JAMES VARGA, Case No. CGC-18-564337
15 Plaintiff, TWITCH INTERACTIVE, INC.’S
OPPOSITION TO PLAINTIFF’S MOTION
16 v. TO EXCLUDE TESTIMONY OF YUSAF
SHIRAZI
17 TWITCH INTERACTIVE, INC. a/k/a
TWITCH.TV, INC., Date: April 12, 2021
18 Time: 3:30 p.m.
Defendant. Dept: 602/604
19 Judge Hon. Curtis E.A. Karnow
20 TWITCH INTERACTIVE, INC., Action Filed: February 14, 2018
ERRONEOUSLY NAMED AS TWITCH Second Am. Cross-X Filed: January 7, 2019
21 INTERACTIVE, INC. a/k/a TWITCH.TV, INC., Trial Date: April 1, 2021
22 Cross-Complainant,
23 v.
24 JAMES VARGA,
25 Cross-Defendant.
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Case No. CGC-18-564337
OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI
1 I. INTRODUCTION
2 Yusaf Shirazi was hired by Twitch Interactive, Inc. (“Twitch”) to review documents
3 VARGA00489 and VARGA00490, which are a recording of Plaintiff James Varga’s $100,000
4 giveaway promotion broadcasted on his Twitch channel on June 25, 2016 (the “Giveaway
5 Video”). Declaration of Yusaf Shirazi (“Shirazi Decl.”), ¶ 4. The Giveaway Video is
6 approximately 29 hours long and shows Varga engaging in a variety of activities. Id. ¶ 7.
7 Shirazi reviewed the entire video and categorized the type of activities Varga engaged in during
8 the Giveaway based on what Shirazi perceived. Id. ¶¶ 6-7.
9 Subsequently, in opposition to Varga’s motion for summary adjudication, Shirazi
10 prepared a declaration summarizing his review of the Giveaway Video. See generally Shirazi
DAVIS WRIGHT TREMAINE LLP
11 Decl. For trial, Twitch disclosed Shirazi as a lay witness and listed the declaration as a trial
12 exhibit. Despite Varga’s contention to the contrary, Shirazi is no expert and at no point will he
13 be providing testimony that requires specialized knowledge. Instead, he will be providing
14 testimony based on his perception and personal knowledge, which is appropriate as fact or lay
15 opinion testimony. Moreover, the declaration is listed as a trial exhibit because if necessary, it
16 may be used to refresh Shirazi’s recollection.
17 Accordingly, Varga’s motion to exclude the testimony of Yusaf Shirazi should be denied.
18 II. ARGUMENT
19 A. Shirazi Is Not An Expert Witness and Is Not Providing an Expert Opinion
20 The California Supreme Court has made clear that “[k]nowledge in a specialized area is
21 what differentiates the expert from a lay witness, and makes his testimony uniquely valuable to
22 the jury in explaining matters ‘beyond the common experience of an ordinary juror.’” People v.
23 Sanchez, 63 Cal. 4th 665, 676 (2016) (citation omitted). See also Cal. Evid. Code § 720 (“A
24 person is qualified to testify as an expert if he has special knowledge, skill, experience, training,
25 or education sufficient to qualify him as an expert on the subject to which his testimony relates.”)
26 (Emphasis added). “By contrast, an expert has traditionally been precluded from relating case-
27 specific facts about which the expert has no independent knowledge. Case-specific facts are
28 those relating to the particular events and participants alleged to have been involved in the case
2 Case No. CGC-18-564337
OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI
1 being tried.” Sanchez, 63 Cal. 4th at 676 (emphasis in original). “Generally, parties try to
2 establish the facts on which their theory of the case depends by calling witnesses with personal
3 knowledge of those case-specific facts.” Id.
