Upper Deck Erroneously Files Possible Witness List in Blowout Cards Case

Upper Deck Erroneously Files Possible Witness List in Blowout Cards Case

In an amusing side note to the Upper Deck v. Blowout Cards case, Upper Deck erroneously filed its Rule 26(a) disclosures with the court.

Legal translation: Rule 26(a) disclosures name, among other things, witnesses that might know something about the case. They can be viewed as very preliminary witness lists for trial. These documents are normally only exchanged between attorneys on both sides and are not usually filed with the court.

The filing provides an early peek into who Upper Deck believes may have “discoverable information that may use to support its claims or defenses." These people are:

  1. Michael Bernstein, Michael Phillips, Diane Hatley, Christopher Carlin, Jason Maserah and Mark Shaunessy all from Upper Deck,
  2. Thomas Fish from Blowout Cards
  3. Lloyd Kee and Steve Snyder of GTS Distribution,
  4. Brad Wagoner and Chris Austin from Southern Hobby,
  5. Daryl McKay of Sports Images,
  6. Roger Barry from Magazine Exchange,
  7. Angelo Exarhakos of Universal Distribution,
  8. Adam Martin from Dave & Adam's Card World,
  9. Sean Bennett of Pittsburgh Sports Wholesale, and
  10. Mike Calvanico of East Cost Connection.

Not really a surprise, but the list contains a who's who of Upper Deck employees and distributors.

If this case goes to trial, with 17 identified witnesses on antitrust issues, it could be a real snoozer. While most courts do not allow coffee in the courtroom, I'd hope an exception could be made here.

In another recent filing, both sides provided a proposed schedule which proves this case will move at a snail's pace:

Disclosure of Experts: June 29, 2012
Close of Fact Discovery: July 31, 2012
Close of Expert Discovery: October 1, 2012

No chance for a quick trial here. After expert discovery closes in October, summary judgment motions need to be filed (give that about 60-90 additional days) and then ruled on (another 60-90 days). At that point, if the case is still alive, pre-trial documents need to be prepared (30 more days) before things finally get to trial. So, don't expect a trial until summer 2013.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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