Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 1 of 24 Page ID #:77376
`
`
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`James R. Asperger (Bar No. 83188)
`jimasperger@quinnemanuel.com
`Rachael McCracken
`rachaelmccracken@quinnemanuel.com
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017-2543
`Telephone: (213) 443-3000
`Facsimile: (213) 443-3100
`
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`Kevin P.B. Johnson (Bar No. 177129)
`kevinjohnson@quinnemanuel.com
`Todd M. Briggs (Bar No. 209282)
`toddbriggs@quinnemanuel.com
`Brice C. Lynch (Bar No. 288567)
`bricelynch@quinnemanuel.com
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
`
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`Eric Huang (pro hac vice)
`erichuang@quinnemanuel.com
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`Telephone: (212) 849-7000
`Facsimile: (212) 849-7100
`
`Attorneys for Plaintiffs
`
`
`NANTWORKS, LLC and NANT HOLDINGS IP, LLC
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
` CASE NO. 2:20-cv-7872-GW-PVC
`
`PLAINTIFFS’ RESPONSE TO
`DEFENDANTS’ REQUEST FOR
`EVIDENTIARY RULING ON
`SPECIFIC OBJECTIONS
`
`Hon. George H. Wu
`
`Hearing Date: June 20, 2024
`Hearing Time: 8:30 a.m.
`Courtroom: 9D
`
`NANTWORKS, LLC, a Delaware
`limited liability company, and NANT
`HOLDINGS IP, LLC, a Delaware
`limited liability company,
`
`Plaintiffs,
`
`vs.
`
`BANK OF AMERICA
`CORPORATION, a Delaware
`corporation, and BANK OF
`AMERICA, N.A., a national banking
`association,
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`

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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 2 of 24 Page ID #:77377
`
`Plaintiffs submit the following response to Defendants’ “specific objections”
`to the evidence Plaintiffs submitted in support of the Opposition to Defendants’
`Corrected Motion for Summary Judgment as to Plaintiffs’ Breach of Contract Claim
`and Plaintiffs’ Opposition to Defendants’ Consolidated Motion for Partial Summary
`Judgment of Noninfringement and No Willfulness.
`When faced with an objection to evidence on summary judgment, the court
`“does not focus on the admissibility of the evidence’s form” but instead “on the
`admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.
`2003). Thus, “the nonmoving party need not produce evidence in a form that would
`be admissible at trial in order to avoid summary judgment.” Id. (citing Fed. Deposit
`Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (permitting
`consideration of contents in a diary given that they “could be admitted into evidence
`at trial in a variety of ways,” including refreshing recollection or as reading it in as a
`recorded recollection). Because the vast majority of Bank of America’s objections
`relate to the admissibility of the evidence’s form rather than substance, they should
`be rejected.
`Evidence Objected To
`Exhibit N to Declaration of
`Brice Lynch in Support of
`Plaintiffs’ Opposition to
`Defendants’ Corrected
`Motion for Summary
`Judgment as to Plaintiffs’
`Breach of Contract Claim
`(Dkt. 495-14) (not cited in
`Plaintiffs’ Opp’n).
`
`Grounds for Objection
`Lacks Foundation/Authentication (FRE 901 and 902):
`Plaintiffs have not laid a proper foundation for
`admission of the document they claim is a Seeking
`Alpha document purporting to be a transcript of an
`earnings call for Bank of America Corporation on
`April 16, 2019, including establishing its authenticity.
`The document on its face does not appear to be from
`a Seeking Alpha website. There is no indication of
`how the transcript was created or certification by the
`third party the transcription is true and accurate.
`
`
`
`
`
`-1-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 3 of 24 Page ID #:77378
`
` A
`
` party offering documentary evidence may establish
`its foundation by attaching an affidavit by a custodian
`of records or anyone qualified to speak from personal
`knowledge that the documents are what they purport
`to be (e.g., business records). See Orr v. Bank of
`America, NT & SA, 285 F3d 764, 777-778 (9th Cir.
`2002). Plaintiffs did not do that here. The Lynch
`Declaration does not satisfy FRE 602 because Mr.
`Lynch does not have personal knowledge of the
`documentary evidence.