4 Here, Shirazi has no specialized knowledge in the subject of this trial. Nor is Shirazi
5 explaining matters beyond the common experience of an ordinary juror or making a
6 determination of what is gaming or nongaming, as Varga contends. Mot. at 5. Rather, Shirazi’s
7 testimony is one that is case specific and based on his personal knowledge because he personally
8 reviewed the nearly 29-hour Giveaway Video that Twitch could not realistically show in its
9 entirety to the jury. Shirazi Decl. ¶¶ 4-7. Based on his review, Shirazi created a breakdown of
10 the video, categorizing it into five concrete categories: playing videogames or showing footage
DAVIS WRIGHT TREMAINE LLP
11 of videogame play; opening cases of CSGO skins; gambling or otherwise engaging with the
12 website CSGOWild; giving away CS:GO skins; and “other.” Id. ¶ 6-7. As Shirazi will testify,
13 and as the category names themselves suggest, the categories are based on Shirazi’s own
14 observation of Varga’s conduct and what was visible on screen in the Giveaway Video, not
15 based on the distinction between gaming and nongaming. It is merely testimony about what is in
16 the video, which does not require an expert. See, e.g., People v. Leon, 61 Cal. 4th 569, 601, 352
17 P.3d 289, 312 (2015) (lay person could opine that the person depicted in a surveillance video
18 recording of a crime was the defendant).
19 Thus, because Shirazi has personal knowledge of case specific facts, not specialized
20 knowledge, Shirazi does not constitute an expert and Twitch was not required to disclose him
21 pursuant to California Civil Procedure § 2034.260.
22 B. To the Extent He is Providing Opinion Testimony at All, Shirazi Is Providing
Proper Lay Opinion Testimony
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24 It is well established that a lay witness may testify to an opinion that is “rationally based
25 on the perception of the witness” and “[h]elpful to a clear understanding of his testimony.” Cal.
26 Evid. Code § 800. “[T]he opinion rule for nonexperts merely requires that witnesses express
27 themselves at the lowest possible level of abstraction.” In re Auto. Antitrust Cases I & II, 1 Cal.
28 App. 5th 127, 146 (2016) (citation omitted) (internal quotation marks omitted). Lay witnesses
3 Case No. CGC-18-564337
OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI
1 have been permitted to opine on a variety of matters: “for example, ‘a lay witness may express
2 an opinion that a person was ‘drunk’…, or that people engaged in a discussion were ‘angry’ …,
3 or that an impact was strong enough to jar a passenger from a seat…, or that someone appeared
4 to be ‘trying to break up a fight.’” Id. at 146. “A trial court has broad discretion to admit lay
5 opinion testimony, especially where adequate cross-examination has been allowed. Id. at 145
6 (citation omitted).
7 As discussed above, the categories created by Shirazi are based on his perception.
8 Further, if it is opinion at all, Shirazi’s categorization will be helpful to understand his testimony
9 because it is a functional way to breakdown the Giveaway Video instead of showing the jury the
10 entire, almost 29-hour video. See In re Auto. Antitrust Cases I & II, 1 Cal. App. 5th at 145-46
DAVIS WRIGHT TREMAINE LLP
11 (testimony that there was consensus at a meeting was proper lay opinion testimony because his
12 opinion was based on personal knowledge and useful for understanding what happened at
13 meeting). Because any opinion rendered by Shirazi satisfies the requirements for lay opinion
14 testimony, Twitch should be permitted to introduce it.
15 C. Shirazi’s Declaration Is Proper and May Be Used to Refresh His Recollection
16 Varga wrongly assumes that Shirazi’s declaration will be submitted into evidence as a
17 business record. See Mot. at 5. To the extent the declaration will be used at trial, it will be to
18 refresh Shirazi’s memory, which is appropriate under the rules of evidence. Indeed, anything
19 can be used to refresh a witness’s memory, even if not admissible or even if hearsay. See People
20 v. Lee, 219 Cal. App. 3d 829, 840 (1990) (“The writing is used by the witness solely to assist him
21 in giving his oral testimony. It has no independent evidentiary value for the party calling him,
22 and is not admissible in evidence at his instance.”); In re Mazuran, 88 Cal. App. 272, 278 (1928)
23 (affidavit used to refresh recollection). Therefore, Varga’s argument that the declaration is
24 “untrustworthy or inadmissible” is irrelevant.
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4 Case No. CGC-18-564337
OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI
1 III. CONCLUSION
2 For all of the foregoing reasons, Twitch respectfully submit that Varga’s motion to
3 exclude the testimony of Yusazf Shirazi should be denied.
4
5 Dated: April 9, 2021 Respectfully Submitted,
6 DAVIS WRIGHT TREMAINE LLP
7
By:
8 James Rosenfeld
9 Attorneys for Defendant and Cross-Complainant
TWITCH INTERACTIVE, INC.
