- 1 - RESPONSES TO EVIDENTIARY OBJECTIONS

John Mansfield, OSB No. 055390

john@harrisbricken.com

Megan Vaniman, OSB No. 124845

megan@harrisbricken.com

HARRIS BRICKEN

511 SE 11th Ave., Ste. 201

Portland, OR 97214

503-207-7313

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

DALLAS BUYERS CLUB, LLC,

Plaintiff, 

v. 

JOHN HUSZAR,

Defendant.

Case No.: 3:15-cv-00907-AC

PLAINTIFF’S RESPONSES TO 

DEFENDANT’S EVIDENTIARY 

OBJECTIONS MADE IN REPLY IN 

SUPPORT OF MOTION FOR 

SUMMARY JUDGMENT

Plaintiff responds to Defendant’s evidentiary objections in its Reply ISO Motion for 

Summary Judgment. ECF 146, at p. 9. Defendant objects to the Report of Stephen Bunting 

attached as Exhibit 1 to ECF 145 (the “Bunting Report”) as (1) lacking foundation; (2) hearsay; 

and (3) lacking personal knowledge.

Case 3:15-cv-00907-AC Document 150 Filed 08/28/18 Page 1 of 4
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Defendant’s evidentiary objections are misplaced for several reasons. First, Plaintiff does 

not cite the Bunting Report as substantive evidence of any fact, but presents it to dispute expert 

opinion of Defendant’s expert Dr. Toth. To the extent Defendant relies on Dr. Toth’s report (the 

“Toth Report”) as a basis for a finding of fact, the Bunting Report shows there are disputed 

issues of fact. Second, Defendant’s foundation and personal knowledge objections go to the 

weight of the evidence, not its admissibility. Third, Defendant’s hearsay objection is incorrect 

because Plaintiff is not citing the Bunting Report for the truth of any matter asserted, but to 

counter Defendant’s claim that the Toth Report shows that there is no disputed issue of material 

fact and that Defendant is entitled to judgment as a matter of law.

It is well-established that in ruling on a motion for summary judgment, the Court will 

consider the admissibility of the proffered evidence’s contents, not its form. ECF 41, at p. 3 

(citing Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment 

stage we do not focus on the admissibility of the evidence’s form. We instead focus on the 

admissibility of its content.”); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not 

mean that the nonmoving party must produce evidence in a form that would be admissible at trial 

in order to avoid summary judgment....”)); ECF 48, at pp. 3-4 (quoting Fraser v. Goodale, 342 

F.3d 1032, 1036 (9th Cir. 2003) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). 

Objection Based on Lack of Foundation: Defendant objects to the Bunting Report as 

lacking foundation because (1) “it relies on evidence and documents not included in the report”; 

(2) “was authored to support another case”; and (3) “relies on documents and evidence requested 

in discovery by [Defendant], but not produced by [Plaintiff] prior to the close of discovery.”

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Response: Defendant’s lack of foundation objection is misplaced, because the Bunting

Report is solely intended to present an expert’s opinion. There is no question that the Bunting

Report is admissible to challenge either expert opinion or facts cited in the Toth Report. 

Defendant’s objection might be a basis for arguing against the weight of the opinion if offered at 

trial, but it does not go to its admissibility. 

Objection to the Bunting Report Based on Hearsay: Defendant objects to the Bunting 

Report as hearsay, arguing it “relies upon ... phone conversations from Ben Perino, as the basis 

for the truth of the matter asserted therein, namely that MaverickMonitor system is reliable.” 

ECF 146, at p. 9.

Response: Plaintiff’s hearsay objection relies on the faulty premise that Plaintiff 

introduced the Bunting Report to prove the truth of the matter asserted: that MaverickMonitor 

detects the IP addresses of infringing BitTorrent users correctly, consistently, and reliably. 

Instead, as explained above, Plaintiff presented the Bunting Report as expert opinion

contradicting the opinion of Dr. Toth: “As is often the case, “there is another expert opinion in 

this case, which disputes Dr. Toth’s opinions.” ECF 144, at p. 7. In any event, an expert is 

permitted to rely on hearsay as a basis for expert opinions. Fed. R. Evi. 703. Any objections to 

such reliance go to the weight of the evidence, not its admissibility. 

Objection to the Bunting Report Based on of Personal Knowledge: Defendant claims 

the Bunting Report is inadmissible because it lacks the declarant’s personal knowledge in that 

the Bunting Report “does not provide a computation of the false positive rate of the Maverick 

Monitor system, and therefore Mr. Bunting cannot testify as to that rate.”

Case 3:15-cv-00907-AC Document 150 Filed 08/28/18 Page 3 of 4
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Response: Defendant’s lack of personal knowledge claim is incorrect. Expert witnesses 

may rely on others’ statements, studies, and conclusions in asserting their own opinion. Fed. R. 

Evi. 703. Again, this objection goes to the weight of the evidence, not its admissibility. 

Defendant’s evidentiary objections are not germane to the issue before the Court, which 

is whether a genuine issue of material fact exists. The Court should disregard Defendant’s 

objections.

DATED: August 28, 2018. HARRIS BRICKEN 

By: s/ John Mansfield

John Mansfield, OSB No. 055390

john@harrisbricken.com

Megan Vaniman, OSB No. 124845

megan@harrisbricken.com

511 SE 11th Ave., Ste. 201

Portland, OR 97214

503-207-7313

Attorneys for Plaintiff

Case 3:15-cv-00907-AC Document 150 Filed 08/28/18 Page 4 of 4