`
`Inadmissible Hearsay (FRE 802): In addition, even if
`authenticated, the document constitutes inadmissible
`hearsay, and plaintiffs have not demonstrated that any
`exception to the rule against hearsay applies.
`“[H]earsay evidence in Rule 56 affidavits is entitled
`to no weight.” Scosche Indus., Inc. v. Visor Gear Inc.,
`121 F3d 675, 681 (9th Cir. 1997); Martin v. John W.
`Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th
`Cir. 1987) (hearsay evidence in depositions or
`discovery materials are not proper items for
`consideration by the court when ruling on a summary
`judgment motion); Macuba v. Deboer, 193 F.3d
`1316, 1322–25, (11th Cir. 1999) (trial court erred by
`considering inadmissible hearsay when deciding a
`motion for summary judgment).
`
`
`
`
`
`-2-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`
`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 4 of 24 Page ID #:77379
`
`
`
`Plaintiffs’ Response
`Exhibit N is the transcript of a Bank of America earnings call from 2019 that
`contains party admissions from Bank of America and was authenticated by its Rule
`30(b)(6) designee. Bank of America objected on authenticity and hearsay grounds.
`Both objections should be denied.
`
`First, to the extent Bank of America contests the authenticity of the earnings call, it
`should produce a version from its files. Bank of America failed to produce a copy
`in discovery despite it being a statement about the cost savings Bank of America
`attributed to mobile check deposit. The same document was introduced as Exhibit
`242 at the deposition of Bank of America’s Rule 30(b)(6) designee, Jeffrey
`Eisenhuth, who did not dispute its authenticity. Eisenhuth Tr. at 161:22-162:2 (“Q:
`Is this the transcript from Bank of America's quarter one 2019 earnings call? …
`THE WITNESS: The heading says that. So I assume it is.”). Critically, Bank of
`America has not actually contested that the contents of the document reflect
`statements made by its executives on its public earnings call. See Hardy v. 3
`Unknown Agents, 690 F. Supp. 2d 1074, 1088 (C.D. Cal. 2010) (noting that courts
`“criticiz[e] authentication objections on summary judgment motions ‘where the
`objecting party does not contest the authenticity of the evidence submitted but
`nevertheless makes an evidentiary objection based on purely procedural grounds.’”)
`(internal citation omitted). Regardless, “transcripts of [a company’s] earnings calls .
`. . are proper subjects of judicial notice.” City of Royal Oak Ret. Sys. v. Juniper
`Networks, Inc., 880 F. Supp. 2d 1045, 1058 (N.D. Cal. 2012); see also Metzler Inv.
`GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1064 n.7 (9th Cir. 2008)
`(holding that it “was proper” for the district court to take judicial notice of publicly
`available financial documents and SEC filings); Waterford Twp. Police v. Mattel,
`
`
`
`
`
`-3-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 5 of 24 Page ID #:77380
`
`Inc., 321 F. Supp. 3d 1133, 1143 (C.D. Cal. 2018), aff'd sub nom. Castro v. Mattel,
`Inc., 794 F. App'x 669 (9th Cir. 2020) (granting request for judicial notice of
`transcripts from earnings calls and SEC filings and noting “[i]t is appropriate for the
`Court to take judicial notice of such documents”); Shenwick v. Twitter, Inc., 282 F.
`Supp. 3d 1115, 1124 (N.D. Cal. 2017) (granting judicial notice of a transcript of
`Twitter’s quarterly earnings call and other publicly available financial documents).
`
`Second, the earnings call transcript qualifies as an admission of a party opponent.
`Fed. R. Evid. 801(d). The transcript clearly attributes statements to Bank of
`America executives, including its Chief Executive Officer and Chief Financial
`Officer. There is also an additional indicia of reliability for the statements in this
`earnings call transcript because Bank of America’s Rule 30(b)(6) designee provided
`testimony that he had no reason to dispute statements therein. Id. at 164:18-20
`(testifying Bank of America sought to make accurate statements to investors),
`166:9-11 (testifying has never seen a retraction or correction from Bank of
`America’s CEO). Given that the contents of the evidence are clearly admissible, the
`court may properly consider it when evaluating a motion for summary judgment.
