Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 1 of 7 1 2 3 4 5 6 7 8 9 DANIEL M. PETROCELLI (S.B. #97802) dpetrocelli@omm.com DAVID L. KIRMAN (S.B. #235175) dkirman@omm.com O’MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, California 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 JILL A. MARTIN (S.B. #245626) jmartin@trumpmational.com TRUMP NATIONAL GOLF CLUB One Trump National Drive Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 Facsimile: (310) 265-5522 10 Attorneys for Defendant 11 DONALD J. TRUMP 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 16 ART COHEN, Individually and on Behalf of All Others Similarly Situated, 17 18 19 20 Plaintiffs, v. DONALD J. TRUMP, Case No. 13-CV-2519-GPC(WVG) CLASS ACTION OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO ALLOW NONELECTRONIC FILING OF ELECTRONIC EXHIBITS Defendant. 21 22 23 24 25 26 27 28 OPP’N TO PLS’ EX PARTE APPLICATION 13-CV-2519-GPC (WVG) Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 2 of 7 1 Plaintiff’s ex parte application seeks leave from this Court to file video 2 exhibits that are unnecessary, irrelevant, and unjustified. In fact, while plaintiff 3 dedicates a majority of his ex parte application to explaining why he believes he 4 complied with this Court’s e-filing rules when he submitted the video exhibits (as 5 described below, he is wrong), plaintiff dedicates only a few sentences to justify the 6 need for the proffered video exhibits, which are irrelevant to the pending motions. 7 Two of the three video exhibits are duplicative of transcripts plaintiff already filed 8 as documents to support his oppositions, see Dkt. 220, Exs. D (excerpts of Mr. 9 Trump’s deposition transcript), L (transcript of a short promotional video created 10 by TU’s marketing department).1 The third, a video of a former TU instructor 11 presumably promoting his new online business, is unrelated to TU and therefore 12 irrelevant. In fact, plaintiff offers no legitimate reason for seeking submission of 13 these videos, which are clearly intended only to prejudice Mr. Trump. Equally 14 disingenuous are plaintiff’s counsel’s reasons for disregarding the Local Rules by 15 submitting the video files without leave of Court. Any of these reasons warrant 16 denying the ex parte application. 17 I. 18 Plaintiff offers no legitimate reason for the duplicative video exhibits. In his opposition to defendant’s motion for summary judgment, plaintiff 19 submitted written excerpts of Mr. Trump’s deposition. Plaintiff’s ex parte 20 application seeks leave to file duplicate video excerpts because “video (and audio) 21 capture, and reflect, aspects of a witness’s testimony that a paper transcript cannot.” 22 Dkt. 230 at 3. The parties have filed countless critical motions and pleadings in this 23 case and in the Low matter—including motions to dismiss, motions for summary 24 judgment, certification, and decertification, as well as appellate briefing—yet have 25 26 27 28 1 Defendant filmed this video in 2005, when TU was an online educational platform that employed only a handful of instructors. The video was also included in a DVD and audio CD compilation that TU sold as the “Wealth Builder’s Blueprint.” See Dkt. 180, Ex. 45. The video was not originally created for marketing TU live events. OPP’N TO PLS’ EX PARTE APPLICATION 13-CV-2519-GPC (WVG) Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 3 of 7 1 never submitted video transcripts of any deposition. Plaintiff’s sole justification for 2 doing so here is his assertion that the video of Mr. Trump’s deposition contains 3 “many spontaneous and ad hominem remarks that are not reflected in the paper 4 transcript.” Id. Plaintiff’s purported reason for offering the video as an exhibit is 5 wholly insufficient given that a witness’s credibility is irrelevant at summary 6 judgment. See Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1042– 7 43 (9th Cir. 2011) (“The credibility of witnesses is almost categorically a trial 8 issue.”); see also Bauer Bros. LLC v. Nike, Inc., 598 F. App’x 506, 507 (9th Cir. 9 2015) (“Nike’s arguments regarding Luke Bauer’s credibility are appropriately 10 addressed at trial, not on summary judgment.”); Lai Yoong Low v. Tian Yu Inc., 11 2015 WL 1061500, at *9 (S.D.N.Y. Mar. 11, 2015) (“[T]he credibility of witnesses 12 is not appropriately resolved on a motion for summary judgment.”). Plaintiff’s 13 request to use video transcripts is an obvious attempt to prejudice Mr. Trump. The 14 Court should deny leave on this basis alone. 15 The other two video files plaintiff seeks leave to file are similarly irrelevant 16 to the pending motions. Exhibit M is a video of a former TU instructor promoting 17 what appears to be his new business—one called “Webaforce” that has nothing to 18 do with the pending motions or this case. In fact, plaintiff does not even attempt to 19 justify the video’s relevance, noting only that “Exhibit M is a video of Trump 20 University’s top ‘instructor,’ James Harris.” Dkt. 230, at 3. This again, is just 21 another credibility attack by plaintiff’s counsel. The Court should deny plaintiff 22 leave to file Exhibit M given his failure to articulate any relevant reason the video 23 should be admitted. 24 Plaintiff similarly fails to provide any justification for seeking to submit a 25 video of the promotional video (Exhibit L). Plaintiff contends there is “not a more 26 important exhibit in this case,” but fails to explain how the video is necessary in 27 light of plaintiff’s submission of a verbatim written transcript. Dkt. 220-7 at 271 28 (transcript of video). Indeed, given that defendant filmed this video years before a -2- OPP’N TO PLS’ EX PARTE APPLICATION 13-CV-2519-GPC (WVG) D Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 4 of 7 1 TU live event, it has minimal, if any, relevance at all. In any event, as with the 2 deposition transcript, there is no added relevance or value in submitting a video that 3 has already been transcribed as an exhibit and block quoted in the body of 4 plaintiff’s brief in opposition to summary judgment. See Dkt. 220 at 4-5. It is 5 undisputed that the sole relevance of the promotional video is its inclusion of the 6 alleged misrepresentations; this is not a case where events only visible on camera 7 make the visual elements of the video independently relevant to the Court’s 8 analysis of the pending motions. And the content of the speech in the video is just 9 as easily presented—in fact, more so—in the transcription already provided in 10 plaintiff’s brief. 