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5 Case No. CGC-18-564337
OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI
1 PROOF OF SERVICE
2 I am a resident of the State of California, over the age of eighteen years, and not a party
3 to the within action. My business address is: Davis Wright Tremaine LLP, 505 Montgomery
4 Street, Suite 800, San Francisco, CA 94111. On the below-mentioned date, I served the within
5 documents:
6 TWITCH INTERACTIVE, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO
EXCLUDE TESTIMONY OF YUSAF SHIRAZI
7
8 FILE& SERVEXPRESS — by electronically serving the document(s) described above via
File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File
9 & ServeXPress website (https://secure.fileandservexpress.com) pursuant to the Court Order
10 James A. Murphy William J. Quinlan
DAVIS WRIGHT TREMAINE LLP
11 Patrick J. Wingfield Eric T. Schmitt
MURPHY PEARSON BRADLEY & THE QUINLAN LAW FIRM, LLC
12 FEENEY, PC. 233 South Wacker Drive, 61st Floor
580 California Street, Suite 1100 Chicago, Illinois 60606
13 San Francisco, CA 94104 Telephone: (312) 629-6022
Telephone: (415) 788-1900 Facsimile: (312) 630-7939
14 Facsimile: (415) 393-8087 Email: wjq@quinlanfirm.com
15 Email: jmurphy@mpbf.com Email: eschmitt@quinlanfirm.com
Email: pwingfield@mpbf.com Counsel for the Plaintiff
16 Counsel for the Plaintiff
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18 I declare under penalty of perjury under the laws of the State of California that the above
19 is true and correct. Executed on April 9, 2021 at San Francisco, California.
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Amanda Henderson
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6 Case No. CGC-18-564337
OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI
Preview
1 JAMES ROSENFELD (Admitted Pro Hac Vice) SANJAY M. NANGIA (Bar No. 264986) 2 KELLY M. GORTON (Bar No. 300978) TIFFANIE DE LA RIVA (Bar No. 309092) DAVIS WRIGHT TREMAINE LLP ELECTRONICALLY 3 505 Montgomery Street, Suite 800 F I L E D 4 San Francisco, California 94111 Superior Court of California, County of San Francisco Telephone: (415) 276-6500 5 Facsimile: (415) 276-6599 04/09/2021 Email: jamesrosenfeld@dwt.com Clerk of the Court BY: ERNALYN BURA 6 sanjaynangia@dwt.com Deputy Clerk kellygorton@dwt.com 7 tiffaniedelariva@dwt.com 8 Attorneys for Defendant and Cross-Complainant TWITCH INTERACTIVE, INC. 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA DAVIS WRIGHT TREMAINE LLP 11 IN AND FOR THE COUNTY OF SAN FRANCISCO 12 UNLIMITED JURISDICTION 13 14 JAMES VARGA, Case No. CGC-18-564337 15 Plaintiff, TWITCH INTERACTIVE, INC.’S OPPOSITION TO PLAINTIFF’S MOTION 16 v. TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 17 TWITCH INTERACTIVE, INC. a/k/a TWITCH.TV, INC., Date: April 12, 2021 18 Time: 3:30 p.m. Defendant. Dept: 602/604 19 Judge Hon. Curtis E.A. Karnow 20 TWITCH INTERACTIVE, INC., Action Filed: February 14, 2018 ERRONEOUSLY NAMED AS TWITCH Second Am. Cross-X Filed: January 7, 2019 21 INTERACTIVE, INC. a/k/a TWITCH.TV, INC., Trial Date: April 1, 2021 22 Cross-Complainant, 23 v. 24 JAMES VARGA, 25 Cross-Defendant. 26 27 28 Case No. CGC-18-564337 OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 1 I. INTRODUCTION 2 Yusaf Shirazi was hired by Twitch Interactive, Inc. (“Twitch”) to review documents 3 VARGA00489 and VARGA00490, which are a recording of Plaintiff James Varga’s $100,000 4 giveaway promotion broadcasted on his Twitch channel on June 25, 2016 (the “Giveaway 5 Video”). Declaration of Yusaf Shirazi (“Shirazi Decl.”), ¶ 4. The Giveaway Video is 6 approximately 29 hours long and shows Varga engaging in a variety of activities. Id. ¶ 7. 7 Shirazi reviewed the entire video and categorized the type of activities Varga engaged in during 8 the Giveaway based on what Shirazi perceived. Id. ¶¶ 6-7. 