`See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
`
`Exhibit O to Declaration of
`Brice Lynch in Support of
`Plaintiffs’ Opposition to
`Defendants’ Corrected
`Motion for Summary
`Judgment as to Plaintiffs’
`Breach of Contract Claim
`
`Lacks Foundation/Authentication (FRE 901 and 902):
`Plaintiffs have not laid a proper foundation for
`admission of the document they claim is a Seeking
`Alpha document purporting to be Bank of America
`Corporation’s 2015 Annual Report, including
`establishing its authenticity. There is no indication on
`the face of the document that it was obtained through
`Seeking Alpha. A party offering documentary
`
`
`
`
`
`-4-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
`
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 6 of 24 Page ID #:77381
`
`(Dkt. 495-15) (not cited in
`Plaintiffs’ Opp’n).
`
`evidence may establish its foundation by attaching an
`affidavit by a custodian of records or anyone qualified
`to speak from personal knowledge that the documents
`are what they purport to be (e.g., business records).
`See Orr v. Bank of America, NT & SA, 285 F3d 764,
`777-778 (9th Cir. 2002). Plaintiffs did not do that
`here. The Lynch Declaration does not satisfy FRE
`602 because Mr. Lynch does not have personal
`knowledge of the documentary evidence.
`
`Plaintiffs’ Response
`Exhibit O is Bank of America Corporation’s 2015 Annual Statement. Bank of
`America inexplicably objects to its authenticity despite authenticating testimony
`from its Rule 30(b)(6) designee and claims it is hearsay despite the fact it is its
`annual statement, a party admission.
`
`First, this statement is taken from and available on Bank of America’s own website.
`Annual Reports :: Bank of America Corporation (BAC). This document was
`authenticated at the Rule 30(b)(6) deposition of Bank of America’s designee Jeffrey
`Eisenhuth. Eisenhuth Tr. at 244:5-10 (“Q. Is this Bank of America Corporation's
`2015 annual report? A: Yes. Q: And does Bank of America endeavor to include
`accurate information in its annual report? A. Yes.”). Bank of America failed to
`produce this document in discovery, despite the annual statement addressing cost
`savings to Bank of America due to mobile check deposit. Bank of America should
`not be permitted to assert objections to a public copy of a squarely responsive
`document it failed to produce in discovery. Critically, Bank of America has not
`actually contested that the contents of the document reflect it made publicly to
`investors. See Hardy v. 3 Unknown Agents, 690 F. Supp. 2d 1074, 1088 (C.D. Cal.
`
`
`
`
`
`-5-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 7 of 24 Page ID #:77382
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`2010) (noting that courts “criticiz[e] authentication objections on summary
`judgment motions ‘where the objecting party does not contest the authenticity of the
`evidence submitted but nevertheless makes an evidentiary objection based on purely
`procedural grounds.’”) (internal citation omitted).
`
`Second, an annual statement qualifies as an admission of a party opponent, a public
`record, and a business record of Bank of America. Fed. R. Evid. 801(d), 803(6),
`803(8); Jun Yu v. Idaho State Univ., No. 4:15-CV-00430-REB, 2019 WL 346392, at
`*2 (D. Idaho Jan. 28, 2019) (taking judicial notice of annual financial statements
`“because they are public records not subject to reasonable dispute”); Kim v.
`Scottsdale Ins. Co., No. 221CV02185ODWJPRX, 2022 WL 4290747, at *11 (C.D.
`Cal. Sept. 16, 2022) (“The Annual Statement is a certified public record, readily
`available in the public sphere.”). It also has indicia of reliability from testimony
`affirming the accuracy of statements in its by Bank of America’s Rule 30(b)(6)
`designee. Eisenhuth Tr. at 244:8-10 (“Q: Is this Bank of America Corporation's
`2015 annual report? A: Yes. Q: And does Bank of America endeavor to include
`accurate information in its annual report? A: Yes.”), 245:16-19 (“Is that an accurate
`statement that Bank of America included in its annual report? A: Yes.”), 217:24-
`218:3 (“Q: Has Bank of America corrected any statements made to investors about
`savings due to mobile technologies since the issuance – since this pilot in 2021? …
`A: I'm unaware of them.”). Given that the contents of the evidence are clearly
`admissible, the court may properly consider it when evaluating a motion for
`summary judgment. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
`
`Exhibit P to Declaration of
`Brice Lynch in Support of
`Plaintiffs’ Opposition to
`
`Lacks Foundation/Authentication (FRE 901 and 902):
`Plaintiffs have not laid a proper foundation for
`admission of the document they claim is a Seeking
`
`
`
`
`
`-6-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`

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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 8 of 24 Page ID #:77383
`
`Defendants’ Corrected
`Motion for Summary
`Judgment as to Plaintiffs’
`Breach of Contract Claim
`(Dkt. 495-16) (not cited in
`Plaintiffs’ Opp’n).
