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Greatbatch Ltd. v. AVX Corp.

United States District Court, D. Delaware

July 20, 2017




         At Wilmington this 20th day of July, 2017:

         Having reviewed the Joint Proposed Pretrial Order (D.I. 986) ("PTO"), relating to the jury trial scheduled to begin on August 7, 2017, [1]IT IS HEREBY ORDERED that:

         1. Plaintiff Greatbatch Ltd.' s ("Greatbatch" or "Plaintiff) proposed language at pages 3-4 of the PTO is ADOPTED, as is Defendants AVX Corporation and AVX Filters Corporation's ("AVX" or "Defendants") proposed footnote 1, as both proposals accurately reflect statements the Court has previously made about the status of the damages award contained in the jury verdict of January 2016.

         2. When a witness is called to testify by designated deposition testimony, the party calling the witness will provide the Court with three copies of the transcript of the final designations and counter-designations that will be read or played (one for the judge, one for the law clerk, and one for the court reporter). (See PTO at 10)

         3. Provided that a party does nothing that "opens the door" to a Court-imposed remedy, no lawyer will be permitted to testify as a witness at the forthcoming trial and no correspondence written by any trial counsel will be admitted as an exhibit (absent agreement of the parties and/or redactions sufficient to prevent the jury from learning that the document includes the name of any trial counsel), and such exhibits as contained in either party's proposed exhibit list are STRICKEN. (See PTO at 15-16)

         4. Both sides' repeated objections relating to the other side's alleged violations of the Court's limits on the number of motions in limine that may be presented[2] are noted, are likely all meritorious, and are all OVERRULED, as both sides appear equally unwilling to abide by either the letter or the spirit of the Court's limitations.[3]

         5. AVX's request that the Court micromanage which hotel the parties stay at, or which hotel the Clerk's Office finds suitable to accommodate jurors traveling from great distances (see PTO at 17), is DENIED.

         6. Pursuant to 35 U.S.C. § 298, Greatbatch is prohibited from making any reference to or suggestion regarding the failure of AVX to obtain advice of counsel in connection with the '715 and '779 patents before the jury. (PTO at 17)

         7. Both parties are precluded from making any suggestions before the jury concerning the content of material that has been redacted in documents. (PTO at 18)

         8. As the parties have agreed that they wish to have the Court instruct the jury that certain documents were marked as confidential before trial for purposes unrelated to trial, and that the jury should give no consideration to such markings, they shall include such an instruction in the proposed preliminary jury instructions. (PTO at 20)

         9. The juror notebooks should include, in addition to the materials agreed upon by the parties (PTO at 21), a photograph of each witness who will be called to testify at trial, along with space on the page containing the photograph for jurors to mark notes, should they wish to do so.

         10. Greatbatch's motion in limine ("MIL") #1, to preclude AVX from presenting the testimony of Dr. Panlener by deposition (Rule 30(b)(6) or 30(b)(1)), is GRANTED. The Court agrees with Greatbatch that "depriving Greatbatch of a key opportunity to challenge Dr. Panlener's credibility" (PTO Ex. 11 GB Mot. at 1) would be unfairly prejudicial, under the totality of circumstances, including Dr. Panlener's role as an employee and then consultant to AVX, his numerous instances testifying (including as a corporate representative), and representations made as to the termination of his relationship with AVX (which appears to have been related to conduct that may be probative of issues that are the subject of the forthcoming trial). In practical effect, AVX may have "procured" the absence of Dr. Panlener (by terminating its relationship with him after relying on his deposition testimony, and depriving Greatbatch of an opportunity to cross-examine him regarding that termination, and then attempting to rely on Dr. Panlener's necessarily incomplete testimony at trial). See FRCP 32(a)(4)(B) ("A party may use for any purpose the deposition of a witness, ... if the court finds .. .that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition.") (emphasis added). Regardless of whether AVX may fairly be viewed as having "procured" Dr. Panlener's absence, the Court agrees with Greatbatch that "it would be unfair to permit AVX to secure Dr. Panlener's self-serving testimony about, for instance, the purported pin washer changes, and thereafter fire him so that AVX can play his deposition to the jury and avoid the specter of his live testimony." (PTO Ex. 11 GB Mot. at 3) While Greatbatch took extensive deposition testimony from Dr. Panlener (evidently running to four days) (see PTO Ex. 11 AVX Opp. at 3), Greatbatch has had no opportunity to question him regarding his termination, and AVX's position would leave Greatbatch with no fair opportunity to allow the jury to evaluate Dr. Panlener's credibility.

         The Court disagrees with AVX's insistence that it "is entitled to present" Dr. Panlener's deposition testimony at trial (PTO Ex. 11 AVX Opp. at 1) (emphasis added), as Rule 32(a)(4)(B) ("A party may use for any purpose the deposition of a witness . ..") (emphasis added), does not override the Court's discretion to manage the trial in a manner that is fair to both sides and consistent with all other applicable rules. See generally Garcia-Mariinez v. City & Cty. of Denver,392 F.3d 1187, 1191 (10th Cir. 2004) ("Other cases hold that the mere fact that a party is more than 100 miles from the courthouse does not require the district court to automatically admit a ...

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