9 Subsequently, in opposition to Varga’s motion for summary adjudication, Shirazi 10 prepared a declaration summarizing his review of the Giveaway Video. See generally Shirazi DAVIS WRIGHT TREMAINE LLP 11 Decl. For trial, Twitch disclosed Shirazi as a lay witness and listed the declaration as a trial 12 exhibit. Despite Varga’s contention to the contrary, Shirazi is no expert and at no point will he 13 be providing testimony that requires specialized knowledge. Instead, he will be providing 14 testimony based on his perception and personal knowledge, which is appropriate as fact or lay 15 opinion testimony. Moreover, the declaration is listed as a trial exhibit because if necessary, it 16 may be used to refresh Shirazi’s recollection. 17 Accordingly, Varga’s motion to exclude the testimony of Yusaf Shirazi should be denied. 18 II. ARGUMENT 19 A. Shirazi Is Not An Expert Witness and Is Not Providing an Expert Opinion 20 The California Supreme Court has made clear that “[k]nowledge in a specialized area is 21 what differentiates the expert from a lay witness, and makes his testimony uniquely valuable to 22 the jury in explaining matters ‘beyond the common experience of an ordinary juror.’” People v. 23 Sanchez, 63 Cal. 4th 665, 676 (2016) (citation omitted). See also Cal. Evid. Code § 720 (“A 24 person is qualified to testify as an expert if he has special knowledge, skill, experience, training, 25 or education sufficient to qualify him as an expert on the subject to which his testimony relates.”) 26 (Emphasis added). “By contrast, an expert has traditionally been precluded from relating case- 27 specific facts about which the expert has no independent knowledge. Case-specific facts are 28 those relating to the particular events and participants alleged to have been involved in the case 2 Case No. CGC-18-564337 OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 1 being tried.” Sanchez, 63 Cal. 4th at 676 (emphasis in original). “Generally, parties try to 2 establish the facts on which their theory of the case depends by calling witnesses with personal 3 knowledge of those case-specific facts.” Id. 4 Here, Shirazi has no specialized knowledge in the subject of this trial. Nor is Shirazi 5 explaining matters beyond the common experience of an ordinary juror or making a 6 determination of what is gaming or nongaming, as Varga contends. Mot. at 5. Rather, Shirazi’s 7 testimony is one that is case specific and based on his personal knowledge because he personally 8 reviewed the nearly 29-hour Giveaway Video that Twitch could not realistically show in its 9 entirety to the jury. Shirazi Decl. ¶¶ 4-7. Based on his review, Shirazi created a breakdown of 10 the video, categorizing it into five concrete categories: playing videogames or showing footage DAVIS WRIGHT TREMAINE LLP 11 of videogame play; opening cases of CSGO skins; gambling or otherwise engaging with the 12 website CSGOWild; giving away CS:GO skins; and “other.” Id. ¶ 6-7. As Shirazi will testify, 13 and as the category names themselves suggest, the categories are based on Shirazi’s own 14 observation of Varga’s conduct and what was visible on screen in the Giveaway Video, not 15 based on the distinction between gaming and nongaming. It is merely testimony about what is in 16 the video, which does not require an expert. See, e.g., People v. Leon, 61 Cal. 4th 569, 601, 352 17 P.3d 289, 312 (2015) (lay person could opine that the person depicted in a surveillance video 18 recording of a crime was the defendant). 19 Thus, because Shirazi has personal knowledge of case specific facts, not specialized 20 knowledge, Shirazi does not constitute an expert and Twitch was not required to disclose him 21 pursuant to California Civil Procedure § 2034.260. 22 B. To the Extent He is Providing Opinion Testimony at All, Shirazi Is Providing Proper Lay Opinion Testimony 23 24 It is well established that a lay witness may testify to an opinion that is “rationally based 25 on the perception of the witness” and “[h]elpful to a clear understanding of his testimony.” Cal. 26 Evid. Code § 800. “[T]he opinion rule for nonexperts merely requires that witnesses express 27 themselves at the lowest possible level of abstraction.” In re Auto. Antitrust Cases I & II, 1 Cal. 28 App. 5th 127, 146 (2016) (citation omitted) (internal quotation marks omitted). Lay witnesses 3 Case No. CGC-18-564337 OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 1 have been permitted to opine on a variety of matters: “for example, ‘a lay witness may express 2 an opinion that a person was ‘drunk’…, or that people engaged in a discussion were ‘angry’ …, 3 or that an impact was strong enough to jar a passenger from a seat…, or that someone appeared 4 to be ‘trying to break up a fight.’” Id. at 146. “A trial court has broad discretion to admit lay 5 opinion testimony, especially where adequate cross-examination has been allowed. Id. at 145 6 (citation omitted). 