`
`Alpha document purporting to be a transcript of an
`earnings call for Bank of America Corporation on
`October 14, 2015, including establishing its
`authenticity. There is no indication of how the
`transcript was created or certification by the third
`party the transcription is true and accurate. The Lynch
`Declaration does not satisfy FRE 602 because Mr.
`Lynch does not have personal knowledge of the
`documentary evidence.
`A party offering documentary evidence may establish
`its foundation by attaching an affidavit by a custodian
`of records or anyone qualified to speak from personal
`knowledge that the documents are what they purport
`to be (e.g., business records). See Orr v. Bank of
`America, NT & SA, 285 F3d 764, 777-778 (9th Cir.
`2002). Plaintiffs did not do that here.
`
`Inadmissible Hearsay (FRE 802): In addition, even if
`authenticated, the document constitutes inadmissible
`hearsay, and plaintiffs have not demonstrated that any
`exception to the rule against hearsay applies.
`“[H]earsay evidence in Rule 56 affidavits is entitled
`to no weight.” Scosche Indus., Inc. v. Visor Gear Inc.,
`121 F3d 675, 681 (9th Cir. 1997); Martin v. John W.
`Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th
`Cir. 1987) (hearsay evidence in depositions or
`discovery materials are not proper items for
`
`
`
`
`
`-7-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 9 of 24 Page ID #:77384
`
`consideration by the court when ruling on a summary
`judgment motion); Macuba v. Deboer, 193 F.3d
`1316, 1322–25, (11th Cir. 1999) (trial court erred by
`considering inadmissible hearsay when deciding a
`motion for summary judgment).
`
`
`Plaintiffs’ Response
`Exhibit P is the transcript of a Bank of America earnings call from 2015 that
`contains party admissions from Bank of America and is from the same website as
`another earnings call transcript that was authenticated by its Rule 30(b)(6) designee.
`Bank of America objected on authenticity and hearsay grounds. Both objections
`should be denied.
`
`First, to the extent Bank of America contests the authenticity of the earnings call, it
`should produce a version from its files. Bank of America failed to produce a copy
`in discovery despite it containing statements about the cost savings Bank of
`America attributed to mobile check deposit. Bank of America’s Rule 30(b)(6)
`designee, Jeffrey Eisenhuth, testified that Bank of America regularly held earnings
`calls, that transcripts were prepared of these calls, and authenticated another
`earnings call transcript (Exhibit N above) from the same website in deposition.
`Eisenhuth Tr. at 166:17-167:4 (“Q: Does Bank of America hold quarterly earnings
`calls? A: Yes. Q: As a senior vice president of Bank of America's finance
`department, are you familiar with quarterly earnings calls? … A: Yes, I'm aware of
`quarterly earnings calls at Bank of America. Q: And are you aware that there are
`transcripts of quarterly earnings calls? A: Yes.”); 161:22-162:2 (“Q: Is this the
`transcript from Bank of America's quarter one 2019 earnings call? … THE
`WITNESS: The heading says that. So I assume it is.”). Critically, Bank of America
`
`
`
`
`
`-8-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`

`
`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 10 of 24 Page ID
`#:77385
`
`has not actually contested that the contents of the document reflect statements made
`by its executives at its public earnings call. See Hardy v. 3 Unknown Agents, 690 F.
