Callaway Wants the ProV1 Jury to Hear the Testimony of Phil Mickelson

•    “I said that I was going to leave [Titleist] to play another golf ball and that I didn’t feel the two balls that Titleist offered, the Professional and Prestige [wound balls], gave me the best opportunity to compete on Tour. I felt like it was hindering my performance relative to other balls out there.” [Mickelson Depo., 56:14-19.]

•    “I could say with 100 percent certainty that I would not have re-signed with Titleist” if Titleist had continued selling only wound golf balls. [Mickelson Depo., 159:2-13.]

As the Court is aware, the balls that PGA Tour professionals play are considered critical to Acushnet’s success – under the “Pyramid of Influence” marketing strategy, those Tour players impact the balls played by club professionals, who
impact the balls played by high-ranking amateur players, who impact the balls played by every-day golfers. Acushnet has stated during this trial that this marketing strategy – and specifically, Acushnet’s focus on maintaining its position as the company played by the majority of players on the professional tour – is critical to Acushnet’s success. Only people at the top of the Pyramid of Influence – the PGA Tour professionals – can testify as to what they would have done had Acushnet actually relied on its “non-infringing alternative.” Amateur golfers, who under Acushnet’s own marketing model typically play what the professionals use, might not have the skill to appreciate the performance differences between the Professional wound ball and the infringing Pro Vl. But Mr. Mickelson was able to appreciate that difference: he had played wound balls for years, and then tried the Callaway Golf Rule 35 ball when it was being developed; he testified that once the Rule 35 was released, he would not have continued playing wound balls. The performance difference was simply too great. This directly rebuts Acushnet’s position that it could have continued selling wound balls, and it is testimony that Callaway Golf can only get through Mr. Mickelson.3

C.    There is no undue prejudice in playing Mr. Mickelson’s deposition

The only factor that the Court cited in its decision to exclude Mr. Mickelson during the first trial was the alleged prejudice caused by his celebrity status. [12/11/2007 Trial Tr. 995:20-23.] But Callaway Golf has agreed not to call Mr. Mickelson live during this trial, and there is no risk that he will be a distraction. Mr. Mickelson is not Tiger Woods – he has not been sensationalized by the media. Jurors may not know Mr. Mickelson, or at most may know him as one of many professional golfers. Acushnet has its own celebrity golfer (Davis Love III) whose testimony Acushnet could use if it so desires. Callaway Golf has even gone so far as to offer to read the deposition testimony of Mr. Mickelson without playing any video. In any event, as described above, any alleged risk of prejudice caused by Mr. Mickelson’s “celebrity” is outweighed by the clear relevance of his testimony – specifically, to rebut positions taken by Acushnet.

D.    The prejudice to Callaway Golf from excluding Mr. Mickelson is manifest

While the prejudice to Acushnet in allowing Mr. Mickelson to testify via deposition is minimal, the prejudice to Callaway Golf if Mr. Mickelson is excluded is substantial. Mr. Mickelson said that he tested the Rule 35 ball before Acushnet released the ProV1. [Mickelson Depo., 67:9-18.] His contract with Acushnet was set to expire at the end of 2000, and he said he informed Acushnet that he would not re-sign his contract unless they released a ball that could match the Rule 35 in terms of performance. [Id. at 56:8-57:19.] His testimony on this point was unequivocal: “I said that I was going to leave to play another golf ball and that I didn’t feel the two balls that Titleist offered, the Professional and Prestige, gave me the best opportunity to compete on tour.” [Id.] After Acushnet allowed Mr. Mickelson to test the ProV1, it informed him that it had decided not to release the ball because it was worried about the impact it would have on its wound ball sales. [Id. at 58:10-59:14.] Mr. Mickelson continued to press Acushnet to release the Pro V1, and after it did so Mr. Mickelson testified that Acushnet’s Vice President of Tour Promotions, Bill Young, personally thanked him for pushing Acushet to release the ball:

A     Well, I remember Bill Young specifically because it would happen every time I’d see him. It would be the opening line of our conversations.
Q     And how would that go?
A     “Thank you.”
Q     That’s it? He just said thank you?
A     No, then I’d go, “Come on.” He says, “Seriously. Thank you. Without you, I don’t know if we would have brought the Pro V1 to market. Without you, we wouldn’t be experiencing our most profitable years ever at Acushnet.”
[Id. at 176:1-20.]

This is critical, relevant testimony from a fact witness who cannot be replaced, and there is no reason for it to be excluded, especially where the alleged undue prejudice to Acushnet is non-existent.
 
II. CONCLUSION

The balancing of factors during this trial is different from anything the Court considered during the first trial. The relevance is more weighty, given Mr. Mickelson’s key testimony concerning Acushnet’s alleged non-infringing alternative. The prejudice is minimal, given that Mr. Mickelson will not appear live. The prejudice to Callaway Golf from excluding this testimony is manifest, as Mr. Mickelson’s testimony cannot be replaced by any other witness. The exclusion of a witness is an extreme sanction that should not be levied under these circumstances. Callaway Golf, therefore, respectfully requests that the Court allow Mr. Mickelson’s testimony to be presented through narrow, focused deposition designations.

Proof that you never know when the things you say and do will end up being important in litigation that doesn’t involve you.