7 As discussed above, the categories created by Shirazi are based on his perception. 8 Further, if it is opinion at all, Shirazi’s categorization will be helpful to understand his testimony 9 because it is a functional way to breakdown the Giveaway Video instead of showing the jury the 10 entire, almost 29-hour video. See In re Auto. Antitrust Cases I & II, 1 Cal. App. 5th at 145-46 DAVIS WRIGHT TREMAINE LLP 11 (testimony that there was consensus at a meeting was proper lay opinion testimony because his 12 opinion was based on personal knowledge and useful for understanding what happened at 13 meeting). Because any opinion rendered by Shirazi satisfies the requirements for lay opinion 14 testimony, Twitch should be permitted to introduce it. 15 C. Shirazi’s Declaration Is Proper and May Be Used to Refresh His Recollection 16 Varga wrongly assumes that Shirazi’s declaration will be submitted into evidence as a 17 business record. See Mot. at 5. To the extent the declaration will be used at trial, it will be to 18 refresh Shirazi’s memory, which is appropriate under the rules of evidence. Indeed, anything 19 can be used to refresh a witness’s memory, even if not admissible or even if hearsay. See People 20 v. Lee, 219 Cal. App. 3d 829, 840 (1990) (“The writing is used by the witness solely to assist him 21 in giving his oral testimony. It has no independent evidentiary value for the party calling him, 22 and is not admissible in evidence at his instance.”); In re Mazuran, 88 Cal. App. 272, 278 (1928) 23 (affidavit used to refresh recollection). Therefore, Varga’s argument that the declaration is 24 “untrustworthy or inadmissible” is irrelevant. 25 26 27 28 4 Case No. CGC-18-564337 OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 1 III. CONCLUSION 2 For all of the foregoing reasons, Twitch respectfully submit that Varga’s motion to 3 exclude the testimony of Yusazf Shirazi should be denied. 4 5 Dated: April 9, 2021 Respectfully Submitted, 6 DAVIS WRIGHT TREMAINE LLP 7 By: 8 James Rosenfeld 9 Attorneys for Defendant and Cross-Complainant TWITCH INTERACTIVE, INC. 10 DAVIS WRIGHT TREMAINE LLP 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. CGC-18-564337 OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party 3 to the within action. My business address is: Davis Wright Tremaine LLP, 505 Montgomery 4 Street, Suite 800, San Francisco, CA 94111. On the below-mentioned date, I served the within 5 documents: 6 TWITCH INTERACTIVE, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI 7 8 FILE& SERVEXPRESS — by electronically serving the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File 9 & ServeXPress website (https://secure.fileandservexpress.com) pursuant to the Court Order 10 James A. Murphy William J. Quinlan DAVIS WRIGHT TREMAINE LLP 11 Patrick J. Wingfield Eric T. Schmitt MURPHY PEARSON BRADLEY & THE QUINLAN LAW FIRM, LLC 12 FEENEY, PC. 233 South Wacker Drive, 61st Floor 580 California Street, Suite 1100 Chicago, Illinois 60606 13 San Francisco, CA 94104 Telephone: (312) 629-6022 Telephone: (415) 788-1900 Facsimile: (312) 630-7939 14 Facsimile: (415) 393-8087 Email: wjq@quinlanfirm.com 15 Email: jmurphy@mpbf.com Email: eschmitt@quinlanfirm.com Email: pwingfield@mpbf.com Counsel for the Plaintiff 16 Counsel for the Plaintiff 17 18 I declare under penalty of perjury under the laws of the State of California that the above 19 is true and correct. Executed on April 9, 2021 at San Francisco, California. 20 21 Amanda Henderson 22 23 24 25 26 27 28 6 Case No. CGC-18-564337 OPPOSITION TO PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF YUSAF SHIRAZI