`Supp. 2d 1074, 1088 (C.D. Cal. 2010) (noting that courts “criticiz[e] authentication
`objections on summary judgment motions ‘where the objecting party does not
`contest the authenticity of the evidence submitted but nevertheless makes an
`evidentiary objection based on purely procedural grounds.’”) (internal citation
`omitted). Regardless, “transcripts of [a company’s] earnings calls . . . are proper
`subjects of judicial notice.” City of Royal Oak Ret. Sys. v. Juniper Networks, Inc.,
`880 F. Supp. 2d 1045, 1058 (N.D. Cal. 2012); see also Metzler Inv. GMBH v.
`Corinthian Colleges, Inc., 540 F.3d 1049, 1064 n.7 (9th Cir. 2008) (holding that it
`“was proper” for the district court to take judicial notice of publicly available
`financial documents and SEC filings); Waterford Twp. Police v. Mattel, Inc., 321 F.
`Supp. 3d 1133, 1143 (C.D. Cal. 2018), aff'd sub nom. Castro v. Mattel, Inc., 794 F.
`App'x 669 (9th Cir. 2020) (granting request for judicial notice of transcripts from
`earnings calls and SEC filings and noting “[i]t is appropriate for the Court to take
`judicial notice of such documents”); Shenwick v. Twitter, Inc., 282 F. Supp. 3d
`1115, 1124 (N.D. Cal. 2017) (granting judicial notice of a transcript of Twitter’s
`quarterly earnings call and other publicly available financial documents).
`
`Second, the earnings call transcript qualifies as an admission of a party opponent.
`Fed. R. Evid. 801(d). The transcript clearly attributes statements to Bank of
`America executives, including its Chief Executive Officer. There is also an
`additional indicia of reliability for the statements in this earnings call transcript
`because Bank of America’s Rule 30(b)(6) designee provided testimony that he had
`no reason to dispute the accuracy of statements made in earning statements and that
`Bank of America sought to make accurate statements to investors. Id. at 164:18-20
`(testifying Bank of America sought to make accurate statements to investors),
`
`
`
`
`
`-9-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 11 of 24 Page ID
`#:77386
`
`166:9-11 (testifying has never seen a retraction or correction from Bank of
`America’s CEO). Given that the contents of the evidence are clearly admissible, the
`court may properly consider it when evaluating a motion for summary judgment.
`See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
`
`Exhibit Q to Declaration of
`Brice Lynch in Support of
`Plaintiffs’ Opposition to
`Defendants’ Corrected
`Motion for Summary
`Judgment as to Plaintiffs’
`Breach of Contract Claim
`(Dkt. 495-17) (not cited in
`Plaintiffs’ Opp’n).
`
`Lacks Foundation/Authentication (FRE 901 and 902):
`Plaintiffs have not laid a proper foundation for
`admission of the document they claim is a Seeking
`Alpha document purporting to be a transcript of an
`earnings call for Bank of America Corporation on
`October 14, 2015, including establishing its
`authenticity. There is no indication of how the
`transcript was created or certification by the third
`party the transcription is true and accurate. The Lynch
`Declaration does not satisfy FRE 602 because Mr.
`Lynch does not have personal knowledge of the
`documentary evidence.
`A party offering documentary evidence may establish
`its foundation by attaching an affidavit by a custodian
`of records or anyone qualified to speak from personal
`knowledge that the documents are what they purport
`to be (e.g., business records). See Orr v. Bank of
`America, NT & SA, 285 F3d 764, 777-778 (9th Cir.
`2002). Plaintiffs did not do that here. The Lynch
`Declaration does not satisfy FRE 602 because Mr.
`Lynch does not have personal knowledge of the
`documentary evidence.
`
`
`
`
`
`-10-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 12 of 24 Page ID
`#:77387
`
`
`Inadmissible Hearsay (FRE 802): In addition, even if
`authenticated, the document constitutes inadmissible
`hearsay, and plaintiffs have not demonstrated that any
`exception to the rule against hearsay applies.
`“[H]earsay evidence in Rule 56 affidavits is entitled
`to no weight.” Scosche Indus., Inc. v. Visor Gear Inc.,
`121 F3d 675, 681 (9th Cir. 1997); Martin v. John W.
`Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th
`Cir. 1987) (hearsay evidence in depositions or
`discovery materials are not proper items for
`consideration by the court when ruling on a summary
`judgment motion); Macuba v. Deboer, 193 F.3d
`1316, 1322–25, (11th Cir. 1999) (trial court erred by
`considering inadmissible hearsay when deciding a
`motion for summary judgment).