11 If the parties were to follow plaintiff’s suggested practice of providing 12 duplicative videos with their briefs, the Court would have to review those videos 13 and defendant would need to lodge numerous video excerpts with the Court to 14 support his pending motions, including, for example, the video depositions of Tarla 15 Makaeff, Sonny Low, Amy H., and other deponents whose testimony supports 16 defendant’s positions and whose credibility could be called into question based on 17 their demeanor in the video. Defendant has not done so, of course, because—like 18 Mr. Trump’s deposition and the promotional video—the relevance of these videos 19 is limited to what they say, not what they show. As a result, admission of these 20 exhibits could necessitate defendant to respond in kind with similar videos, all of 21 which will result in many inefficiencies and will make the record unnecessarily 22 unmanageable. Given plaintiff’s failure to offer a legitimate basis for these videos, 23 Defendant respectfully requests that the Court deny plaintiff’s ex parte application. 24 II. 25 26 27 28 Plaintiff’s failure to comply with the e-filing rules of this Court provides an additional basis to deny the ex parte application. As the Court observed in its order rejecting plaintiff’s submission, the parties have consistently sought leave before filing video exhibits both in this case and in the Low matter. Dkt. 220; see also Dkt. 35; Low Dkts. 118, 135, 299. Plaintiff’s -3- OPP’N TO PLS’ EX PARTE APPLICATION 13-CV-2519-GPC (WVG) D Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 5 of 7 1 counsel knew this too: at 5:45 p.m. on the night the parties were filing numerous 2 briefs (June 3, 2016), plaintiff’s counsel asked defense counsel whether they were 3 willing to file a joint motion requesting the Court’s permission to file the video 4 exhibits. Defense counsel declined. Rather than file a motion seeking the Court’s 5 permission, plaintiff’s counsel lodged the videos with the Court in violation of the 6 Local Rules2 and Section 2.k of the District’s E-filing Manual.3 Plaintiff’s failure 7 to comply with the local rules provide an additional basis to deny his ex parte 8 application. See S.D. Cal. L.R. 83.1 (failure of counsel to comply with the Local 9 Rules “may be grounds for imposition by the court of any and all sanctions 10 authorized by statute or rule or within the inherent power of the court”); Rush v. 11 Islands Restaurants, LP, 2012 WL 4849016, at *1 (S.D. Cal. Oct. 11, 2012) (“The 12 Court can properly strike documents filed in violation of local rules.”); see also 13 Webb v. City & Cnty. of San Francisco, 2011 WL 6151605, at *1 (N.D. Cal. Dec. 14 12, 2011) (striking filing based on noncompliance with the Local Rules); Sial v. 15 Prof’l Collection Consultants, 2008 WL 2415037, at *3 (C.D. Cal. June 12, 2008) 16 (denying requested relief for failing to comply with Local Rules). 17 2 18 19 20 21 22 23 24 25 26 27 28 The Local Rules clearly provide that all documents (including exhibits), must be formatted and paginated consistent with Local Rule 5.1. See S.D. Cal. L.R. 5.1(a). “Unless a waiver is first obtained from the court, the clerk must not file any document which does not comply with the requirements of these rules. Said document will be endorsed ‘lodged’ until approved by the court.” S.D. Cal. L.R. 5.1(f) (emphasis added). 3 Section 2.k of the Manual provides, “A party may seek leave of the court to allow the non-electronic filing of exhibits when they are not convertible to electronic form.” Plaintiff contents that “he did not fail to comply with this section because it does not apply to Exhibits D, L, and M,” which are electronic video files and therefore not exhibits “not convertible to electronic form.” Dkt. 230 at 1–2. Specifically, plaintiff asserts that “Section 2.k. of the Manual could have easily required leave of Court for filing all non-pdf exhibits, but it does not.” Id. at 2. Plaintiff is wrong. Section 1.d of the Manual clearly requires .pdf files to be uploaded for any and every “electronic filing.” Under this definition, plaintiff’s video exhibits are “not convertible” to the only “electronic form” the Southern District permits for electronic filings. See Manual §§ 1.d, 2.k. -4- OPP’N TO PLS’ EX PARTE APPLICATION 13-CV-2519-GPC (WVG) D Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 6 of 7 1 2 Dated: June 13, 2016 O’MELVENY & MYERS LLP DANIEL M. PETROCELLI DAVID L. KIRMAN 3 4 By: 5 Attorneys for Defendant DONALD J. TRUMP 6 /s/Daniel M. Petrocelli 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- OPP’N TO PLS’ EX PARTE APPLICATION 13-CV-2519-GPC (WVG) D Case 3:13-cv-02519-GPC-WVG Document 235 Filed 06/13/16 Page 7 of 7 1 2 CERTIFICATE OF SERVICE I hereby certify that on June 13, 2016, I caused the foregoing to be electronically 3 filed with the clerk of the court using the CM/ECF system which will send notification of 4 such filing to the e-mail addresses denoted on the electronic Mail Notice List. 5 I certify under penalty of perjury under the laws of the United States of America 6 that the foregoing is true and correct. 7 Executed on June 13, 2016, at Los Angeles, California 8 9 10 11 /s/Daniel M. Petrocelli DANIEL M. PETROCELLI 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE CASE NUMBER:13-CV-2519-GPC(WVG)