`
`Plaintiffs’ Response
`Exhibit Q is the same earnings call transcript as Exhibit P. NantWorks incorporates
`its response to Bank of America’s objections regarding Exhibit P above.
`
`Exhibit R to Declaration of
`Brice Lynch in Support of
`Plaintiffs’ Opposition to
`Defendants’ Corrected
`Motion for Summary
`Judgment as to Plaintiffs’
`Breach of Contract Claim
`
`Lacks Foundation/Authentication (FRE 901 and 902):
`Plaintiffs have not laid a proper foundation for
`admission of the document they claim is a Seeking
`Alpha document purporting to be a transcript of an
`earnings call for Bank of America Corporation on
`July 18, 2017, including establishing its authenticity.
`There is no indication of how the transcript was
`
`
`
`
`
`-11-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 13 of 24 Page ID
`#:77388
`
`(Dkt. 495-18) (not cited in
`Plaintiffs’ Opp’n).
`
`created or certification by the third party the
`transcription is true and accurate.
`A party offering documentary evidence may establish
`its foundation by attaching an affidavit by a custodian
`of records or anyone qualified to speak from personal
`knowledge that the documents are what they purport
`to be (e.g., business records). See Orr v. Bank of
`America, NT & SA, 285 F3d 764, 777-778 (9th Cir.
`2002). Plaintiffs did not do that here. The Lynch
`Declaration does not satisfy FRE 602 because Mr.
`Lynch does not have personal knowledge of the
`documentary evidence.
`
`Inadmissible Hearsay (FRE 802): In addition, even if
`authenticated, the document constitutes inadmissible
`hearsay, and plaintiffs have not demonstrated that any
`exception to the rule against hearsay applies.
`“[H]earsay evidence in Rule 56 affidavits is entitled
`to no weight.” Scosche Indus., Inc. v. Visor Gear Inc.,
`121 F3d 675, 681 (9th Cir. 1997); Martin v. John W.
`Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th
`Cir. 1987) (hearsay evidence in depositions or
`discovery materials are not proper items for
`consideration by the court when ruling on a summary
`judgment motion); Macuba v. Deboer, 193 F.3d
`1316, 1322–25, (11th Cir. 1999) (trial court erred by
`
`
`
`
`
`-12-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
`OBJECTIONS
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`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 14 of 24 Page ID
`#:77389
`
`considering inadmissible hearsay when deciding a
`motion for summary judgment).
`
`Plaintiffs’ Response
`Exhibit R is the transcript of a Bank of America earnings call from July 18, 2017
`that contains party admissions from Bank of America and is from the same website
`as another earnings call transcript that was authenticated by its Rule 30(b)(6)
`designee. Bank of America objected on authenticity and hearsay grounds. Both
`objections should be denied.
`
`First, to the extent Bank of America contests the authenticity of the earnings call, it
`should produce a version from its files. Bank of America failed to produce a copy
`in discovery despite it being a statement about the cost savings Bank of America
`attributed to mobile check deposit. Bank of America’s Rule 30(b)(6) designee,
`Jeffrey Eisenhuth, testified that Bank of America regularly held earnings calls, that
`transcripts were prepared of these calls, and authenticated another earnings call
`transcript (Exhibit N above) from the same website in deposition. Eisenhuth Tr. at
`166:17-167:4 (“Q: Does Bank of America hold quarterly earnings calls? A: Yes.
`Q: As a senior vice president of Bank of America's finance department, are you
`familiar with quarterly earnings calls? … A: Yes, I'm aware of quarterly earnings
`calls at Bank of America. Q: And are you aware that there are transcripts of
`quarterly earnings calls? A: Yes.”); 161:22-162:2 (“Q: Is this the transcript from
`Bank of America's quarter one 2019 earnings call? … THE WITNESS: The heading
`says that. So I assume it is.”). Critically, Bank of America has not actually
`contested that the contents of the document reflect statements made by its
`executives at its public earnings call. See Hardy v. 3 Unknown Agents, 690 F. Supp.
`2d 1074, 1088 (C.D. Cal. 2010) (noting that courts “criticiz[e] authentication
`objections on summary judgment motions ‘where the objecting party does not
`
`
`
`
`
`-13-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
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`
`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 15 of 24 Page ID
`#:77390
`
`contest the authenticity of the evidence submitted but nevertheless makes an
`evidentiary objection based on purely procedural grounds.’”) (internal citation
`omitted). Regardless, “transcripts of [a company’s] earnings calls . . . are proper
`subjects of judicial notice.” City of Royal Oak Ret. Sys. v. Juniper Networks, Inc.,
`880 F. Supp. 2d 1045, 1058 (N.D. Cal. 2012); see also Metzler Inv. GMBH v.
`Corinthian Colleges, Inc., 540 F.3d 1049, 1064 n.7 (9th Cir. 2008) (holding that it
`“was proper” for the district court to take judicial notice of publicly available
`financial documents and SEC filings); Waterford Twp. Police v. Mattel, Inc., 321 F.
`Supp. 3d 1133, 1143 (C.D. Cal. 2018), aff'd sub nom. Castro v. Mattel, Inc., 794 F.
`App'x 669 (9th Cir. 2020) (granting request for judicial notice of transcripts from
`earnings calls and SEC filings and noting “[i]t is appropriate for the Court to take
`judicial notice of such documents”); Shenwick v. Twitter, Inc., 282 F. Supp. 3d
`1115, 1124 (N.D. Cal. 2017) (granting judicial notice of a transcript of Twitter’s
`quarterly earnings call and other publicly available financial documents).
`
`Second, the earnings call transcript qualifies as an admission of a party opponent.
`Fed. R. Evid. 801(d). The transcript clearly attributes statements to Bank of
`America executives, including its Chief Executive Officer. There is also an
`additional indicia of reliability for the statements in this earnings call transcript
`because Bank of America’s Rule 30(b)(6) designee provided testimony that he had
`no reason to dispute the accuracy of statements made in earning statements and that
`Bank of America sought to make accurate statements to investors. Id. at 164:18-20
`(testifying Bank of America sought to make accurate statements to investors),
`166:9-11 (testifying has never seen a retraction or correction from Bank of
`America’s CEO). Given that the contents of the evidence are clearly admissible, the
`court may properly consider it when evaluating a motion for summary judgment.
`See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
`
`
`
`
`
`-14-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECIFIC
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`

`
`Case 2:20-cv-07872-GW-PVC Document 560 Filed 06/14/24 Page 16 of 24 Page ID
`#:77391
`
`
`Exhibit R to Declaration of
`Brice Lynch in Support of
`Plaintiffs’ Opposition to
`Defendants’ Corrected
`Motion for Summary
`Judgment as to Plaintiffs’
`Breach of Contract Claim
`(Dkt. 495-19) (not cited in
`Plaintiffs’ Opp’n).
`
`Lacks Foundation/Authentication (FRE 901 and 902):
`Plaintiffs have not laid a proper foundation for
`admission of the document they claim is a Seeking
`Alpha document purporting to be a transcript of an
`earnings call for Bank of America Corporation on
`October 13, 2017, including establishing its
`authenticity. There is no indication of how the
`transcript was created or certification by the third
`party the transcription is true and accurate.
`A party offering documentary evidence may establish
`its foundation by attaching an affidavit by a custodian
`of records or anyone qualified to speak from personal
`knowledge that the documents are what they purport
`to be (e.g., business records). See Orr v. Bank of
`America, NT & SA, 285 F3d 764, 777-778 (9th Cir.
`2002). Plaintiffs did not do that here. The Lynch
`Declaration does not satisfy FRE 602 because Mr.
`Lynch does not have personal knowledge of the
`documentary evidence.
`
`Inadmissible Hearsay (FRE 802): In addition, even if
`authenticated, the document constitutes inadmissible
`hearsay, and plaintiffs have not demonstrated that any
`exception
`to
`the rule against hearsay applies.
`“[H]earsay evidence in Rule 56 affidavits is entitled to
`no weight.” Scosche Indus., Inc. v. Visor Gear Inc.,
`
`
`
`
`
`-15-
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ REQUEST FOR EVIDENTIARY RULING ON SPECI